TC Ord. No. 2009-11 Deed of Conservation Easement July 28, 2009 Approving and Accepting Mountain StarTOWN OF AVON
ORDINANCE NO. 09 -11
SERIES OF 2009
AN ORDINANCE APPROVING AND ACCEPTING THE
MOUNTAIN STAR CONSERVATION EASEMENT
WHEREAS, the Town of Avon ( "Town ") previously accepted a conservation easement
( "Original Conservation Easement ") granted by Mountain Star Limited Liability Company, a
Wyoming limited liability company, dated April 1, 1995, recorded with the Eagle County Clerk
and Recorder at Book 636, Page 287, and re- recorded at Book 656, Page 841; and
WHEREAS, the Original Conservation Easement erroneously included Tract Y, Second
Amendment, Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and
Recorder, Colorado in Book 670, Page 990 ( "Tract Y "), and Tract AA, Second Amendment,
Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and Recorder,
Colorado in Book 670, Page 990 ( "Tract AA "); and
WHEREAS, the parties to the Original Conservation Easement desire to correct the erroneous
description of the easement area by vacating and terminating the Original Conservation
Easement and executing the conservation easement attached hereto as Exhibit A: Deed of
Conservation Easement ( "Easement "); and
WHEREAS, Section 18.4 of the Avon Home Rule Charter provides that the Town Council may
accept gifts and donations; and
WHEREAS, a public hearing was conducted in accordance with Section 6.5(d) of the Avon
Home Rule Charter; and
WHEREAS, the Town Council conducted a public hearing on July 28, 2009 and considered all
comments prior to considering final adoption of this ordinance; and
WHEREAS, the Town Council finds that accepting the Easement will promote Goal H.1 of the
Town of Avon Comprehensive Plan and will thereby promote the health, safety and general
welfare of the Avon community; and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a
public hearing in order to provide the public an opportunity to present testimony and evidence
regarding the application and that approval of this Ordinance on first reading does not constitute
a representation that the Town Council, or any member of the Town Council, supports, approves,
rejects, or denies this ordinance;
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF AVON HEREBY
ORDAINS:
SECTION 1. CONSERVATION EASEMENT ACCEPTED. The Town Council hereby authorizes and
approves execution and acceptance of the Easement.
Ord. No. 09 -11
Town of Avon
Page 1 of 3
SECTION 2. Mayor and Town Clerk Authorization. The Mayor and Town Clerk are hereby
authorized to execute and sign the conservation easement in the form attached hereto as Exhibit
A: Deed of Conservation Easement and take such other actions as may be necessary or implied
to implement the provisions of this Ordinance.
SECTION 3. SEVERABILITY. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term "provision" means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term "application" means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect seven days after public notice
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
SECTION 5. SAFETY CLAUSE. The Town Council hereby finds, determines and declares that
this Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
SECTION 6. PUBLICATION BY POSTING. The Town Clerk is ordered to publish this Ordinance
by posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the
Town Clerk during normal business hours.
[remainder of page intentional left blank — signature page follows]
Ord. No. 09 -11
Town of Avon
Page 2 of 3
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for 5:30 p.m. on
the 281h day of July, 2009, at the Council Chambers of the Avon Municipal Building, located at
One Benchmark Road, Avon, Colorado, on the 1 tea of July, 200'.
r'
Ronald C. Wolfe, Mayor C
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least seven days prior to final action by the Town Council.
ATTEST: APPROVED AS TO FORM:
txatty,Ackenny, Town Clerk Eric Heil, Town Attorney
'ED, FINA4IX-- APPROVED, AND PASSED ON SECOND READING, AND
PUBLISHED BY POSTING on the 281h day of July, 2009.
Ronald C. Wolfe, Mayor
Published by posting by title in at least three public places in Town and posting by title at the
office of the Town Clerk.
Ord. No. 09 -11
Town of Avon
Page 3 of 3
EXHIBIT A: DEED OF CONSERVATION EASEMENT
DEED OF CONSERVATION EASEMENT
THIS DEED OF CONSERVATION EASEMENT (this "Easement ") is entered into by
and between Mountain Star Association, a Colorado non - profit corporation ( "Grantor "), and the
To n of Avon, a Colorado home rule municipality ( "Grantee ") this 2.$ day of
2009, and amends and restates that certain Conservation Easement, dated
Feb 25, 1994, and recorded in the Office of the Eagle County Clerk and Recorder,
Coloiaieo, at Reception Number 532340, Book 636, Page 287 (pages 1 through 7) (the "Original
Conservation Easement ").
WITNESSETH:
WHEREAS, Mountain Star Limited Liability Company, a Wyoming limited liability company
(the "Original Grantor "), and Grantee previously entered into the original conservation easement
granting a conservation easement (the "Original Conservation Easement') to Grantee. By
instrument dated April 1, 1995, Grantor accepted and assumed all rights and obligations of the
Original Grantor arising under the Original Conservation Easement;
WHEREAS, Exhibit B to the Original Conservation Easement was intended to specifically
describe and locate areas within the Property within which Harrington penstemon were known to
exist or where the plant could be expected to exist, it did so in inadequate general terms such that
the exhibit could not be used to actually bound an actual conservation area within the broad
region defined in Exhibit A as "The Property Subject to this Conservation Easement." Exhibit
A to the Original Conservation Easement can also be erroneously interpreted as being the
conservation area rather than a region within which the inadequately defined areas of Exhibit B
are contained. Consequently, two tracks of land were inadvertently subject to being interpreted
as being included in the defmition of Easement Area, such tracks being (a) Tract Y, Second
Amendment, Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and
Recorder, Colorado in Book 670, Page 990 ( "Tract Y "), and (b) Tract AA, Second Amendment,
Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and Recorder,
Colorado in Book 670, Page 990 ( "Tract AA "). Grantor and Grantee desire to correct such
inadvertent inclusion and to exclude Tract Y and Tract AA from inclusion and coverage within
the terms of the Original Conservation Easement and to correct the inadequately defined habitat
by redefining the Conservation Easement area as being the entire redefined Property; and
WHEREAS, in addition to Grantor and Grantee, all current owners of the real property which is
subject the Original Conservation Easement (the "Owners ") are signatories to this Easement,
thereby consenting to and authorizing this Easement as amending and wholly restating the
Original Conservation Easement so as to exclude Tract Y and the Tract AA and to continue the
protections of populations of Harrington penstemon (Penstemon harringtonii), which is not a
federally listed threatened or endangered species but which is listed as a U.S. Forest Service
Region 2 sensitive species, under certain revised terms and conditions as set forth in this
Easement; and
Page 1 of 13
Mountain Star Conservation Easement 7 -23 -09
EXHIBIT A: DEED OF CONSERVATION EASEMENT
WHEREAS, Grantor, Grantee and the undersigned Owners desire to vacate, terminate and
extinguish the Original Conservation Easement and to adopt this Deed of Conservation Easement
to fully replace the Original Conservation Easement.
NOW THEREFORE, in consideration of the above and the mutual covenants, terms,
conditions, and restrictions contained here, pursuant to the laws of Colorado and in particular
Colorado Revised Statutes §38- 30.5 -101, et.seq., Grantor and the Owners hereby voluntarily
convey to Grantee a Conservation Easement in Gross (the "Easement') consisting of rights
hereinafter enumerated, over and across that certain real property, situated in Eagle County
Colorado, more particularly described on Exhibit A (the "Easement Area "), and grants title to the
same, subject to the terms and conditions set forth herein.
1. Purpose. It is the purpose of this Easement to maintain, preserve, protect and enhance
the existing populations of Harrington penstemon in the Easement Area.
2. Vacation and Termination of Original Conservation Easement. Grantor and Grantee
hereby fully and absolutely vacate, terminate, extinguish, release and quit claim to each
other all rights and interest in the Original Conservation Easement such that the Original
Conservation Easement is hereby null and void and of no further force or effect.
3. Affirmative Rights Conveyed. The affirmative rights conveyed by this Easement to the
Grantee are the following:
(a) To preserve and protect the species the Harrington penstemon so long as the species
remains listed as a U.S. Forest Service Region 2 sensitive species, or a U.S. Fish and
Wildlife Service Category II plant, or is reclassified as a federally threatened or
endangered species under the provisions of the Endangered Species Act.
(b) To enter upon the property to inspect and to enforce the rights herein granted in a manner
that will not unreasonably interfere with the proper uses being made of the Property at the
time of such entry.
(c) Except as expressly provided in this Easement, Grantor retains exclusive access to and
use of the Property.
4. Permitted Uses and Practices. This Easement shall confine and restrict the future use
of the Easement Area to non - development uses such as open space, preservation of
wildlife habitat, hiking and other pedestrian, non - motorized recreational uses. The
following uses and practices permitted under this Easement are not precluded, prevented
or limited by this Easement:
(a) Maintenance and repair of existing fences, trails and other improvements. In the event of
destruction, deterioration or obsolescence of any said fences, trails or related
improvements, Grantor may replace the same with improvements of similar size,
function, capacity and location.
Page 2 of 13
Mountain Star Conservation Easement 7 -23 -09
EXHIBIT A: DEED OF CONSERVATION EASEMENT
(b) Operation of maintenance of Buck Creek Road.
(c) Utilize the Easement Area for hiking and other dispersed non - motorized recreational uses
by Grantor, its successors, invitees and assigns, provided such use is confined to
established, mapped and maintained trails or future trails as indentified on the attached
Exhibit B Future Trails.
5. Prohibited Uses and Practices. The following uses and practices are inconsistent with
the purposes of this Easement and shall be prohibited upon or within the Easement Area:
(a) The change, disturbance, alteration, or impairment of Harrington penstemon within the
Easement Area without prescribed mitigation as described in Section 6 below.
(b) The construction of permanent structures other than the Buck Creek Road.
(c) The construction of new trails in addition to those depicted in the baseline survey, except
for those trails identified on the attached Exhibit B Future Trails.
(d) The hardening of existing trails with impermeable and /or non - native natural materials.
(e) Hunting, cross country skiing, horseback riding, mountain biking, motor bikes, snow
mobiles and all other motorized uses.
6. Mitigation Practices. If any proposed activity within the Easement Area may change,
disturb, alter, impair or otherwise damage the Harrington penstemon, avoidance shall be
the preferred form of mitigation. Other mitigation may include collection seeds and
redistribution in appropriate habitat and /or relocating plants to appropriate habitat when
and if encountered across the entire newly defined Easement Area during any new or
changed permitted use. Other than activities expressly permitted per Section 4 above,
activities which may change, disturb, alter, impair otherwise damage the Harrington
penstemon shall not commence without prior written approval of the Grantee.
7. Enforcement Rights of Grantee and Restoration. The Grantee shall have the
following rights:
(a) Upon the violation of any term, condition, covenant, or restriction contained in this
Easement, after notice of violation to the Grantor and providing a reasonable opportunity
to cure such violation (which in no case shall exceed a total of three hundred sixty five
(365) days), the Grantee may institute a suit to enjoin by temporary and /or permanent
injunction such violation, or may take such other lawful action, excluding claims for
damages as it deems necessary to ensure compliance with the terms, conditions,
covenants and purposes of this Easement; provided, however, that any failure to so act by
the Grantee shall not be deemed to be a waiver or a forfeiture of the right to enforce any
term, condition, covenant or purpose of this Easement in the future.
Page 3 of 13
Mountain Star Conservation Easement 7 -23 -09
EXHIBIT A: DEED OF CONSERVATION EASEMENT
(b) Should a court of competent jurisdiction determine that any prohibited activity be
undertaken on the Property, the Grantee shall have the right to cause the restoration of the
Property affected by such activity to the condition that existed prior to the undertaking of
such prohibited activity. In such case, the cost of such restoration shall be borne by the
Grantor, its successors or assigns. Notwithstanding the foregoing, if the Grantee
discovers or objects to any action taken by the Grantor more than three years after such
prohibited activity takes place, the Grantor shall not be held financially responsible for
restoring the Property to its original condition.
(c) Nothing contained herein shall be construed to preclude the Grantor from exhausting its
legal remedies in determining whether that proposed activity to which the Grantee has
objected it consistent with this Easement.
8. Costs and Taxes. Grantor agrees to bear all costs of operation, upkeep and maintenance
of the Easement Area and Grantee shall have no obligation therefore. In addition,
Grantor agrees to pay any and all real property taxes and assessments levied by
competent authority on the Property or on this Easement.
9. Access. Nothing contained herein shall be construed as affording the general public
physical access to any portion of the Property subject to this Easement. Nothing in this
Easement shall be construed to preclude Grantor's right to grant access to third parties
across the property, provided that such access is allowed in a reasonable manner that is
consistent with the purposes of this Easement. Nothing contained herein shall be deemed
to be a gift or dedication of all or any portion of the Property to or for the general public,
or for any public use or purpose whatsoever; it being the express intention and
understanding of the Grantor and Grantee that this Agreement shall be strictly limited to
and for the purposes herein expressed, solely for the parties hereto, their successors and
assigns.
10. Assignment of Grantee's Interest. The parties covenant and agree that the Grantee may
transfer its interest in this easement only to a "qualified organization," within the
meaning of Section 170(h) of the Internal Revenue Code or any subsequent legislation;
provided, however, that the Grantee, as a condition of such transfer, shall expressly
require that the transferee covenant to continue to carry out the conservation purposes
which this Easement was intended to advance.
11. Term of Easement Grant. The Easement herein granted shall be a burden upon and
shall run with the Property so long as Harrington penstemon is listed as a U.S. Forest
Service Region 2 sensitive species, or a U.S. Fish and Wildlife Service Category II plant,
or is reclassified as a federally threatened or endangered species under the provisions of
the Endangered Species Act. In the event the Harrington penstemon is removed from the
U.S. Forest Service Region 2 sensitive species list and the U.S. Fish and Wildlife Service
Category II list, and is not listed as a federally threatened or endangered species under the
provisions of the Endangered Species Act, then this Easement shall automatically
Page 4 of 13
Mountain Star Conservation Easement 7 -23 -09
EXHIBIT A: DEED OF CONSERVATION EASEMENT
terminate and all rights, grants, obligations and conditions of this easement shall cease
and terminate, with or without notice from the Grantee, and the Grantor shall hold the
Property, as the same may then be, free from the rights granted herein.
12. Notices. Any notice, demand, request, consent, approval or communication that either
party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantor: Mountain Star Association
c/o East West Resorts LLC
P.O. Box 5480
Avon, CO 81620
To Grantee: Town of Avon
P.O. Box 975
Avon, CO 81620
13. Recordation. Grantee shall record this instrument in a timely fashion in the official
records of Eagle County, Colorado, and may re- record it at any time as may be required
to preserve its rights in this Easement.
14. Miscellaneous.
(a) The terms "Grantor" and "Grantee," whenever used herein, and any pronouns used in
place thereof, shall mean and include the above named Grantor and its successors and
assigns and the above named Grantee and its successors and assigns.
(b) If any provisions of this Easement or the application thereof to any person or
circumstance is found to be invalid, the remainder of the provisions of this Deed of
Conservation Easement and the application of such provisions to persons of
circumstances other than those as to which it is found to be invalid, shall not be affected
thereby.
(c) The Grantor and the Owners shall use reasonable effort to make reference to this
Easement and in any subsequent deed, or other legal instrument, by means of which it
conveys any interest in the real property subject to this Easement (including a leasehold
interest) and to attach a copy of this Deed of Conservation Easement thereto.
(d) This Easement may be executed in counterparts which, when taken together, shall
constitute a binding instrument subjecting the Easement Area to this Easement.
[signature pages follow]
Page 5 of 13
Mountain Star Conservation Easement 7 -23 -09
EXHIBIT A: DEED OF CONSERVATION EASEMENT
In WITNESS WHEREOF, the Grantor has executed this Deed of Conservation
Easement on the date and year first written above.
GRANTOR AND OWNER OF TRACTS BB, V, W, X AND Z:
Mountain Star Association, Colorado nonprofit corporation
By:_
Title:
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
Date
The foregoing instrument was acknowledged before me this day of
200_ by as of Mountain Star
Association, a Colorado nonprofit corporation.
My commission expires:
Page 6 of 13
Mountain Star Conservation Easement 7 -23 -09
Witness my hand and official seal.
Notary Public
EXHIBIT A: DEED OF CONSERVATION EASEMENT
GRANTEE AND OWNER OF TRACT AA:
Town of Avon Colorado
By: j �
Ron C. Wolfe, Mayor Date
Attest
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
II a3 /09
Approved
as to form:
..' ! �." - ai��
Eric-ffffeil, Town Attorney
The foregoing instrument was acknowledged before me this #*16 day of
2001 by Ron C. Wolfe as Mayor and Patty McKenny as Town Clerk
of th own of Avon, Colorado.
My commission expires: jo- 03jjoia..
Page 7 of 13
Mountain Star Conservation Easement 7 -23 -09
Witness my hand and official seal.
Nothr#ublic
T'
EXHIBIT A: DEED OF CONSERVATION EASEMENT
OWNER OF TRACT Y:
TCL Avon LLC, Colorado limited liability company
By:_
Title:
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
Date
The foregoing instrument was acknowledged before me this day of
200_ by as
LLC, a Colorado limited liability company.
My commission expires:
Page 8 of 13
Mountain Star Conservation Easement 7 -23 -09
Witness my hand and official seal.
Notary Public
of TCL Avon,
EXHIBIT A: DEED OF CONSERVATION EASEMENT
OWNER OF LOT 89:
Jane Huffeldt
Date
Per Huffeldt Date
STATE OF }
} ss
COUNTY OF }
The foregoing instrument was acknowledged before me this day of ,
200_ by Jane Huffeldt and Per Huffeldt.
My commission expires: Witness my hand and official seal.
Notary Public
Page 9 of 13
Mountain Star Conservation Easement 7 -23 -09
EXHIBIT A: DEED OF CONSERVATION EASEMENT
OWNER OF LOT 90:
Stephen D. Johnson
STATE OF
ss
COUNTY OF
Date
The foregoing instrument was acknowledged before me this day of
200_ by Stephen D. Johnson.
My commission expires: Witness my hand and official seal.
Notary Public
Page 10 of 13
Mountain Star Conservation Easement 7 -23 -09
EXHIBIT A: DEED OF CONSERVATION EASEMENT
OWNER OF LOT 91:
Paul A. Becker
Date
Jayne W. Becker Date
STATE OF
} ss
COUNTY OF }
The foregoing instrument was acknowledged before me this day of
200_ by Paul A. Becker and Jayne W. Becker.
My commission expires: Witness my hand and official seal.
Notary
Page 11 of 13
Mountain Star Conservation Easement 7 -23 -09
Public
EXHIBIT A: DEED OF CONSERVATION EASEMENT
EXHIBIT A
Legal Description of Easement Area
Tract X, Tract W, Tract Z, Lot 89 & Lot 90, Mountain Star Filing No. 2, according to the
plat recorded on May 4, 1994, in Book 639 at Page 487, County of Eagle, State of
Colorado.
Lot 91, Mountain Star Filing No 2, First Amendment, according to the Plat recorded
February 22, 1995, in Book 661 at Page 913, County of Eagle, State of Colorado.
Tract V, Mountain Star Filing No 2, Second Amendment, according to the Plat recorded
July 7, 1995, in Book 670 at Page 989, County of Eagle, State of Colorado.
Tract BB, Mountain Star Filing No. 3, according to the plat recorded on January 23,
1997, in Book 717 at Page 2, County of Eagle, State of Colorado.
Graphic Illustration of Easement Area
Page 12 of 13
Mountain Star Conservation Easement 7 -23 -09
EXHIBIT A: DEED OF CONSERVATION EASEMENT
EXHIBIT B: FUTURE TRAILS
Page 13 of 13
Mountain Star Conservation Easement 7 -23 -09
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WIDNER MICHOW & COk
ATTORNEYS AT LAV:
TO: Honorable Mayor Wolfe and Town Council members
CC: Larry Brooks, Town Manager
FROM: Eric Heil, Town Attorney
DATE: July 9, 2009
SUBJECT: Mountain Star Conservation Easement
Summary: Mountain Star, LLC granted a conservation easement ( "Original Conservation
Easement ") to the Town of Avon in 1994, then conveyed Tract AA to the Town in 1995 for
municipal purposes. The Original Conservation Easement erroneously included Tract AA. Due
to the restrictions on use of lands subject to the Original Conservation Easement, the Town
desires to amend the described easement area to exclude Tract AA. The method of
accomplishing this change is to terminate the Original Conservation Easement and execute a
new conservation easement with the correct easement area description.
Ordinance No. 09 -11 APPROVING AND ACCEPTING THE MOUNTAIN STAR
CONSERVATION EASEMENT is presented for Council consideration. The amended
conservation would exclude Tract AA and Tract Y (another parcel not intended for inclusion in
the original conservation easement area and currently owned by TCL Avon, LLC). The new
conservation easement reflects the changes in ownership that have occurred since the
execution of the Original Conservation Easement.
Included with this memorandum are the following:
• Ordinance No. 09 -11
• Exhibit A: Deed of Conservation Easement
• The original 1994 Conservation Easement
• The 1995 Special Warranty Deed conveying Tract AA to the Town of Avon
Requested Action: Approval of first reading of Ordinance No. 09 -11.
Widner Michow & Cox LLP Eric Heil, Esq., A.I.C.P.
13133 East Arapahoe Road, Suite 100 Direct Tel 303.754.3392
Centennial, CO 80112 eheil @wmcattorneys.com
TOWN OF AVON
ORDINANCE NO. 09 -11
SERIES OF 2009
AN ORDINANCE APPROVING AND ACCEPTING THE
MOUNTAIN STAR CONSERVATION EASEMENT
WHEREAS, the Town of Avon ( "Town ") previously accepted a conservation easement
( "Original Conservation Easement ") granted by Mountain Star Limited Liability Company, a
Wyoming limited liability company, dated April 1, 1995, recorded with the Eagle County Clerk
and Recorder at Book 636, Page 287, and re- recorded at Book 656, Page 841; and
WHEREAS, the Original Conservation Easement erroneously included Tract Y, Second
Amendment, Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and
Recorder, Colorado in Book 670, Page 990 ( "Tract Y "), and Tract AA, Second Amendment,
Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and Recorder,
Colorado in Book 670, Page 990 ( "Tract AA "); and
WHEREAS, the parties to the Original Conservation Easement desire to correct the erroneous
description of the easement area by vacating and terminating the Original Conservation
Easement and executing the conservation easement attached hereto as Exhibit A: Deed of
Conservation Easement ( "Easement "); and
WHEREAS, Section 18.4 of the Avon Home Rule Charter provides that the Town Council may
accept gifts and donations; and
WHEREAS, pursuant to § 38- 30.5 -101, et. seq., C.R.S., and the home rule powers of the
Town, the Town Council has the authority to accept conveyances of real property to establish
conservation easements for the protection of open land, environmental quality and life- sustaining
ecological diversity; and
WHEREAS, a public hearing was conducted in accordance with Section 6.5(d) of the Avon
Home Rule Charter; and
WHEREAS, the Town Council conducted a public hearing on July 28, 2009 and considered all
comments prior to considering final adoption of this Ordinance; and
WHEREAS, the Town Council finds that accepting the Easement will promote Goal H.l of the
Town of Avon Comprehensive Plan and will thereby promote the health, safety and general
welfare of the Avon community; and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply with the requirements of the Avon Home Rule Charter by
setting a public hearing in order to provide the public an opportunity to present testimony and
evidence regarding the application and that approval of this Ordinance on first reading does not
constitute a representation that the Town Council, or any member of the Town Council, supports,
approves, rejects, or denies this ordinance.
Ord. No. 09 -11
Town of Avon
Page 1 of 3
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF AVON HEREBY
ORDAINS:
SECTION 1. CONSERVATION EASEMENT ACCEPTED. The Town Council hereby authorizes and
approves execution and acceptance of the Easement.
SECTION 2. MAYOR AND TOWN CLERK AUTHORIZATION. The Mayor and Town Clerk are
hereby authorized to execute and sign the Easement in the form attached hereto as Exhibit A:
Deed of Conservation Easement and take such other actions as may be necessary or implied to
implement the provisions of this Ordinance.
SECTION 3. SEVERABILITY. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term "provision" means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term "application" means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect seven days after public notice
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
SECTION 5. SAFETY CLAUSE. The Town Council hereby finds, determines and declares that
this Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the Avon community, and that this Ordinance
is necessary for the preservation of health and safety and for the protection of public convenience
and welfare. The Town Council further determines that the Ordinance bears a rational relation to
the proper legislative object sought to be obtained.
SECTION 6. PUBLICATION BY POSTING. The Town Clerk is ordered to publish this Ordinance
by posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the
Town Clerk during normal business hours.
[remainder of page intentional left blank — signature page follows]
Ord. No. 09 -11
Town of Avon
Page 2 of 3
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for 5:30 p.m. on
the 281h day of July, 2009, at the Council Chambers of the Avon Municipal Building, located at
One Benchmark Road, Avon, Colorado, on the 14th day of July, 2009.
Ronald C. Wolfe, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least seven days prior to final action by the Town Council.
ATTEST:
FRUU -Z0]i1 a .YII7� • u
Patty McKenny, Town Clerk Eric Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on the 28th day of July, 2009.
Ronald C. Wolfe, Mayor
Published by posting by title in at least three public places in Town and posting by title at the
office of the Town Clerk.
ATTEST:
Patty McKenny, Town Clerk
Ord. No. 09 -11
Town of Avon
Page 3 of 3
EXHIBIT A: DEED OF CONSERVATION EASEMENT
DEED OF CONSERVATION EASEMENT
THIS DEED OF CONSERVATION EASEMENT (this "Easement") is entered into by
and between Mountain Star Association, a Colorado non - profit corporation ( "Grantor "), and the
Town of Avon, a Colorado home rule municipality ( "Grantee ") this day of
, 2009, and amends and restates that certain Conservation Easement, dated
February 25, 1994, and recorded in the Office of the Eagle County Clerk and Recorder,
Colorado, at Reception Number 532340, Book 636, Page 287 (pages 1 through 7) (the "Original
Conservation Easement ").
WITNESSETH:
WHEREAS, Mountain Star Limited Liability Company, a Wyoming limited liability company
(the "Original Grantor "), and Grantee previously entered into the original conservation easement
granting a conservation easement (the "Original Conservation Easement ") to Grantee. By
instrument dated April 1, 1995, Grantor accepted and assumed all rights and obligations of the
Original Grantor arising under the Original Conservation Easement;
WHEREAS, Exhibit B to the Original Conservation Easement was intended to specifically
describe and locate areas within the Property within which Harrington penstemon were known to
exist or where the plant could be expected to exist, it did so in inadequate general terms such that
the exhibit could not be used to actually bound an actual conservation area within the broad
region defined in Exhibit A as "The Property Subject to this Conservation Easement." Exhibit
A to the Original Conservation Easement can also be erroneously interpreted as being the
conservation area rather than a region within which the inadequately defined areas of Exhibit B
are contained. Consequently, two tracks of land were inadvertently subject to being interpreted
as being included in the definition of Easement Area, such tracks being (a) Tract Y, Second
Amendment, Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and
Recorder, Colorado in Book 670, Page 990 ( "Tract Y "), and (b) Tract AA, Second Amendment,
Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and Recorder,
Colorado in Book 670, Page 990 ( "Tract AA "). Grantor and Grantee desire to correct such
inadvertent inclusion and to exclude Tract Y and Tract AA from inclusion and coverage within
the terms of the Original Conservation Easement and to correct the inadequately defined habitat
by redefining the Conservation Easement area as being the entire redefined Property; and
WHEREAS, in addition to Grantor and Grantee, all current owners of the real property which is
subject the Original Conservation Easement (the "Owners ") are signatories to this Easement,
thereby consenting to and authorizing this Easement as amending and wholly restating the
Original Conservation Easement so as to exclude Tract Y and the Tract AA and to continue the
protections of populations of Harrington penstemon ( Penstemon harringtonii), which is not a
federally listed threatened or endangered species but which is listed as a U.S. Forest Service
Region 2 sensitive species, under certain revised terms and conditions as set forth in this
Easement; and
Page 1 of 12
Mountain Star Conservation Easement 7 -9 -09 S
EXHIBIT A: DEED OF CONSERVATION EASEMENT
WHEREAS, Grantor, Grantee and the undersigned Owners desire to vacate, terminate and
extinguish the Original Conservation Easement and to adopt this Deed of Conservation Easement
to fully replace the Original Conservation Easement.
NOW THEREFORE, in consideration of the above and the mutual covenants, terms,
conditions, and restrictions contained here, pursuant to the laws of Colorado and in particular
Colorado Revised Statutes §38- 30.5 -101, et.seq., Grantor and the Owners hereby voluntarily
convey to Grantee a Conservation Easement in Gross (the "Easement ") consisting of rights
hereinafter enumerated, over and across that certain real property, situated in Eagle County
Colorado, more particularly described on Exhibit A (the "Easement Area"), and grants title to the
same, subject to the terms and conditions set forth herein.
1. Purpose. It is the purpose of this Easement to maintain, preserve, protect and enhance
the existing populations of Harrington penstemon in the Easement Area.
2. Vacation and Termination of Orizinal Conservation Easement. Grantor and Grantee
hereby fully and absolutely vacate, terminate, extinguish, release and quit claim to each
other all rights and interest in the Original Conservation Easement such that the Original
Conservation Easement is hereby null and void and of no further force or effect.
3. Affirmative Rights Conveyed. The affirmative rights conveyed by this Easement to the
Grantee are the following:
(a) To preserve and protect the species the Harrington penstemon so long as the species
remains listed as a U.S. Forest Service Region 2 sensitive species, or a U.S. Fish and
Wildlife Service Category II plant, or is reclassified as a federally threatened or
endangered species under the provisions of the Endangered Species Act.
(b) To enter upon the property to inspect and to enforce the rights herein granted in a manner
that will not unreasonably interfere with the proper uses being made of the Property at the
time of such entry.
(c) Except as expressly provided in this Easement, Grantor retains exclusive access to and
use of the Property.
4. Permitted Uses and Practices. This Easement shall confine and restrict the future use
of the Easement Area to non - development uses such as open space, preservation of
wildlife habitat, hiking and other pedestrian, non - motorized recreational uses. The
following uses and practices permitted under this Easement are not precluded, prevented
or limited by this Easement:
(a) Maintenance and repair of existing fences, trails and other improvements. In the event of
destruction, deterioration or obsolescence of any said fences, trails or related
improvements, Grantor may replace the same with improvements of similar size,
function, capacity and location.
Page 2 of 12
Mountain Star Conservation Easement 7 -9 -09 6
EXHIBIT A: DEED OF CONSERVATION EASEMENT
(b) Operation of maintenance of Buck Creek Road.
(c) Utilize the Easement Area for hiking and other dispersed non - motorized recreational uses
by Grantor, its successors, invitees and assigns, provided such use is confined to
established, mapped and maintained trails.
5. Prohibited Uses and Practices. The following uses and practices are inconsistent with
the purposes of this Easement and shall be prohibited upon or within the Easement Area:
(a) The change, disturbance, alteration, or impairment of Harrington penstemon within the
Easement Area without prescribed mitigation as described in Section 6 below.
(b) The construction of permanent structures other than the Buck Creek Road.
(c) The construction of new trails in addition to those depicted in the baseline survey.
(d) The hardening of existing trails with impermeable and /or non - native natural materials.
(e) Hunting, cross country skiing, horseback riding, mountain biking, motor bikes, snow
mobiles and all other motorized uses.
6. Mitigation Practices. If any proposed activity within the Easement Area may change,
disturb, alter, impair or otherwise damage the Harrington penstemon, avoidance shall be
the preferred form of mitigation. Other mitigation may include collection seeds and
redistribution in appropriate habitat and /or relocating plants to appropriate habitat when
and if encountered across the entire newly defined Easement Area during any new or
changed permitted use. Other than activities expressly permitted per Section 4 above,
activities which may change, disturb, alter, impair otherwise damage the Harrington
penstemon shall not commence without prior written approval of the Grantee.
7. Enforcement Rights of Grantee and Restoration. The Grantee shall have the
following rights:
(a) Upon the violation of any term, condition, covenant, or restriction contained in this
Easement, after notice of violation to the Grantor and providing a reasonable opportunity
to cure such violation (which in no case shall exceed a total of three hundred sixty five
(365) days), the Grantee may institute a suit to enjoin by temporary and /or permanent
injunction such violation, or may take such other lawful action, excluding claims for
damages as it deems necessary to ensure compliance with the terms, conditions,
covenants and purposes of this Easement; provided, however, that any failure to so act by
the Grantee shall not be deemed to be a waiver or a forfeiture of the right to enforce any
term, condition, covenant or purpose of this Easement in the future.
Page 3 of 12
Mountain Star Conservation Easement 7 -9 -09
7
EXHIBIT A: DEED OF CONSERVATION EASEMENT
(b) Should a court of competent jurisdiction determine that any prohibited activity be
undertaken on the Property, the Grantee shall have the right to cause the restoration of the
Property affected by such activity to the condition that existed prior to the undertaking of
such prohibited activity. In such case, the cost of such restoration shall be borne by the
Grantor, its successors or assigns. Notwithstanding the foregoing, if the Grantee
discovers or objects to any action taken by the Grantor more than three years after such
prohibited activity takes place, the Grantor shall not be held financially responsible for
restoring the Property to its original condition.
(c) Nothing contained herein shall be construed to preclude the Grantor from exhausting its
legal remedies in determining whether that proposed activity to which the Grantee has
objected it consistent with this Easement.
8. Costs and Taxes. Grantor agrees to bear all costs of operation, upkeep and maintenance
of the Easement Area and Grantee shall have no obligation therefore. In addition,
Grantor agrees to pay any and all real property taxes and assessments levied by
competent authority on the Property or on this Easement.
9. Access. Nothing contained herein shall be construed as affording the general public
physical access to any portion of the Property subject to this Easement. Nothing in this
Easement shall be construed to preclude Grantor's right to grant access to third parties
across the property, provided that such access is allowed in a reasonable manner that is
consistent with the purposes of this Easement. Nothing contained herein shall be deemed
to be a gift or dedication of all or any portion of the Property to or for the general public,
or for any public use or purpose whatsoever; it being the express intention and
understanding of the Grantor and Grantee that this Agreement shall be strictly limited to
and for the purposes herein expressed, solely for the parties hereto, their successors and
assigns.
10. Assignment of Grantee's Interest. The parties covenant and agree that the Grantee may
transfer its interest in this easement only to a "qualified organization," within the
meaning of Section 170(h) of the Internal Revenue Code or any subsequent legislation;
provided, however, that the Grantee, as a condition of such transfer, shall expressly
require that the transferee covenant to continue to carry out the conservation purposes
which this Easement was intended to advance.
11. Term of Easement Grant. The Easement herein granted shall be a burden upon and
shall run with the Property so long as Harrington penstemon is listed as a U.S. Forest
Service Region 2 sensitive species, or a U.S. Fish and Wildlife Service Category II plant,
or is reclassified as a federally threatened or endangered species under the provisions of
the Endangered Species Act. In the event the Harrington penstemon is removed from the
U.S. Forest Service Region 2 sensitive species list and the U.S. Fish and Wildlife Service
Category II list, and is not listed as a federally threatened or endangered species under the
provisions of the Endangered Species Act, then this Easement shall automatically
terminate and all rights, grants, obligations and conditions of this easement shall cease
Page 4 of 12
Mountain Star Conservation Easement 7 -9 -09 jp
v
EXHIBIT A: DEED OF CONSERVATION EASEMENT
and terminate, with or without notice from the Grantee, and the Grantor shall hold the
Property, as the same may then be, free from the rights granted herein.
12. Notices. Any notice, demand, request, consent, approval or communication that either
party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantor: Mountain Star Association
c/o East West Resorts LLC
P.O. Box 5480
Avon, CO 81620
To Grantee: Town of Avon
P.O. Box 975
Avon, CO 81620
13. Recordation. Grantee shall record this instrument in a timely fashion in the official
records of Eagle County, Colorado, and may re- record it at any time as may be required
to preserve its rights in this Easement.
14. Miscellaneous.
(a) The terms "Grantor" and "Grantee," whenever used herein, and any pronouns used in
place thereof, shall mean and include the above named Grantor and its successors and
assigns and the above named Grantee and its successors and assigns.
(b) If any provisions of this Easement or the application thereof to any person or
circumstance is found to be invalid, the remainder of the provisions of this Deed of
Conservation Easement and the application of such provisions to persons of
circumstances other than those as to which it is found to be invalid, shall not be affected
thereby.
(c) The Grantor and the Owners shall use reasonable effort to make reference to this
Easement and in any subsequent deed, or other legal instrument, by means of which it
conveys any interest in the real property subject to this Easement (including a leasehold
interest) and to attach a copy of this Deed of Conservation Easement thereto.
(d) This Easement may be executed in counterparts which, when taken together, shall
constitute a binding instrument subjecting the Easement Area to this Easement.
[signature page follows]
Page 5 of 12
Mountain Star Conservation Easement 7 -9 -09
EXHIBIT A: DEED OF CONSERVATION EASEMENT
In WITNESS WHEREOF, the Grantor has executed this Deed of Conservation
Easement on the date and year first written above.
GRANTOR AND OWNER OF TRACTS BB, V, W, X AND Z:
Mountain Star Association, Colorado nonprofit corporation
By:_
Title:
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
Date
The foregoing instrument was acknowledged before me this day of
200_ by as
Association, a Colorado nonprofit corporation.
My commission expires:
Page 6 of 12
Mountain Star Conservation Easement 7 -9 -09
Witness my hand and official seal.
Notary Public
of Mountain Star
W
EXHIBIT A. DEED OF CONSERVATION EASEMENT
GRANTEE AND OWNER OF TRACT AA:
Town of Avon, Colorado
C
Attest:
Ron C. Wolfe, Mayor
Patty McKenny, Town Clerk
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
Date
Approved
as to form:
Eric Heil, Town Attorney
The foregoing instrument was acknowledged before me this day of
,200 by Ron C. Wolfe as Mayor and Patty McKenny as Town Clerk
of the Town of Avon, Colorado.
My commission expires:
Page 7 of 12
Mountain Star Conservation Easement 7 -9 -09
Witness my hand and official seal.
Notary Public
i`
EXHIBIT A: DEED OF CONSERVATION EASEMENT
OWNER OF TRACT Y:
TCIL Avon L.LC, Colorado limited liability company
By:_
Title:
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
Date
The foregoing instrument was acknowledged before me this
200_ by as
LLC, a Colorado limited liability company.
My commission expires:
Page 8 of 12
Mountain Star Conservation Easement 7 -9 -09
day of
Witness my hand and official seal.
Notary Public
of TCL Avon,
/Z
EXHIBIT A. DEED OF CONSERVATION EASEMENT
OWNER OF LOT 89:
Jane Huffeldt Date
Per Huffeldt Date
STATE OF }
} ss
COUNTY OF }
The foregoing instrument was acknowledged before me this day of
200_ by Jane Huffeldt and Per Huffeldt.
My commission expires: Witness my hand and official seal.
Notary Public
Page 9 of 12
Mountain Star Conservation Easement 7 -9 -09
J,?
EXHIBIT A: DEED OF CONSERVATION EASEMENT
OWNER OF LOT 90:
Stephen D. Johnson
STATE OF
ss
COUNTY OF
Date
The foregoing instrument was acknowledged before me this _ day of
200_ by Stephen D. Johnson.
My commission expires: Witness my hand and official seal.
Notary Public
Page 10 of 12
Mountain Star Conservation Easement 7 -9 -09
%Y.
EXHIBIT A: DEED OF CONSERVATION EASEMENT
OWNER OF LOT 91:
Paul A. Becker
Date
Jayne W. Becker Date
STATE OF }
} ss
COUNTY OF }
The foregoing instrument was acknowledged before me this day of
200_ by Paul A. Becker and Jayne W. Becker.
My commission expires: Witness my hand and official seal.
Notary
Page 11 of 12
Mountain Star Conservation Easement 7 -9 -09
Public
1r
EXHIBIT A: DEED OF CONSERVATION EASEMENT
EXHIBIT A
Legal Description of Easement Area
Tract X, Tract W, Tract Z, Lot 89 & Lot 90, Mountain Star Filing No. 2, according to the
plat recorded on May 4, 1994, in Book 639 at Page 487, County of Eagle, State of
Colorado.
Lot 91, Mountain Star Filing No 2, First Amendment, according to the Plat recorded
February 22, 1995, in Book 661 at Page 913, County of Eagle, State of Colorado.
Tract V, Mountain Star Filing No 2, Second Amendment, according to the Plat recorded
July 7, 1995, in Book 670 at Page 989, County of Eagle, State of Colorado.
Tract BB, Mountain Star Filing No. 3, according to the plat recorded on January 23,
1997, in Book 717 at Page 2, County of Eagle, State of Colorado.
Graphic Illustration of Easement Area
Page 12 of 12
Mountain Star Conservation Easement 7 -9 -09
14
N • Town of Avon, Colorado (hereinafter referred to as the "Grantee ").
WITNESS THAT:
WHEREAS, Grantor is the owner of certain real property in Eagle County, Colorado,
more particularly described in Exhibit "A" attached hereto and incorporated herein by this
reference (hereinafter referred to as the "Property "); and
�.. WHEREAS, a biological inventory has been conducted on the property to identify
federally endangered, threatened, or sensitive plant or animal species; and
WHEREAS, the biological inventory has identified portions of the property that contain
populations of Harrington penstemon ( Penstemon harringtoniz), which is not a federally listed
threatened or endangered species, but which is listed as a U.S. Forest Service Region 2 sensitive
species; and
as
4J WHEREAS, these populations are found in six areas on the property totalling 99.9 acres,
more specifically identified on the map Exhibit "B" (hereinafter referred to as the "Easement
w
Area "); and
WHEREAS, the Grantor and Grantee desire to assure the preservation of the Harrington
penstemon populations, so long as the plant is identified as a U.S. Forest Service Region 2
sensitive species, a US Fish and Wildlife Service Category II plant, or listed as a federally
threatened or endangered species;
CU
° � NOW THEREFORE, in consideration of the mutual covenants contained herein, based
W 444
upon the common law, and further pursuant to Section 38- 30.5 -101 et seq., Colorado Revised
" Statutes 1973, as amended, Grantor does hereby convey to Grantee a Conservation Easement
(hereinafter referred to as the "Easement ") consisting of rights hereinafter enumerated, over and
across that certain real property, situated in Eagle County, Colorado, more particularly described
in Exhibit "B" attached hereto and incorporated herein by this reference, and grants title to the
same, subject to terms and conditions set forth herein.
+J
1. Purpose. It is the purpose of this Easement to maintain, preserve, protect and
oenhance existing populations of Harrington penstemon in the Easement Area.
A 3
2. Affirmative Rights Conveyed. The affirmative rights conveyed by this Easement
oto the Grantee are the following:
z
a. To preserve and to protect the species Harrington penstemon so long as
the species remains listed as a U.S. Forest Service Region 2 sensitive species, or a US Fish and
Wildlife Service Category II plant, or is reclassified as a federally threatened or endangered
species under the provisions of the Endangered Species Act.
17
Except as expressly provided herein, Grantor retains exclusive access to and use
of the property.
3. Permitted Uses and Practices. This Easement shall confine the future use of the
Easement Area to non - development uses such as open space, preservation of wildlife habitat,
hiking, horseback riding, and other pedestrian recreational activities. The following uses and
practices, though not an exhaustive recital of consistent uses and practices, are permitted under
this easement, and these practices are not to be precluded, prevented or limited by this easement:
a. To maintain and repair existing fences, roads, and other improvements
which currently exist on the property. Additional fencing shall be permitted, if designed and
constructed in a manner that does not have an adverse effect on the Harrington penstemon. In
the event of destruction, deterioration or obsolescence of any of said fences or roads, Grantor
may replace the same with improvements of similar size, function, capacity, and location.
b. To allow construction, maintenance, repair and operation of the Buck
Creek Road.
C. To develop residential homesites and related utility lines, roads and
associated structures within the area identified as "development area" on Exhibit "B ", provided,
however, that Grantor shall first mitigate the impact of the development on Harrington
penstemon habitat either by avoiding impacts, collecting seeds and distributing them in
appropriate habitat, and /or by relocating plants potentially impacted into suitable habitat as
approved by Grantee.
d. To utilize the Property for, hiking, hunting, cross - country skiing, and other
dispersed non - motorized recreational activities by Grantor, its successors, licensees, invitees and
assigns.
4. Prohibited Uses and Practices. The following uses and practices are inconsistent
with the purposes of this Easement and shall be prohibited upon or within the Easement Area.
a. The change, disturbance, alteration, or impairment of the habitat for
Harrington penstemon within and upon the Easement Area, except as otherwise provided herein.
b. Construction of permanent structures, other than the Buck Creek Road or
except as otherwise provided herein, for any purpose.
c. Construction of new roads or trails that impact penstemon, provided that the
maintenance of existing roads and trails shall not be prohibited.
532340 B -636 P -287 03/31/94 12:1OP PG 2 OF 7
z
Z
institute a suit to enjoin by temporary and/or permanent injunction such violation, or may sake
such other lawful action, excluding claims for damages as it deems necessary to ensure
compliance with the terms, conditions, covenants, and purposes of this Easement; provided,
however, that any failure to so act by the Grantee shall not be deemed to be a waiver or a
forfeiture of the right to enforce any term, condition, covenant, or purpose of this Easement in
the future.
Should a court of competent jurisdiction determine that any prohibited activity be
undertaken on the Property, the Grantee shall have the right to cause the restoration of that
Property affected by such activity to the condition that existed prior to the undertaking of such
prohibited activity. In such case, the cost of such restoration shall be borne by Grantor, his
successors or assigns. Provided that, if the Grantee discovers or objects to any action taken by
the Grantor more than three years after such prohibited activity takes place, the Grantor shall
not be held financially responsible for restoring the Property to its original condition.
Nothing contained herein shall be construed to preclude Grantor from exhausting its legal
remedies in determining whether that proposed activity to which the Grantee has objected is
consistent with this Easement.
6. Costs and Taxes. Grantor agrees to bear all costs of operation, upkeep, and
maintenance of the Easement Area, and Grantee shall have no obligation therefore. In addition,
Grantor agrees to pay any and all real property taxes and assessments levied by competent
authority on the Property or on this Easement.
7. Ag ems. Nothing contained herein shall be construed as affording the general
public physical access to any portion of the Property subject to this Easement. Nothing in this
Easement shall be construed to preclude Grantor's right to grant access to third parties across
the property, provided that such access is allowed in a reasonable manner that is consistent with
the purposes of this Easement.
r^
Nothing herein contained shall be deemed to be a gift or dedication of all or any portion;
of the Property to or for the general public, or for any public use or purpose whatsoever; it
being the express intention and understanding of the Grantor and Grantee that this Agreement ;
shall be strictly limited to and for the purposes herein expressed, soley for the parties hereto,
their successors and assigns.
8. Assignment of Grantee's intere$1. The parties covenant and agree that the
Grantee may transfer its interest in this easement only to a "qualified organization ", within the
meaning of Section 170(h) of the Internal Revenue Code of 1954, as amended or any subsequent
legislation; provided, however, that the Grantee, as a condition of such transfer, shall expressly
require that the transferee covenant to continue to carry out the conservation purposes which this
Easement was intended to advance.
532340 B -636 P -287 43/31/94 12:10P PG 3 of 7
3
17
i vasvaa:aaaJ alu uaWfayu yl aFgP%,.lVb- 111 ULU cvcllL YlaCningLuil Pcilswmon is removed rrom
the U.S. Forest Service Region 2 sensitive species list and the US Fish and Wildlife Service
Category II list, and not listed as a federally threatened or endangered species, then this
Easement shall automatically terminate and all rights, grants, obligations and conditions of this
easement shall cease and terminate, with or without notice from Grantee, and Grantor shall hold
the Property, as the same may then be, free from the rights granted herein.
10. Notic . Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows:
00
o To Grantor: Willis J. Wright
Mountain Star Limited Liability Company
Suite 201
`t 1000 South Frontage Road West
a Vail, Colorado 81657
a
M
cv
To Grantee: Town of Avon
r-' P.O. Box 975
Avon, CO 81620
0 11. Recordation. Grantee shall record this instrument in timely fashion in the official
records of Eagle County, Colorado and may re- record it at any time as may be required to
preserve its rights in this Easement.
co 12. Miscellaneous.
a
a. The terms "Grantor" and "Grantee ", wherever used herein, and any
u; pronouns used in place thereof, shall mean and include the above named Grantor and its
to
successors and assigns and the above named Grantee and its successors and assigns.
b. If any provisions of this Easement or the application thereof to any person
or circumstance is found to be invalid, the remainder of the provisions of this Deed of
N Conservation Easement and the application of such provisions to persons or circumstances other
than those as to which it is found to be invalid, shall not be affected thereby.
C. The Grantor shall use reasonable effort to make reference to this Easement
in any subsequent deed, or other legal instrument, by means of which it conveys any interest in
the Property (including a leasehold interest) and to attach a copy of this Deed of Conservation
Easement thereto.
532340 B -636 P -287
03/31/94 12:10P PG 4
In
OF 7
k1l]
r
r
GRANTOR
MOUNTAIN STAR LIMITED LIABILITY COMPANY
BY: WFS Company, as authorized agent of the Management Committee
of Mountain Star Limited Liability Company
Willis J. Wright, Jr., General Partner of WFS Company
Dated
GRANTEE
rl/ _
Dated ITT
552874 B -656 P -841 12/08/94 12:31p PG 5 OF 8
532340 B -636 P -287 03/31/94 12:10P PG 5 OF 7
Wteotw>v
5
Q1
The foregoing instrument was acknowledged before me this day of
1994 by Willis J. Wright, Jr., General Partner of WFS
Company.
My commission expires: , G— L 2
Witness my hand and officizi seal.
Notary Public
STATE OF COLORADO }
} ss.
COUNTY OF
Pe foregoing instrument was acknowledged before me this ��'j' day of
It �. 1994 by William James.
My commission expires: 7
C7
Witness my hand and official. seal.
Notary Public
552874 B -656 P -841 12/08/94 12:31p PG 6 OF 8
532340 B -636 P -287 03/31/94 12:10P PG 6 OF 7
5A
The Property subject to this Conservation Easement is describer) as follows:
Township 5 South Range 82 est 6th P.M.. Eagle County. Colorado
Section 1: Lots 1, 2, 3, 4
S1 /2N1 /2; N1 /2SW1 /4, El /2SE1 /4
Section 2: Lot 1, SE1 /4NE1 /4, NEl /4SE1 /4
Section 12: N1 /2NE1 /4NE1 /4
552874 B -656 P -841 12/08/94 12:31p PG 7 OF 8
532340 B -636 P -287 03/31/94 12 :10P PG 7 OF 7
Wtco sere
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cna. Lr
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zu-
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- yuuucrg li.mitea Llabiiity company
County of Eagle
of the
State of Colorado, grantor(!) and
TOWN OF AVON, a municipal corporation
whose legal address is
of the
P.O. Box 975, Avon, CO 81620
County of Eagle , State of Colorado, granteem:
WTTNESSETH, That the grantor%, for and inconsideration of the sum of Ten dollars and 00/100 ---------
the receipt and sufficiency of which is hereby acknowledged, has DOLLARS,
ge granted, bargained, sold and conveyed, and by these presents do e s grant,
bargain, sell, convey, and confirm, unto the grantee$) its bekwook assigns forever, all the real property, together with improvements,
if any, situate, lying and being in the County of Eagle State of Colorado,
described as follows:
Tract AA, Second Amendment, Mountain
recorded on
at Page , EI County Colorado.
a�irnm[+ici�n�tb�as:
Star Filing No. 2
1995, in Book 670
TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining, and the reversion and
reversions, remainder and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, claim and demand whatsoever of the
grantor(s), either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances;
TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the grantee4), its Xlev
Xang assigns forever. The grantor, for i tsel f I it S L�pi&i�p
or successors, doe S covenant
and agree that it shall and will WARRANT AND FOREVER DEFEND a above - bargained premises in the quiet and peaceable
Possession of the grantee0o� its J24iD[XKbgissigns, against all and every person or persons claiming the whole or an
through or under the granto Y Part thereof, by,
IN WITNESS WHEREOF, the grantor) has executed this deed on the date set forth above.
MOUNTAIN STAR LIMITED LIABILITY COMPANY
a Wyoming limited liability company
By: WFS Company, as authorized agent
of the Management Committee
f ,. �
.��
By
!'
Will's J. Wrig t, Jr., general
STATE OF COLORADO Partner of WFS Company
County of
The foregoing instrument was acknowledged before me this
by Willis J. Wright, Jr., a general
the Management Committee of Mountain
limited liability company.
ss.
304 day of
S�
CJ
f 9 9-5
1 �,
partner of WFS Company, autho Zed agent_of'
Star Limited Liability Com an a Wyorping
Witness my hand and official seat Z �Q
My commission expires
Ct1 1\ � 9L e A —4, n i„ ��