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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 3• 0 - - 1 ' �N y v ui '• } }4 a is :... - fq,%C911� p JU N _ 6 ss � i r 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 R C7 �.a LA �I cna. Lr , t i r , - r r - + zu- h" r - 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„ ��