TC Ord. No. 2009-20 Approving and accepting the mountain star conservation easementTOWN OF AVON
ORDINANCE NO. 09-20
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 Colorado Revised Statutes § 38- 30.5 -101, et. seq., provides
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 on January 12, 2010 and the Town Council considered all comments prior to
considering final adoption of this ordinance; and
WHEREAS, the Town Council previously approved Ordinance No. 09 -11 Approving and
Accepting the Mountain Star Conservation Easement; however, the form of the conservation
easement was revised and is now presented for approval in the form attached to 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 pnly 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;
Ord. No. 09 -20 Accepting and Approving Conservation Easement
December 12, 2009 ejb
Page 1 of 3
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF AVON HEREBY
ORDAINS:
SECTION 1. ORDINANCE No. 09 -11 REPEALED. Ordinance No. 09 -11 is hereby repealed in its
entirety.
SECTION 2. CONSERVATION EASEMENT ACCEPTED. The Town Council hereby authorizes and
approves execution and acceptance of the Easement.
SECTION 3. 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 4. 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 5. 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 6. 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 %. 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 -20 Accepting and Approving Conservation Easement
December 12, 2009 ejh
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
January 12, 2010 at the Council Chambers of the Avo unicipal Building, located at One Lake
Street, Colorado, on December 8, 2009. -1\
C
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:
Td,
wn Clerk
APPROVED AS TO FORM:
�"526 )
Eric Heil, Town Attorney
INTRODUCED,_ffiNALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on January 12, 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:
l
S. }�
t., 6'()wR
Ord. No. 09 -20 Accepting and Approving Conservation Easement
December 12, 2009 ejh
Page 3 of 3
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 Lzt day of
2010, and amends and restates that certain Conservation Easement, dated
JF uary 25, 1994, and recorded in the Office of the Eagle County Clerk and Recorder,
Colorado, eception 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
( "Original Grantor "), and Grantee previously entered into the original conservation easement
granting a conservation easement ( "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 15
Mountain Star Conservation Easement 10 -29 -09
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 ( "Easement ") consisting of rights
hereinafter enumerated, over and across that certain real property, situated in Eagle County
Colorado, more particularly described on Exhibit A: Easement Area (`Basement 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 15
Mountain Star Conservation Easement 10 -29 -09
(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 as depicted in Exhibit B: Existing Conditions
or a potential future trail as indentified on the attached Exhibit C: Future Buck Creek
Trail, subject to the terms stated in Section 5.(c) below.
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 Exhibit B: Existing
Conditions, except for the potential future trail identified on the attached Exhibit C:
Future Buck Creek Trail. The Future Buck Creek Trail may be proposed to the
Mountain Star Association in the future as a public amenity to better connect the Town to
the current Buck Creek trailhead, without having to use a vehicle, and with USFS land to
the north, along a more sustainable and scenic route. The Future Buck Creek Trail shall
be subject to a separate agreement between the Town and the Mountain Star Association
which shall address construction, maintenance, liability and restoration of any abandoned
portion of the existing Buck Creek Trail situated on property owned by the Mountain Star
Association, which agreement shall be subject to approval by the Mountain Star
Association in the sole discretion of the Mountain Star Association.
(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:
Page 3 of 15
Mountain Star Conservation Easement 10 -29 -09
(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.
(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
Page 4 of 15
Mountain Star Conservation Easement 10 -29 -09
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
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.
Page 5 of 15
Mountain Star Conservation Easement 10 -29 -09
(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 6 of 15
Mountain Star Conservation Easement 10 -29 -09
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: C. C-'� J+-N a�� 2--o d
Title: R Rtst 0't-'j, ' Date
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
The foregoing instrument was acknowledged before me this V day of ,
2010 by ST-evxN C. C0'7e-2 as Ibpe = of Moun`tdin Star
Association, a Colorado nonprofit corporation.
My commission expires: p
Page 7 of 15
Mountain Star Conservation Easement 10 -29 -09
Witness my hand and official seal.
Not y Vublic
GRANTEE AND OWNER OF TRACT AA:
Town o 94C. Colorado
By: z 4�
Ronald C. Wolfe, Mayor
Attest
'1Iz I
Date
� " �!) (ti I Approved
1 ` as to form: r,6�
P tty Mc enny, To Eric Hei , Town Attorney
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
The foregoing instrument was acknowledged before me this dA day of
2010 by Ronald C. Wolfe as Mayor and Patty McKenny as Town
Clerk Alhe Town of Avon, Colorado.
My commission expires: �-I ( 3
_�ARY PGeI
:' DES
14 �s OPpE
9��OR COLORP�o
Page 8 of 15
Mountain Star Conservation Easement 10 -29 -09
Witness my hand and official seal.
Qjjtn� M, ".Q
Notary Public
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 ,
2010 by as of TCL Avon,
LLC, a Colorado limited liability company.
My commission expires:
Page 9 of 15
Mountain Star Conservation Easement 10 -29 -09
Witness my hand and official seal.
Notary Public
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 ,
2010 by Jane Huffeldt and Per Huffeldt.
My commission expires: Witness my hand and official seal.
Notary Public
Page 10 of 15
Mountain Star Conservation Easement 10 -29 -09
OWNER OF LOT 90:
Stephen D. Johnson
STATE OF
ss
COUNTY OF
Date
The foregoing instrument was acknowledged before me this day of ,
2010 by Stephen D. Johnson.
My commission expires: Witness my hand and official seal.
Notary Public
Page 11 of 15
Mountain Star Conservation Easement 10 -29 -09
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
2010 by Paul A. Becker and Jayne W. Becker.
My commission expires: Witness my hand and official seal.
Notary
Page 12 of 15
Mountain Star Conservation Easement 10 -29 -09
Public
EXHIBIT A: Easement Area
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
ON
ii
PLSS Streets
Property Boundaries Railroad
,►� \_-
lT TOA Conservation Easement (Mountain Star Property)
Page 13 of 15
Mountain Star Conservation Easement 10 -29 -09
EXHIBIT B: EXISTING CONDITIONS
Page 14 of 15
Mountain Star Conservation Easement 10 -29 -09
EXHIBIT C: FUTURE BUCK CREEK TRAIL
Page 15 of 15
Mountain Star Conservation Easement 10 -29 -09
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