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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 Author. JTH, 09124109 x;*' 4 • F of Cr d 0 . CD N rF, At c ■ ♦ -, -0CD ■ o 7� c CO 0 ^ .� C/) n Cl) c 0 C7 c fD �. v Q � ♦ ♦ ♦ T cn c n c CD W c CD � v.� ♦ ♦� �(�. (D (D x. /D 0 77 C) =r CD ,.,�'� - o (D 0 Q C { CD T =C z -0 c E cn t 'a , — 7 v N nio 0 CD r�-- � O � � � � � i1t• Y� iu l •1 J 4 � \ V .. � L -.id1 ���QQQ��� • F �1L -_ _ .. .... fir" � :!C CL CD CD ° :•. . W. Cl) :,. R iTzg 77 CL 0 r 3 •�4W�Xf r •5 _