HomeMy WebLinkAboutAppendix C. Exhibit 7 DRAFT Utility Easement Summit ROW1
DRAFT 2/26/2020
CITY OF ASPEN
UTLITY EASEMENT AGREEMENT
This Utility Easement Agreement is entered into this ___ day of _____________, 2020,
by and between ASPEN SKING COMPANY LLC, a Colorado limited liability company
(“ASC”) and THE CITY OF ASPEN (“City”), a Colorado municipal corporation and home rule
city.
Recitals
WHEREAS, the City previously vacated the Summit Street right of way (the “Summit
Street Vacated Right of Way”) and a portion of the South Aspen Street right of way (the “South
Aspen Street Vacated Right of Way”) as shown and described in the Street and Easement
Vacation Plat recorded on _______________202__ at Reception No. of the real property records
of Pitkin County, Colorado; and
WHEREAS, ASC owns that certain real property described as Lot 1 and Lot 2, Gorsuch
Haus Subdivision/PD, according to the Final Plat of the Gorsuch Haus Subdivision/PD recorded
on ______________20___ at Reception No. _______________ of the real property records of
Pitkin County, Colorado (the “ASC Property”); and,
WHEREAS, pursuant to Section 15(J) of Ordinance 39, Series of 2016 (“Ordinance 39”),
recorded on April 8, 2019 at Reception No. 655085 of the real property records of Pitkin County,
Colorado (“Ordinance 39”), ASC agreed to dedicate and grant to the City a permanent utility
easement corridor to allow for the re-routing of any existing utilities that may have been located
within the South Aspen Street Vacated Right of Way or the Summit Street Vacated Right of
Way, and to accommodate future utility installations to serve the ASC Property as well as the
Aspen Mountain Ski Area; and,
WHEREAS, as provided in Paragraph 8 of the Certificate of Ownership, Dedication and
Reservations on the Final Plat, and as shown and described on Sheet 4 of the Final Plat, and as
separately described on Exhibit “A” attached hereto, ASC has dedicated a utility easement
corridor for the use and benefit of utility companies (“Utility Companies”) to install, maintain
and replace in the easement corridor area (the “Utility Easement Area”) certain existing and
future utility lines and facilities (the “Utilities”); and,
NOW, THEREFORE, IN CONSIDERATION of the promises and agreements set forth
below, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
Appendix C. Exhibit 7
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1. Grant of Easement. ASC does hereby grant and convey to the City, for the use
and benefit of the Utility Companies, a perpetual non-exclusive easement and right of way (the
“Easement”) for the purposes of excavation, installation, operation, use, maintenance, repair, and
replacement of existing and future Utilities within the Utility Easement Area. This grant of
Easement shall run with the land of the ASC Property and burden the owner thereof and shall be
binding upon and inure to the benefit of City, the Utility Companies, and their successors and
assigns.
2. Use of Utility Easement Area by City. The Utility Easement Area is located
within the area of ASC’s Aspen Mountain Ski Area ski area operations (on Lot 2) and where
future lodge and residential condominium building improvements will be constructed on Lot 1 in
accordance with Ordinance 39. The City’s and all Utility Companies’ agents, employees,
contractors and other designated persons may enter upon the Utility Easement Area at all
reasonable times to undertake routine use, operation and maintenance of their respective
easement rights. In the event the City or any Utility Company plans major repairs or
replacement of Utilities within the Easement Area premises, they shall provide ASC with
reasonable advance notice of the work to be undertaken, and the estimated time of completion.
Notwithstanding the foregoing, the City or a Utility Company may enter upon the Utility
Easement Area premises at any time in the event of any emergency situation or condition and
undertake such repair or replacement activities as it deems necessary to properly resolve the
emergency situation.
After the exercise of any of their rights hereunder, the City and/or the appropriate Utility
Company shall grade, re-surface, re-seed or re-sod if necessary to restore the surface of the
ground to its former condition and contour, and restore or replace any trees, bushes, brush,
gardens or other vegetation on the Utility Easement Area premises and any structures or paving
thereon.
3. Use of Utility Easement Area by ASC. In the event ASC discovers an emergency
condition pertaining to the Utilities to be located on, over, in or through the Utility Easement
Area premises, ASC shall make reasonable attempts to promptly notify the City of such
condition.
4. Liability to Others. Each party shall be responsible for any and all claims,
demands, actions, losses, liabilities, or expenses of whatever sort, including attorneys’ fees, that
are incurred by any person or entity arising out of or in connection with such party ’s use or
occupation of the Easement Area premises, or the use or occupation the Easement Area premises
by its agents, employees, contractors, invitees or licensees, provided, however, that nothing
herein shall be construed to abrogate or diminish any protections and limitations afforded to the
City by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq. as amended, or
other law. In the event the City and ASC, or their respective officers, directors, members,
employees, agents, contractors, representatives, heirs or assigns may be held jointly and severally
liable under any statute, decision, or other law providing for such joint and several liability for
their respective activities on the Easement Area premises, the obligations of each to respond in
damages shall be apportioned, as between the City and ASC, in proportion to the contributions of
each as measured by the acts and omissions of each which in fact caused such legal injury,
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damage or harm and the City and ASC shall indemnify each other to the extent necessary to
assure such apportionment.
5. Notices. All notices required to be given shall be deemed given upon deposit in
the United States mail, first class postage prepaid, properly addressed to the person or entity to
whom directed at its address shown herein, or at such other address as shall be given by notice
pursuant to this paragraph. Copies of such notices shall also be sent in the same manner to the
City Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado 81611.
6. Binding, Agreement - Recording. This Agreement is binding upon the parties
hereto, their successors and assigns, and any sale of the ASC Property, or any portion thereof
shall be subject to this Agreement. This Agreement shall be recorded with the Pitkin County
Clerk and Recorder and shall impose an easement and covenants running with the land upon the
ASC Property. Deeds to subsequent owners of the ASC Property shall provide notice of this
Agreement and the obligations contained herein.
7. Governing Law; Venue; Attorneys’ Fees. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and construed in accordance with the
laws of the State of Colorado. Venue for all actions arising under this Agreement shall be Pitkin
County, Colorado. In the event legal remedies must be pursued to resolve any dispute or conflict
regarding the terms of this Agreement or the rights and obligations of the parties hereto, the
prevailing party shall be entitled to recover costs incurred in pursuing such remedies, including
expert witness fees and reasonable attorneys’ fees.
8. Authorization of Signatures. The parties acknowledge and represent to each other
that all procedures necessary to validly contract and execute this Agreement have been
performed and that the persons signing for each party have been duly authorized to do so.
9. Counterparts. This Agreement may be signed using counterpart signature pages,
with the same force and effect as if all parties signed on the same signature page.
IN WITNESS WHEREOF, the parties have executed this Agreement the date and year
first above written.
[Signature Pages on Following Pages.]
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ASC:
ASPEN SKING COMPANY LLC, a Colorado limited liability company
By:_________________________________________
Manager
STATE OF )
) ss.
COUNTY OF )
SUBSCRIBED AND SWORN to before me this ___ day of _____, 2016,
by____________________ as Manager of Aspen Skiing Company LLC, a Colorado limited
liability company.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
Notary Public
My commission expires:
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THE CITY OF ASPEN, COLORADO
A Municipal Corporation and
Home Rule City
By
APPROVED AS TO FORM:
Aspen City Attorney
COUNTY OF PITKIN )
) ss
STATE OF COLORADO )
SUBSCRIBED AND SWORN to before me this __________ day of 20___, by
_________________ as City Manager of the City of Aspen.
WITNESS MY HAND AND OFFICIAL SEAL
____________________________________
Notary Public
My commission expires: __________________
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EXHBIT A
LEGAL DESCRIPTION OF EASEMENT AREA
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