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HomeMy WebLinkAboutresolution.council.070-93 'el'., ii/, \'" ''',<- -, .. ,fit" 't'! '''1 ~H _ $~;:' (/() ""'/"''''\ 1'~'4,8 "ec ~)."" ""363054 ll/()'7 ','~ ,,:-,,' er"tv CleF'\;:, " ,'" [-"Lt."''' ~, , Silvia Davl~~ . RESOLUTION NO, ~ Series of 1993 Elf,:: 729, f;[3 966 DDC: $~()C c {IY ~iA 5j' {"(y'IJ 17 ~c~- LI ~y(.tA A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A TRAIL EASEMENT AGREEMENT BETWEEN PEARCE EQUITIES GROUP II LIMITED LIABILITY COMPANY AND THE CITY OF ASPEN RELATIVE TO A NORDIC TRAIL EASEMENT FOR THE GOLF COURSE, AND AUTHORIZING THE MA YOR TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO, WHEREAS, there has been submitted to the City Council a Nordic Trail Easement Agreement between Pearce Equities Group II Limited Liability Company and the City of Aspen, a true and accurate copy of which is attached hereto as Exhibit U A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that agreement between Pearce Equities Group II Limited Liability Company and the City of Asper relative to a certain nordic trail easement for the golf course, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor to execute said agreement on behalf of the City of Aspen, INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the ':<'7 day of ~, 1993. ~ '7, ($J-"-_7O.- John S. Bennett, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, 99t~)jjacio": at 'a meeting held on the day hereinabove stated. ,-" ~"., , . .~, , :1'. !. -'-!c " I. " '" ,,' ( '(~ ,~ ~. "'; J fA R r' _, "..' (y/, / / ~ - - , - r::' - ecor #363055 1.1. /09/93 1.5: 49 F,ec $35.00 Bf< 729 PG 967 Silvia Davis, Pitkin Cnty Clerk, Doc $.00 Receptiull....:) ,( O~) () ::::>3 Kecoraer ~/ I) f v\ rhJ 00.-"'-) RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: Ronald Garfield, Esq. Garfield & Hecht, P.C. III 601 East Hyman Avenue Aspen, Colorado 81611 e, &, ' '\ -, e NORDIC TRAIL EASEMENT FOR GOLF COURSE (ZOLINE OPEN SPACE PARCEL) THIS AGREEMENT is made this 22-vp day of ~6:.-q,;z," 1993 between PEARCE EQUITIES GROUP II LIMITED LIABILITY CO PANY, a Utah limited liability company ("Pearce ") and the CITY OF ASPEN, a municipal corporation (" City"), RECITALS WHEREAS, the City is the owner of a certain parcel of municipal property comprising approximately 45.48 acres commonly known as the "Zoline Open Space Parcel" (the "Premises"), WHEREAS, Pearce as tenant and the City as landlord have entered into that certain Amended Ground Lease signed by the City on~pril29, 1993 and by Pearce Ion May 7, 1993 as further evidenced by that certain Shortrrom Lease recorded in Book~ at Page~of the real estate records of Pitkin County, Colorado (the "City Golf Course Lease") whereby the City did lease the Premises to Pearce for a golf course. WHEREAS, Paragraph 7, Retained Rights, of the City Golf Course Lease allows the City use of a portion of the Premises for recreational trails as do not interfere with the intended golf course use of the Premises (the "Retained Rights"). WHEREAS, in satisfaction of the Retained Rights of the City for winter use, the parties desire to enter into this agreement. ~ ~. e ~ ~., :3~3055DII/09/93 15:49 Rec $35.00 Bk 729 PG 1 Vla avis, Pitkin Cnty Clerk, Do~ $.00 968 WITNESSETH NOW, THEREFORE, for and in consideration of the mutual covenants and agreements hereafter set forth, and for other good and valuable consideration, the parties agree as follows: 1, Grant of Easement. Subject to the terms, restrictions and conditions hereof, Pearce hereby grants to the City, for use by members of the public a non-exclusive nordic trail easement (the "Easement") across certqjn areas of the Premises. The City shall have the right, upon written notice to Pearce to assign its interest in this Agreement to the AspenJSnowmass Nordic Council, Inc. or any similar or successor organization formed or to be formed to operate nordic trails for public purposes or to a park and recreation district to be organized for purposes of maintaining and operating public trails; provided however, no such assignment as herein permitted shall release the City from any of its duties or obligations hereunder. 2. Use. Use of the Easement shall be limited to winter daytime use for cross country skiing. No lighted or night time use of the Easement shall be permitted. No use of the Easement shall be permitted until such time as, in the reasonable judgment of Pearce, there exists adequate snow cover for the skiable and enjoyable passage by crOss country skiers. Under any circumstances no use of the Easement shall commence before November 15, or continue later that April 15, of each calendar year. Pearce shall notify thy City when snow cover on the Premises appears to be adequate to allow the City to commence use of the Easement. Usage of the Easement shall automatically cease when Pearce determines that: (i) snow coverage is no longer adequate for the skiable and enjoyable use by cross country skiers, or (ii) such cessation is necessary to avoid damage, actual or threatened, to the Premises. The City shall be responsible for setting and maintaining cross country tracks by mechanized equipment or by hand; the placement of informational trail signs and markers and keeping the trails free and clear of refuse and trash all of which shall be performed only during dates when use of the Easement is allowed. While it is the right of Pearce to restrict nordic skiing to daytime use, it slfall not be the responsibility of the City or the Nordic Counsel to enforce this restriction. Signage shall be minimal and shall fIrst be approved by Pearce, which approval shall not be unreasonably withheld or delayed. At its own cost and expense, the City shall install and timely remove such gates, bridges or other improvements (the "Improvements") 1:hat are necessary for the use and maintenance of the trail system and for the passage of traFk- setting equipment in the winter. The City will on an annual basis obtain the permission of Pearce prior to constructing any Improvements, which permission shall not. be unreasonably withheld or delayed. Snowmobiles and snowshoes, except for those utilized by the City or Pearce, shall be prohibited. No dogs shall be permitted on the trails. Use of fIrearms, including hunting, shall be prohibited. As to any use of the Easement, Ithe 2 e tA, \tI' ~ \tI' ,];363055 11/09/9:3 15:49 Rec $35.00 Bf< 729 F'G 969 Silvia Davis, Pitkin Cnty Clerk, Doc $.00 City shall establish and enforce reasonable rules and regulations: (i) consistent with and in order to assure compliance with the terms and provisions of this Agreement and !(ii) for safety purposes. Without limit to the foregoing, the City shall require that all skiers stay on groomed trails and shall, if necessary, erect and maintain barriers to ass).Jre compliance with this requirement. This Easement confers no rights, whatsoever, on!the public to use the Easement for any other purposes, except as expressly described herein. Pearce reserves the right to use and enjoy the Easement and the land beneath and the airspace above for all purposes and uses which do not unreasonably interfere with the use and enjoyment by the City or members of liJ,le public of the rights herein granted. 3. Special Premises Restrictions. In addition to the restrictions set forth above, use of the Premises shall be subject to the following: A. The City shall assure that the setting of trails shall avoid greens, tees, areas of sensitive vegetation and other man made obstacles or features of the Premises. Trails shall be located an adequate distance from all private residences to reasonably assure pnvacy. B, Access to trails on the Premises shall be via the public path along Highway 82. Pearce shall not unreasonably withhold its consent to linking such trails to publis trails to be constructed in the future. No other lands of Pearce may be used to access the Easement and nothing herein shall be construed asa grant, express or implied, over any other lands of Pearce. C. Each winter, the specific location of the nordic trails on the Premises shall be presented by the City to Pearce for approval. Locations may vary from year to year based on snow conditions; physical changes that may be made to the Premises,! the need to avoid private residences and damage to the Premises, actual or threatened and any other appropriate circumstances. It is intended that the process of approving trail locations shall be accomplished in an informal manner utilizing on-site review by. the parties of proposed trail locations . 4. Retained Rights of City. The granting of the Easement to the City as set forth in this Agreement shall" for winter usage only, define and describe the limits of the City's Retained Rights under the City Golf Course Lease. The parties acknowledge that under the City Golf Course Lease, the City has year round Retained Rights and this Agreement does not address or limit such Retained Rights except for winter usage. 5. Term. The term of this Agreement shall commence for any portion or all of the Premises on the first winter following the year in which the Premises or any portion thereof shall be used for playing golf. This Easement shall terminate if use of 3 ~':363055 11/09/93 15: 49 Rec $35.00 BK 729 F'G 970 Silvia Davis, Pitkin Cnty Clerk, Doc $.00 .. the Premises for playing golf shall cease or the City by unequivocal action makes clear 11_ its intent to abandon the Easement. Except as provided in the preceding sentence, this Agreement shall automatically be renewed from year to year so long as the City shall comply with the terms, provisions and conditions set forth in this Agreement. 6. N on-Profit Purposes. The purpose of this Agreement is to allow use of the Easement by members of the public for non-profit recreational purposes in accordance with the terms, provisions and conditions hereof. The Easement shall not be used for profit or commercial purposes or any other flurposes except as expressly allowed herein. ei ". ~ '- 7. Indemnification and Insurance. Subject to the terms, conditions and limitations of the Colorado Governmental Immunity Act, C.R.S. 24-10-101, et seq., the City shall at all times remain solely responsible for injuries, demands, damages, losses or judgments arising from its negligence, or the negligence of its employees, in the maintenance, operation and public use of the public trails traversing the Premises and Pearce shall not be liable for injuries or claims resulting from City's negligence, or management of the trails. The City and Pearce understand and agree that City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and, as such, participates in the CIRSA property/casualty pool. Copies of the CIRSA policies and coverages are maintained at the offices of the City Attorney of the City of Aspen and are available for inspection during regular business hours, The City makes no representations with respect to specific coverages provided by CIRSA. The City and Pearce further agree and acknowledge that Pearce shall receive all protections and benefits as afforded an owner of land used for public recreational purposes as provided under C. R. S. Section 33-41-101, et, ~. , 8. Enforcement. The City shall be responsible for enforcing the terms, provisions and conditions of this Agreement and in particular the use restrictions set forth in Paragraph 2 above. Pearce may, but shall not be obligated to, enforce any of the terms, provisions and conditions of this Agreement and in furtherance thereof Pearce may post signs or install fencing for such purposes including notifying the public that private property is being crossed and to stay within the Easement. Any signage to be posted' by Pearce shall first be approved by the City which approval shall not be umeasonably withheld or delayed. 9. Notices. Notices and other communications which may be given, or are required to be given hereunder, shall be in writing and shall be deemed given to a party when delivered personally or when deposited in the United States mail with sufficient postage affixed and addressed to such party at the respective address shown below: e 4 'e'"., ~ f,,< e ~ \. ""~67(-)~~ 11 '09/93 15,49 Rec $35.00 Bf< 729 F'G 971 ,'t-.) "_1. ....J..J , I ~ . Silvia Davis, Pitkin Cnty Clerk, Doc $.ou Pearce: Pearce Equities Group II Limited Liability Company 601 East Hyman Avenue, Suite 104 Aspen, Colorado 81611 Copy to: Ronald Garfield, Esq. Garfield & Hecht, P.C, 601 East Hyman Avenue Aspen, Gplorado 81611 City: City of Aspen 130 South Galena Aspen, Colorado 81611 Copy to: City of Aspen Attorney 130 South Galena Aspen, Colorado 81611 10. Designation of Successor. Pearce, by instrument duly recorded in the real estate records of Pitkin County, Colorado, may designate a party to succeed to all the rights, privileges and remedies of Pearce hereunder, 11. Miscellaneous. A. Either party shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Agreement. If any court proceedings are instituted in cormection with the rights of enforcement and remedies provided in this Agreement, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in cormection therewith. B. The failure of either party to insist upon the strict performance of any provisions of this Agreement or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be ,a waiver or a relinquishment for the future of any such provision. C. This Agreement and the grant of the Easement hereunder is made subject to any existing leases, easements, reservations, restrictions or rights-of-way. 5 ,. ~. e, '0" 'Ill! e -- -- #363055 11/09/93 15:49 Rae $35.00 BK 729 PG 972 SIlVIa DavIs, Pitkin Cnty Clerk, Doc $.00 D. This Agreement may not be amended, nor may any rights hereunder be waived, except by an instrument in writing executed by the parties hereto and duly recorded in the real estate records. E. The interpretation, enforcement or any other matters relative to this Agreement shall be construed and determined in accordance with the laws of the State of Colorado. F. All the provisions of "this Agreement, including the benefits and burdens created thereby, shall run with the land. G. In the event any clerical, administrative or other errors are found in this agreement or any legal descriptions or other exhibits hereto or in the event any exhibit shall be missing, the parties agree to promptly execute, acknowledge, initial and/or deliver as necessary any documentation in order to correct the erroneous document, description, exhibit or to provide any missing exhibit. H. Should any provision of this Agreement be deemed invalid due to a violation of the rule against perpetuities or any other rule or law relative to vesting or the alienation of property, such provision shall nevertheless remain effective for the longest period permitted by law as though such provision had originally been enforceable, I. binding upon the representatives. All provisions of this Agreement inure to the benefit of and are parties hereto, their heirs, successors, assigns and personal IN WITNESS WHEREOF, the parties have executed this Agreement as the day and year first above written. CITY: PEARCE: THE CITY OF ASPEN, COLORADO PEARCE EQUITIES GROUP II LIMITED LIABILITY COMPANY, a Utah limited liability company BY:~ F. 17.,. ~ John ennett, Mayor By: Ja sT. Pearce, Jr., ember 6 ,e.'.,., ';l '>": - e [40363055 11/09/93 15: 49 Rec ~;~35. 00 m:: l'~~ F'G 973 Silvia Davis, Pitkin Cnty Clerk, Doc ..00 STATE OF COLORADO ) )ss. ) COUNTY OF PITKIN The foregoing Nordic Trail Easement was acknowledged before me this a;2....day of S'#,p7"6"-'&.l:4--' 1993 by James T. Pearce, Jr., Member of Pearce Equities Group II Limited Liability Company, a Utah limited liability company. WITNESS my hand and offickal seal. My commission expires: 6';;;"Yr ;7 ,"'i"EI~'~::: , .," ~",:..~~...,.".." ~~",,'n:r Af!j~'\' "".. ...:~. ,\~, ~~",..; :: ~,1,,?' l:> B/'\ \c,! ii , . 0" ~ .' ':l .. ~... . ~ ,- f. ~l - ~ ...., STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) ~ The foregoing Nordic Trail Easement was acknowledged before me this -1::... day of a~ , 1993 by John Bennett, Mayor, on behalf of the City of Aspen, Colorado. WITNESS my hand and official seal. , " : \ t C ~ " nT, '. '':rvIy commission expires:.' /U1/95 ,,'J .. 'rf --'\". '€o---oG- ~ ,.oUBI.\C, /'-. rj ,< (2. (J~tk1.o-r1-.. O. r',)' , ,'(1\ I', . roll. pearce.nordic.cty 7