HomeMy WebLinkAboutresolution.council.070-93
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RESOLUTION NO, ~
Series of 1993
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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.
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RECORDING REQUESTED BY:
WHEN RECORDED RETURN TO:
Ronald Garfield, Esq.
Garfield & Hecht, P.C. III
601 East Hyman Avenue
Aspen, Colorado 81611
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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.
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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
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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
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.. 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.
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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:
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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.
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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
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STATE OF COLORADO
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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
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STATE OF COLORADO )
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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.
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~ " nT, '. '':rvIy commission expires:.' /U1/95
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