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HomeMy WebLinkAboutBOCC.packet 05 28 2014 - Avigation Easement Agreement with SKICOAGENDA ITEM SUMMARY REGULAR MEETING DATE: May 28, 2014 TOPIC: Aspen-Pitkin County Airport Ordinance Approving an Avigation Easement Agreement with the Aspen Skiing Company Second Read and Public Hearing STAFF RESPONSIBLE: Brian Grefe, Assistant Director of Aviation/Administration ISSUE STATEMENT: Staff seeks the Board's approval of an Avigation Easement Agreement offering by the Aspen Skiing Company to the Board of County Commissioners to protect the operation of the Aspen/Pitkin County Airport for use by public general aviation users as well as scheduled and non-scheduled commercial airline operators. BACKGROUND: Aspen Skiing Company is in the process of developing/updating a Master Plan for the base of Buttermilk Ski Area. Through this process, it became appropriate to issue an Avigation Easement to ensure any development on Buttermilk does not adversely affect the functions of the airport. Aspen Skiing Company and Pitkin County share the same goal as it relates to the protection and preservation of airport operations. Because of this Aspen Skiing Company has offered Pitkin County the attached Avigation Easement Agreement. The attached easement follows the Pitkin County standard form aviation easement agreement, but some modifications were necessary. The modifications were made because some of the language in the standard form was not applicable to this specific location. The changes were made in cooperation between Aspen Skiing Company and the airport's outside legal counsel. The final Avigation Easement Agreement has been approved as to form by the Pitkin County Attorney's Office. LINK TO STRATEGIC PLAN: Flourishing Natural & Built Environment — Accepting this Avigation Easement Agreement will help to ensure that all development around Buttermilk Ski Area will be consistent with community standards as it relates to the operation of the airport. Development at Buttermilk will be coordinated with the County and the FAA to ensure safety margins for approaches, departures, and flight paths are protected thereby maintaining the standard of safety for airport users and users of Buttermilk Ski Area. 1 BUDGETARY IMPACT: There is no budgetary impact. RECOMMENDED BOCC ACTION: Staff recommends that the BOCC approve at first reading and set for second reading and public hearing the Ordinance accepting an Avigation Easement Agreement from the Aspen Skiing Company. ATTACHMENTS: Ordinance accepting the Avigation Easement Agreement Avigation Easement Agreement 2 ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO ACCEPTING THE GRANT OF AVIGATION EASEMENT AGREEMENT FROM ASPEN SKIING COMPANY TO THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORARO Ordinance No. -2014 RECITALS 1. Aspen Skiing Company is the owner of certain real property within Pitkin County, Colorado, situated in the Buttermilk Ski Area 2. Pitkin County is the owner and operator of certain real property commonly known as the Aspen/Pitkin County Airport (Sardy Field), located in Pitkin County, Colorado, upon which it operates and shall continue to operate an airport facility for use by public general aviation users as well as scheduled and non-scheduled (i.e., charter) commercial airline operators 3. Pitkin County desires to acquire certain rights in the Aspen Skiing Company real property to preserve for the use and benefit of the public a right of free and unobstructed flight for aircraft landing upon, taking off from, or maneuvering about the County property 4. The Board of County Commissioners and Aspen Skiing Company agree to the terms and conditions set forth in the Aviation Easement Agreement attached hereto NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that the Board of County Commissioners does hereby accept the Avigation Easement Agreement from Aspen Skiing Company to the Board of County Commissioners and authorizes the chair to sign the agreement, subject to approval by the county attorney more fully described in Avigation Easement Agreement attached hereto. INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE DAY OF , 2014. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON , 2014. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.aspenpitkin.com) ON THE DAY OF , 2014. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE DAY OF , 2014. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE DAY OF , 2014. ATTEST: By: Jeanette Jones Deputy County Clerk BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO By: Rob Ittner, Chairman Date: APPROVED AS TO FORM: MANAGER APPROVAL: By: By: John Ely, County Attorney Jon Peacock, County Manager APPROVED AS TO CONTENT: By: James P. Elwood, Aviation Director AVIGATION EASEMENT AGREEMENT This Avigation Easement Agreement ("Agreement") made this day of , 2014, by and between the Aspen Skiing Company (hereinafter referred to as "Grantor") and Pitkin County, Colorado, acting by and through its Board of County Commissioners (hereinafter referred to as "Grantee"). WHEREAS, Grantor is the owner of certain real property within Pitkin County, Colorado, which property is more particularly described in the attached Exhibit A and which property shall be referred to hereinafter as the "Servient Tenement;" and WHEREAS, this easement is granted in exchange for valuable consideration the sufficiency and receipt of which is hereby acknowledged by the Grantor; and WHEREAS, Grantee is the owner and operator of certain real property commonly known as the Aspen-Pitkin County Airport (Sardy Field), located in Pitkin County, Colorado (hereafter referred to as "Dominant Tenement"), upon which Grantee currently operates and shall continue to operate an airport facility for use by public general aviation users as well as scheduled and non-scheduled (i.e., charter) commercial airline operators; and WHEREAS, Grantee desires to acquire certain rights in the Servient Tenement to preserve for the use and benefit of the public a right of free and unobstructed flight for aircraft landing upon, taking off from, or maneuvering about the Dominant Tenement. NOW, THEREFORE, it is agreed as follows: 1. Grantor hereby grants to Grantee, its successors and assigns, an avigation easement as hereinafter described. 2. The avigation easement granted herein is appurtenant to the Dominant Tenement. 3. The avigation easement granted herein is for the right to discharge noise, vibrations, fumes and other such effects as may be inherent in the operation of aircraft ("aircraft" being defined for the purpose of this instrument as a device that is used or intended to be used for flight in the air) over the Servient Tenement running to the benefit of Grantee and the Dominant Tenement as a result of any and all aircraft utilizing (including takeoffs, landings and approaches) the Dominant Tenement. Said avigation easement is more specifically defined as follows: a. A perpetual avigation easement, also known as a perpetual air or flight easement, and an aircraft operations and aircraft noise easement for the use of the airspace over or through the Servient Tenement. Such easement shall be for air navigation purposes and shall include, but not be limited to, the right of Grantee and any aircraft utilizing the Dominant Tenement to discharge noise, vibrations, odors, fumes, vapors, air currents, illumination, particulates, smoke, dust or other effects as may be inherent in the operation of aircraft on the Servient Tenement and its occupants as a result of aircraft landing on, taking off from or maneuvering about the Dominant Tenement as follows: i. As to the runway located on the Dominant Tenement (Runway 15/33). ii. This avigation easement includes the resultant noise, vibrations, odors, fumes, vapors, air currents, illumination, particulates, smoke, dust or other effects as may be inherent in the operation of aircraft from any aircraft currently operating from the Dominant Tenement and any other aircraft that may subsequently be permitted to be used on the Dominant Tenement by the United States of America or any of its agencies and/or departments. iii. This avigation easement includes any flight tract that aircraft now, or in the future, may utilize. iv. This avigation easement is unlimited as to the number and frequency of aircraft operations. b. A perpetual avigation easement, also known as a perpetual noise easement, for the right to discharge noise, vibrations, fumes and other such effects as may be inherent in the operation of aircraft from the surface of the Dominant Tenement, which effects may reach the Servient Tenement, and which shall be for the purpose of aircraft start-up, ground maneuvering, maintenance, and engine run-up, for take -off or landing upon the Dominant Tenement. c. The perpetual avigation easement shall not include or authorize aircraft landing, explosion, crash, falling objects or other occurrences causing direct physical injury to persons or direct physi9a1 damage to property. 4. The Grantor shall comply with the Federal Aviation Administration's standards governing objects affecting navigable airspace found at 14 C.F.R. Part 77 ("Part 77"), as the same may be amended, with respect to the Servient Tenement and all property known as the Buttermilk Ski Area for which Grantor maintains a lease, license, permit or easement. Grantor shall not construct or permit to remain upon the Servient Tenement any obstruction, including natural objects and man-made structures, unless application of proposed construction or alteration is made to the Federal Aviation Administration pursuant to Part 77 and the Federal Aviation Administration issues a determination that the object or structure is not a hazard to air navigation. Grantor, at Grantor's expense, shall mark and light any object or structure as may be determined necessary by the Federal Aviation Administration to mitigate any hazard. The obligations of this Section 4 prohibiting hazards to air navigation shall apply to the construction of new structures on the Servient Tenement and to the growth of natural objects in such manner as would constitute a hazard to air navigation. 5. The Grantor shall not hereafter use or permit the use of the Servient Tenement in such a manner as to (i) create electrical or electronic interference with radio communication or radar operation between the Dominant Tenement and aircraft, (ii) make it difficult for flyers to distinguish between airport lights and others, (iii) result in glare in the eyes of pilots using the Dominant Tenement, or (iv) otherwise to endanger the landing, takeoff or maneuvering of aircraft. The determination of whether use of the Servient Tenement would cause one or more of the enumerated hazards shall be made primarily by the Federal Aviation Administration in accordance with Part 77 or, in the event that a use or proposed use is not reviewable under Part 77, shall be determined according to objective standards and guidelines issued by the Federal Aviation Administration. 6. Grantor and its successors in interest are forever barred from bringing any suit against Grantee under any theory of recovery, arising out of matters covered by this avigation easement, including but not limited to noise, vibrations, odors, fumes, vapors, air currents, illumination, particulates, smoke, dust or other effects as may be inherent in the operation of aircraft, as well as discomfort, inconvenience, interference with the use and enjoyment of the Servient Tenement and any damage to or reduction of market value of the Servient Tenement due to the operation of aircraft to and from the Dominant Tenement. 7. In the event of any litigation, controversy, claim or dispute between the parties hereto arising out of or relating to this Agreement, or the breach thereof, the prevailing party shall be entitled to recover from the losing party all costs, damages and expenses incurred by the prevailing party, including but not limited to attorney's fees and costs incurred in connection therewith. 8. This Agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors, and assignees of the parties hereto. This avigation easement shall be and hereby is made a part of each conveyance of all or any part of the Servient Tenement and the Dominant Tenement and shall run with the land as to all property burdened and benefited by the avigation easement. 9. Grantor agrees for itself and any successors in interest to abide by the terms of the avigation easement for any real property Grantor and its successors in interest may acquire in connection with the Buttermilk Ski Area after the execution hereof, in which event Grantor and its successors in interest shall cause to be prepared and recorded an amendment or replacement Exhibit A and which thereafter shall constitute the Servient Tenement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written indicating the Grantor's grant and the Grantee's acceptance of said avigation easement. APPROVED AS TO CONTENT: BOARD OF COUNTY COMMISSIONERS PITKIN COUNTY, COLORADO By: By: Jon Peacock, County Manager Rob Ittner, Chairman By: Jim Elwood, Airport Director APPROVED AS TO FORM: By: By: John Ely, Pitkin County Attorney Deputy County Clerk STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) Acknowledged before me this day of , 2014, by , as Chair of the Board of County Commissioners of Pitkin County, Colorado, and attested to by the Deputy Clerk and Recorder of Pitkin County, Colorado. Witness my hand and official seal. My commission expires: Notary Public GRANTOR: ASPEN SKIING COMPANY By: David Corbin, Vice President STATE OF Co I or IfZOO ) )ss. CITY AND COUNTY OF f i f'IC44 1-PIThe foregoing instrument was hereby ac �owledg d before me this 6 day of a.ft /1.c:2. , 2014, by Oct War a Witness my hand and official seal. 0-ieb 7 My commission expires: Notary Public L TRACT 1: A trace of land situaLu in the Southeast one -quarter (SE1/4) of Section 3 and in the Northeast one -quarter (NE1/4) of Section 10, Township 10 South, Range 85 West of the 6th P.M., Pitkin County, Colorado. Said tract being more fully described as follows: Beginning at a point whence the Southeast corner of Section 3, Township 10 South, Range 85 1•)est, bears South 00°15'16" East, 1,044.54 feet; thence South 47°26'00" West, 423.94 feet; thence South 42°34'00" East, 47.70 feet; thence South 47°26'00" West, 71.06 feet; thence South 41°59'00" East, 389.91 feet; thence South 26°31'00" West, 396.73 feet; thence South 19°13'00" West, 1,076.43 feet; thence South 19°52'00" East, 36.91 feet more o1 less to a point on the North line of Lot 5, said Section 10; thence West, 959.96 feet more or less along the Northerly line of said Lot 5 and the Southerly line of Lot 2, said Section 10 to the Southwest corner of said Lot 2; thence North 726.99 feet along the Westerly line of said Lot 2; thence North 20°18'00" East, 178.04 feet; thence North 44°32'00" East, 904.53 feet; thence North 40°37'17" East, 116.92 feet more or less to a point on the Southeasterly right-of-way line of the Buttermilk West Road; thence North 49°44'00" fast, 885.20 feet more or less along said right-of-way line to a point on the Southwesterly right-of-way line of State Highway No. 82; thence along said highway right-of-way line 168.53 feet along the arc of a curve to the left having a radius of 5,780.00 feet, the chord of which bears South 37°30'43" East, 168.52 feet to the Point of Beginning. EXCEPT those portions of Lot 13, Section 3, Township 10 South, Range 85 West of the 6th P.M., released by Buttermilk Mountain Skiing Corporation, a Colorado corporation in release recorded December 2, 1977, in Book 339 at Page 621, EXCEPT that portion thereof conveyed by Buttermilk Mountain Skiing Corporation, a Colorado corporation, to Virginia Aspen Corporation, a Colorado corporation, by Deed recorded May 13, 1969, in Book 241 at Page 21, EXCEPT that portion thereof conveyed by Priedl Pfeifer to Virginia Aspen Corporation, by Deeds recorded May 13, 1969, in Book 241 at (Continued) LT' CA104417 Pages 17 through 20, inclusive and by Deed recorded September 26, 1969, in Book 243 at Page 531, EXCEPT that portion thereof released by Aspen Skiing Company, a Colorado general partnership, by Release recorded April 5, 1965, in Book 484 at Page 205, EXCEPT that portion thereof released by Aspen Skiing Company, a Colorado general partnership and Priedl Pfeifer by instrument recorded November 12, 1993, in Book 730 at Page 603, P.ND EXCEPT that portion thereof taken by the Department of Transportation, State of Colorado in that certain Rule and Order, given under Case No. 01CV29, District Court, Pitkin County, Colorado, a certified copy of which was recorded June 19, 2001, at Reception No. 455607. &14. 0,- l ci Co res-j . TRACT 2: A tract of land situated in Lhe Southeast one -quarter Southeast one -quarter (SE1/4SE1/4), Section 3, the Southwest one -quarter Southwest one -quarter (St•J1/4SW1/4) of Section 2, the Northwest one -quarter Northwest one -quarter (N1'J1/4NW1/4) of Section 11 and the Northeast one -quarter Northeast one -quarter (NE1/4NE1/4) of Section 10 all in Township 10 South, Range 85 West of. the 6th P.J4., Pitkin County, Colorado, being more fully described as follows: Beginning at a point whence the Southwest corner of said Section 2 bears South 11°11'30" East, 392.18 feet; thence South 26°31'00" West, 396.73 feet; thence South 19°13'00" West, 1,076.43 feet; thence South 19°52'00" East, 36.91 feet to the Northerly boundary line of Lot 5 of said Section 10; thence East, 145.49 feet along said Northerly boundary line to the point of intersection with the Southwesterly extension of an existing fence line; thence North 46°06'31" East, 1,760.05 feet more or less along said fence line and Southwesterly extension thereof the Southwesterly right-of-way line of State Highway No. 82; thence 505.58 feet more or less along said Southwesterly right-of-way line and the arc of a curve to the right having a radius of 5,780.00 feet, the chord of which bears North 47°40'36" West, 505.42 feet more or less; thence South 37°02'00" West, 714.83 feet; thence North 22°09'00" {Jest, 278.00 feet; thence North 05°50'00" East, 157.07 feet; thence North 41°59'00" West, 3.44 feet to the Point of Beginning. EXCEPT that portion thereof conveyed by Deed recorded October 12, 1977, in Book 336 at Page 462, EXCEPT those portions of Lot 13, Section 3, Township 10 South, Range 85 West of the 6th P.M., released by Buttermilk Mountain Skiing Corporation, a Colorado corporation in release recorded December 2, 1977, in Book 339 at Page 621, EXCEPT that portion thereof conveyed by Buttermilk Mountain Skiing Corporation, a Colorado corporation, to Virginia Aspen Corporation, a Colorado corporation, by Deed recorded May 13, 1969, in Book 241 at Page 21, EXCEPT that portion thereof conveyed by Fried' Pfeifer to Virginia Aspen Corporation, by Deeds recorded May 13, 1969, in Book 241 at (Continued) e,4 Ort lb Cr 74 C.ciAjr. Pages 17 through 20, inclusive, and by Deed recorded September 26, 1969, in Book 243 at Page 531, EXCEPT that portion conveyed to Patrick Henry, Jr. and Kristen Henry by Deed recorded July 12, 1972, in Book 264 at Page 997, EXCEPT that portion thereof released by Aspen Skiing Company, a Colorado general partnership, by Release recorded April 5, 1985, in Book 484 at Page 205, /ND EXCEPT that portion thereof released by Aspen Skiing Company, a Colorado general partnership and Friedl Pfeifer by instrument recorded November 12, 1993, in Book 730 at Page 603.