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Home My WebLink Aboutbocc.ord.008.2015CONTRACT #_/Lb RECEPTION#: 618885, 04/09/2015 at 04:21:27 PM, 1 OF 22, R $0.00 Doc Code ORDINANCE Janice K. Vos Caudill, Pitkin County, CO ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, VACATING TRAIL EASEMENTS ON THE COMMON OPEN SPACE AND LOT 5 OF THE PRESERVE SUBDIVISION AND ACCEPTING A NEW TRAIL EASEMENT, RIVER ACCESS EASEMENT AND ADDITIONAL NORDIC TRAIL EASEMENTS FROM THE ASPEN PRESERVE HOMEOWNERS ASSOCIATION AND DAVID AND LILY BIERNE. ORDINANCE NO.- . -2015 RECITALS 1. The Voters of Pitkin County and the Pitkin County Commissioners established an Open Space and Trails program for the purposes of preserving and providing open space and trails resources in Pitkin County, and specifically to ensure access to public lands. 2. In 1986, the Board of County Commissioners approved The Preserve Subdivision plat, which was recorded at, Plat Book 18 at Page 84. This plat included the dedication of 2 alternate locations for a 15 foot wide public trail through the Preserve Subdivision Common Open Space property. 3. In 1994, the County Open Space and Trails program constructed the East of Aspen trail across the Common Open Space property. However, portions of the trail were constructed outside the existing alternate easement locations. This encroachment was not corrected. 4. The Aspen Preserve Homeowners Association and the County now wishes to vacate the 2 alternate trail easement locations and to convey a new trail easement agreement located along the existing East of Aspen Trail, in exchange for the - County's vacation of the 1986 platted alternate trail easements. The Asp�n Preserve Homeowners Association also wishes to grant a new nordic trail easement and county public access to that portion of the Common Open Space that lies between the East of Aspen trail easement and the Roaring Fork River, so that the public may continue to access the river from the trail lawfully. 5. The County wishes to accept these public recreation easements and agrees to vacate the originally platted trail easements. 6. On February 19, 2015, the Pitkin County Open Space and Trails Board recommended that the BOCC approve the proposed Contract and Ordinance. 3 NOW T17 EREFORE BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado, that: 1. The Board authorizes the vacation of the two alternate locations of the 15 foot wide trail easement on Lot 5 and the Common Open Space in the Preserve Subdivision. 2. The Open Space Director and County Attorney have approved to form and the Chair is authorized to execute the Public Trail Easements and Vacation of Easements Agreement. 3. The Public Trail Easements and Vacation of Easements Aereement has been approved to form and the Chair is authorized to execute other documents needed to consummate this transaction. 4. The Board approves an expenditure of up to $5,000.00 for transaction costs. 5. That adjustments be made to the year 2015 budget as follows: I OPEN SPACE AND TRAILS FUND I Previous Revised Budget This ChaneeProiect Budeet East of Aspen Trail Easements - Preserve Subdivision transaction costs Estimated Transaction Costs $0 $ 5,000 $ 5,000 Total Expenditure $0 $ 5,000 $ 5,000 6. The Board finds that adoption of this ordinance is necessary for the immediate preservation of the public health, safety and welfare of the citizens of Pitkin County and therefore declares this ordinance and legislation to be effective immediately upon adoption. INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 1 Ith DAY OF MARCH 2015. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE #� DAY OF M6,(,,L , 2015. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON TFIE OFFICIAL PITKIN COUNTY WEBSITE ( www.nitkincounty.com) ON THE ��AY OF 2015. R&rdt' ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 25th DAY OF MARCH 2015. PUBLISHED BY TITLE AND SHORT SUMMARY. A TER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE 144� DAY OF L4r i / 2015. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE ( www.pitkincounty.com) ON THEA DAY OFL , 2015. 96-u THIS ORDINANCE IS EFFECTIVE ON MARCH 25, 2015. ATTEST: BOARD OF COUNTY COMMISSIONERS By � l U)611 By: SAA Jean tte Jones Steven F. Child, Chair De I ty County Clerk Date: APPROVED AS TO FORM: Dale Will, Director Open Space and Trails Program Ordinance -&!7 -2015 MANAGER APPROVAL on PeaCOCK, C my Manager PUBLIC TRAIL EASEMENTS AND VACATION OF EASEMENTS AGREEMENT. THIS PUBLIC TRAIL EASEMENTS AND VACATION OF EASEMENTS AGREEMENT (hereinafte the "Agreement") is made and entered into as of this !� day of 2015 by and between the Board of County Commissioners of Pitkin County, Colorado (the "Coup '), the Aspen Preserve Homeowners Association, Inc., a Colorado nonprofit corporation ("Preserve HOA"), whose address is P.O. Box 11313, Aspen, Colorado 81612, and David M. Beime and Lily T. Beime (collectively, "Beime"), whose address is 31 N. Star Circle, Aspen, CO 81611. The County, Preserve HOA and Beime maybe referred to individually herein as a "1? or collectively as the "Parties". RECITALS: A. Preserve HOA is the owner of certain real property in Pitkin County, Colorado commonly known as the Preserve Subdivision Common Open Space (the "Open Space'D and legally described as: COMMON OPEN SPACE AND NON -DEVELOPMENT EASEMENT TRACT, THE PRESERVE, according to the Plats thereof recorded August 12, 1986 in Plat Book 18 at Page 84, Amendment No. 1 recorded November 24, 1987 in Plat Book 20 at Page 34 and Activity Envelope Site Plan recorded April 17, 2007 in Plat Book 83 at Page 36 and Amendment No. 2 recorded June 13, 2013 in Plat Book 103 at Page 51 of the records of the Pitkin County Clerk and Recorder, Pitkin County, Colorado. B. Beime is the owner of certain real property legally described as: Lot 5, the Preserve, according to the plat (the "Plat") thereof recorded in Plat Book 18 at Pages 84 and 85 as amended by a plat recorded in Book 20 at Page 34 of the records of the Pitkin County Clerk and Recorder, Pitkin County, Colorado ( "Lot 5"). C: A portion of the Pitkin County public trail known as the East Aspen Trail (the "Trail") and a portion of a winter use only Nordic skiing trail commonly known as the Benedict Nordic Trail (the "Nordic Trail") currently pass through and across a portion of the Open Space. A portion of the Nordic Trail also passes through and across Lot 5. The Trail and Nordic Trail are collectively referred to herein as the "Trails". D. The Plat recites a dedication of "trail easements, as shown hereon ... to the County for public use according to the terms and conditions set forth in the protective covenants recorded in Book 516 at Page 472, of the records of the Pitkin County Clerk and Recorder" (the "Covenants"). The Plat depicts two alternative trail alignments, "Alternate A" and "Alternate B." E. Article IX, Section 1 of the Covenants recites that the Declarant "agrees to dedicate_ to the public a trail easement along one of two alternative alignments as described on the Plat Map'.,.. . Pitkin County shall have the right to construct a pedestrian trail along either one of said alternative alignments. At such time as said trail alignment is selected, the Declarant shall execute a formal dedication to Pitkin County thereof. Thereupon, the alternative alignment not selected shall be BUS-RE/5532061.1 vacated and all rights therein shall revert to the Declarant." This Section also sets further limitations to be included in the trail easement. The Parties acknowledge and agree that portions of the Trails, as they currently exist, are not within the platted and dedicated altemative trail alignments. The Parties further acknowledge and agree that the scope of the platted and dedicated trail easements did not originally include wintertime Nordic skiing use. F. Although the Trails have been in place for a number of years, separate trail easements were never recorded and the alternative alignment over the Open Space was never vacated. G. On April 7, 1994, the County recorded a "Plat of Northstar Nature Preserve Pedestrian Bridge and Trail 1041 Site Plat, Pitkin County, Colorado' (the "1041 Plat") depicting a portion of the as -built Trail as it crosses through the Northeast Common Open Space of the Preserve Subdivision. The Preserve HOA wishes to grant an easement for the Trail depicted in the 1041 plat, subject to the terms and conditions herein. H. In 2006, Beime and the County negotiated a realignment and vacation of a portion of the trail easement "Alternate B" as depicted in the DMB & LTB Amended Plat recorded February 10, 2006 in Plat Book 77 at Page 42 of the records of the Clerk and Recorder of Pitkin County, Colorado (the "Lot 5 Plat"); however, no separate easement and vacation document was recorded. I. The Parties desire to vacate the platted trail easement alignments and formalize the location and terms of use of the existing Trails and easements therefor. J. The County has requested that the Preserve HOA and Beirne grant to and for the benefit of the County and the general public a non-exclusive recreational easement for each of the Trails as they cross over the Open Space and Lot 5 and to grant informal recreational access to the Roaring Fork River (the "River") from the Trail. K. The Preserve HOA and Beime desire by this instrument: (a) to establish and to grant to the County perpetual, non-exclusive trail easements in connection with the Trails; (b) to establish certain restrictions with respect to said trail easements; and (c) to vacate platted alignments. L. The County desires by this instrument: (a) to accept said trail easements subject to the restrictions set forth herein; (b) to assume certain responsibilities in connection therewith; and (c) to vacate platted alignments. AGREEMENT NOW THEREFORE, for and in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Grant of Public Trail Easement. The Preserve HOA hereby grants to the County, for the use and benefit of the general public, a perpetual, non-exclusive 15 foot easement and right of way 7.5 feet on either side of the center line of the as -built location of the East Aspen Trail located in Page 2 of 13 BUS_R&5532061.1 the Open Space, which is legally described and depicted in "Exhibit A" attached hereto and incorporated by reference (the "Public Trail Easement"). The Public Trail Easement may be used by Grantee for the repair.and maintenance of an unpaved trail for non -motorized pedestrian, equestrian, cross-country skiing and bicycle use. The Public Trail Easement includes the area described in Plat Amendment No. 3, Northern Common Open Space Parcels, the Preserve, to be recorded after the recordation of this Agreement, as the "Bridge Building Envelope," which area may be used by the County for the purpose of repair, replacement and maintenance of the existing pedestrian bridge, which crosses the Roaring Fork River at the boundary of the Open Space, and is a feature of the East Aspen Trail. 2. Grant of River Access Easement. The Preserve HOA hereby grants to the County, for the use and benefit of the general public, a perpetual, non-exclusive easement in the areas visually depicted on the location map attached hereto as "Exhibit B" and incorporated herein by reference, which include certain areas: (a) between the Public Trail Easement and the River (the "River Access Area"); and (b) south of the Trail to a small landing on the river directly adjacent to and under the North Star Bridge, as legally described in "Exhibit B" attached hereto and incorporated by reference (collectively, the "River Access Easement") for passive pedestrian access from the East Aspen Trail to the River and for installation of signage and limited fencing described in Section 5A herein. 3. Grant of Nordic Trail Easement by Preserve HOA and Beirne. The Preserve HOA and Beirne hereby grant to the County, for the use and benefit of the general public, a perpetual, non-exclusive 15 foot wide easement and right of way 7.5 feet on either side of the center line of the location of the existing alignment of the seasonal Nordic Trail located on the Open Space and Lot 5, which is legally described and depicted in "Exhibit C" attached hereto and incorporated by reference (hereinafter referred to as the "Nordic Trail Easement"). The Nordic Trail Easement may be used between November 1 and April 15 of each year by Grantee for the seasonal over -snow grooming and maintenance of a cross-country skiing trail for cross-country skiing use and for temporary installation of related signage and trail markers acceptable to the Preserve HOA and Beirne pursuant to the terms herein. 4. Reservation by Preserve HOA and Beirne and Acceptance by County. The Public Trail Easement, River Access Easement and Nordic Trail Easement (individually, an "Easement" and collectively, the "Easements") shall be subject to any and all road, driveway, utility, water, sewer, telephone, cable, electric, gas, secondary irrigation systems, ditches, and laterals, pumps and pipelines, and similar easements or improvements in place or to be constructed in the future that currently do or will cross or parallel the Easements granted herein, provided that such similar easements or improvements shall not unreasonably interfere with use of the Easements. The County hereby accepts the Easements in "as is" condition, subject to the restrictions herein contained, and subject to all patent or latent defects or problems of any kind or nature. 5. Terms and Conditions. The right of the County to use the Easements shall be further subject to the following terms and conditions: A. Required Improvements. The Trail intersects with Northstar Lane, the Page 3 of 13 BUS M5532061.1 access road into the Preserve Subdivision. The County shall, at its sole expense, install and maintain signage acceptable to and approved by the Preserve HOA, which approval may be withheld in its sole and absolute discretion, within the Public Trail Easement at either side of the road at such intersection. The signage shall be visible to persons using the Trail and shall signal all Trail users to stop and yield to vehicles and pedestrians crossing the Trail at such intersections. The County shall also erect signs, at each end of the Public Trail Easement identifying that the Public Trail Easement is located upon private lands and setting forth restrictions upon the use of the Public Trail Easement, including without limitation, the restriction of entry onto adjacent private property from the Public Trail Easement, the requirement that dogs must remain on a leash and other restrictions as described in -Section 5D herein or as adopted in Title 12 of the Pitkin County Code. The County shall cooperate with the Preserve HOA to install (i) signage approved by the Preserve HOA, which clearly delineates, the transition from the North Star Preserve property to the Open Space; and (ii) signage approved by the Preserve HOA, which designates the most appropriate area(s) for public access to the River and restricts users from entering onto trails and land that is not part of the Easements; and (iii) limited fencing complying with County guidelines for fencing in Open Space and approved by the Preserve HOA to prohibit public access to the private lands and trail located on the South side of the Trail along the Roaring Fork River. All signage must comply with County Open Space signage standards in place at the time of installation. B. Lot 5 Nordic Trail Easement Required Improvements. The County shall, at its sole expense, install and maintain signage acceptable to and approved by Beirne, which approval may be withheld in Beime's sole and absolute discretion, within the Nordic Trail Easement at the west and east boundaries of Lot 5. The signage shall be visible to all persons using the Nordic Trail. Such signage shall be temporarily installed on a seasonal basis. From November 1 until April 15, the signage shall notify users that the Nordic Trail is located on private lands and that use of the Nordic Trail is restricted including, without limitation, that use is restricted to the period from November I to April 15 for cross-country skiing only, that dogs are prohibited on the Nordic Trail, that entry onto private lands is prohibited, that use of the Nordic Trail is limited to the hours between 9:00 am and 4:00 pm, and other restrictions as described in Section 5D herein or as adopted in Title 12 of the Pitkin County Code ("Winter Use Signage"). In addition, from November 1 to April 15, the County shall install limited staking on Lot 5 to be approved by Beime in Beirne's sole and absolute discretion that delineates the edge of the Nordic Trail on Lot 5 unless Beime agrees to forego this requirement on an annual basis. Within three days after April 15, all such limited staking shall be removed until the next winter season. In addition, within three days after April 15, the Winter Use Signage shall be removed and replaced by signage that prohibits use of the Nordic Trail area and prohibits entry onto Lot 5. All signage must comply with County Open Space signage standards in place at the time of installation. C. Prohibited Improvements. No temporary or permanent improvements or structures not currently in place, other than as set forth in this Agreement, shall be constructed by Pitkin County on or in the Easements in the Open Space without the prior written approval of the Preserve HOA and on Lot 5 without the prior written approval of Beime, which approval may be withheld in each Party's sole and absolute discretion. Improvements which are specifically prohibited include, but are not limited to: signs (other than signs and trail markers specified in Sections 3, 5A, and 5B above), lighting, fences (except as described in Section 5A above or as Page 4 of 13 BUS_REJ5532061.1 agreed upon between the Parties in writing) and any type of radio, citizen's band, short wave, television or other transmitting or receiving antenna or satellite dish. Except for the existing gravel Trail, the limited signage, trail markers and fences described herein or later agreed upon between the parties in writing, the Easements shall be maintained in a natural, unimproved state for access over existing trails within the Easements. No new trails or other improvements shall be constructed in the Open Space within the Easements without the Preserve HOA's written permission, which may be withheld in its sole and absolute discretion, or on Lot 5 without Beime's written permission, which may be withheld in the Beime's sole and absolute discretion. No permanent improvements of any kind shall be installed in the Nordic Trail Easement. All temporary improvements and signage installed by the County in the Nordic Trail Easement shall be removed by April 15 of each year except for those signs required by paragraph 513, above to be installed at the boundaries of Lot 5 after April 15. D. Easement and Trail Use Restrictions. 1. The Easements shall be used exclusively for non -motorized travel and recreation by the public and for no other uses or activities whatsoever. No motorized vehicles of any kind shall ever be permitted on the Easements except (i) Grantee may use motorized equipment as necessary for maintenance, grooming, repair, or emergency response, and (ii) Other Power Driven Mobility Devices (OPDMDs) are permitted on the Trails in accordance with the American Disability Act and with the Pitkin County OPDMD Management Plan as adopted on July 21, 2011 and as may be revised from time to time. Grooming of the Nordic Trail on Lot 5 shall only take place between the hours of 10:30 am and 12:00 pm. 2. No camping, fires, firearms, noisy or otherwise offensive behavior, or trespass onto adjacent private lands or commercial uses (except for limited commercial uses as permitted under Title 12 of the Pitkin County Code) shall ever be permitted to be conducted on or from the Easements. 3. The Easements are hereby declared to be part of the Pitkin County Trail System, and the use of the Easements shall Ibe governed by the rules and regulations and other provisions of Title 12 of the Pitkin County Code entitled "Trail Regulations," as said Title 12 may be amended or re -codified from time to time, provided that the provisions of this Agreement shall control whenever they are more restrictive than the provisions of Title 12. 4. The use of the Easements is restricted to the existing Trails within the Easements and the River Access Area and trespass onto private lands adjacent to the Easements shall be prohibited. 'The County and the public are prohibited from relocating the Trails in any way. 5. The County shall rel uire dogs on the Trail and within the Public Trail and River Access Easements to be leashed and under an owner's control at all times, except when swimming in the River and under an owner's control. No dogs are allowed on the Nordic Trail Easement at any time. E. Maintenance, Repair and Restoration. The Preserve HOA and Beime shall Page 5 of 13 BUS R&5532061.1 have no maintenance or repair responsibility for the Easements granted herein. The County hereby assumes complete responsibility for and agrees to care for and maintain the Easements in a clean and attractive condition and in a good and safe order and repair, at its sole cost and expense, and shall ensure that all Trails located within the Easements are safe for public use. The County's maintenance responsibilities shall include, but not be limited to, trash and debris removal, noxious weed removal, keeping the Trails clear of rocks and other obstructions, grooming as needed, controlling erosion and water runoff, marking hazards, and general care and maintenance, including removal of. vegetation growing within the Trail. Except as set forth herein, or as necessary to maintain public safety and the integrity of the Trails, the County shall not alter the natural topography or vegetation of the Easements. The County may contract with a responsible third party to carry out these care and maintenance requirements, which contract will not change or alter any of these requirements or relieve the County of any of its responsibilities under this Agreement. In the event that any Easement becomes de -vegetated or eroded from overuse, the County shall take appropriate measures to close and revegetate any affected areas of such Easement to restore the Easement to its condition as of the date of this Agreement. F. Failure to Maintain, Restore or Repair. If the County fails to maintain, restore or repair the Easements or any of the trails or improvements therein as required by this Agreement, the Preserve HOA, or Beime, may (but shall not be obligated to) notify the County in writing, noting with specificity the maintenance, restoration or repair failures and, if not remedied within 30 days (or such longer period as is reasonably necessary due to season and/or weather conditions) after such notice to the reasonable satisfaction of the Preserve HOA or Beime, the Preserve HOA or Beime may perform such maintenance, restoration or repairs and the County shall be responsible to reimburse the Preserve HOA or Beime for the actual costs thereof within thirty (30) days after receiving an invoice for such work. This subparagraph shall not alter in any way the County's responsibility for maintaining the Easements in a safe manner, nor shall it obligate the Preserve HOA or Beirne to inspect or cause any repairs to be made to the Easements or other improvements therein, which inspection and repairs are the sole obligation of the County. The rights and obligations granted to the Preserve HOA and Beime in this paragraph relate to each Party insofar as the act or failure to act occurs on its property. G. Enforcement. The County agrees to enforce all covenants and use restrictions set forth herein and all other applicable rules and regulations as may be contained in Title 12 of the Pitkin County Code, and to prosecute violations thereof, consistent with other County trails and will work with the Preserve HOA and Beime to ensure safe use of the Trails consistent with their private property rights on their respective properties. The Preserve HOA and Beime shall have the right (but never the obligation) at any time to prosecute any action against the County that may be necessary or appropriate to enforce the terms of this Agreement by injunction and/or damages action or otherwise. The prevailing party in any such enforcement action shall be awarded its reasonable costs and attorney's fees incurred in connection therewith. I H. _Work by Preserve HOA in the Easements. In the event that the Preserve HOA must conduct work within any of the Easements in order to access an underlying utility easement for the installation, maintenance, repair, replacement or reconstruction of utilities (the "Work"), the Preserve HOA will provide the County with prior notice before disturbing the Trails, Page 6 of 13 BUS_RE15532061.1 and will work in good faith with the County to schedule the Work so as to reasonably minimize the disruption of public use and to coordinate any necessary trail or Easement Area closures. The Preserve HOA will make reasonable, good faith efforts to undertake any such Work within the Easements in a fashion that will reasonably permit the Trail and other public access areas to remain open to the public, to the extent that public safety considerations will allow; however, if the County requires the Trail or other public access areas to remain open, the County shall be responsible at all times for posting appropriate notices and warnings and ensuring the safety of the public during the pendency of the Work. The Preserve HOA will restore the Easement areas and Trails affected to their existing condition as of the date of this Agreement within a reasonable time after the Work is completed. Upon completion of such restoration, the County shall be solely responsible for inspecting the affected Easements and Trails to ensure the same are safe for public use prior to re- opening the same forpublic use. Failure by the County to object to the restoration within thirty days of its completion shall be deemed to be an acceptance of the restoration. Thereafter, the County shall have sole responsibility for ongoing maintenance and repairs of the disturbed areas. I. Work by Beirne in the Easements. In the event that Beime must conduct work within the Easements on Lot 5 and/or on the Open Space in order to access the Beime Pump and Pipeline structure that supplies and drains the Beime Pond for the installation, maintenance, repair, replacement or reconstruction of said Beime Pump and Pipeline (the `Beirne Pump and Pipeline Work"), Beime will provide the County and the Preserve HOA with prior notice before disturbing the Trails or River Access Easement area and will work in good faith with the County and the Preserve HOA to schedule the Beirne Pump and Pipeline Work so as to reasonably minimize the disruption of public use and to coordinate any necessary closures of the Trails and/or River Access Easement area. The County agrees that, to the extent Beimeperforins any Beime Pump andPipeline Work between April 16 and October 31 within the Nordic Trail Easement, any such action shall not be considered a disruption of the Nordic Trail use in any way and no notice to the County shall be required for such action. Beime will make reasonable, good faith efforts to undertake such Beime Pump and Pipeline Work within the Easements in a fashion that will reasonably permit the Trails and/or River Access Easement area to remain open to the public, to the extent that public safety considerations will allow. The County shall be responsible at all times for posting appropriate notices and warnings and ensuring the safety of the public during the pendency of any Beirne Pump and Pipeline Work. Beime will restore the Trails and/or River Access Easement area to their existing condition as of the date of this Agreement within a reasonable time after the Beime Pump and Pipeline Work is completed. Upon completion of such restoration, the County shall be solely responsible for inspecting the Trails and/or River Access Easement area to ensure the same are safe for public use prior to re -opening the same for public use. Failure by the County to object to the restoration within thirty days of its completion shall be deemed to be an acceptance of the restoration. Thereafter, the County shall resume its full responsibility for ongoing maintenance and repairs of the disturbed areas. All Beime Pump and Pipeline Work in the Open Space shall be subject to and in accordance with the requirements of the Pum and Pipeline Easement between Beime and the Preserve HOA recorded at Reception Number GI ? S on 2015, and nothing herein shall be deemed a waiver or modification by the Preserve H A or Beime of any provision of such Agreement. 6. No Additional Easement. Nothing herein shall be construed or deemed to grant any Page 7 of 13 BUS REM32061.1 other easement across the Open Space or Lot 5 to the public or otherwise grant any right of access to the public on, over, across or to the Open Space or Lot 5. 7. Grantee's Obligation to Hold Harmless and Insure. The Parties expressly acknowledge that the Public Trail Easement, the River Access Easement and the Nordic Trail Easement are granted for a "recreational purpose" under C.R.S. § 33-41-101, et seq., and that the Preserve HOA and Beime are entitled to the benefits, protections and limitations on liability afforded by Colorado law governing recreational easements, including without limitation C.R.S. § 33-41-101, et seq. and Section 24-10-114(1). By granting the Easements, the Preserve HOA and Beime shall have no obligation to repair, clear or otherwise maintain the area within the Easements, or to insure or indemnify the County or the public for any injury, claim or damage to any person or property, whether alleged to have occurred as a result of use of the Easements for public non -motorized travel or otherwise, or due to the condition of any trails or lands within the Easements. By entering into this Agreement, the County hereby agrees to hold harmless the Preserve HOA and Beime, to the full extent allowed under Colorado law, from and against any and all claims, demands, causes of action, damages, losses, liabilities, costs and expenses of any kind or nature (including those involving death, personal injury or property damage and including reasonable attorneys' fees) arising from or incurred in any way in connection with the use or relocation of the Easements by anyone, including members of the general public, excepting any such claims or losses which may arise directly from the willful and grossly negligent acts of Beirne or the Preserve HOA, its agents or employees, or other claims as described in C.R.S. § 33-41-104(1). The County further agrees to add the Preserve HOA and Beime as additional named insureds on its comprehensive general liability insurance policy, which insurance shall be maintained by the County to provide protection for Preserve HOA and Beime against liability from claims arising out of the use of the Easements. Such insurance shall be carried in amounts not less than the liability limits specified in C.R.S. § 24-10-114(1), as it may be amended from time to time, and shall contain a requirement to provide the Preserve HOA and Beirne with thirty (30) days advance written notice prior to cancellation or termination. Any such termination shall result in a termination of the County and public's right to use the Easements until such time as such insurance is reinstated. The County shall, upon written request from the Preserve HOA and/or Beime, provide a certificate of insurance as verification of compliance with these requirements. 8. Vacation of Easements. a. Pitkin County hereby vacates and quit claims to Preserve HOA all of its right, title and interest in and to the "15' Trail Easement Alternate A" and "15' Trail Easement Alternate B" on over and across the Open Space as dedicated and described on the Plat for the Preserve Subdivision recorded in Plat Book 18 at Pages 84 and 85 on August 12, 1986, on the First Amended Plat for the Preserve Subdivision recorded November 24, 1987 in Plat Book 20 Page 34 and the "Pedestrian Trail" located in Open Space depicted on the Beime Plat recorded in Plat Book 77 at Page 42 on February 10, 2006, all in the records of the Pitkin County Clerk and Recorder, Colorado. b. Pitkin County hereby vacates and quit claims to Beime all of its right, title and Page 8 of 13 BUS_RF/5532061.1 interest in and to the "15' Trail Easement Alternate B" on over and across Lot 5 as dedicated and described on the Plat for the Preserve Subdivision recorded in Plat Book 18 at Pages 84 and 85 on August 12, 1986, on the First Amended Plat for the Preserve Subdivision recorded November 24, 1987 in Plat Book 20 Page 34 and as depicted on the Beime Plat recorded in Plat Book 77 at Page 42 on February 10, 2006, all in the records of the Pitkin County Clerk and Recorder, Colorado. In addition, Pitkin County hereby vacates and quit claims to Beime all of its right, title and interest in and to the "Pedestrian Trail" depicted on Lot 5 on the Beime Plat described above. 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 when delivered in person or deposited in the,U.S. Mail with sufficient postage affixed, certified and return receipt requested and addressed to each party at the addresses below: Preserve HOA: Aspen Preserve Homeowners Association, Inc. c/o Mountain Maintenance P.O. Box 11313 Aspen, Colorado 81612 Copy to: Diana Ettlinger, Esq. B. Joseph Krabacher,Esq. Sherman & Howard, L.L.C. 320 West Main Street Aspen, CO 81611' Beirne: David and Terry Beime 31 North Star Circle Aspen, CO 81611 Copy to: Craig V. Corona, Esq. CORONA WATER LAW 420 E. Main St., Ste. 203 Aspen, CO 81611 cc@craigeoronalaw.com The County: John Ely, Esq. Pitkin County Attorney's Office 530 E. Main Street Page 9 of 13 BUS_R&5532061.1 Aspen, CO 81611 10. Governing Law; Venue; Attorney Fees. This Agreement and the rights and obligations of the Parties 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 are pursued to resolve any dispute or conflict regarding the interpretation or enforcement of the terms of this Agreement or the rights and obligations of the Parties, the substantially prevailing party shall be awarded its reasonable costs incurred in pursuing such remedies, including expert witness fees and reasonable attorney fees. 11 No Waiver. The failure of any party to this Agreement to insist on the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. 12. Paragraph Headings. The titles to the paragraphs of this Agreement are solely for the convenience of the Parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Agreement. 13. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement shall be binding only if evidenced in writing signed by each Party or an authorized representative of each Party. 14. Binding Agreement- Recording. This Agreement is binding upon and shall inure to the benefit of the Parties hereto, their heirs, successors and assigns including all future owners of the underlying real property traversed by the Easements, or any part thereof, and any sale or transfer of the subject properties shall be subject to this Agreement. The benefits and burdens hereof shall also run with the title to the underlying real property and all parts thereof traversed by the Easements. This Agreement shall be recorded with the Pitkin County Clerk and Recorder, and shall impose covenants running with the land upon the Open Space and Lot 5. 15. Entire Agreement. This Agreement and all other agreements executed in connection with this Agreement constitute the entire agreement between the Parties relating to the subject matter hereof. All prior agreements, whether written or oral, among themselves or their agents and representatives relating to the subject hereof are merged into this Agreement. This Agreement may be amended only by an instrument in writing signed by the affected Parties. 16. 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. 17. 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. Page 10 of 13 BUS_RFJ5532061.1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ASPEN PRESERVE HOMEOWNERS ASSOCIATION, Inc., a Colorado nonprofit corporation LE STATE OF COLORADO ) ss. County of Pitkin ) Thomas E. Bernard, President Acknowledged before me by Thomas E. Bernard as President of the Aspen Preserve Homeowners Association, Inc., a Colorado nonprofit corporation this iday of J� --e� ,,,, ,�, 2015. �Witness m, hand and official seal. My commission expires: Notary Public �P P CHR�S� NOTARy'. •• PUBLIO ,.• QO OF W Commission E:p'res 0711112015 Page 11 of 13 BUS-RE/5532061.1 LN WMESS WHEREOF, the parties hereto have executod this Agrceatent on the day and year first aboee written, RE[RNE: STATE. OF F yr cf � ss. County of Poe- � Acknowledged before me by David h1. Beime and Lily T. Beime, day of AjG Witness my hand and official sc4l D9y ronimiss�on expires: T7 x ��✓� 1 !i�a e4zl GLMAY.CAMPGB Notary Public ►morvuere e�roap rv�tvac ►q oomm iiha IFiY "t4 Mite aes�aslernwe.t NO 12 of 13 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ACCEPTED BY PITKIN COUNTY W :Jones Clerk and BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, ,COLORADO By: S a1 C GtrJ Ski, �. CWA1 , Chair STATE OF COLORADO ) ss. COUNTY OF PITKIN ) Acknowledged before me this day of % y 2015, by S4--yG V.63J as Chair of the Board of County Commissioners of Pitkin County, Colorado, and attee@VJst,q& Jeanette Jones as Deputy Clerk and Recorder of Pitkin County, Colorado. �e� p,. Ach��e,pse�� 1[Y1ess r*y hand and official seal. cordmiion expires: My Commission Expires August 4, ZU'l b ®D4y d ••....... � C?ter of +aio`x`` o pPublic APPROVED AS TO FORM: John Ely, Cou tto MMENDED MPROVAL: Dale . Will, Director Open Space and Trails BUS-RE/5532061.1 Jon Peacock, County Manager APPROVED AS TO CONTENT: U � erre a-�oa.t Open Space and Trails Board of Trustees Page 13 of 13 M>z �H 0 2°noAon ctzm P 9 O m Z m m �DA0o ymC�uz mnOZ z cl mm<zo O�m<n mz=0O r-cmr0 n N $ a D y cmzo OmmxS Z C i N = m - ' K on C zRo�2 m32F m A 2 z n n1?o Oz O z K<mm o D„A,z m�Cmm n'1 ZO z O mZ m 2 V 0 bso N "ZED yrzn m mA ^ z m o z In RRm11� L1Syc OOSZ m Omvl mmm N Y m a z w Gl O 3 w V I I / � � DI m F-� - S�) II01 Y n Y A Y W Y 9 mmmGG n Y O Y n Y A Y W Y A m O 0 m V OGl N m m w m moo O W m OWi v Y Y m m m z N 0 W J y1 V V 00 N 0 N Ol 0 J N Y Y N F N O Y O ao0aC N N O V O W O N 0 O - O O O O m m m m m m _ H 0.w t0 Nmc W Y mz D N {On W V OR 1N0 Z m A t0 A mA w G1 A Y T= IJ m l0 N Ol Y lD m W O Y V N V W V N N O N V A PP Y V W (32 O t0 Y W A N y s A W Co 0 a O Z z Z m N N m m Y V m m m m C:5 A r 0 A D N N N W 02 A uwi m N o Z m m w m m o o i Ph V N V N w m WJ m Ol 0 o V Y VI Y p mmmGG r N Y O 0 m V OGl N F,z m N p O W A OWi OZO IWiI A m m m Ol 0 0 J y1 V V N D N Ol 0 A 00 N N A m N O Y O O In N N O V O W N 0 N 0 O 0 Z L1 r m F m m m m m m m IYn t0 m W A W N N N r m Z G1 In Ln O N N In A t0 A mA w G1 A Y T= IJ l0 N Ol Y lD N N Y W r n D r m N m K z O z Z ZD0 O=D 1 Zen o m m r OOO N 'C' m ZC) 2 0 0 m nC)LA y ,D M A -m{ O Lal O � zn 0 N 0 m 7M TSIo Omz OmV Ln Ln D 3 n m m v m m LAm m m t z m Z Q 9 C@ D Ei 3z„mn -MI �+ D o0 N a Z2 > � � Z> ooaz D DC - A-Mno> r m ml/f W 5 N C I A < ° N_ r np � '9651 �5`I>Z 1Z 00 P"IC+TiO II 'c0 '-O OIIF ren a) r Spmzo OZ m z<`,Ta�f wM �ml imi�Ko Nm 3 Z m O �/ o z < W In z ("1 zz00 (Dj o ; /�. 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Vos Caudill, Pitkin County, CO PUBLIC TRAIL EASEMENTS AND VACATION OF EASEMENTS AGREEMENT THIS PUBLIC TRAIL EASEMENTS AND VACATION OF EASEMENTS AGREEMENT (hereinafte the "Agreement") is made and entered into as of this 7 day of 2015 by and between the Board of County Commissioners of Pitkin County, Colorado (the "Coun "), the Aspen Preserve Homeowners Association, Inc., a Colorado nonprofit corporation ("Preserve HOA"), whose address is P.O. Box 11313, Aspen, Colorado 81612, and David M. Beime and Lily T. Beirne (collectively, `Beime"), whose address is 31 N. Star Circle, Aspen, CO 81611. The County, Preserve HOA and Beime may be referred to individually herein as a "Part ' or collectively as the "Parties". RECITALS: A. Preserve HOA is the owner of certain real property in Pitkin County, Colorado commonly known as the Preserve Subdivision Common Open Space (the "Open Space') and legally described as: COMMON OPEN SPACE AND NWDEVELOPMENT EASEMENT TRACT, THE PRESERVE, according to the Plats thereof recorded August 12, 1986 in Plat Book 18 at Page 84, Amendment No. 1 recorded November 24, 1987 in Plat Book 20 at Page 34 and Activity Envelope Site Plan recorded April 17, 2007 in Plat Book 83 at Page 36 and Amendment No. 2 recorded June 13, 2013 in Plat Book 103 at Page 51 of the records of the Pitkin County Clerk and Recorder, Pitkin County, Colorado. B. ' Beirne is the owner of certain real property legally described as: Lot 5, the Preserve, according to the plat (the "Plat") thereof recorded in Plat Book 18 at Pages 84 and 85 as amended by a plat recorded in Book 20 at Page 34 of the records of the Pitkin County Clerk and Recorder, Pitkin County, Colorado ( "Lot 5"). C. A portion of the Pitkin County public trail known as the East Aspen Trail (the "Trail") and a portion of a winter use only Nordic skiing trail commonly known as the Benedict Nordic Trail (the "Nordic Trail") currently pass through and across a portion of the Open Space. A portion of the Nordic Trail also passes through and across Lot 5. The Trail and Nordic Trail are collectively referred to herein as the "Trails". D. The Plat recites a dedication of "trail easements, as shown hereon ... to the County for public use according to the terms and conditions set forth in the protective covenants recorded in Book 516 at Page 472, of the records of the Pitkin County Clerk and Recorder" (the "Covenants"). The Plat depicts two alternative trail alignments, "Alternate A" and "Alternate B." E. Article DC, Section 1 of the Covenants recites that the Declarant "agrees to dedicate to the public a trail easement along one of two alternative alignments as described on the Plat Map .... Pitkin County shall have the right to construct a pedestrian trail along either one of said alternative alignments. At such time as said trail alignment is selected, the Declarant shall execute a formal dedication to Pitkin County thereof. Thereupon, the alternative alignment not selected shall be BUS RF/5532061.1 vacated and all rights therein shall revert to the Declarant." This Section also sets further limitations to be included in the trail easement. The Parties acknowledge and agree that portions of the Trails, as they currently exist, are not within the platted and dedicated alternative trail alignments. The Parties further acknowledge and agree that the scope of the platted and dedicated trail easements did not originally include wintertime Nordic skiing use. F. Although the Trails have been in place for a number of years, separate trail easements were never recorded and the alternative alignment over the Open Space was never vacated. G. On April 7, 1994, the County recorded a "Plat of Northstar Nature Preserve Pedestrian Bridge and Trail 1041 Site Plat, Pitkin County, Colorado' (the "1041 Plat") depicting a portion of the as -built Trail as it crosses through the Northeast Common Open Space of the Preserve Subdivision. The Preserve HOA wishes to grant an easement for the Trail depicted in the 1041 plat, subject to the terms and conditions herein. H. In 2006, Beime and the County negotiated a realignment and vacation of a portion of the trail easement "Alternate B" as depicted in the DMB & LTB Amended Plat recorded February 10, 2006 in Plat Book 77 at Page 42 of the records of the Clerk and Recorder of Pitkin County, Colorado (the "Lot 5 Plat"); however, no separate easement and vacation document was recorded. I. The Parties desire to vacate the platted trail easement alignments and formalize the location and terms of use of the existing Trails and easements therefor. J. The County has requested that the Preserve HOA and Beime grant to and for the benefit of the County and the general public a non-exclusive recreational easement for each of the Trails as they cross over the Open Space and Lot 5 and to grant informal recreational access to the Roaring Fork River (the "River") from the Trail. K. The Preserve HOA and Beime desire by this instrument: (a) to establish and to grant to the County perpetual, non-exclusive trail easements in connection with the Trails; (b) to establish certain restrictions with respect to said trail easements; and (c) to vacate platted alignments. L. The County desires by this instrument: (a) to accept said trail easements subject to the restrictions set forth herein; (b) to assume certain responsibilities in connection therewith; and (c) to vacate platted alignments. AGREEMENT NOW THEREFORE, for and in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: I . Grant of Public Trail Easement. The Preserve HOA hereby grants to the County, for the use and benefit of the general public, a perpetual, non-exclusive 15 foot easement and right of way 7.5 feet on either side of the center line of the as -built location of the East Aspen Trail located in Page 2 of 13 BUS_RE/5532061.1 the Open Space, which is legally described and depicted in "Exhibit A" attached hereto and incorporated by reference (the "Public Trail Easement"). The Public Trail Easement may be used by Grantee for the repair.and maintenance of an unpaved trail for non -motorized pedestrian, equestrian, cross-country skiing and bicycle use. The Public Trail Easement includes the area described in Plat Amendment No. 3, Northern Common Open Space Parcels, the Preserve, to be recorded after the recordation of this Agreement, as the "Bridge Building Envelope," which area may be used by the County for the purpose of repair, replacement and maintenance of the existing pedestrian bridge, which crosses the Roaring Fork River at the boundary of the Open Space, and is a feature of the East Aspen Trail. 2. Grant of River Access Easement. The Preserve HOA hereby grants to the County, for the use and benefit of the general public, a perpetual, non-exclusive easement in the areas visually depicted on the location map attached hereto as "Exhibit B" and incorporated herein by reference, which include certain areas: (a) between the Public Trail Easement and the River (the "River Access Area"); and (b) south of the Trail to a small landing on the 'river directly adjacent to and under the North Star Bridge, as legally described in "Exhibit B" attached hereto and incorporated by reference (collectively, the "River Access Easement") for passive pedestrian access from the East Aspen Trail to the River and for installation of signage and limited fencing described in Section 5A herein. 3. Grant of Nordic Trail Easement by Preserve HOA and Beirne. The Preserve HOA and Beime hereby grant to the County, for the use and benefit of the general public, a perpetual, non-exclusive 15 foot wide easement and right of way 7.5 feet on either side of the center line of the location of the existing alignment of the seasonal Nordic Trail located on the Open Space and Lot 5, which is legally described and depicted in "Exhibit C" attached hereto and incorporated by reference (hereinafter referred to as the "Nordic Trail Easement"). The Nordic Trail Easement may be used between November I and April 15 of each year by Grantee for the seasonal over -snow grooming and maintenance of a cross-country skiing trail for cross-country skiing use and for temporary installation of related signage and trail markers acceptable to the Preserve HOA and Beime pursuant to the terms herein. 4. Reservation by Preserve HOA and Beirne and Acceptance by County. The Public Trail Easement, River Access Easement and Nordic Trail Easement (individually, an "Easement" and collectively, the "Easements") shall be subject to any and all road, driveway, utility, water, sewer, telephone, cable, electric, gas, secondary irrigation systems, ditches, and laterals, pumps and pipelines, and similar easements or improvements in place or to be constructed in the future that currently do or will cross or parallel the Easements granted herein, provided that such similar easements or improvements shall not unreasonably interfere with use of the Easements. The County hereby accepts the Easements in "as is" condition, subject to the restrictions herein contained, and subject to all patent or latent defects or problems of any kind or nature. 5. Terms and Conditions. The right of the County to use the Easements shall be further subject to the following terms and conditions: A. Required Improvements. The Trail intersects with Northstar Lane, the Page 3 of 13 BUS RF/5532061.1 access road into the Preserve Subdivision. The County shall, at its sole expense, install and maintain signage acceptable to and approved by the Preserve HOA, which approval may be withheld in its sole and absolute discretion, within the Public Trail Easement at either side of the road at such intersection. The signage shall be visible to persons using the Trail and shall signal all Trail users to stop and yield to vehicles and pedestrians crossing the Trail at such intersections. The County shall also erect signs, at each end of the Public Trail Easement identifying that the Public Trail Easement is located upon private lands and setting forth restrictions upon the use of the Public Trail Easement, including without limitation, the restriction of entry onto adjacent private property from the Public Trail Easement, the requirement that dogs must remain on a leash and other restrictions as described in -Section 5D herein or as adopted in Title 12 of the Pitkin County Code. The County shall cooperate with the Preserve HOA to install (i) signage approved by the Preserve HOA, which clearly delineates. the transition from the North Star Preserve property to the Open Space; and (ii) signage approved by the Preserve HOA, which designates the most appropriate area(s) for public access to the River and restricts users from entering onto trails and land that is not part of the Easements; and (iii) limited fencing complying with County guidelines for fencing in Open Space and approved by the Preserve HOA to prohibit public access to the private lands and trail located on the South side of the Trail along the Roaring Fork River. All signage must comply with County Open Space signage standards in place at the time of installation. B. Lot 5 Nordic Trail Easement Required Improvements. The County shall, at its sole expense, install and maintain signage acceptable to and approved by Beime, which approval may be withheld in Beirne's sole and absolute discretion, within the Nordic Trail Easement at the west and east boundaries of Lot 5. The signage shall be visible to all persons using the Nordic Trail. Such signage shall be temporarily installed on a seasonal basis. From November 1 until April 15, the signage shall notify users that the Nordic Trail is located on private lands and that use of the Nordic Trail is restricted including, without limitation, that use is restricted to the period from November I to April 15 for cross-country skiing only, that dogs are prohibited on the Nordic Trail, that entry onto private lands is prohibited, that use of the Nordic Trail is limited to the hours between 9:00 am and 4:00 pm, and other restrictions as described in Section 5D herein or as adopted in Title 12 of the Pitkin County Code ("Winter Use Signage"). In addition, from November 1 to April 15, the County shall install limited staking on Lot 5 to be approved by Beime in Beime's sole and absolute discretion that delineates the edge of the Nordic Trail on Lot 5 unless Beime agrees to forego this requirement on an annual basis. Within three days after April 15, all such limited staking shall be removed until the next winter season. In addition, within three days after April 15, the Winter Use Signage shall be removed and replaced by signage that prohibits use of the Nordic Trail area and prohibits entry onto Lot 5. All signage must comply with County Open Space signage standards in place at the time of installation. C. Prohibited Improvements. No temporary or permanent improvements or structures not currently in place, other than as set forth in this Agreement, shall be constructed by Pitkin County on or in the Easements in the Open Space without the prior written approval of the Preserve HOA and on Lot 5 without the prior written approval of Beirne, which approval may be withheld in each Party's sole and absolute discretion. Improvements which are specifically prohibited include, but are not limited to: signs (other than signs and trail markers specified in Sections 3, 5A, and 5B above), lighting, fences (except as described in Section 5A above or as Page 4 of 13 BUS RFJ5532061.1 agreed upon between the Parties in writing) and any type of radio, citizen's band, short wave, television or other transmitting or receiving antenna or satellite dish. Except for the existing gravel Trail, the limited signage, trail markers and fences described herein or later agreed upon between the parties in writing, the Easements shall be maintained in a natural, unimproved state for access over existing trails within the Easements. No new trails or other improvements shall be constructed in the Open Space within the Easements without the Preserve HOA's written permission, which may be withheld in its sole and absolute discretion, or on Lot 5 without Beirne's written permission, which may be withheld in the Beirne's sole and absolute discretion. No permanent improvements of any kind shall be installed in the Nordic Trail Easement. All temporary improvements and signage installed by the County in the Nordic Trail Easement shall be removed by April 15 of each year except for those signs required by paragraph 5B, above to be installed at the boundaries of Lot 5 after April 15. D. Easement and Trail Use Restrictions. 1. The Easements shall be used exclusively for non -motorized travel and recreation by the public and for no other uses or activities whatsoever. No motorized vehicles of any kind shall ever be permitted on the Easements except (i) Grantee may use motorized equipment as necessary for maintenance, grooming, repair, or emergency response, and (ii) Other Power Driven Mobility Devices (OPDMDs) are permitted on the Trails in accordance with the American Disability Act and with the Pitkin County OPDMD Management Plan as adopted on July 21, 2011 and as may be revised from time to time. Grooming of the Nordic Trail on Lot 5 shall only take place between the hours of 10:30 am and 12:00 pm. 2. No camping, fires, firearms, noisy or otherwise offensive behavior, or trespass onto adjacent private lands or commercial uses (except for limited commercial uses as permitted under Title 12 of the Pitkin County Code) shall ever be permitted to be conducted on or from the Easements. 3. The Easements are hereby declared to be part of the Pitkin County Trail System, and the use of the Easements shall be governed by the rules and regulations and other provisions of Title 12 of the Pitkin County Code entitled "Trail Regulations," as said Title 12 maybe amended or re -codified from time to time, provided that the provisions of this Agreement shall control whenever they are more restrictive than the provisions of Title 12. 4. The use of the Easements is restricted to the existing Trails within the Easements and the River Access Area and trespass onto private lands adjacent to the Easements shall be prohibited. The County and the public are prohibited from relocating the Trails in any way. 5. The County shall require dogs on the Trail and within the Public Trail and River Access Easements to be leashed and under an owner's control at all times, except when swimming in the River and under an owner's control. No dogs are allowed on the Nordic Trail Easement at any time. E. Maintenance, Repair and Restoration. The Preserve HOA and Beime shall Page 5 of 13 BUS R05532061.1 have no maintenance or repair responsibility for the Easements granted herein. The County hereby assumes complete responsibility for and agrees to care for and maintain the Easements in a clean and attractive condition and in a good and safe order and repair, at its sole cost and expense, and shall ensure that all Trails located within the Easements are safe for public use. The County's maintenance responsibilities shall include, but not be limited to, trash and debris removal, noxious weed removal, keeping the Trails clear of rocks and other obstructions, grooming as needed, controlling erosion and water runoff, marking hazards, and general care and maintenance, including removal of.vegetation growing within the Trail. Except as set forth herein, or as necessary to maintain public safety and the integrity of the Trails, the County shall not alter the natural topography or vegetation of the Easements. The County may contract with a responsible third party to carry out these care and maintenance requirements, which contract will not change or alter any of these requirements or relieve the County of any of its responsibilities under this Agreement. In the event that any Easement becomes de -vegetated or eroded from overuse, the County shall take appropriate measures to close and revegetate any affected areas of such Easement to restore the Easement to its condition as of the date of this Agreement. F. Failure to Maintain, Restore or Repair. If the County fails to maintain, restore or repair the Easements or any of the trails or improvements therein as required by this Agreement, the Preserve HOA, or Beirne, may (but shall not be obligated to) notify the County in writing, noting with specificity the maintenance, restoration or repair failures and, if not remedied within 30 days (or such longer period as is reasonably necessary due to season and/or weather conditions) after such notice to the reasonable satisfaction of the Preserve HOA or Beime, the Preserve HOA or Beime may perform such maintenance, restoration or repairs and the County shall be responsible to reimburse the Preserve HOA or Beime for the actual costs thereof within thirty (30) days after receiving an invoice for such work. This subparagraph shall not alter in any way the County's responsibility for maintaining the Easements in a safe manner, nor shall it obligate the Preserve HOA or Beirne to inspect or cause any repairs to be made to the Easements or other improvements therein, which inspection and repairs are the sole obligation of the County. The rights and obligations granted to the Preserve HOA and Beime in this paragraph relate to each Party insofar as the act or failure to act occurs on its property. G. Enforcement. The County agrees to enforce all covenants and use restrictions set forth herein and all other applicable rules and regulations as may be contained in Title 12 of the Pitkin County Code, and to prosecute violations thereof, consistent with other County trails and will work with the Preserve HOA and Beirne to ensure safe use of the Trails consistent with their private property rights on their respective properties. The Preserve HOA and Beime shall have the right (but never the obligation) at anytime to prosecute any action against the County that maybe necessary or appropriate to enforce the terms of this Agreement by injunction and/or damages action or otherwise. The prevailing party in any such enforcement action shall be awarded its reasonable costs and attorney's fees incurred in connection therewith. H. Work by Preserve HOA in the Easements. In the event that the Preserve HOA must conduct work within any of the Easements in order to access an underlying utility easement for the installation, maintenance, repair, replacement or reconstruction of utilities (the "Work"), the Preserve HOA will provide the County with prior notice before disturbing the Trails, Page 6 of 13 BUS R&5532061.1 and will work in good faith with the County to schedule the Work so as to reasonably minimize the disruption of public use and to coordinate any necessary trail or Easement Area closures. The Preserve HOA will make reasonable, good faith efforts to undertake any such York within the Easements in a fashion that will reasonably permit the Trail and other public access areas to remain open to the public, to the extent that public safety considerations will allow; however, if the County requires the Trail or other public access areas to remain open, the County shall be responsible at all times for posting appropriate notices and warnings and ensuring the safety of the public during the pendency of the Work. The Preserve HOA will restore the Easement areas and Trails affected to their existing condition as of the date of this Agreement within a reasonable time after the Work is completed. Upon completion of such restoration, the County shall be solely responsible for inspecting the affected Easements and Trails to ensure the same are safe for public use prior to re- opening the same forpublic use. Failure by the County to object to the restoration within thirty days of its completion shall be deemed to be an acceptance of the restoration. Thereafter, the County shall have sole responsibility for ongoing maintenance and repairs of the disturbed areas. I. Work by Beirne in the Easements. In the event that Beime must conduct work within the Easements on Lot 5 and/or on the Open Space in order to access the Beime Pump and Pipeline structure that supplies and drains the Beime Pond for the installation, maintenance, repair, replacement or reconstruction of said Beime Pump and Pipeline (the `Beime Pump and Pipeline Work"), Beime will provide the County and the Preserve HOA with prior notice before disturbing the Trails or River Access Easement area and will work in good faith with the County and the Preserve IIOA to schedule the Beirne Pump and Pipeline Work so as to reasonably minimize the disruption of public use and to coordinate any necessary closures of the Trails and/or River Access Easement area. The County agrees that, to the extent Beime performs any Beime Pump and Pipeline Work between April 16 and October 31 within the Nordic Trail Easement, any such action shall not be considered a disruption of the Nordic Trail use in any way and no notice to the County shall be required for such action. Beirne will make reasonable, good faith efforts to undertake such Beime Pump and Pipeline Work within the Easements in a fashion that will reasonably permit the Trails and/or River Access Easement area to remain open to the public, to the extent that public safety considerations will allow. The County shall be responsible at all times for posting appropriate notices and warnings and ensuring the safety of the public during the pendency of any Beime Pump and Pipeline Work. Beirne will restore the Trails and/or River Access Easement area to their existing condition as of the date of this Agreement within a reasonable time after the Beime Pump and Pipeline Work is completed. Upon completion of such restoration, the County shall be solely responsible for inspecting the Trails and/or River Access Easement area to ensure the same are safe for public use prior to re -opening the same for public use. Failure by the County to object to the restoration within thirty days of its completion shall be deemed to be an acceptance of the restoration. Thereafter, the County shall resume its full responsibility for ongoing maintenance and repairs of the disturbed areas. All Beirne Pump and Pipeline Work in the Open Space shall be subject to and in accordance with the requirements of the Pum and Pipeline Easement between Beime and the Preserve HOA recorded at Reception NumberU ` rS on3� l 2015, and nothing herein shall be deemed a waiver or modification by the Preserve HOA or Beirne of any provision of such Agreement. 6. No Additional Easement. Nothing herein shall be construed or deemed to grant any Page 7 of 13 BUS_M5532061.1 other easement across the Open Space or Lot 5 to the public or otherwise grant any right of access to the public on, over, across or to the Open Space or Lot 5. 7. Grantee's Obligation to Hold Harmless and Insure. The Parties expressly acknowledge that the Public Trail Easement, the River Access Easement and the Nordic Trail Easement are granted for a "recreational purpose" under C.R.S. § 33-41-101, et seg., and that the Preserve HOA and Beime are entitled to the benefits, protections and limitations on liability afforded by Colorado law governing recreational easements, including without limitation C.R.S. § 33-41-101, et seg. and Section 24-10-114(l). By granting the Easements, the Preserve HOA and Beime shall have no obligation to repair, clear or otherwise maintain the area within the Easements, or to insure or indemnify the County or the public for any injury, claim or damage to any person or property, whether alleged to have occurred as a result of use of the Easements for public non -motorized travel or otherwise, or due to the condition of any trails or lands within the Easements. By entering into this Agreement, the County hereby agrees to hold harmless the Preserve HOA and Beime, to the full extent allowed under Colorado law, from and against any and all claims, demands, causes of action, damages, losses, liabilities, costs and expenses of any kind or nature (including those involving death, personal injury or property damage and including reasonable attorneys' fees) arising from or incurred in any way in connection with the use or relocation of the Easements by anyone, including members of the general public, excepting any such claims or losses which may arise directly from the willful and grossly negligent acts of Beirne or the Preserve HOA, its agents or employees, or other claims as described in C.R.S. § 33-41-104(1). The County further agrees to add the Preserve HOA and Beime as additional named insureds on its comprehensive general liability insurance policy, which insurance shall be maintained by the County to provide protection for Preserve HOA and Beime against liability from claims arising out of the use of the Easements. Such insurance shall be carried in amounts not less than the liability limits specified in C.R.S. § 24-10-114(1), as it may be amended from time to time, and shall contain a requirement to provide the Preserve HOA and Beime with thirty (30) days advance written notice prior to cancellation or termination. Any such termination shall result in a termination of the County and public's right to use the Easements until such time as such insurance is reinstated. The County shall, upon written request from the Preserve HOA and/or Beime, provide a certificate of insurance as verification of compliance with these requirements. 8. Vacation of Easements. a. Pitkin County hereby vacates and quit claims to Preserve HOA all of its right, title and interest in and to the "15' Trail Easement Alternate A" and "15' Trail Easement Alternate B" on over and across the Open Space as dedicated and described on the Plat for the Preserve Subdivision recorded in Plat Book 18 at Pages 84 and 85 on August 12, 1986, on the First Amended Plat for the Preserve Subdivision recorded November 24, 1987 in Plat Book 20 Page 34 and the "Pedestrian Trail" located in Open Space depicted on the Beime Plat recorded in Plat Book 77 at Page 42 on February 10, 2006, all in the records of the Pitkin County Clerk and Recorder, Colorado. b. Pitkin County hereby vacates and quit claims to Beime all of its right, title and Page 8 of 13 BUS_RE/5532061.1 interest in and to the"15' Trail Easement Alternate B" on over and across Lot 5 as dedicated and described on the Plat for the Preserve Subdivision recorded in Plat Book 18 at Pages 84 and 85 on August 12, 1986, on the First Amended Plat for the Preserve Subdivision recorded November 24, 1987 in Plat Book 20 Page 34 and as depicted on the Beime Plat recorded in Plat Book 77 at Page 42 on February 10, 2006, all in the records of the Pitkin County Clerk and Recorder, Colorado. In addition, Pitkin County hereby vacates and quitclaims to Beime all of its right, title and interest in and to the "Pedestrian Trail" depicted on Lot S on the Beirne Plat described above. 9. Notices. Notices and other communications which maybe given or are required to be given hereunder shall be in writing and shall be deemed given when delivered in person or deposited in the U.S. Mail with sufficient postage affixed, certified and return receipt requested and addressed to each party at the addresses below: Preserve HOA: Aspen Preserve Homeowners Association, Inc. c/o Mountain Maintenance P.O. Box 11313 Aspen, Colorado 81612 Copy to: Diana Ettlinger, Esq. B. Joseph Krabacher, Esq. Sherman & Howard, L.L.C. 320 West Main Street Aspen, CO 81611 Beime: David and Terry Beime 31 North Star Circle Aspen, CO 81611 Copy to: Craig V. Corona, Esq. CORONA WATER LAW 420 E. Main St., Ste. 203 Aspen, CO 81611 cc @ crai gcoronalaw.com The County: John Ely, Esq. Pitkin County Attorney's Office 530 E. Main Street Page 9 of 13 BUS RFJ5532061.1 Aspen, CO 81611 10. Governing Law; Venue; Attorney Fees. This Agreement and the rights and obligations of the Parties 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 are pursued to resolve any dispute or conflict regarding the interpretation or enforcement of the terms of this Agreement or the rights and obligations of the Parties, the substantially prevailing party shall be awarded its reasonable costs incurred in pursuing such remedies, including expert witness fees and reasonable attorney fees. No Waiver. The failure of any party to this Agreement to insist on the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. 12. Paragraph Headings. The titles to the paragraphs of this Agreement are solely for the convenience of the Parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Agreement. 13. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement shall be binding only if evidenced in writing signed by each Party or an authorized representative of each Party. 14. Binding Agreement- Recording. This Agreement is binding upon and shall inure to the benefit of the Parties hereto, their heirs, successors and assigns including all future owners of the underlying real property traversed by the Easements, or any part thereof, and any sale or transfer of the subject properties shall be subject to this Agreement. The benefits and burdens hereof shall also run with the title to the underlying real property and all parts thereof traversed by the Easements. This Agreement shall be recorded with the Pitkin County Clerk and Recorder, and shall impose covenants running with the land upon the Open Space and Lot 5. 15. Entire Agreement. This Agreement and all other agreements executed in connection with this Agreement constitute the entire agreement between the Parties relating to the subject matter hereof. All prior agreements, whether written or oral, among themselves or their agents and representatives relating to the subject hereof are merged into this Agreement. This Agreement may be amended only by an instrument in writing signed by the affected Parties. 16. 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. 17. 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. Page 10 of 13 BUS_RF/5532061.1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ASPEN PRESERVE HOMEOWNERS ASSOCIATION, Inc., a Colorado nonprofit corporation Thomas E. Bernard, President STATE OF COLORADO ) ss. County of Pitkin ) Acknowledged before me by Thomas E. Bernard as President of the Aspen Preserve Homeowners Association, Inc., a Colorado nonprofit corporation this 1jQ- day of 2015. Witness m1 hand and official seal. My commission expires: Notary Public �P P CHR7-;� NOTARy• •, PUBLIC VR -OF CO Je My Commission E*hs 0711112015 Page 11 of 13 BUS-RE/5532061.1 EX WITNESS WHEREOF, the panies b ercto have executed this Veemem on thedayund year first above wrinen. REIRNR: David M. Beime�% l.iJy T. fieirpe STATE OF J Courtly of c/I-,,-u> DADS' )ss. Acknowledged before me by David At. Heime and Lily T. Eleime this /0 day of r! c? Ate' 2815. Witness my hand and official seyIt My commission expires: ! �� - 0/S' ;� �haLOMiLCAMPOS Notary Public % Way FuLelm dHork!a Ccembabd FFInW Alp. MM eivku M q 166 2010 Page 12 of 13 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ACCEPTED BY PITKIN COUNTY: M Jones Clerk and STATE OF COLORADO ) ss. COUNTY OF PITKIN ) BOARD OF COUNTY COMMISSIONERS OF PITKIIN COUNTY, COLORADO By: S Iz�eut C Gt. rF1 Chair Acknowledged before me this day of I 2015, by �P-63J as Chair of the Board of County Commissioners of Pitkin County, Colorado, and attess`VI,W,b/Jeanette Jones as Deputy Clerk and Recorder of Pitkin County, Colorado. x'e N. Ache iii ao;: --*-T1tn�ss (tiy hand and official seal. J1AR¢ ,My cordmis-ion expires:August 4, My Commission Expires �i1?tL Of#111COX-x o ry Public APPROVED AS TO FORM: John Ely, Cou t Atto ZIN'DEOTOVAL: Dale'f-. 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