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HomeMy WebLinkAboutbocc.con.081.2005CONTRACT # PUBLIC TRAIL EASEMENT AGREEMENT C~ o~ THIS PUBLIC TRAIL EASEMENT AGREEMENT (the "Easement Agreement"), is made and entered into this 3 ~tay of~o~., 2005, by and between Dr. Billy Ray Eubanks and Bonnie Jean Eubanks (collectively "Grantor"), and the BO^RD Oe Cou~qT¥ COMMISSIONERS OF THE COUNTY OF PITK1N, COLORADO, a body corporate and politic ("Grantee"), RECITALS: 1. Grantor is the record owner of certain real property known as Lot 2 of the Hefner Subdivision, according to the plat recorded April 15, 1985 in Plat Book 17, at Page 11, in the real property records of the Clerk and Recorder of Pitkin County, Colorado (the "Property"); and 2. Grantee manages public trails in the Aspen, Colorado area and desires a trail easement across the Property to complete the connection of a soft surface pedestrian trail from Shadow Mountain to the Music Associates of Aspen Campus located on Castle Creek Road in Pitkin County; and 3. Grantee desires by this instrument (a) to accept said trail easement subject to the restrictions set forth herein, and (b) to assume certain responsibilities in connection therewith. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows: 1. Grant of Public Trail Easement. Grantor hereby grants, transfers and conveys unto Grantee and its successors and assigns forever, for the use and benefit of the general public, a perpetual non-exclusive easement and right-of-way over and along a fifteen (15) foot wide strip of real property which lies seven and one half (7.5) feet on either side of the centerline alignment generally depicted on attached Exhibit A (hereinafter referred to as the "Public Trail Easement"). Said easement may be used by Grantee for the construction and maintenance of a soft surface trail. Not less than thirty (30) days prior to construction of the trail, Grantee shall have the trail alignment staked on the Property. Grantor shall have the right to verify that the alignment of the trail shown by the staking is substantially in the location shown on Exhibit A. Upon completion of construction of the trail by Grantee, Grantee shall have a centerline description of the as-built trail alignment prepared by a licensed Colorado surveyor, shall attach said as-built centerline description as an Addendum to this Easement Agreement, and shall re-record this Easement Agreement with the Addendum attached. Grantee hereby accepts the Public Trail Easement in an "as is" condition, subject to the restrictions herein contained, and subject to all patent or latent defects or problems of any kind or nature. Such acceptance does not preclude improvement or maintenance activities within the Public Trail Easement insofar as such activities may be allowed or required by this Easement Agreement. 2. Trail Use Restrictions. The Public Trail Easement shall be used exclusively for non-motorized travel by the public, and for no other uses or activities whatsoever. No motorized vehicles of any kind shall ever be permitted on the Public Trail Easement, excepting equipment used to construct, enhance or maintain the trail, and emergency vehicles when necessary. The trail shall not be paved. (a) No camping, fires, firearms, no stalking or harassment of wildlife, no noisy or otherwise offensive behavior, no trespass onto adjacent private lands, and no commercial uses shall be permitted on the Public Trail Easement. (b) The trail may be used only between the hours of 7 am and 9pm. (c) The Public Trail Easement is hereby declared to be part of the City of Aspen and Pitkin County Trail Systems, and the use of the Public Trail Easement shall also be governed by the rules and regulations and other provisions of the Pitkin County Code addressing trails, as such rules and regulations may be amended or recodified from time to time, provided always that the provisions of this Public Trail Easement shall control wherever they are more restrictive than the provisions of said rules and regulations. (d) Grantor shall have the right to name the section of the trail that is included in this easement. Grantor shall inform the County of the selected name and County shall post one sign at each end of the easement setting forth the name selected by Grantor. (e) Grantee shall provide and maintain in good condition, reasonable signage along the portions of the trail crossing the Property that shall alert trail users of bear activity and include the following language: "Private Property, No Access, Wildlife Protected". 3. Public Trail Easement Care and Maintenance. Grantee hereby assumes responsibility for and agrees to maintain the Public Trail Easement in a clean and attractive condition at its sole cost and expense, unless the need therefor is caused by Grantor or its successor in interest in the ownership of the Property, in which case Grantor or its successor in interest shall perform the maintenance or care so required. Grantee's maintenance responsibilities shall include, but not be limited to, trash and debris removal, keeping the trail clear of obstructions incompatible with its purpose, grooming as needed, controlling erosion and water runoff, and general care and maintenance. Grantee 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 2 requirements or relieve Grantee of any of its responsibilities under this Easement Agreement. Grantor hereby informs Grantee that the trail easement crosses areas which are susceptible to avalanche and rockfall hazards and Grantee shall construct, maintain and operate the trail and provide warning signs in an appropriate manner taking such hazards into consideration both for the users of the trail and the protection of persons and property below the trail. 4. Enforcement. Grantee agrees to enforce diligently all covenants and use restrictions set forth herein. Notwithstanding the foregoing, uses by the public that violate the restrictions contained herein or in other applicable trail regulations may be considered a trespass and Grantor retains the right to pursue a civil claim in trespass and/or for injunctive relief against those who violate such restrictions. 5. Grantee's Obligations to Defend, Hold Harmless and Insure. The parties expressly acknowledge that the Public Trail Easement is granted for a "recreational purpose" under C.R.S. Section 33-41-101, et. seq., and that Grantor is entitled to the benefits, protections and limitations on liability afforded by Colorado law governing recreational easements, including without limitation said Section 33-41-101, et. seq. By granting the Public Trail Easement, Grantor shall have no obligation to repair, clear or otherwise maintain the area within the Public Trail Easement, or to insure or indemnify Grantee 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 Public Trail Easement for public non-motorized travel or otherwise, or due to the condition of the public trail. Grantee further agrees, as a material provision of this Agreement, to add Grantor ¢qhO ~ o~~ * (and its successors and assigns in the ownership of the Property traversed by the Public 03 o, ~ a Trail Easement, or any part thereof) as additional named insureds on its comprehensive ,--Q ~;m,.P~ general liability insurance policy, which insurance shall be maintained by the Grantee to iD ~. ~ provide protection against liability from claims arising out of the use of the Public Trail ® Easement. Such insurance shall be carried in amounts not less than the liability limits ~ specified in C.R.S. Section 24-10-114(1), as it may be amended from time to time, and ,~,.t~ shall provide Grantor and its successors and assigns with thirty (30) days advance written notice prior to cancellation or termination. Grantee shall, upon written request therefor from Grantor or any successor or assign, provide a Certificate of Insurance as verification of compliance with these requirements. 6. Attorneys' Fees. In the event the interpretation or enforcement of this Public Trail Easement Agreement should ever become the subject of litigation between Grantor (or its successors and assigns in the record ownership of the Property traversed by the Public Trail Easement, or any part thereof) and Grantee, the prevailing party shall be entitled to an award of its reasonable costs and attorneys' fees incurred in connection therewith. 3 7. Binding Effect. This Easement Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns forever including all future record owners of the Property traversed by the Public Trail Easement, or any part thereof. The benefits and burdens hereof shall also run with the title to the Property and all parts thereof traversed by the Public Trail Easement. This Easement Agreement may only be amended by a writing signed by Grantee and by the then record owners of the Property traversed by the Public Trail Easement. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. STATE OF ~ ) The foregoing instrument ~.a~k'lld~v*~ff~k'~efore me thi~ay ofd ~ 005, by Dr. Billy Ray Er [a~s a~d Bo~n Eubanks Witn~s my hand and off~ ~1/% / ~ /. Mg omm~ss~oa,exg're .z ~,oO Page: 4 of ? 06/03/2005 02:47l SILVIA DAVIS PlTKIN COUNTY CO R 0.00 O 0.00 4 GRANTEE: ~corder BOARD OF COUNTY COMMISSIONERS OF PITKIBI COUNTY, COLORADO By: i:~~.~i~......~- STATE OF COLORADO ) COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this ~cc'L day of ~L~'~,~. ,2005, by .~ss my hand and official seal. expires: Paoe: 5 of 7 06/03/2005 02:471 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 EubanksTrailtemplate -final (31805).wpd 5 EXHIBIT A LEGAL DESCRIPTION OF PUBLIC TRAIL EASEMENT Page: 6 of 7 06/03/2005 02:471 SILVIA DAVIS AITKIN COUNTY DO R 0.00 O 0.00 6 This map/drawing is a graphical representation ef the features depicted and is not a legal representation, The accuracy may change depending on the enlargement or reduction, © 2004 City afAepen-Pitkin County This map was prepared by the EXHIBIT City cf Aspen-Pitkin County GIS Department. February 7, 2005 125 250 500 Feet