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HomeMy WebLinkAboutbocc.con.117.2005Exhibit M to Hunter Creek Settlement Agreement CONTRACT 5. TRAIL EASEMENT AGREEMENT THIS TRAIL EASEMENT AGREEMENT, made and entered into this ff_~aay 2004, by and between THE RED MOUNTAIN RANCH HOMEOWNERS ASSOCIATION (hereinafter referred to as "Grantor" and "Association"), and THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, c/o Pitkin County Attorney, 530 East Main Street, Suite I, Aspen, Colorado 81611, as the governing body of Pitkin County, Colorado (hereinafter referred to as "Grantee"). WITNESSETH: WHEREAS, the members of the Association own two parcels of real property described as "common areas" in the plat of Block 4, Red Mountain Ranch, recorded in Plat Book 4 of the records of the Clerk and Recorder of Pitkin County, Colorado, on July 2, 1970 (said parcels being separately described on Exhibit "1" attached hereto and made a part hereof by this reference, and being hereinafter collectively referred to as the "Subject Parcels ); and WHEREAS, the Subject Parcels were designated as "common areas" to accommodate the location of the Hunter Creek Toll Road (the "Toll Road"), a portion of which Toll Road was declared to have been abandoned as a public road by an Order and Judgment of the United States District Court for the District of Colorado dated February 6, 1998 (Case No. 90-Z-1232, James Auster et al. v. Thomas D. McCloskey, Jr., et al.); and WHEREAS, both of the Subject Parcels are subject to a Deed of Easements recorded as Reception No. 154001 on September 14, 1972, and re-recorded as Reception No.154345 on Sepember 29, 1972, in the records of the Clerk and Recorder of Pitkin County, Colorado; and WHEREAS, the easternmost of the Subject Parcels is the subject of a Grant of Easements and Ancillary Agreements recorded as Reception No. 243662 on August 24, 1982, in the records of the clerk and Recorder of Pitkin County, Colorado; and WHEREAS, a public path system that generally follows the Toll Road currently crosses both of the Subject Parcels in such a manner that the easements recognized by the Deed of Easements and Grant of Easements are readily apparent on the ground; and WHEREAS, Exhibit B sets out the center-line legal description of the public path system and Toll Road as they cross the Subject Parcels; and $ILVIA DAVIS PlTKIN COUNTY co R 0.00 D 0.00 WHEREAS, Grantor desires by this instrument (i) to establish and to grant to Grantee an irrevocable, non-exclusive easement and right-of-way over and along the portion of the Toll Road described in Exhibit 2 (the "Trail Easement"), and (ii) to establish certain rules and restrictions with respect to said Trail Easement; and WHEREAS, Grantee desires by this instrument (i) to accept the Trail Easement, (ii) to assume certain responsibilities in cormection therewith, and (iii) to warrant and guarantee to Grantor that in all future land use applications which may be made for a Subject Parcel, the owner of that Subject Parcel will receive all points, bonus points, credits and other benefits to which such owner would be entitled if the owner were dedicating the subject trail easement at the conclusion of that land use application. 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 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, by qu/tclaim only and without warranties of title, an irrevocable, non-exclusive easement and right-of-way over and along a fifteen (15) foot wide strip of real property which lies seven and a half (7 1/2) feet on either side of the centerline alignment of the Toll Road as it traverses the Subject Parcels, as such trail centerline is described in Exhibit "2" attached hereto and made a part hereof by this reference (hereinafter referred to as the "Trail Easement"). Grantee hereby accepts the Trail Easement in an as~s c°nd~t~°n, subject to the covenants and restrictions here~n contained, and further subject to all patent or latent defects or problems of any kind or nature. 2. Trail Use Restrictions. The Trail Easement shall be used solely for access to and from the Hunter Creek Valley and a parking lot ' ' ~'~ ~ ~; ~ ~ ~,~ ~. ~n portions of ~.~eetiomg TO~h~fl In ~h~ ~ g~S~ (the "BLM Lot"). The Trail Easement shall be used exclusively for pedestrian, equestrian, nonmotorized bicycling, snow shoe and cross-country skiing purposes. There shall be no motorized vehicles of any kind permitted on the Trail Easement, except for equipment that is necessary for the maintenance of the Trail Easement or of other portions of the Toll Road which are adjacent to the Trail Easement and except for all legal purposes by the Grantor, its Members and their respective families, guests and invitees, and their successors and assigns, to all or any portion of the respective Subject Parcels or interests therein, or any other person(s) to whom Grantor or any of them may grant an easement along the Trail Easement. Grantor and its successors shall have the right to use and cross the Trail Easement, under, on or above, for purposes of using its property or the property of its Members for any lawful use, including, but not limited to, utilities, services and motorized access; provided, however, that nothing herein shall be construed as granting any Member of the Association utility, service or vehicular access across another's property. Any equipment, vehicles or utilities shall not interfere with the intended use of the Trail Easement. All allowed users of the Trail Easement shall be required to use it in a manner that will not block or interfere with the $ILVI~t D~VIS PITKIN COU[qTY C0 R 0.00 D 0.00 normal access by Grantor, its Members, and their successors and assigns or any other person to whom Grantor may grant rights in the Trail Easement. There shall be no camping, fires, discharge of fireworks, firearms or other weapons, consumption of controlled substances, including alcoholic beverages, parties, gatherings, or public or private nuisances permitted on the Trail Easement. There shall be no trespassing off the Trail Easement onto the private property of the Grantor or its Members. Appropriate signs as agreed to by the parties shall be placed and maintained by Grantee along the Trail Easement indicating that the property is private and trespassing is not allowed. Pets and other animals must be kept on leashes or under restraint and within the confines of the Trail Easement. The Trail Easement is hereby declared by Grantee to be part of the Pitkin County Trail System, and the use of the Trail Easement shall also be governed by the rules and regulations and other provisions of Title XII of the Pitkin County Land Use Code entitled "Open Space and Trails Regulations" ("Tide XII"), as said Title XII may be amended from time to time, provided always that the provisions of this North Trail Easement Agreement shall control wherever they are mom restrictive than the provisions of said Title XII. 3. Enforcement. Grantee agrees to enforce diligently all use restrictions set forth heroin and ail other applicable rules and regulations as may be contained in Title XII, and to prosecute violations thereof. In addition, Grantor, and its respective successors and assigns in the ownership of the Subject Parcels, shall have the fight (but not the obligation) at any time to prosecute any judicial action that may be necessary or appropriate to enforce said use restrictions by injunction or otherwise. Grantee will not oppose towing of unauthorized vehicles, including a contract for towing providing service on a one-hour call basis, however, Grantee shall not be responsible for towing. Grantee acknowledges that Grantor retains all lawfial means of enforcement. 4. Trail Easement Maintenance. Grantee hereby assumes complete responsibility for the safety and maintenance of the Trail Easement and agrees to maintain the Trail Easement, in a clean and attractive condition and in a good and safe order and repair, at its sole cost and expense, unless the need therefor is caused hereafter by one of the Grantors, in which case the responsible Grantor shall perform the repair. Grantee's maintenance responsibilities shall include, but not be limited to, trash and debris removal as needed, keeping the Trail Easement clear from brash, large rocks and vegetation, and controlling water runoff, but shall not include snow plowing or snow removal. Grantee may, without affecting its liability or obligations under this paragraph, delegate some or all of its duties to the Aspen Valley Land Trust. Grantee may take such action as is reasonably necessary outside of the Trail Easement to maintain the Trail Easement in a reasonable and prudent manner to minimize harm or injury to the respective Landowner's property, landscaping, vegetation and improvements. Grantee shall not rely upon Grantor to maintain the Trail Easement, however, the Grantor, its successors and assigns and any other person(s) to whom Grantor shall have the right to grant an easement along the Trail Easement may, but are not obligated to, maintain and improve the Trail Easement, including snow plowing and snow removal. 5. Rights Reserved in Grantors. Grantor hereby reserves to itself, and to its respective 516385 D 0.00 successors and assigns forever in the ownership of the respective Subject Parcels or any portion thereof, (i) the right at any time and from time to time to cross the Trail Easement w/th access roads and/or with underground utility and service lines (provided, however, that nothing herein shall be construed as granting any Member of the Association utility, service or vehicular access across another's property); (ii) the fight to install gate(s) or other device(s) for preventing motorized vehicular access on the Trail Easement; (iii) the fight to grant easements over the Trail Easement to persons holding an interest in any portion of the Subject Parcels, provided that Grantors shall not grant such easements to any other persons; and (iv) all other lawful rights and privileges. Any gate(s) or other device(s) installed shall not interfere with any nonmotorized access allowed along the Trail Easement. 6. Signs. Grantee shall place and maintain one or more signs on the Trail Easement, at a location to be agreed upon with Grantor, indicating that the Trail Easement passes through private property and that users are to stay on the Trail Easement and that its use is limited as set forth in this Agreement. The size, color, material, location and number of such signs shall be determined by agreement between Grantee and Grantor. The cost of the signs and replacement signs and maintenance of the signs shall be paid by Grantee. 7. Termination of Easement in Event of Condemnation. The Trail Easement shall automaticaily terminate in the event that Grantee, the USA, or any agency, department or instrumentality thereof, files a condemnation action with respect to the Subject Parcels for the easement rights granted hereunder. 8. Grantee's Obligations to Defend, Hold Harmless and Insure. The parties acknowledge that the Grantor is entitled to the benefits, protections and limitations on liability afforded by Colorado law, including Sections 33-41-101 through 105, Colorado Revised Statutes. Grantee hereby agrees to defend and hold harmless the Grantor, its Members, and their respective successors and assigns in the ownership of the Subject Parcels or interests therein, to the full extent allowed under Colorado law, from and against any and all claims, demands, causes of action, losses or liabilities of any kind or nature (including those relating to death, personal injury or property damage) arising from or incurred in any way in connection with the use of the public easement granted herein 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 the Grantors, or any of them, and their agents or employees, or other claims as described in Section 33-41-104(1), Colorado Revised Statutes. Grantee further agrees to add the Grantor (and their respective Members, successors and assigns in the ownership of the Subject Parcels or interests therein) as coinsureds on its comprehensive general liability insurance policy, wh/ch insurance shall be maintained by the Grantee to provide protection against liability from claims arising out of the use of the Trail Easement. Such insurance shall be carried in amounts not less than the liability limits specified in Section 24-10-114(1), Colorado Revised Statutes, as it may be amended from time to time, and shall provide Grantors with thirty (30) days advance written notice prior to cancellation or termination. Grantee shall, upon written request therefor from any of the Grantors, provide a Certificate of Insurance as verification of compliance with these requirements. SILVIA DAVI~ PITKIN COUNTY CO R 0.00 516385 9. Land Use Application Benefits Preserved Grantee hereby expressly covenants, warrants and guarantees to the Grantor and to its respective successors and assigns in the ownership of the Subject Parcels that in all future land use applications which may be made for the Subject Parcels, or any portion thereof, specifically including without limitation GMQS submittals (if applicable) and applications for general submission approval, 1041 review, building permit review, or any other form of special review, the owner of that property will receive all points, bonus points, credits and other benefits to which such owner would be entitled if the owner were granting and conveying the Trail Easement affecting the owner's land at the conclusion of and as a part of that land use application, and not before and the Trail Easement shall be deemed "open space" for purposes of such benefits. In other words, the owner's application shall be treated as if the Trail Easement shall not yet have been granted or conveyed at all, so that the affected property can be included in the application (in an unencumbered state) for purposes of density, FAR, and for all other purposes that may be necessary in order to comply with the provisions of the Pitkin County Land Use Code then in effect. 10. Attorney's Fees. In the event the interpretation or enforcement of this Trail Easement Agreement should ever become the subject of arbitration or litigation between the parties hereto or any of them, the prevailing party shall be entitled to an award of its reasonable costs and attorney's fees incurred in connection therewith. 11. Binding Effect. This Trail Easement Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns forever: including all future owners of the Subject Parcels or any portions thereof. 12. Prior Rights Merged. Any prior rights of use by the Grantee or any member of the general public over the Subject Parcels shall, for all intents and purposes, be deemed merged into and superseded by this Trail Easement Agreement. 13. Miscellaneous. This Trail Easement Agreement constitutes and embodies the entire agreement between the parties hereto with respect to the subject matter thereof, and supersedes all previous agreements, understandings, negotiations, discussions, offers and acceptances with respect to such subject matter. Other than as provided in Section 5 hereof, this Trail Easement Agreement may not be modified except in writing signed by the authorized representatives of the parties hereto. This Trail Easement Agreement does not create or give rise to any confidential or fiduciary relationship between the Grantor on the one hand and Grantee on the other. In addition, this Trail Easement Agreement does not constitute any party hereto as the agent of any other party hereto for any purpose whatsoever, nor does any party hereto have the right or authority to assume, create or incur any liability of any kind, express or implied, against or in the name or on behalf of any other party. 1N WITNESS WHEREOF, the parties have duly executed this Trail Easement Agreement effective the day and year first above written. 0.00 516385 D 0.00 GRANTOR: GRANTEE: / ~ ~A/~ST: // ) SS. CO~TY OF PITK~ ) RED MOUNTAIN RANCH HOMEOWNERS AS S OCIATION.,r ~ By Title: ~? ,, ~. ~ BOARD OF TY COMMISSIONERS OF PITKIN COUNTY, COLORADO The foregoing instrument was acknowledged before me, a Notary Public, by the Red Mountain Ranch Homeowners Association on _this ~,~,,'/e/ day of/~l~t4'~'lC, 200{~ :: WITNESS my hand and official seal My commission expires: ~.~ tary Pubiic STATE OF COLORADO ) COUNTY OF PITKIN ) The foregoing.instrument was acknowledged before me, a Notary Public, by ,~f~'~ ~a~-C 1~1o~, _ ~d 3~ ~ ~O~S asChai~of~eBo~dofCo~Commissionem ~, Colorado ~d Deputy Clerk and Recorder ofPitkin CounW, Colorado respectively ~X~EgS my h~d and °fficial seal-[~fi~ ~ .~mmission expires: ~ ¢~ Not blic Exhibit 1 to Trail Easement Agreement The legal descriptions of the First Commons Area and the Second Commons Area, which are referenced in the first "Whereas" clause of the foregoing Trail Easement Agreement, are set out in the plat for Red Mountain Ranch Block 4 recorded in Plat Book 4 Page 123 of the records of the Clerk and Recorder of Pitkin County on July 2, 1970. SILVIA DAVIS pITKIN COUNTY CO R 0.00 O 0.00