No preview available
HomeMy WebLinkAboutC13-301 Natalie Carricarte Public Fishing Easement PUBLIC FISHING EASEMENT AGREEMENT BETWEEN MICHAEL AND NATALIE CARRICARTE AND E GLE COUNTY,COLORADO TH PUBLI SHING EASEMENT AGREEMENT (this "Agreement") is granted on this ay of iit►.� , 2013, by MICHAEL AND NATALIE CARRICARTE, whose address is 1093 AlA Beach Blvd., #389, St. Augustine, FL 32080 ("Grantor"), to the COUNTY OF EAGLE, STATE OF COLORADO, whose address is P.O. Box 850, 500 Broadway, Eagle, Colorado 81631 ("Grantee"), collectively, the "Parties". RECITALS: A. Grantor is the owner of real property located in Eagle County, State of Colorado, described on Exhibit A, attached hereto and made a part hereof(the "Property"). B. The Parties desire to provide for a public fishing easement over a certain portion of the Roaring Fork River situated within the Property for the recreational use and enjoyment of the public, all in accordance with the terms and conditions of this Agreement. EASEMENT: NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, Grantor and Grantee mutually agree as follows: 1. Grant of Fishing Easement. Grantor hereby grants to Grantee a non-exclusive easement within the portion of the Roaring Fork River situated on the Property from the southern and western high water mark on the Property to the northern and eastern Property boundaries in the Roaring Fork River, as further described and depicted as the "Fishing Easement" on Exhibit B attached hereto (the "Easement Area"). The Fishing Easement shall be made available to, and is for the benefit of, the public for the limited purposes of floating by boats and rafts, anchoring by boats on the river bottom to allow for fishing from the boat, and, in cases where a boat becomes immobile or capsized, the right to portage around impediments in the river (the "Easement"). Except for cases where a boat becomes immobile or capsized, the Easement does not include the right of any person to step onto any dry land on the Property and, in no event, shall the Easement include the right of any person to access or exit the river by or through the Property. 2. Maintenance. Grantor shall have no obligation for repair and/or maintenance of the Easement and/or the Easement Area. 3. Rights of Grantor. Grantor shall have the rights accorded to the general public to use the Easement. Grantor reserves the right, but is not obligated to, remove or exclude from the Property any persons who are in locations other than within the Easement Area (such as areas of dry land on the Property). Eagle County, Co 201321010 1 Teak J Simonton 10/16/2013 Pgs: 8 04:30:31 PM REC: $0.00 DOC: $0.00 • 4. No Charge for Access. Neither Grantee nor Grantor shall charge a fee for use of the Easement. 7. No Liability. Grantor by entering into this Agreement shall not assume any liability to the general public with respect to use of the Easement or Easement Area including, without limitation, the following: (i) any unsafe condition within the Easement Area; (ii) the failure to inspect for or warn against possible unsafe conditions within the Easement Area; or (iii) the failure to close the Easement when unsafe conditions may be present. Grantor shall not be liable for injury or damages occurring in the Easement or within the Easement Area, and subject to the foregoing, Grantee hereby assumes any and all liability for injury or damages occurring within the Easement Area. Such liability shall not exceed an amount equal to any limits set forth in the Colorado Governmental Immunity Act now existing or as may hereinafter be amended, nor confer any rights or benefits on any person not a party to this Agreement. Grantor shall have all of the protections available to it under Colorado law including limitations of liability pursuant to Title 33, Article 41 of the Colorado Revised Statutes. Grantee shall have all protections available to it under Colorado law and Grantee does not waive or intend to waive the limitations on liability which are provided to it under the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq. 8. Insurance. Grantee shall obtain and maintain at all times commercial general liability insurance ("CGL"), which policy shall provide for insurance consistent with the limits of liability under the Colorado Governmental Immunity Act. The CGL policy shall name Grantor, its successors and assigns, as an additional insured. Grantee shall provide Grantor, its successors and assigns, with evidence of such insurance and verification of payment of premiums therefor, upon any request therefor by Grantor. 9. Indemnification. To the extent permitted by law, Grantee agrees to indemnify, defend and save harmless Grantor, its successors and assigns forever, from and against any and all demands, claims, causes of action or judgments, losses, liabilities, costs and expenses of any kind or nature (including, without limitation, those involving death, personal injury or property damage, attorney's fees and costs of litigation) suffered or incurred by Grantor in investigating or defending the same and arising out of or incurred in any way in connection with Grantee's or the public's use of the Easement or the Easement Area, or by any employee, agent, guest, licensee or invitee of Grantee or by any other person permitted by Grantee to use the Easement or the Easement Area, or arising from any condition of the Easement or the Easement Area, or by any act of negligence of Grantee or of its agents, guests, licensees or invitees or arising from any breach or default on the part of Grantee in the performance of any covenant or agreement on the part of Grantee to be performed pursuant to the terms of this Agreement. Notwithstanding anything in this Easement Agreement to the contrary, Grantee shall have all of the protections available to it under Colorado law and Grantee does not waive or intend to waive the limitations of liability which are provided to it under the Colorado Governmental Immunity Act. Likewise, Grantor does not waive or intend to waive limitations of liability which are provided pursuant to C.R.S. 33-41-101 et.seq. 2 ' I 10. Recording. Upon execution by the Parties, this Agreement shall be recorded in the records of the Eagle County Clerk and Recorder's Office. 11. Governing Law and Venue. It is the intention of the Parties hereto that all questions with respect to the construction and interpretation of this Agreement and the rights and liabilities of the Parties hereunder shall be determined in accordance with the laws of the State of Colorado. 12. Annual Appropriations. All financial obligations of Grantee set forth in this Agreement are subject to annual appropriation pursuant to C.R.S. § 29-1-110, as amended. 13. Termination. Notwithstanding the provisions of paragraph 12 above, in the event Grantee fails or refuses to appropriate on an annual basis sums sufficient to pay its financial obligations as set forth in this Agreement, including without limitation, the obligations for insurance, or in the event of a breach of the terms and conditions of this Agreement that are within Grantee's control, then Grantor may terminate this Easement Agreement provided that Grantor shall first send by certified mail to the Grantee, a notice of default. The notice of default shall specify the nature of the alleged default and Grantor's intent to terminate. If, within ninety (90) days from the date of mailing said notice, the Grantee shall have appropriated sums to pay its financial obligations as set forth in this Agreement, and/or shall have begun in good faith to correct such other default within its control and shall thereafter diligently prosecute correction of such default,there shall not be termination therefor. If such default is not corrected, or correction thereof is not begun in good faith as hereinabove required, within ninety (90) days after mailing of such notice, this Easement Agreement will terminate. In the event Eagle County is no longer the Grantee under this Agreement, notice of any default and intent to terminate shall also be provided to Eagle County. In such event Eagle County shall have the right but not the obligation to cure. 14. Duration. The Parties agree that this Easement Agreement shall be perpetual unless earlier terminated pursuant to the terms of paragraph 13 hereof or by mutual written agreement of the parties. 15. Notice.All notices or other communications made pursuant hereto shall be in writing and shall be deemed properly delivered, given or served (i) when personally delivered, or (ii) two (2) calendar days after being deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below their signatures, or (iv) when sent via facsimile so long as the sending party can provide a facsimile machine or other confirmation showing the date, time, and receiving facsimile number for the transmission. Either party may change its address for the purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. GRANTEE: Eagle County, Colorado 500 Broadway 3 Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8605 Facsimile: 970-328-8692 And a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 GRANTOR: Michael and Natalie Carricarte 1093 AlA Beach Blvd., #389 St. Augustine, FL 32080 And a copy to: Genshaft Cramer LLP 420 E. Main Street, Suite 420 Aspen, CO 81611 Attn: Ben Genshaft Telephone: 970-925-9450 Facsimile: 888-266-0103 16. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law; provided, however, if any provision of this Agreement shall be invalid or prohibited under applicable law, such provision shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of this Agreement. 17. Assignment. Neither Grantor nor Grantee may assign any of its rights and obligations under this Agreement to any other person or entity without the prior written permission of the other. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successor and assigns. 18. Warranty of Title. Grantor represents that it is the record owner of the Property upon which the Easement Area is located and that it has full power and authority to execute this Agreement. Otherwise, Grantor makes no warranties as to the title of the easement conveyed. 4 { 19. Modifications. The Parties agree that any modifications of this Agreement shall be effective only when made in writing signed by both Parties and recorded with the Clerk and Recorder of Eagle County, Colorado. IN WITNESS WHEREOF, Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRAN OR: LIN0SEY H.LATMNOP•ALM Notary Public State of Colorado Notary ID 20134046529 i' ' carte s Jul 25,2017 I .. / Natalie Carricarte STATE OF COLORADO ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this 9-i-i-day of PT €? , 2013, by Michael Carricarte. Witness my hand and official seal. My commission expires: 7 0-5// 1-1 Notary Public STATE OF COLORADO ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this °l-rtday of SAS' tip g , 2013, by Natalie Carricarte. Witness my hand and official seal. My commission expires: 12 5 j :)-o t -7 Notary Public LINDSEY H. LATHROP-AlM Notary Public State of Colorado Notary ID 20134046529 Jul 25,2017 5 GRANTEE: EAGLE COUNTY, STATE OF COLORADO By and through its Board of County Commissioners By:967Z_ Sir, Chairman J STATE OF COLORADO ) )s s. COUNTY OF EAGLE ) T e foregoing instrument was acknowledged before me this k day of � , 2013, by Sara Fisher, Chairman Eagle County Board of County Y Commissioners. Witness my hand and official seal. My commission expires: 2►(/ 0 Notary Public DEBORAH LYN CHURCHILL NOTAR'w' PUBLIC STATE OF COLORADO MY COMMISSION EXPIRES 3/24/2015 6 I a.S•.l_SJ.IO'r�f!l 11 _ _s.._kw/L"A MI - I -V I s PROPERTY DESCRIPTION OF: EXHIBIT p IT /t CARRICARTE PROPERTY C/�fl v I /1 A PARCEL OF LAND SITUATED IN A PORTION OF TRACT 53 WITHIN SECTIONS 3,10&11 OF TOWNSHIP 8 SOUTH,RANGE 87 WEST OF THE 6th P.M. COUNTY OF EAGLE,STATE OF COLORADO SHEET 1 OF 1 PROPERTY DESCRIPTION A Tract of Land being situated in Government Tract 53,being a portion of the SE1/4 of Section 3,the NW1/4 of Section 11 and the NE1/4 of Section 10,Township 8 South,Range 87 West of the 6th P.M.County of Eagle,State of Colorado,said tract of land being more particularly described as follows: Beginning at a point on the East Line of said Tract 53 from whence the witness corner for A.P.4 of said Tract 53 bears S.00°15'57".E,a distance of 393.45 feet and N.88°57'22".E.,a distance of 17.16 feet,said point also being on the northerly Hooks Spur Road Right-of-Way as described in that document recorded as reception no.141670 of the Eagle County records; thence the following two(2)courses along said northerly Hooks Spur Road Right-of-Way: 1) S.75°44'56"W.,a distance of 36.18 feet; 2) 91.93 feet along the arc of a curve to the right having a radius of 79.32 feet and a central angle of 66°24'15",chord bears N.71°02'56"W.,a distance of 86.87 feet,to a point on the northeasterly line of the Roaring Fork Transit Authority Railroad Right-of-Way as established per The Railroad Right-of-Way Survey of the El Jebel Segment performed by Farnsworth Group dated December 28,2007; thence N.37°50'49"W.along said Northeasterly line of the Roaring Fork Transit Authority Railroad Right-of-Way,a distance of 1,996.16 feet,to a point on the West Line of said Tract 53;thence leaving said Northeasterly line N.00°24'42"W.along said West Line,a distance of 882.81 feet,to a point on the North Line of said Tract 53;thence leaving said West line N.87°32'11"E. along said North line,a distance of 293.26 feet,more or less to a point in the centerline of the Roaring Fork River;thence leaving said North line along said river centerline the following four(4)courses: 1) S.55°54'05"E.,a distance of 556.29 feet; 2) S.74°28'05"E.,a distance of 198.00 feet; 3) S.67°46'05"E.,a distance of 139.00 feet; 4) S.68°53'18"E.,a distance of 285.25 feet,to a point on the East line of said Tract 53; thence S.00°15'57"E.along said East line,a distance of 1,535.47 feet;thence leaving said East line N.89°44'02"W.,a distance of 12.33 feet;thence 5.00°41'12"W.,a distance of 97.13 feet;thence S.89°18'48"E.,a distance of 13.94 feet,to a point on the East line of said Tract 53;thence S.00°15'57"E.along said East line,a distance of 338.07 feet to the POINT OF BEGINNING. Containing 2,028,928 square feet or 46.578 acres,more or less. COUNTY OF EAGLE STATE OF COLORADO Excludes area being deeded to Eagle County for Hooks Spur Road right-of-way. Basis of Bearing: A bearing of S 00°15'57"E along the East boundary line of Tract 53,within sections 2,3,10,&11 Township 8 South Range 87 West of the 6th Principal Meridian. Established based on Angle Point 1,Tract 53 monumented by a found P.K. nail in the asphalt of Willits Lane and Angle Point 4 being witnessed by a 1"pipe and 2.5"brass cap stamped U.S General Land Office Survey 1924 W.C.AP 4 Tract 53,AP 3 Tract 52,AP 2 tract 58,AP 1 tract 57,as shown. i NOTICE: ACCORDING TO COLORADO LAW YOU MUST f COMMENCE ANY LEGAL ACTION BASED UPON ANY SOPRIS ENGINEERING - LLC DEFECT IN THIS SURVEY WITHIN THREE YEARS AFTER CIVIL CONSULTANTS YOU FIRST DISCOVER SUCH DEFECT. IN NO EVENT MAY ANY ACTION BASED UPON ANY DEFECT IN THIS SURVEY 502 MAIN STREET,SUITE A3 BE COMMENCED MORE THAN TEN YEARS FROM THE CARBONDALE,COLORADO 81623 DATE OF CERTIFICATION SHOWN HEREON. (970)704-0311 SOPRISENG @SOPRISENG.COM sb RAB 13005 2013-08-09 13005-LSP.dwg ■ I AILINW WWII I-IIIMI. I -q NI._i.. V -i-rNwr- ' I■ fl I i w ll��ISIIMINMP FISHING EASEMENT EXHIBIT ON: EXHIBIT B CARRICARTE PROPERTY A PARCEL OF LAND SITUATED IN A PORTION OF TRACT 53 WITHIN SECTIONS 3,10&11 OF TOWNSHIP 8 SOUTH,RANGE 87 WEST OF THE 6th P.M. COUNTY OF EAGLE,STATE OF COLORADO SHEET 1 OF 1 -• NORTH BOUNDARY TRACT 53 _t .cyIA „1„/'. 11111irl■._ f Zike VIM AREA OF FISHING EASEMENT . ! ` 1• i 1 \ 1 MICHAEL&NATALIE CARRICARTE ,,,,, PARCEL#246510101002 REC#201301168 if • *I m .. ,I , i W OW I O / Z AREA OF FISHING EASEMENT p • 73I I •7 1 w • to ' w mss I• 090 \ 1\4.64)alk Ir.- BUILDING it i SOUTH BOUNDARY TRACT 53 SCALE 1” =400' NOTICE: ACCORDING TO COLORADO LAW YOU MUST COMMENCE ANY LEGAL ACTION BASED UPON ANY SOPRIS ENGINEERING - LLC DEFECT IN THIS SURVEY WITHIN THREE YEARS AFTER YOU FIRST DISCOVER SUCH DEFECT. IN NO EVENT MAY CIVIL CONSULTANTS ANY ACTION BASED UPON ANY DEFECT IN THIS SURVEY 502 MAIN STREET,SUITE A3 BE COMMENCED MORE THAN TEN YEARS FROM THE CARBONDALE,COLORADO 81623 DATE OF CERTIFICATION SHOWN HEREON. (970)704-0311 SOPRISENG @SOPRISENG.COM sb RAB 13005 2013-08-09 13005-LSP.dwg