08-14-2006 THE VAIL CORPORATION RIVER IMPROVEMENTS EASEMENT AGREEMENT (RED HOUSE)AUG-25-2006 16:22 FRO1:EAGLE COUNTY CLERK A 9703202716 TO:99499139 P:1/21
EArl-E COUNTY, CO
1 PT 21 03:22:25PM
$1 6 .00 DOC:
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RIVER IMPROVMENTS EASEMENT AGREEMENT (RED HOUSE)
This RNIMPRO MEN S EASEMENT AGREEMENT (this "Agreement") is
made as of the t r - day of 2006, by and between. The Vail Corporation, a Colorado
corporation ("Vail"), and THE OWN OF AVON, a municipal subdivision of the State of
Colorado ("Avon"),
RECITALS
A. Vail is the owner of certain real estate legally described as Lot 2, Red House,
according to the exemption plat recorded on November 7, 2000 at Reception No.
743459 (the "Vail Property"),
8 Avon desires to construct certain in-river improvements to create a water park for
kayaking, rafting and other similar water sports (the "Water Park") and seeks an
casement for the same, as more particularly described in Section 1 below;
C. Certain Vail improvements, including but not limited to, a pumphouse, a surface
water intake structure, in-river water intake pipes, electric transformers and
specifically placed boulders within Eagle River anchoring such water intake
pipes, already exist. in the doom-river vicinity of the proposed Water Park and/or
may be installed in the future on or about the down-river vicinity of the Water
Park (the "Vail Improvements"); and
D. The parties have agreed to the Casement on the Vail Property subject to and based
upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and sufficiency of w1dch air- hereby acknowledged, Vail and
Avon hereby acknowledge and agrcc as follows:
1. River Improvements Ease gnt. (a) Subject to the provisions of Section 8 hereof,
Vail hereby giants to Avon an "intemihtcnt" (as more fully described in Section l (b) below),
irrevocable, nonexclusive easement upon, over and across certain portions of the Vail Property
as more particularly described on the attached Exhibit _A (identified thereon as " PARCEL PE-
04" for the following purposes: the existence, construction, reconstruction, repair, replacement,
maintenance, operation and use of improvements associated with the Water Park, including
certain in-river improvements but only those improvements to be or as constructed by Avon as
shown or referenced on Exhibit $ attached hereto (the "Avon Improvements"); additionally, the
easement area identified as "PARCEL PE-04" on Exhibit A may be used for the following
purposes: floating of boats, kayaks and similar water equipment and for pedestrian, access on the
banks of the Eagle River (the "Easement."). Access for construction, reconstruction, repair,
ADar~COn11PCD IcwcuF~ssrn!9
Gerry Anmtd
r.c. Box 9S9 - vc A7
Aron, CO A 1620
J:'Arnold Cietry\QERRYA\AVON'\AvonWatcrPark\TtcdHuuseAvon Walcr Park Easemcnl2.DOC
-^n~ A^4 4 nG 14
AUG-25-2006 16:23 FROM:EAGLE COUNTY CLERK A 9783288716 TO:99499139 P:2/21
replacement maintenance of the Avon Improvements is not provided by this Easement but is
subject to the terms and provisions of that certain Temporary Constniction License by and
between Vail and Avon.
(b) The Easement shall be an "intermittent easement," commencing on the day following the
close of any published ski season on Beaver Creek Mountain and terminating on the earlier of
the day on which Vail begins operation of the water intake and/or purnlphouse devices, in VA's
sole and absolute discretion, or October 1 in each and every year (the "Intermittent Term"). Use
of the Easement by Avon and the Avon Permittees (as defined in. Section 6 hereof) shall be
limited to the Intermittent Term. No in-river construction, reconstruction, maintenance,
replacement or repair of the Avon Improvements may take place after October, 1 of any year.
(c) The Easement shall be an easement in gross for the benefit of Avon and the Avon
Permittees, and shall not be transferable (with any purported transfer to render the Easement null
and void and of no further force or effect at Vail's election).
(d) The Easement (identified as "PARCEL PE-04") and the Easement's location relative to
and within the Water Park is generally depicted on Exhibit C.
2. Jse. The parties hereto acknowledge and agree that the Easement lies within the
river waters and river banks of the Eagle River. Use of the Easement shall be limited as follows:
(i) by Avon for the purposes stated in Section 1 (a) above and (ii) by the general public for
boating activities associated with the Water Park and pedestrian access on the bank of the Eagle
River, No camping, picnicking or other use of the Easement is permitted by the general public.
3. Permits, Limitation of Liability: No Representations. (a) Avon shall be responsible for
obtaining any and all permits or other local, state or federal governmental approvals necessary to
construct, own and operate the Avon Improvements. Vail shall not be liable for any infraction of or
non-compliance with the temp of such permits. Moreover, Vail disclaims any responsibility for
any impact on, wetlands either in or adiaccnt to the Easement arising from Avon's construction
activities and use of the Easement.
(b) Avon and the Avon Pcnnittees shall enter upon and use the Easement at their sole
respective risks. Vail shall incur no loss, cost, liability or damage in connection with Avon's or
the Avon Permittees' use of the Easement, the Avon Improvements, the Water Park or the Vail
Property under this Agreement. Avon shall be solely responsible for (i) the health and safety of
all of the Avon Pemiittees who enter upon and use the Easement and (ii) any damage to the Vail
Property or the Vail Improvements by Avon or the Avon Permittees utilizing the Easement.
(c) Vail makes no representations or warranties of any ]rind whatsoever regarding the
Easement or the quality, quantity, suitability or fitness of the Easement far any intended use.
2
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AUG-25-2006 16:23 FROM:EAGLE COUNTY CLERK A 9703288716 TO:99499139 P:3/21
4. Intentionally omitted
5. superior Rights of Vail- No Interference. Notwithstanding any Easement right
granted to Avon hereunder, Avon hereby acknowledges, agrees and covenants that the existence
and use by Vail of the Vail Improvements, and the functions and activities associated therewith,
including but not limited to Vail's implementatidn of Vail's water rights by water diversion
activities which support Van's mountain and golf operations (the "Vail Rights' shall at all
times be superior to the Easement and Avon's Easement rights hereunder, and, under no
circumstances whatsoever, shall Avon's exercise of such Easement rights harm, disrupt or injure
the Vail Rights. Moreover, Avon hereby acknowledges, agrees and covenants that while the
Easement is "upriver" from Vail's Improvements, the Easement shall, at all times, be subject to
the terms and conditions set forth herein such that the permitted uses by Avon or any third party
beneficiary to the Easement are (i) secondary to the Vail Rights and (il) are not inconsistent with
and do not interfere with the Vail Rights as determined by Vail in Vail's sole and absolute
discretion, the Vail Rights being imperative for preserving and protecting the viability and
continuity of Vail's mountain and golf course operations. Except as provided herein, in no event
shal I. there be any disruption or change to the contours of the bed or banks of the Eagle River by
Avon or any thud party beneficiary to the Easement, which would cause the river water to flow
in such a way that would negatively impact VaiI's ability to utilize the Vail Improvements for the
purposes for which the Vail Improvements are intended,
6. Indemnification. To the extent permitted by law, Avon agrees to indemnify,
defend and hold harmless 'Vail, its designees, agents, employees, officers, directors, shareholders,
successors and assigns, the Easement and the Vail Property (including, without limitation, claims'
made directly by Avon) from and against any and all claims, causes of action, costs, damages,
expenses and liabilities (including, without limitation, reasonable legal fees) arising from or
related to use of the Easement, and/or the Vail Property by (i) Avon, its designees, agents,
employees, officers, directors, shareholders, successors and assigns, (ii) the general public or (iii)
by any person acting through or on behalf of Avon (collectively, the "Avon Permittees"), arising
from or related to any negligent acts or omissions, intentional misconduct and any mechanic's or
materialmen's liens caused or permitted by Avon ar the Avon Permittees in connection with the
Easement and/or the Vail Property or otherwise arising under this Agreement, except those
caused by the willful misconduct or negligence of Vail or its designees, agents, employees,
officers, directors, shwcholdcm, successors oraasigm.
7. Additional Terms and Conditions.
a. Avon agrees that construction of the Avon Improvements shall be in
accordance and consistent with those certain plans "Eagle River r@ Avon Recreation
Enhancements Avon, Eagle County, Colorado, May 2006" and that certain "Town of Avon
Project Manual July 6, 2006 Eagle River at Avon Recreation Enhancements Bob the Bridge
Whitewater Park" prepared by River Restoration submitted to Vail by Avon, portions of which
are attached as Exhibit B. No other improvements are permitted on the Easement except as
shown or referenced on Exhibit B.
~/1 /1 C'~nAR1 7 IlC
AUG-25-2006 16:23 FROM:EAGLE COUNTY CLERK A 9703208716 TO:99499139 P:4/21
b. Vail reserves the right to use the Easement Arca for purposes which will
not interfere with Avon's full enjoyment of the nights hereby granted; and the parties further
agree that the uses of the Easement by Vail shall be as follows:
(1) Vail shall not erect or construct any building or other structure, or
drill or operate any well, or construct any permanent obstruction,
or subtract from or add substantially to the ground level in the
Easement without obtaining the specific prior written approval of
Avon, which approval shall not be unreasonably withheld;
(2) Vail shall take no action which would impair or in any way
substantially modify the surface of, or the lateral ar subjacent
support for, the Avon Improvements and appurtenances within the
Easement without obtaining the specific prior written approval
permission of Avon, which approval. shall not be unreasonably
withheld.
Notwithstanding the foregoing, Vail reserves the right to place
utilities within the Easement and to construct drainage
improvements and water diversion improvements not inconsistent
with the use of the Easement, and Vail agrees at its own expense to
restore the portion of the Easement Area to its prior condition in,
the event of the disturbance of such portion of the Easement.
(4) Vail further reserves the right to relocate the Easement to a new
location reasonably acceptable to the Avon in association with the
improvement of the Vail Property. Any such relocation shall be at
the expense of Vail and shall include replacement of the Avon
Improvements with improvements of the same condition and
quality. During such time, Vail shall use its best efforts to keep
any interruption of use of the Easement by the general public to a
minimurn.
8. Default emedies. In the event of any default under this Agreement, any non-
defaulting party may give notice to the defaulting party of such default. The defaulting party
shall have three (3) days within which to cure such default, or, if such default cannot reasonably
be cured within three (3) days, such longer time as may reasonably be necessary to cure such
default, provided that the defaulting pazTy commences to cure such default within said three (3)
days and diligently prosecutes the same to completion, bi the event of a default that is not timely
cured, the non-defaulting party shall be entitled to: (a) cure such default at the expense of the
defaulting party (and the defaulting party shall pay the expense thereof upon demand), and (b)
any other remedies which may be available at law or in equity. The parties acknowledge that
damages may be an inadequate remedy fora default hereunder and agree that the parties shall be
entitled to prohibitive or mandatory injunctive relief and the recovery of actual, consequential,
exemplary and other damages, as well as related costs and attorneys' fees, specific performance
4
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and other equitable remedies to enforce the terms of this Agreement. The notice and cure
provisions of this paragraph shall not appJy when, in Vail's reasonable opinion, an ongoing or
imminent default could irreversibly diminish or impair Vail's golf or mountain operations. Jn
such event, Vail may, upon, verbal notice to Avon, take immediate appropriate legal action and
seek to enjoin the violation, temporarily or permanently and also may immediately suspend
Avon's Easerrtent rights hereunder, including access and use of the Easement by the general
public. Upon Avon's cure of such default to Vail's reasonable satisfaction in Vail sole and
absolute discretion, Avon's Easements rights shall be immediately restored and full use of the
Easement may be implemented by Avon and the general public. The substantially prevailing
party in any action to enforce this Agreement shall be entitled to its reasonable attorneys' fees
and court costs.
91 Notices. All notices and other communications required or permitted under this
Agreement shall be in writing and shall be personally delivered or sent by certified mail, return
receipt requested, postage prepaid. Any such notice or other communication shall be effective when
such notice is delivered to the addresses set forth below:
If to Vail:
Beaver Creek Mountain Operations
Attn: Jim Roberts, Vice President
P.O. Box 7, Internal Box B 1
Vail, Colorado 81658
Telephone: (970) 845-5135
Facsimile. (970) 845-5131
With a copy to:
Vail Resorts Legal Department
Attn: Eric J. Stein, Assistant General Counsel
P.O. Box 7, Internal. Box 88
Vail, Colorado 81658
Telephone: (970) 845-2650
Facsimile: (970) 845-2667
If to Avon:
The Town of Avon
Attn: Norman Wood, Town Engineer
P.O. Box 975
Avon, Colorado 81620
Telephone: (970)-748-4045
Facsimile: (970)-949-5749
With a copy to:
John W. Dunn & Associates, LLC
200622401 5 OF 21
RUG-25-2006 16:23 FROM:EAGLE COUNTY CLERK A 9703263716 TO:99499139 P:6/21
Attn: John W. Dunn
P. Q. Box 7717
Avon, Colorado 81620
Telephone: (970) 748-6400
Facsimile: (970) 748-8881
10_ hsurance. Avon agrees to cause Vail to be an additional insured on its
Commercial general liability insurance for bodily injuries or death of persons or property damage
occurring in or about the Easement granted to it pursuant to this Agreement. All such insurance
shall (a) generally cover the liability and indemnity obligations assumed by Avon under this
Agreement; (b) be primary and noncontributing with any insurance which may be carried by the
other party; and (c) provide that said insurance shall not be cancelled or coverage changed unless
thirty (30) days' prior written notice shall have been given to Vail. Avon shall furnish Vail with
a certificate or certificates ccidencing that the required insurance policies are in full force upon
written request.
11. Statut Pyry Basis. The parties agree that this Agreement is entered into in
accordance with the provisions of Colorado Revised Statutes 33--41-101, et seq.
12. Miscellaneous.
a. Modification. No provision Or term of this Agreement may be amended,
modified, revoked, supplemented, waived, or otherwise changed except by a written instrument
duly executed by the parties hereto.
b. Entire Agreement- This Agreement constitutes and incorporates the entire
aprc=mt amore; the parties hereto concerning the subject matter of this Agreement and supersedes
any prior agreements concerning the subject matter hereof.
C. _epardbili . If any provision of this Agreement shall be held invalid,
illegal, or unenforceable .in, any jurisdiction, the validity, legality, and enforceability of the
remaining provisions of this Agreement shall not be impaired thereby; nor shall the validity,
legality, or enforceability of an.y such defective provisions be in any way affected or impaired in any,
other jurisdiction.
d. Assignment. This Agreement is not assignable by Avon without the prior
written approval of Vail.
C. Third-Party Benefipiaries, Except as provided herein, the agreements
contained herein are solely for the benefit of the parties hereto and no other person or entity shall
be a third party beneficiary thereof.
f Governing Law, This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
6
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9- Auth ri2atio Each party Agreement and all necessary corporate action has been authorized and empowered to execute thjs
of this
hs
Agreement.
h. Execution. The parties shall execute and deliver such further documents as
may be reasonably required in order to effectuate the intent of this Agreement.
I. Courateraarts. This Agreement may be executed in counterparts, each of
which shall be deemed to constitute an original; provided, however, that this Agreement will not
become binding upon any party unless and until executed (whether or not in counterpart) by all the
parties.
j. ReCOrdzng. This Agreement shall be recorded with the Clerk and. Recorder
for the County of Eagle, State of Colorado.
k. Run with a Land Successors nd AssiThe temps and provisions of
this Agreement shall run with the Vail Property and title to the Vail Property and be binding upon
and inure to the benefit of the successors and assigns of Vail. Subject to the provisions of Sections
1 (c) and 12 (d) hereof, the terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the successors and assigns of Avon.
1. Rule Against PeMgl ities. If any of the terms, covenants, conditions,
casements, restrictions, uses, limitations or obligations created by this Agrcemcnt shall be
unlawful or void for violation of. (i) the rule against perpetuities or some analogous statutory
revision, (ii) the rule restricting restraints on alienation, or (iii) any other statutory or common
law rules imposing like or similar time limits, such provision shall continue only for the period
of the life of Rob Katz, his now living descendants, and the survivor of them, plus twenty-one
(21) Years.
M. Exhibits. All exhibits attached to this Agreement are incorporated herein
by this reference and made a part hereof
n. Provisions Incoraorated in Deeds. Each provision contained in this
Agreement shall be deemed incorporated in each deed or other instrument by which any right,
title or interest in any of the Vail Property is granted, devised or conveyed, whether or not set
forth or referred to in such deed or other instrument.
DATED the day and year first above written-
[Signatures on followirig pages.]
7
200E9i401 7 OF 21
AUG-25-2006 16:24 FROM:EAGLE COUNTY CLERK A 9703298716 TO:99499139
Lepl omearsr
Nam? G v4A
S At Is
Uuet
STATE OF COLORADO )
ss.
COUNTY OF EAGLE }
THE VAIL CORPORATION, a Colorado
corporation
By:
Nam d y
Title: L). f-
r~s
The foreg ing instrument was acknowl gel bygf ma this ~ ~day of
2006, by as Sr, 0, c- e eScJ THE VAIL CORPORATi N, a
Colorado corporation.
Witness my hand and official sea].
My commission expires: ~d D 14:2 Qd
(SEAL)
{ A Rly O
~pTAR %
t
ATE OF .0~
S
P: 8/21
200622401 8 OF 21
AUG-25-2006 16:24 FROM:EAGLE COUNTY CLERK A 9703205716 TO:99499139 P:9/21
TOWN OF AVON, a municipal subdivision of the
State of Colorado
By4na Na Wolfe
Title: Mayor
ATTEST:
By. atty MuXeruny, T lerk
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ~ - day of
2006. as by Ronald 13. Wolfe as Mayor and Patty McKenny as Town Clerk of
the wn of Avon.
Witness rry. hand and official seal.
MY Commission expires:
kt~
(A A
~T UBLN Pp~
oP'co~cQ
1 QMnIi.4sion b#,Pwgig ~1 J f a o{O
9
200&72401 9 OF 21
AUG-25-2006 16:24 FROM:EAGLE COUNT`( CLERK A 97032E8716 TO:99499139 P:10121
EXHIBIT A
PE-04)
(SEE ATTACHED)
10
20067-VOI 10 OF 21
AUG-25-2006 16:24 FROM:EAGLE COUNT`' CLERK A 9703280716 T0:99499139 P:11/21
I>ater-I1'dao~
AftDiffineennglAdL
REAL PROPERTY
TO BE ACQUIRED FOR PERMANENT
ASEIWIEN
TOWN OF AVON, EAGLE RIVER RECREA'T'ION PROJECT
P
PARCEL P"4
DESCRIPTION
i
f
RECEIVED
JUL 2 4 7046
VOMm anity c)av®ioprner~,
A parcel of land PARCEL PE-04, containing 0.186 acres, more or less, situated itt Lot 2, Red
house, as recorded in the Offlcc of the Clerk and Recorder oi'Fagle rnlmty. Colorado, at
Reception No, 743459 on November 7, 2000 and being more particularly described as follows:
The True Point of Beginning being at the Forth wcst comer of said Lot 2. Red House, common to
the intersection of the Southwest corner of Tract A. Nottingham Station, and the easterly right-of-
way of Avon Road;
Thence S 82° 10' 14" E a distance of 128.67 feet along the north line of said Lot 2 to a point;
Thence along said notch line S 36053'40" E a distance o1" 1 11,83 feet to a paint;
Thence S 41147'06" W a distance of 35.61 feet to a point;
Thence N 37°37'52" W a distance of 71.47 feet to a point;
Thence N 62°41'06" W a distance of 58.81 feet to a point;
Thence N 68'45'54" W a distance of 80.99 feet to a poin(on the west line of said lot and on the
easterly tight-of-way of said Avon Road;
Thence N 01 °22'56" E a distance of 20.61 feet along said right-of-way to the Northwest comer of
said let and the Trite Point of Bcginn.ing.
The above described parcel contains 8,120 square feet (0.196 acres), more or less;
1 hereby state that the above descri bed legal description has cn prepared by me or under my
direct stipen,ision-
VO '9ii ern
7 oho 6
Date r TrY ar%1$Ty Inter-Mq#ri i ngin 1ng
P. 9 , do 81 0
Juan J wgw, & P,L.S. 26626
J:lprojcc ey1PARCEE PE-04.doc
8:39? Corninenta l Civide Road, Suite 4 107 • L;aleton, Colorado 80127 Phone: 303 9,*8 62.20 • Fax: 30,3 9443 65246
,10110 t U.S. H,,mj. 5. Suite 2C3 • PO. BaA 978 ■ Avon, Colorado 91626 Phone; e: 970 gag 8077 • Toll FreQ: bm 856 225:e
200622401 11 OF' 21 A _ i
RUG-25-2006 16:24 FROM:EAGLE COUNT`' CLERK A 9703288716 TO:99499139 P:12/21
TRACT A, \
TRUE PO/NT NOT77NGHAM S7A TION
OF BEGINIIIING
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mom
TN/S DOCUMENT DOES NOT REPRESENT A AION4MEN7,f7J SVRpr)-
IT IS /N7FNDED ONLY TO 0-OP/CT THE AT74CHEV DE,SCRijanoN
TOWN OF TRUMON~N
PF..RMANENT FLOATING, WALMWG, CONS
NANcE AND ACCESS EASEMENT
PARCEL Pt'-04
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use d~r~' y" TOM OF AVON n
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200622401 12 OF 21
AUC-25-2006 16:24 FROM:EACLE COUNTY CLERK A 9703228716
EXHIBIT B
(IMPROVEMENTS)
(SEE ATTACHED)
I1
TO:99499139 P:13/21
2COBZ2401 13 OF 21
RUG-25-2006 16:25 FROM:EAGLE COUNTY CLERK A 9703288716 TO:99499139
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