HomeMy WebLinkAboutresolution.council.059-02 Page: 1 of* 11
02/25/2003 02:
RESOLU,ION NO.
Series of 2002
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE CITY
MANAGER TO EXECUTE, ON BEHALF OF THE CITY OF ASPEN, A LICENSE
AGREEMENT BETWEEN THE CITY OF ASPEN, AND THE FROST PROPERTY, LLC.
WHEREAS, there has been submitted to the City Council a proposed License Agreement
between the City of Aspen, and the FrOst Property LLC; and
WHEREAS, after due deliberation and consideration the City Council has determined
that it is in the best interest of the City of Aspen to approve said license agreement and authorize
the City Manager to execute same on behalf of the City of Aspen.
NOW, WHEREFORE, BE IT RESOLVED BY THE cITy COUNCIL OF THE CITY
OF ASPEN, .COLORADO, thht the City manager is hereby authorized to execute on behalf of
the City of Aspen a License Agreement in substantially the form as appended hereto as Exhibit
A.
Dated: ~ c:) ,2002.
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is
a true and accurate copy of that r~solution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held ~(~~ (~' ,2002.
Kathryn S. Kq~h, City Clerk ,x..~
After Recording Return to: Recording Information:
City Attorney
City of Aspen
130 S. Galena St.
Aspen. CO 81611
Driveway Access - City as Grantor
THIS LICENSE AGREEMENT is made and entered into this ~'4!fi day of ~"~__lod.~a
2003 by and between the City of Aspen, a Home Rule Municipality (hereinafter referred r'o
"Grantor"), and The Frost Property, LLC (hereinafter referred to as "Licensee").
WI I~NES SETH:
WHEREAS, Grantor is the owner of certain real property located in the City of Aspen,
Pitkin County, Colorado, described as the easternmost twenty (20) feet of Lot G and C of Block
71. Original Aspen Townsite, and more fully described in Exhibit A and appended hereto (the
"License Area"); and
WHEREAS, Grantor ~s willing ro grant to Licensee a license for the purposes set forth
herein under certain terms and conditions; and
WHEREAS, Grantee is desirous of accepting said license under the terms and conditions
set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receip~ and sufficiency of which are hereby
acknowledged, Grantor and Licensee covenant and agree as follows:
1. Grant of License. Grantor, without warranting title or interest, and ~ubject to
the terms and conditions hereinafter set forth, does hereby authorize the Licensee, its successors
and assigns, to utilize the License Area for the uses as permitted herein.
2. Use. Licensee may use the License Area for privately maintained underground
utilities and driveway purposes (from street to street - Hallam ro N. Garmisch) (~as defined
below) over and across the License Area to access the Frost Lot and the Barn Lot as fully
described in Exhibit B appended hereto and incorporated herein as if fully set forth (hereinafter
referred to as the "Frost Lot"); subject, however, to the terms and conditions set forth herein. For
purposes of this License Agreement. the term "driveway purposes" means use as a residential
driveway.
3. Temp. The term of this License shall be permanent and perpetual; provided,
however, that the term of this License may be terminated by Grantor if a future owner agrees that
the access easement is no longer required. The rem~ shall commence upon completion of the
conditions set forth at paragraph 4 below.
4. Conditions. This License Agreement is specifically subject to the following
conditions:
a. No physical encroachments, including landscaping, shall be allowed
within the License Area without the prior written consent of Grantor; provided,
however, that Grantor hereby consents to and approves the installation of
landscaping in the outermost three feet (3') on either side of the License Area.
~ b. No parking shall be permitted within the License Area without the prior
~ ii written consent of Grantor.
"- ~ ~ c. Licensee shall construct within the License Area a fourteen foot width of
O~ ~; ~, fine crushed gravel roadway consistent with the drawing appended hereto as
,~. · N Exhibit C. Said roadway shall extend to the public trail at the rear of the existing
~. Red Brick Building and include a walkway to the Red Brick Building door on the
~,~ East elevation. Said Walkway and roadway shall meet all of the specifications
_-..
--,z deemed appropriate by the City Engineer and approved by the Parks Department
~ and shall be installed prior to the issuance of a Certificate of Occupancy for the
- re-development of the Frost Lot.
d. Before the start of any construction within the License Area, Licensee
shall submit an improvement plan for the License Area to the Grantor for review
' ~ and approval, including cross sections, drainage plan, placement of utilities, and
any other matters reasonably deemed necessary by the Grantor.
~ e. The improvement plan for the License Area shall demonstrate to the
_--~-~ reasonable satisfaction of the City of Aspen Fire Chief that a fire truck can pull
through the License Area and exit at the rear of the existing Red Brick Building.
f. Licensee shall, at Licensee's sole cost and expense, post a sign indicating
the public nature of the right-of-way and its current use as a public trail. The
Grantor shall approve said sign before its installation.
g. Licensee shall prepare and record a revised property plat for the Frost Lot
and showing all rights conveyed to the Licensee hereunder as part of its current
re-development plan for the Frost Lot. the alley vacation, the License Area, and
showing any relocated easements for public purposes including, but not limited
to, access, electric, water, sewer and other utility services. Said plat shall be filed
with the Grantor's Community Development Department and subject to approval
by Grantor.
h. Licensee shall use reasonable care in construction of improvements within
the License Area and agrees to take reasonable precautions to avoid damage to the
surrounding land and improvements thereto, and further agrees, to the extent
reasonable possible, to restore such land and improvements to their pre-existing
condition.
i. Licensee shall place a sign upon the designated historic buildings on the
Frost Lot served by the License Area indicating the historic nature of the
2
Page: 4 o¢
02/25/2003 02:
SILVIA DAVIS PITKIN COUNTY CO R 56.00 O 0.00
buildings. Said signage shall be approved by the City's Historic Preservation
Officer.
5. Reserved Rights. Grantor reserves the right to make full use of the License
Area as may be necessary or convenient: Grantor reserves the right to use the License Area
including the right to access, as well as the right to operate, maintain, install, repair, remove, or
relocate any of its facilities or the facilities of any utility company located within the License
Area at any time and in such manner as it deems necessary or convenient. At no time shall
Licensee interfere with Grantor's use of the Licensed Area or with Grantor's installations within
the License Area. Licensee shall assume all risks incident to the presence of Grantor's facilities,
improvements, installations, invitees, guests, or members of the public within the Licens~ Area.
Nothing herein shall be construed so as to prevent Grantor from granting additional licenses or
property interests in or affecting the License Area as it deems appropriate as long as such
additional licenses or property interests do not interfere with Licensee's use of the License Area
in accordance with the terms hereof.
6. Construction, Modification, Maintenance Within License Area. Licensee shall
use reasonable means to prevent any loss or damage to the Grantor or to others resulting from the
construction, modification, replacement, repair, operation, and maintenance of Licensee's
installations or improvements. If, during construction, modification, replacement, repair,
operation, use and maintenance of Licensee's installations and improvements, Grantor
determines that damage has occurred to its facilities or the facilities of a utility company,
Licensee shall, upon written notice thereof, repair or replace such damage, at Licensee's
expense. Any repair or replacement of any of Grantor's installations or improvements on the
License Area made necessary shall be made at the sole expense Of the Licensee. Licensee shall
not be responsible for damages resulting from force majeure: If!he Grantor at any time during
the period of this License deems it necessary to excavate in the License Area for construction,
modification, replacement, repair, operation of, or maintenance of any of Grantor's facilities,
which work requires the moving of Licensee's installations or improvements, costs of
movement, re-installation, or replacement of Licensee's installations shall be shared by Licensee
on a pro-rata basis.
7. Maintenance of Facilities and Snow Removal Within License Area.
Licensee shall be responsible for snow removal, normal maintenance, and the
mainienance of any installation, improvement (including the driveway) along the License Area.
In the event that Licensee fails to maintain the License Area or remove snow as provided herein
after three (3) days following written notice from Grantor, Grantor may cause the maintenance to
be performed or snow to be removed, as the case may be, and bill Licensee for the costs of said
maintenance or snow removal. If Licensee fails to pay said bill to Grantor within thirty (30) days,
Grantor shall have the right to plac'e alien upon the property for the cost of such maintenance or
snow removal plus an additional 10% administrative surcharge.
8. Prior Agreements. The rights and privileges granted by this License may be
subject to prior agreements, easements, and conveyances, recorded and unrecorded, and it shall
be the Licensee's sole responsibility to determine the existence of any rights, uses, or
installations conflicting with Licensee's use of the License Area and to resolve any such
conflicts.
3
Page: 5 of 11.
02/25/2003 02: 13;
9. Indemnification. s~Lvxo Dnvis PlTKIN C0U~'~ C0 R 56.g~ ~ ~.~¢
(a) Licensee a~ees to indemni~ and hold hamless Gr~tor, irs officers, employees,
insurers, and self-ins~ce, from and against all liability, claims, and dem~ds, on accost of
injuw, loss, or dmage, including without limitation claims arising from bodily inj~, dea~,
property loss or dmages, or any loss of ~y kind whatsoever, which ~se our of or are in ~y
m~ner connected with this License. if such inj~, loss or dmage is cause in whole or in pan
by, or is claimed to be caused in whole or in pan by the act, omission, e~or, professional e~or,
mist~e, negligence, or other fault of Licensee. Licensee a~ees ~o investigate, handle, respond
to, and to provide defense for ~d defend ag~nst, ~y such claim or dem~ds at the sole expense
of Licensee. Licensee f~her a~ees ro be~ all costs and expenses related thereto, including
court costs ~d attorney fees, whether or not liability, clams, or dem~ds alleged ~e ~oundless,
false or fraudulent.
(b) To the extent pe~itted by law, Gr~tor a~ees to indemni~ and hold h~less Licensee,
its officers, employees. ~nsurers, and self-insurance, ~om and against all liability, claims, ~d
dem~ds, on account of injuw, loss, or damage, including without limitation claims arising from
bodily injuw, death, property loss or dmages, or ~y loss of any kind whatsoever, which arise
out of or ~e in any m~er co~ected with this License. if such inj~, loss or dmage ]s cause
in whole or in p~ by, or is claimed to be caused in whole or in p~ by the act, omission, e~or,
professional e~or, mistake, negligence, or other fault of Grantor. Gr~tor a~ees to investigate,
handle, respond to, and to provide defense for and defend against, any such cl~m or dem~ds ar
the sole expense of Gr~tor. Gr~tor f~er a~ees to be~ all costs ~d expenses related thereto,
including corn costs ~d attorney fees, whe~er or not liability, claims, or dem~ds alleged are
~oundless, false or fraudulent.
10. ~s~ance. Licensee shall at all times during the re~ hereofi c~ public
liability ins~ce for the benefit of the City with limits not less th~ ~ose specified by Section
24-10-114, C.R.S. (cu~ently $150,000 per person ~d $600,000 per occ~ence) as may be
mended from time to nme, n~ing the City of Aspen as additional ins~ed. Licensee shall
m~nthn said public liability coverage in full force ~d effect d~ng the tern of this License ~d
shall ~mish the City with a most cu~ent cegificate of such coverage evidencing its validity. All
ins~ce policies m~nt~ned pursuit to this a~eement shall contain the following
endorsement: "k is hereby ~derstood that this ~nsur~ce shall not be c~celled by the s~ety
until ~i~y (30) days a~er receipt by the City, by registered m~l, of a written notice of such
intention to c~cel or not renew."
11. Notice. Notices and other communications ~at may be g~ven, or ~e
required to be given hereunder, shall be in ~iting ~d shall be deemed given by the p~y when
delivered personally or when deposited in ~e United States mail with sufficient postage affixed
~d ad~essed to such p~y at the respective address shown below: 1
CITY OF ASPEN:
Ci~ Manager
City of Aspen
130 S. Galena St.
Aspen, CO 81611
4
02/25/2003 02: 13;
LICENSEE:
Camilla Auger
The Frost Property, LLC
709 North Spruce Street
Aspen, CO 81611
12. Remedies: Enforcement.
a. Notice of Violation: Corrective Action. If either parry determines that a violation
of the terms of this License Agreemem has occurred or is threatened, such party shall give
written notice to the other of such violation and demand con:ective action sufficient to cure the
violation and, where the violation involves injury to the License Area resulting from any use or
activity inconsistent with the purpose of this License, to restore the portion of the License Area
so injured to its prior condition.
b. Iniunctive Relief If a parry fails to cure the violation within ten (10) days after
receipt of notice thereof from the other party, or under circumstances where the violation cannot
reasonably be cured within a ten (10) day period, fails to begin curing such violation within the
ten (10) day period, or fails to continue diligently to cure such violation until finally cured, the
other party may bring an action at law or in equity in a court of competent jurisdiction to enforce
the terms of this License Agreement, to enjoin the violation, exparte as necessary, by temporary
or permanent injunction, and to require the restoration of the License Area to the condition that
existed prior to any such injury.
c. Damages. In addition to any relief covered by paragraph 12.b above, each parry
shall be entitled to recover damages for violation of the terms of this License Agreement.
d. Emergency Enforcement. If a party, in its sole discretion, reasonably determines
that circumstances require immediate action re prevent or mitigate significant damage to the
License Area, such party may pursue its remedies under this section without prior notice to the
other or without waiting for the period provided for cure to expire.
e. Scope of Relief. Each party's rights under this section 12 apply equally in the
event of either actual or threatened violations of the terms of this License Agreement. A party's
remedies at law for any violation of the terms of this License Agreement are inadequate and that
a party shall also be entitled to the injunctive relief described above, both prohibitive and
mandatory, in addition to such other relief to which such party may be entitled, including
specific performance of the £erms of this License Agreement, without the necessity of proving
either actual damages or the inadequacy of otherwise available legal remedies. The remedies
described in this section shall be cmnulative and shall be in addition re all remedies now or
hereafter existing at law or in equity.
f. Costs of Enforcement. Each party shall bear its own costs incurred in connection
with enforcing the terms of this License Agreement, including, without limitation, costs and
expenses of suit and reasonable attorney's fees, and any costs of restoration necessitated by a
violation of the terms of this License Agreement.
5
g. Orantor's Discretion. Any forbearance by a party hereto to exercise its rights
under this License Agreement in the event of any breach of any term hereof shall not be deemed
or construed to be a waiver by the other party of such term or any subsequent breach of the same
or any other term. No delay or omission in the exercise of any right or remedy upon any breach
shall impmr such right or remedy or be construed as a wmver.
h. Acts Beyond Licensee's Control. Nothing contained in this License Agreement
shall be construed to entitle Grantor to bring any action against Licensee for any injury to or
change in the License Area resulting from causes beyond Licensee's reasonable control,
including, without limitation, fire, flood, storm, and earth movement, or from any prudent action
taken by Licensee under emergency conditions to prevent, abate, or mitigate significant injury to
the License Area resulting from such causes.
13. General Provisions.
a. Controlling Law. The interpretation and performance of this Agreement shall be
governed by the laws of the State of Colorado.
b. Liberal Construction. Any genera] rule of construction to the contrary
notwithstanding, this Agreement shall be liberally construed in favor of the grant to effect the
purpose of this License Agreement. If any provision in this instrument is found to be ambiguous,
an interpretation consistent with the purpose of this Agreement that would render the provision
valid shall be favored over any interpretation that would render it invalid.
c Severability. If any provision of this Agreement, or the application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of this Agreement,
or the application of such provismn to persons or c~rcumstances other than those as to which it is
found to be invalid, as the case may be, shall not be affected thereby.
d. Entire Agreement. This instrument sets forth the entire agreement of the parties
with respect to this Agreement and supersedes all prior discussions, negotiations, understandings,
or agreements relating to this Agreement, all of which are merged herein.
e. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
f. Successors. The covenants, terms, conditions, and restrictions of this Agreement
shall be binding upon, and inure to the benefit of, the parties hereto and their respecnve personal
representatives, heirs, successors, and assigns and shall continue as a servitude running in
perpetuity with the License Area.
g. Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a par[ of this instrument and shall have no effect upon
construction or interpretation.
Page: 8 of 11
02/25/2003 02:
STLVI~ D~VI$ PITKIN COUNTY CO R 56.00 D ~.00
h. Recordation. Licensee shall record this instrument in timely fashion in the official
records of Pitkin County, Colorado, and may re-record it at any time as may be required to
preserve its rights in this Agreement.
1N WITNESS WHEREOF, the parties hereto have executed the foregoing on the day and
year above first given.
The City of .Aspen, Grantor
Title: C ,e~/~,
State of Colorado )
) SS.
County of Pitkin )
.~.,~_.j,DThe foregoing instna~nent was acknowledged before me this ~'/~ day of
Ct~ t3cC ~ , ~0_~, by the above named Grantor(s).
!
eSS MY HAND AND OFFICIAL SEAL.
xpert:
~ eu~ic ~V
"~iiia~LiCENS EE
The Frost Property LLC
State of Colorado )
) SS.
County of Pitkin )
The foregoing instrument was acknowledged before me this [~O"'J-~ day of
,L~v~he~' ,~, __~,~,~ by the above named Licensee.
~ C. ! ~C~'~" ~, . . .
"~:i 3~'~1''~ l~}c°mm~ss~°n expires: 4~r~[o~
'~?~otary Public
JPW-12/16/2OO2-G:\john\word\agr\monafrost-access-license-12-1~-O2.dod
7
R 56.00 O 0.00
EXHIBIT A
LICENSE AND UTILITY AREA
An ingress, egress license of varying width crossing on the City of Aspen property situated in Block 64
and 71, of the 1959 Official Map, City 0f Aspen, recorded as Reception No. 109023 of the official records
for Pitkin County, Colorado, said License is described as follows:
Beginning at a point on the southerly boundary of said Block 71, said point being identical with the
southwesterly comer of Lot "H" (sometimes referred to as Lot "N", Block 7I), from which the
northwesterly block corner monument of Block 72 of said Official Map bears South 65016'30" West, a
distance of 116.76 feet;
Thence North 75o09, 11" West, along the southerly boundary of said Block 71, a distance of 20.00 feet;
Thence departing said southerly boundary North 14050'49" East, a distance of 120.07 feet along the
existing traveled way;
Thence northwesterly 70.69 feet along the arc of a circular curve to the left having a central angle of
90°00'00'', a radius of 45.00 feet with the long chord bearing North 30o09, 12" West, a distance of 63.65
feet;
Thence North 75°23'32" West, a distance of 136.54 feet along the existing traveled way;
Thence South 15o05'35" West, a distance of 18.57 feet;
Thence North 75o17'52" West, a distance of 233.63 feet more or less along the traveled way through an
existing parking lot to the easterly right-of-way of Garmisch Street as depicted on the 1959 Official Map,
City of Aspen;
Thence North 14°50'49" East, a distance of 21.84 feet along said easterly right-of-way;
Thence South 74°24'47" East, a distance of I99.06 feet along the traveled way through the existing
parking lot;
Thence North 15o56, 18" East, a distance of 14.00 feet;
Thence 74040'52" East, a distance of 162.01 feet along the existing traveled way;
Thence South 66°30'08" East, a distance of 51.I2 feet along the existing traveled way;
Thence North 70037'24" East, a distance of 28.29 feet more or less to the northwesterly comer of the
Quiet Title Decree recorded as Reception No. 470593 of the official records for Pitkin County, Colorado;
Thence South 14o50'49" West along the westerly boundaries of said Quiet Title Decree and the westerly
lot boundaries of "D" and "H" (sometimes referred to as "N"), of Block 71, a distance of 185.49 feet
more or less to the point of beginning.
The basis of bearings used for the bearings in this description was South 75°09'1 i" East, between found
original 1959 City of Aspen block comer monuments at the southeasterly comer of Aspen Street and
Hallam Street and the found monument at the southwesterly comer of Monarch Street and Hallam Street,
City of Aspen, Pitkin County, Colorado.
THE ABOVE LEGAL DESCRIPTION WAS WRITTEN BY:
Louis H. Buettner ~ ?L- ~%
0040 West Sopris Creek Road
Basalt, CO 81621
972-3611
EXHIBIT B
Frost Lot:
Lots lettered N and O (also known as H and I) in Block 71 in the City and Townsite of
Aspen,
Together with the southerly half of the alley vacated pursuant to Ordinance No. 20
(Series of 2002), lying northerly thereto.
Barn Lot:
Lots lettered D and E in Block 71 in the City and Townsite of Aspen,
Together with the northerly half of the alley vacated pursuant to Ordinance No. 20
(Series of 2002), lying southerly thereto,
Also, together ~vith, that portion of Lot 4, Tmeman Neighborhood Commercial Project
described in that certain Decree Quieting Title recorded August 5, 2002 as Reception No.
470593.
County of Pitkin, State of Colorado.
This legal description was written by:
Garret Brandt
132 Midland Avenue, Suite 4
Basalt, CO 81621