Loading...
HomeMy WebLinkAboutresolution.council.057-98 ~ iLIfIoI!\o.. ! '" r----. I ....... RESOLUTION No.51 Series of 1998 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN EASEMENT AGREEMENT AND A MUTUAL VACATION OF EASEMENT AGREEMENT BETWEEN THE CITY OF ASPEN AND THE JAMES E. MOORE FAMILY PARTNERSHIP, LLLP, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENTS ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council an Easement Agreement and a Mutual Vacation of Easement Agreement between the City of Aspen, Colorado and the James E. Moore Family Partnership, LLLP, copies of which contract are annexed hereto and made a part thereof. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section One . That the City Council of the City of Aspen hereby approves the Easement Agreement and Mutual Vacation of Easement Agreement between the City of Aspen, Colorado, and the James E. Moore Family Partnership, LLLP copies of which are annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said agreements on behalf of the City of Aspen. Dated: a"d""<--I-.y ,1998. ~(~~ John . Bennett, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of ~SOlUtiOn adopted by. the City Council of the City of Aspen, Colorado: at a meeting held . f..,,#, dJ:l r ' 1998. ~tfk- JPW~07/20/98-G:\john\word\resos\easement-res.doc ~ CITY OF ASPEN EASEMENT AGREEMENT ~W~L OK) ~ This Easement Agreement is entered into this _ day of 199_, by and between THE CITY OF ASPEN ("City"), a Colorado municipal corporation and home rule city, and James E. Moore Family Partnership, LLLP, a Colorado limited liability limited partnership ("Grantor"). RECITALS: WHEREAS, Grantor is the owner of certain real property located in Pitkin County, Colorado, described in the attached Exhibit "A" (the "Moore Property"); WHEREAS, Grantor is desirous of granting easements over and across the Moore Property as set out on the Moore Family PUD Final Plat, recorded on , 199 (the "Final Plat"), in Plat Book at Page , and on the Moore Family Parcel "A" - - Subdivision, Essential Community Facilities Exemption Plat (the "Facilities Exemption Plat") recorded on , 199_, in Plat Book _ at Page _, upon the terms and conditions contained herein, to substitute the easements vacated by the Mutual Vacation of Easement between the parties hereto and of even date herewith. ~. THEREFORE, IN CONSIDERATION of the promises and agreements set forth below, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Grant of Easement. Grantor does hereby grant and convey to the City perpetual non-exclusive easements and right of way (the "Easements") for the purposes set out therein. The Easement is described on the Final Plat and Facilities Exemption Plat as "Water Easement" and "City Trail Easement" for the uses and purposes set out therein. This grant of easement shall run with the land for the benefit of the City, and shall be binding upon and inure to the benefit of the City, and its successors and assigns. . 2. {)se of Easement Premises By City. The City's agents, employees, contractors and other designated persons may go upon the Easement at all reasonable times to undertake routine use, operation and maintenance of the City's water distribution system, trails and associated facilities. In the event the City plans major repairs or replacement of infrastructure within the Easement premises, it shall provide Grantor with reasonable advance notice of the work to be undertaken, and the estimated time of completion. Notwithstanding the foregoing, the City may go upon the Easement premises at any time in the event of any emergency situation or condition, and to undertake such repair or replacement activities as it deems necessary to properly resolve the emergency situation. (-' '- 1 r- After the exercise of any of its rights hereunder, the City shall grade, re-seed or re-sod if necessary to restore the surface of the ground to its fonner condition and contour, provided however, that the City shall not be required to restore or replace any trees, bushes, brush, gardens or other vegetation on the Easement premises, nor any structures or paving thereon. ~" /,--..\ - 3. Use of Easement Premises h.y Grantor. Grantor shall retain the right to use and enjoy the Subject Property including the Easement premises so long as such use and enjoyment do not interfere with the City's rights hereunder, and provided that Grantor shall not install or allow any obstructions or permanent encroachments on the Easement premises, including but not limited to fences, buildings, gates, or other structures, or trees, bushes, brush, gardens, or pavement, and shall not obstruct or permit obstruction of access to the EaseJY.ent premises. In the event any such obstructions or encroachments are erected, installed, or permitted to remain upon the Easement premises notwithstanding this paragraph, Grantor understands and agrees that such obstructions or encroachments may be removed by the City at Grantor's cost, and that the City shall have no responsibility or liability for any damage or destruction thereto. In the event Grantor discovers an emergency condition pertaining to the City's water' distribution system located on, over, in or through the Easement premises, Grantor shall make reasonable attempts to promptly notify the City of such condition. 4. Liability to Others. Each party shall be responsible for any and all claims, demands, actions, losses, liabilities, or expenses of whatever sort, including attorneys fees, that are incurred by any person or entity arising out of or in connection with such party's use or occupation of the Easement premises, or the use or occupation the Easement premises by its agents, employees, contractors, invitees or licensees, provided, however, that nothing. herein shall be construed to abrogate or diminish any protections and limitations afforded to the City by the Colorado Governmental Immunity Act, C.R.S. ~ 24-10-101 et seq. as amended, or other law. In the event the City and Grantor, or their respective officers, directors, members, employees, agents, contractors, representatives, heirs or assigns may be held jointly and severally liable under any statute, decision, or other law providing for such joint and several liability for their respective activities on the Easement premises, the obligations of each to respond in damages shall be apportioned, as between the City and Grantor, in proportion to the contributions of each as measured by the acts and omissions of each which in fact caused such legal injury, damage or harm and the City and Grantor shall indemnify each other to the extent necessary to assure such apportionment. 5. Notices. All notices required to be given shall be deemed given upon deposit in the United States mail, fIrst class postage prepaid, properly addressed to the person or entity to whom directed at its address shown herein, or at such other address as shall be given by notice pursuant to this paragraph. Copies of such notices shall also be sent in the same manner to the City Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado 81611. Notwithstanding the foregoing, Grantor may notify the City of emergency conditions as provided in Paragraph 3 above by direct delivery of notice to the City Water Department at 2 ....' (r---- 500 Doolittle Drive, Aspen, Colorado, or by telephone or telefacsimile communication with the City Water or Parks Department. 6. Bindinll Allreement - Recording. This Agreement is binding upon the parties hereto, their successors and assigns, and any sale of the Subject Property, or any portion thereof shall be subject to this Agreement. This Agreement shall be recorded with the Pitkin County Clerk and Recorder, and shall impose an easement and covenants running with the land upon the Subject Property. Deeds to subsequent owners of the Subject Property shall provide notice of this Agreement and the obligations contained herein. 7. Governing Law' Venue: Attorneys' Fees, This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Colorado. Venue for all actions arising under this Agreement shall be Pitkin County, Colorado. In the event legal remedies must be pursued to resolve any dispute or conflict regarding the terms of this Agreement or the rights and obligations of the parties hereto, the prevailing party shall be entitled to recover costs incurred in pursuing such remedies, including expert witness fees and reasonable attorneys' fees. 8. Authorization of Sillnatures. The parties acknowledge and represent to each other that all procedures necessary to validly contract and execute this Agreement have been performed and that the persons signing for each party have been duly authorized to do so. r-. 9. Counteq1arts. This Agreement may be signed using counterpart signature pages, with the same force and effect as if all parties signed on the same signature page. IN WITNESS WHEREOF, the parties have executed this Agreement the date and year fust above written. JAMES E. MOORE FAMILY PARTNERSHIP, LLLP, a Colorado limited liability limited partnership THE CITY OF ASPEN, COLORADO, a home rule municipality By: JOhn~, ~y By: Thomas A. Moore, General Partner ATTEST: THE CITY OF ASPEN I'" By: ~ ) r:::('~ . Kathryn Koc City Clerk 3 ~. f ,,-.., ,~ STATE OF COLORADO ) ) COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of - 199_, by Thomas A. Moore, as General Partner of the James E. Moore Family Partnership, LLLP, a Colorado limited liability limited partnership. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this ~ day of ~, 1991) , by John Bennett, as Mayor of THE CITY OF ASPEN, COLORADO, a home rule municipality . Witness my hand and official seal. My commission expires: Notary Public EM,07l21198'g:\\MOOREEAS -- 4 ~ , /'~ r--. ~_r EXHIBIT "A" THE MOORE PROPERTY Lot 1 and Lot 2, Parcel A, Moore Pamily Parcel "A" Subdivision, Essential Community Facilities Exemption Plat, recorded on , 199_, in Plat Book _ at Page , and all the property described on the Moore Family PUD Pinal Plat, recorded on , 199_, in Plat Book _ at Page --,-' in the office of the Clerk and Recorder of Pitkin County, Colorado. 5 f' MUTUAL VACATION OF EASEMENT THIS AGREEMENT ("Agreement") is made as of the _ day of ,1998, by and between JAMES E. MOORE FAMILY PARTNERSHIP, LLLP, a Colorado limited liability limited partnership (the "Moore Family Partnership") and the CITY OF ASPEN, COLORADO, a home rule municipality (the "City"), for themselves, their successors and assigns: RECITALS WHEREAS, the Moore Family Partnership is the owner of the property described in Exhibit "A", incorporated herein by this reference (the "Moore Property"); WHEREAS, the City was conveyed and granted easements by Permanent Easement dated August 11, 1965, and recorded January 28, 1966, in Book 218 at Page 382; by Water Line Easement, dated September 16, 1965, and recorded January 28, 1966, in Book 218 at Page 388; by Deed of Easement, dated January 16, 1973, and recorded February 21, 1973, in Book 272 at Page 739; and by an Easement dated July 3, 1990, and recorded September 11, 1990, in Book 629 at Page 188; in the records of Pitkin County, Colorado; and the City may have other unrecorded easements or easement rights over and across the Moore Property (collectively, the "Moore/City Easements"); WHEREAS, the Moore Family Partnership and the City being all of the parties affected, 1"""\ desire to release and vacate the above described Moore/City Easements. , . NOW, THEREFORE, for and in consideration of the mutual covenants contained herein and the substitution of these easements with other easements by separate document, and fgr other , valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree and covenant as follows; 1. Vacation. The Moore Family Partnership and the City hereby agree to vacate and release forever the above described Moore/City Easements. 2. Nature ofRi~hts Released. This vacation and release of the easement, benefits and obligations set forth in this Agreement shall be a full release of easements, restrictions, benefits and servitudes upon all the Moore Property, which release shall run with said lands and which shall be perpetual. 3. Miscellaneous. (a) As used in this Agreement, the singular shall include the plural, the plural the singular and the use of any gender shall be applicable to all genders. I"""- (b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. C:\clients\Moore\vacation of easement-city r-- ( c) The captions of this Agreement are inserted only for the purpose of convenient reference and in no way define or limit the scope or intent of this Agreement or any part hereof. IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the day and year first above written. JAMES E. MOORE F AMIL Y PARTNERSHIP, LLLP, a Colorado limited liability limited partnership By: ~~~ ~.~=---- Q Thomas A. Moore, General Partner THE C1TY OF ASPEN, COLORADO Bv: ~ (~~ John Be ett, Mayor ATTEST: THE C1TY OF ASPEN, COLORADO By: ~~:n'-) &_ Kathym Koch, CJl Clerk STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) .r-. The foregoing instrument was acknowledged before me this ~ay of j,l II st998, by Thomas A. Moore, as General Partner of the James E. Moore Famil Partnershi LLLP, a Colorado limited liability limited partnership. r-N JANICE L. JOHNSON ~ ~ NOTARY PUBLIC t Witness my hand and OffiC~' se.\ SlATE OF COLORADO ~ My commission expires: 5'). ;;>.Oe;V ~-?"""~:~';S;i~~E;pires /1 ~I 000 ~ .,. . C"" STATE OF COLORADO ) ) COUNTY OF P1TKIN ) The foregoing instrument was acknowledged before me this S'if'l. day of AunuJ., 1998, by John Bennett, as Mayor ofTHE CITY OF ASPEN, COLORADO, a home rule~lity. Witness my hand and official seal. My commission expires: r'. Notary Public EXHIBIT" A" C:\clients\Moore\vacation of easement-city -2- !~ (""'\ ~. THE MOORE PROPERTY Lot 1 and Lot 2, Parcel A, Moore Family Parcel "A" Subdivision, Essential Community Facilities Exemption Plat, recorded on , 1998, in Plat Book _ at Page _' and all the property described on the Moore Family POD Final Plat, recorded on , 1998, in Plat Book _ at Page _' in the office of the Clerk and Recorder of Pitkin County, Colorado. C:\clientS\MoQre\vacation of easement-city - 3 -