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HomeMy WebLinkAboutresolution.council.057-04RESOLUTION NO. Series of 2004 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A LICENSE AGREEMENT AND A QUIT CLAIM DEED WHEREBY THE CITY OF ASPEN SHALL QUIT CLAIM DEED A LOT IN BRUSH CREEK VILLAGE TO WHICH IT DOES NOT CLAIM ANY TITLE AND A LICENSE AGREEMENT THAT WOULD AUTHORIZE THE CITY OF ASPEN TO MAINTAIN A FENCE ON LAND OWNED BY AN ADJACENT PROPERTY OWNER TO THE COZY POINT RANCH FOR A PERIOD OF 20 YEARS; AND, AUTHORIZING THE CITY MANAGER OR MAYOR TO EXECUTE SAID DOCUMENTS ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a License Agreement for a fence that encroaches upon the land adjoining the City owned Cozy Point Ranch and a Quit Claim Deed from the City as Grantor to Mindi Reingold Safchik as Grantee to a lot in Brush Creek Village adjacent to the Cozy Point Ranch. 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 said License Agreement and Quit Claim Deed, copies of which are annexed hereto, and does hereby authorize the City Manager or Mayor of the City of Aspen to execute said documents on behalf of the City of Aspen. Dated: el d, M---~yor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held ~ ,/~ ,2004. Kathryn S. K~,6~l{,'Clty"-'-~-Clerk Via ]l~emo~-andum ei~ flum~e~ olive TO: Mayor and Members of Council FROM: John P. Worcester DATE: June 14, 2004 Resolution Approving a License Agreement and Quit Claim Deed - Baxters. Attached for your consideration and review is a proposed resolution that, if approved, would authorize the City to execute a License Agreement and Quit Claim Deed. The attached letter from attorney Jody Edwards explains the reason for this request. In essence, there is a fence belonging to the Cozy Point Ranch that appears to encroach upon the Baxter' s property. We don't know how lOng the fence has been there, but there is a pretty good chance that the City could claim the area being encroached upon as belonging to the City through adverse possession. There is little doubt however that the survey is correct and it shows that the City's fence encroaches upon our neighbors property. The area enclosed by the fence and the property line is on a steep hillside and is not land used by the ranch and not likely to be worth much. The Quit Claim Deed is to the Baxter's property as described in their deed. The License Agreement would permit the City to continue having the fence in its current location for at least 20 years. By signing the documents the City would give up any claim to the property through adverse possession. I have asked that this matter be placed on the consent agenda as I don't believe it is the City's policy to acquire land that we really don't need or thought we owned through adverse possession. If my assumption is wrong, any member of Council can request that this matter be pulled from the consent calendar. If you have any questions regarding the proposed resolution, please let me know. cc: City Manager HERBERT S. KLEIN LANCE R. COTI~ * JOSEPH E. EDWARDS, III MADHU B. KRISHNAMURTI * also admitted in California hsklein@rof, net cote@rof, net jody@vanion.com rnadhu@rof, net Attorneys at Law June 9, 2004 201 NORTH MILL STREET SUITE 203 ASPEN, COLORADO 81611 Telephone (970) 925-8700 Facsimile (970) 925-3977 Honorable Mayor Helen Klanderud and Members of the Aspen City Council 130 S. Galena St. Aspen, CO 81611 Re: Cozy Point Ranch and Lot 9, Block I, Filing 2, Brush Creek Village Dear Mayor and Councilors: This office respresents Gillian and Robert Baxter, the prior owners of Lot 9, Block 1, Filing 2, Brush Creek Village (the "property"). The property is adjacent to Cozy Point Ranch. There is a fence along the boundary of the Cozy Point Ranch which encroaches into the property. We are not sure exactly how long the fence has been located there. Enclosed for your reference is a copy of the survey showing the fence encroachment. The buyer of the property has requested that the City execute a quit claim deed and a license agreement to confirm that the City is not claiming ownership of this sliver of the property. Based on my discussions with John Worcester, I understand that the City Recreation Department is comfortable with a 20-year license and does not want to claim ownership of any portion of Lot 9. We would appreciate it if you would authorize the execution and deliver of a quit claim deed and a 20-year license agreement. Very truly yours, CC.' Robert and Gillian Baxter KLEIN, COTI~ & EDWARDs, P.C. B g~~0~~Y: 06/25/2004 11:08A SZLVTA DRVIS PlTKIN COUNTY CO R 26.00 D 0.00 LICENSE AGREEMENT This LICENSE AGREEMENT is made June 24, 2004 between Mindi Reingold Safchik ("OWner'') and the City 'of Aspen, Colorado, a home rule municipality of the State of Colorado ("Grantee"). RECITALS A. Owner is the owner of the property known as 474 Upper Ranch Road, Aspen, CO 81611 and legally described as Lot 9, Block 1, Brush Creek Village, Filing No. 2, according to the plat thereof recorded in the Pitkin County Records (the "Property"). B. Grantee is the owner of adjacent property known as the Cozy Point Ranch. C. The parties have agreed to a twenty-year license for an existing fence encroachment on the Property.. AGREEMENT .1. Grar~t of License. Owner hereby grants to Grantee a non2exclusive encroachment license for the location of a fence as currently in place and as shown on Exhibit A (the "License Area") for twenty years. The License Area shall be used by the Grantee solely for' the continued maintenance, repair and replacement of the existing fence. The Grantee shall pay all costs associated with the fence and any maintenance, repair and replacement thereof. The Grantee shall keep the fence in good repair and condition. No signage or lighting shall be installed within the License Area without the prior written consent of Owner. Without the express written consent of Owner, which consent may be withheld for any or no reason, the use of this license shall not be expanded or increased. 2. Ownership of Property. Grantee agrees and acknowledges it does not have an ownership interest in or to the License Area and it is not accruing any such ownership interest by virtue of this Agreement. Simultaneous herewith the Grantee has executed and delivered for recording a Quit Claim Deed granting to Owner all of Grantee's right, title and interest in the Property. 3. Indemnification. To the extent permitted by law, Grantee agrees to protect, indemnify and hold harmless Owner from and against any loss, damage or'claims, including reasonable attorneys' fees and costs, arising out of: (i) the use of the License Area by the Grantee or its guests or invitees, which indemnity shall include, but not be limited to, injury or loss to persons or property; (ii) any mechanic lien claims for unpaid labor, services or materials affecting any of the License RETURN TO: The City of Aspen 130 So. Galena St. Aspen, Co. 81611 Attn: City Clerk $ILVIA DglVI$ PITKIN COUNTY CO R 26.ee D e.ee Area; and (iii) any and all costs associated with removal of the fence and all improvements located in the License Area upon termination of this License Agreement. 4. Termination. This License Agreement may be terminated by Grantee at any time. This License Agreement may be terminated by Owner on breach by Grantee after notice and failure to cure (pursuant to paragraph 6.1, below) or at any time effective on or after June 24, 2024. In order to accomplish termination the terminating party shall provide the other party written Notice of Termination. If the Owner is providing Notice of Termination, Owner shall provide Grantee written notice at least one month prior to the effective date of termination. On or before the effective date of termination, Grantee shall remove the fence and any other improvements from the License Area. After June 24, 2024, the Owner may renew this License for periods agreed upon between Owner and Grantee. 5. Notices. Any notice, demand, or document which either party is required or may desire to give, deliver or make to the Other party shall be in writing and may be personally delivered or given by facsimile transmission or given by United States certified mail, return receipt requested, addressed as follows: To Owner: Mindi Reingold Safchik 474 Upper Ranch Road Aspen, CO 81611 To the Grantee: City Manager 130 South Galena, Second Floor Aspen, CO 81611 Any notice, demand or document so given, delivered or made by United States mail shall be deemed to have been received on the earlier of the date actually received or the third business day after the same is deposited in the United States mail as certified matter, addressed as above provided, with postage prepaid. Notice by facsimile transmission shall be deemed given upon receipt of a confirmation by sender. 6. Miscellaneous. 6.1 Notice of Default, Right to Cure. In the event of any default under the provisions of this Agreement, the non-defaulting party shall, prior to the exercise of any right or remedy, give the party alleged to be in default written notice of such default together with right for a period of ten days after receipt of such notice to cure said default. If an alleged default by its nature is not capable of being cured within the time provided, the party alleged to be in default shall, provided such party is proceeding with all due diligence, have up to an additional twenty days to cure said default. Ifa default is not cured within the time provided or any extension thereof(which right to cure period shall not under any circumstances exceed in the aggregate thirty days), the non- defaulting party shall then and thereafter be free to terminate this Agreement and pursue any right or remedy allowed by this Agreement or otherwise by law. Page: 3 of' 5 06/25/2004 11:081:1 SILVII~ DAVIS PITKIN COUNTY CO R 26,00 D 0.00 6.2 Remedies. Either party shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Agreement. If any court proceedings are instituted in connection with the rights o~'enforcement and remedies provided in this Agreement, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. 6.3 No Waiver. The failure of either'party to insist upon the strict performance of any provisions of this Agreement or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the future of any such provision. 6.4 Amendments in Writing. This Agreement may not be amended, nor may any rights hereunder be waived, except by an instrument in writing executed by the parties hereto and duly recorded in the real estate records of Pitkin County, Colorado. 6.5 Colorado Law. The interpretation, enforcement or any other matters relative to this Agreement shall be construed and determined in accordance with the laws of the State of Colorado. 6.6 License Shall Run With the Land. All the provisions of this Agreement, including the benefits and burdens created thereby, shall run with the land. This Agreement is made subject to any existing easements, reservations, restrictions or rights of way. 6.7 Correction Documents. In the event any clerical or other errors are found in this Agreement or any legal descriptions or other exhibits hereto, or in the event any exhibit shall be missing, the parties agree to promptly execute, acknowledge, initial and/or deliver as necessary any documentation in order to correct the erroneous document, description, exhibit or to provide any missing exhibit. 6.8 Binding Effect. All provisions of this Agreement inure to the benefit of and are binding upon the parties hereto, their heirs, successors, assigns and personal representatives. I Page: 4 0¢ 5 06/25/2004 11:08R SILVIA OAVIS PITKIN COUNTY CO R 26.00 D 0.00 IN WITNESS WHEREOF, the parties have signed this Agreement the day and year first written above. OWNER: Mindi Reingold S~fchik GRANTEE: St/ve Barwick, City Manager STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) Subscribed, sworn to and acknowledged before me June ~, 2004, by Mindi Reingold Safchik. Wimess my hand and official seal. My commission expires .~'~/,20c'r¢'. STATE OF COLORADO COUNTY OF PITKIN //~)tary Publl~'~ J' ) ) SS. ) Subscribed, sworn to and acknowledged before me June ~_, 2004, by Steve Barwick as City Manager of the City of Aspen, Colorado. Witness my hand and official seal. My commission expires ot~ Public baxter~2license.doc EXHIBIT "A" LOT ~ $ILVIA DAVIS PITKIN COUNTY CO R 26.00 D 0.06 \ \ © 0