HomeMy WebLinkAboutcoa.en.Ute Place.1990 ^l
ENCROACHMENT LICENSE AGREEMENT
THIS ENCROACHMENT LICENSE AGREEMENT, made this \\ day of
,1990 ( "License "), between the CITY OF
ASPEN, a Colorado municipal corporation ( "City "), UTE PLACE
HOMEOWNERS' ASSOCIATION, a Colorado non - profit corporation
( "Licensee "), and 1010 UTE CORPORATION, a Colorado corporation
( "Developer ").
W I T N E S S E T H:
WHEREAS, pursuant to that certain P.U.D. and Subdivision
Agreement, dated June 17, 1987 (the "PUD Agreement "), between
City and Developer, City approved the development of Ute Place
Subdivision (the "Subdivision ") at 1010 Ute Avenue, Aspen,
Colorado; and
WHEREAS, Developer constructed a landscape dry -set battered
stone wall (the "Wall ") on several parcels of land of approxi-
mately 2,200 square feet located along the west property line of
the Subdivision and adjacent to Lots 1 and 2 of the Subdivision
(such land is more particularly described in the Wall Encroach-
ment Map annexed hereto as Exhibit "A" and is hereinafter
referred to as the "Property "); and
WHEREAS, after completion of the Wall, it was determined
that the Wall lay in the right -of -way of Ute Avenue and in two
(2) easements owned by City; and
WHEREAS, no person shall occupy, construct, place or main-
tain within a public right -of -way any structure or appurtenance
without approval of the City Council; and
WHEREAS, City Council may grant an encroachment license
within its discretion allowing the construction and maintenance
of an encroaching structure in a public right -of -way; and
WHEREAS, under the exceptional circumstances as presented
herein the City Council deems it appropriate to grant to 'Lite
Place Homeowners' Association an encroachment license under the
conditions as described below as an alternative to the removal of
the Wall from the public right -of -way.
NOW, THEREFORE, in consideration of the premises and other
valuable consideration, the mutual receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Grant of License and Description of Property. The City
hereby grants to Licensee a license to occupy and use, subject to
the terms and conditions of this agreement, the Property as
described in the Wall Encroachment Map annexed hereto as Exhibit
"A ", for a term of thirty (30) years (the "Term "). The Term
shall commence upon the date this agreement is approved by
resolution in open session of the City Council of the City of
Aspen.
The License may be extended for such additional terms
and under such additional conditions as the parties deem appro-
priate and just.
On the date that the City Council shall approve this
License, or within a reasonable time thereafter, City, Licensee
and Developer shall enter into a supplemental agreement in the
form annexed hereto as Exhibit "B" (the "Memorandum of Encroach-
ment License ") which shall affirm the date on which the Term
shall commence and the date on which the Term shall expire.
2. Limitation to Described Purpose. The Property may be
occupied and used by Licensee solely for the Wall and for no
other purpose. Licensee may landscape the immediate area sur-
rounding the Wall and within the public right -of -way provided
such landscaping shall not further obstruct or encroach upon the
public right -of -way and is approved in advance by the City, and
further provided such landscaping shall not include the instal-
lation of any permanent structure or improvement on the Property.
Landscaping in place as of the date of this agreement shall be
deemed acceptable.
3. Payment. Developer, on behalf of Licensee, will pay to
the City on or before the date of this agreement a one -time
payment in the amount of Thirty -two Thousand Dollars ($32,000.00)
in consideration of the City granting the License. The City
hereby agrees to restrict and use such amount for the design and
construction of a walking trail and bike path over public trail
easements within and /or immediately adjoining the Licensee's
subdivision. The design and construction of all walking trails
and bike paths shall be undertaken in consultation with the
Licensee. However, actual design and construction decisions
shall rest solely with the City. Such design and construction of
the trails identified herein shall be completed within two (2)
years from the date of this agreement. In the event activities,
structures or construction of or by the Developer and /or Licensee
shall cause or have caused the physical obstruction of public
trail easements, or have otherwise made unavailable those ease-
ments over which such walking trails and bike paths are to
traverse, then such easements shall be re- aligned at the sole
expense of the Licensee.
City shall maintain those public trail easements and
the public trails and any connecting trails and paths within the
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subdivision and City shall indemnify, save and hold Licensee and
Developer harmless from any and all claims, causes of action,
suits, damages or demands whatsoever in law or in equity which
may raise as a consequence of (a) the City's negligence in
maintaining, repairing or utilizing the public trail easements,
the public trails or any connecting trials or paths; or (b) the
public occupancy and use of the public trial easement, public
trails or any connecting trails or paths. Licensee and Developer
shall also be entitled to the protections of C.R.S. Section 33-
41 -101, et seq. with respect to the public trail easement.
4. Closure of Planned Unit Development. By the execution
and delivery of this license agreement, City and Developer hereby
acknowledge Developer's compliance with the PUD Agreement and
Developer's satisfaction of all of the terms and conditions
thereunder.
5. Maintenance of the Property. Licensee shall at all
times maintain the Property in a clean and safe condition.
Licensee shall be responsible for, without limitation, lawn care,
maintenance of shrubbery and such maintenance and repair of the
Wall as shall be appropriate.
6. Liability Insurance. Licensee covenants and agrees
with City that during the term of this License City shall not be
liable to Licensee or to any other person for any claim, injury,
loss or damage to any person or property arising from or on or
about the Property, and that Licensee shall hold City harmless
and indemnify it from and against any such claim, injury, loss or
damage. Licensee agrees to provide City with public liability
insurance with coverage for bodily injury of One Million Dollars
($1,000,000.00) for any one person, One Million Dollars
($1,000,000.00) for any one occurrence, and One Hundred Thousand
Dollars ($100,000.00) for property damage. Licensee shall
provide City with certificates of insurance naming City as an
additional insured prior to the effective date hereof. Licensee
shall also provide the City with any notice of a withdrawal or
cancellation of such insurance upon receipt thereof by the
Licensee and prior to the effective date of any such withdrawal
or cancellation.
7. Assignment and Sublicensing. Licensee may not assign
this License or sublicense the Property.
S. Warranty of Title. City represents and warrants to
Licensee that City has the right and lawful authority to enter
into this License for the terms created herein.
9. No Interest or Estate. Licensee expressly acknowledges
and agrees that it does not and shall not claim at any time any
3
interest, fee or estate of any kind or extent whatsoever in the
right -of -way or other property of the City by virtue of the
rights granted under this License, or by its use or occupancy of
the Property as licensed under this agreement, beyond that
interest or interests as permitted hereinabove.
10. Termination and Default. In the event that Licensee
shall fail to maintain the Wall and the Property in the condition
required hereunder, and shall fail to correct such failure within
thirty (30) days after notice from City, such notice having
specified to Licensee its non - compliance, or if such failure
cannot be reasonably cured within such thirty (30) day period and
Licensee shall not commence curing such failure within such
period and shall fail to diligently prosecute such cure to
completion, this License may be terminated upon written notice to
Licensee.
11. Compliance with Law. Licensee agrees to observe and
comply with all state and local laws, ordinances, rules and
regulations applicable to the Property.
12. Governing Law. This License shall be interpreted in
accordance with the laws of the State of Colorado or the City of
Aspen, Colorado.
13. Severability. The invalidity or unenforceability of
any term or provision of this License or the non - application of
such term or provision to any person or circumstance shall not
impair or affect the remainder of this License and its applica-
tion to other persons and circumstances, and the remaining terms
and provisions hereof shall not be invalidated, but shall remain
in full force and effect.
14. Estoppel Certificate. City agrees to provide Licensee
with such estoppel certificates as Licensee may require from time
to time stating whether or not this License is in default and
other information reasonably requested by Licensee. City shall
execute and deliver to Licensee such estoppel certificates within
thirty (30) days of requests therefor. Licensee shall pay City's
reasonable attorneys' fees payable in connection with the review
of such certificates.
15. Binding Effect. This License shall bind and inure to
the benefit of City, Licensee, Developer and their successors and
assigns.
16. No Waiver. The failure of any party to insist upon
strict performance of any of the covenants or conditions of this
License, or to exercise any option herein conferred, in any one
or more instances, shall not be construed as a waiver or relin-
4
quishment for the future of any such covenants, conditions or
options, or any other provision of this License, and the same
shall be and remain in full force and effect.
17. Notices. City, Licensee and Developer agree that all
notices which are required to be given hereunder shall be in
writing, shall be sent by Certified or Registered Mail, Return
Receipt Requested, postage prepaid, addressed to the parties
listed below or to such other addresses as the City or Licensee
may designate by written notice from time to time, and shall be
deemed given upon receipt (or, if delivery is rejected, upon
rejection).
If to City: If to Licensee:
City of Aspen Ute Place Homeowners' Asso.
c/o City Attorney c/o James DeFrancia
130 South Galena Street 19 Ute Place
Aspen, Colorado 81611 Aspen, Colorado 81611
If to Developer: With a Copy to:
1010 Ute Corporation Gideon I. Kaufman, Esq.
11777 San Vicente Blvd. 315 East Hyman Avenue
Suite 900 Suite 305
Los Angeles, California 90049 Aspen, Colorado 81611
Attention: Rober T. Lowe,
President
18. Attorneys' Fees. In the event that any party to this
License shall incur legal fees and /or expenses in connection with
litigation concerning the enforcement or defense of any right,
remedy, matter or issue arising from this License, the reasonable
legal fees and expenses of the prevailing party shall be paid by
the party which shall not prevail.
19. Memorandum of Encroachment License. Contemporaneously
with the execution of this License, City, Licensee and Developer
have executed the Memorandum of Encroachment License in the form
annexed hereto as Exhibit "B" which shall be recorded in the land
records of Pitkin County, Colorado.
20. Counterparts. This License may be executed in separate
counterparts and by different counterparts on separate counter-
parts, each of which shall be deemed an original, and each of
which, taken together, shall constitute one and the same instru-
ment.
21. Entire Agreement. This License is the entire agreement
between the parties hereto. Neither party has made any represen-
5
tations or promises except as herein contained, and no modifica-
tion of any provision hereof shall be valid unless in writing and
signed by the parties hereto.
IN WITNESS WHEREOF, City, Licensee and Developer have caused
this License to be executed and acknowledged by their duly
authorized representatives as of the day and year first above
written.
CITY:
CITY OF ASPEN, a Colorado
municipal, corporation
By
^illiam L. Stirling ayor
ATTEST:
Kathryn Koch, City Clerk
ATTEST: LICENSEE:
UTE PLACE - :∎EOWNERS' ASSOCIA-
TION, - Colorado non - profit
corps ation
is � � �� Ry
.. �
Secretary President
ATTEST: ,
Altar'
�I a_ Secretary
(���� DEVELOPER:
1010 UTE CO ORATION, a
B
C rado c rp ratio 1111
Y Wr
David G. Berhorst,
Vice President
6
1
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
T e foregoing instrument was ack owledged before me this
023 ..y of 3une, " X 1` 1 390, by , Ocrn as President,
and ;I_ 1• A 4, as Secretary, of UTE PLACE HOMEOWNERS'
ASSO6"•,ION, a Colo•ado non - profit corporation, on behalf of
said corporation.
WITNESS my hand and official seal.
My commission expires: .S -7 ! ,
lei. l_
oary Pu•
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this
c day of JutiV, 1990, by William L. Stirling, as Mayor, and
Kathryn S. Koch, as City Clerk, of THE CITY OF ASPEN, a
Colorado municipal corporation, on behalf of said corporation.
WITNESS my hand and official seal.
My commission expires: 9
L ary Pu 11c //
STATE OF COLORADO ) ((//
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this
18th day of June, 1990, by David G. Behrhorst as Vice
President, and Neil D. Karbank, as Assistant Secretary, of 1010
UTE CORPORATION, a Colorado corporation, on behalf of said
corporation.
WITNESS my hand and official seal.
My commission expires: 7/13/92.
Notary Public
7
#324860 0 7/31/906:18 Rec $^ EC 626 PG 103
Silvia Davis, Pitkin Cnty Clerk::, Doc $.O0
EXHIBIT "B" TO ENCROACHMENT LICENSE AGREEMENT
MEMORANDUM OF ENCROACHMENT LICENSE
NAME AND ADDRESS OF LICENSOR: City of Aspen, Colorado, a Colo-
rado municipal corporation, having an address c/o City Attorney,
130 South Galena Street, Aspen, Colorado 81611 ( "City ").
NAME AND ADDRESS OF LICENSEE: Ute Place Homeowners' Association,
a Colorado non - profit corporation, having an address of 19 Ute
Place, Aspen, Colorado 81611 ( "Licensee ").
NAME AND ADDRESS OF DEVELOPER: 1010 Ute Corporation, a Colorado
corporation, having an address of 11777 San Vicente Boulevard,
Suite 900, Los Angeles, California 90049 ( "Developer ").
DATE OF LICENSE: "'J'� \\ , 1990.
DESCRIPTION OF LICENSED PROPERTY: The licensed property com-
prises land described in Exhibit "A" annexed hereto and made a
part hereof.
TERM OF LICENSE: The term of the license is thirty (30) years
commencing on , 1990, and expiring on
:v.�1.5 \ca , 2020.
MEMORANDUM OF LICENSE ONLY: This instrument is intended to be a
memorandum of license only. This memorandum shall not be con-
strued to change, vary, modify or interpret the license or any of
the terms, covenants, conditions or provisions thereof which are
set forth or summarized herein. The license sets forth all of
the terms, covenants, conditions, provisions, rights, obliga-
tions, and options and privileges of such licensing and reference
should be made to the license for the full term thereof.
CITY:
CITY OF ASPEN, a Colorado
municipal corporation
By �.1�/�
, " William L. Stirling, Mayq'
v
ATTEST:
•
Kathy Ao , City Clerk
#324860 07/31/90 16 :18 Rec $20.00 BC 626 P6 104
Silvia Davis, Pitki.n Cnty Clerk, Doc $.00
LICENSEE:
UTE PLA - OMEOWNERS' ASSOCIA-
TION, - Colorado non - profit
corp•�n
By
President
ATTES i :
Litt ALI-se
Secretary
DEVELOPER:
1010 UTE CORPORATIO , a
o •rado pore?' / 'yr
sew C
David G. Berhorst,
Vice President
ATTEST:
Ass Secretary
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this
28th day of June, 1990, by David G. Behrhorst, as Vice
° eSident, and Neil D. Karbank, as Assistant Secretary, of 1010
...\#-4/3tifnAORPORATION, a Colorado corporation, on behalf of said
r,; ••... oc Q ation.
OP c 0 ."
t'" WITNESS my hand and official seal.
My commission expires: 7/13/92.
Notary Public
(NOTARY ACKNOWLEDGMENTS CONTINUE ON PAGE 3)
2
#324e60 07/31/90 16:18 Rec $20.00 BK 626 PG 105
Silvia Davis Pitkin Cnty Clerk, Doc $.00
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
Th= foregoing instrument was no,1ledged before me this
43 •a, of June, 1990, by _T,me. /fnn. "& as President,
an• -S? s • . � _ , as Secretary, of UTE PLACE HOMEOWNERS'
Ep,F)ASSOI s' ION, a Col•rado non - profit corporation, on behalf of
t said corporation.
o ~`\, WITNESS my hand and offici 1 seal.
< Z.: ; 'My commission expires: c / /� /9
S'q't Ot .. -
Notary Publi 1
STATE OF COLORADO )
ss.
COUNTY OF PITKIN ) /+
The foregoing instrument was acknowledged before me this '
day of June, 1990, by William L. Stirling, as Mayor, and
Kathryn S. Koch, as City Clerk, of THE CITY OF ASPEN, ,aolgd j
Colorado municipal corporation, on behalf of said corpbratio?if
11 l ✓+
WITNESS my hand and official seal
My commission expires: 9,279
•
( tt ll'���e
ary Pu is
3
#*324860 07/31/90 16e 18 Rec $2000 If €':: 626 PC 106
Silvia Davis, Pitkin Cnty Clerk Doc $,00
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LAW OFFICES
GIDEON I. KAUFMAN _..
- - -' k •� A PROFESSIONAL CORPORATION a '
OIDEON I. KAUFMAN "`�
BOX 10001 - _ TELEPHONE
315 EAST HYMAN AVENUE. SUITE 94y � AREA CODE 303
NEIL D. KARBANK' i j 925 -8166
• ALSO ADMITT[D IN MlssouRI AND NCw Yon ASPEN. COLORADO 81611 e TELEFAX 925-1090
I
June 18, 19901
",) ` , - 1 1' " I r ,
Edward M. Caswall, Esq. I
Aspen City Attorney ,, - a
`
130 South Galena Street
Aspen, Colorado 81611 0 -1 afm
Re: Encroachment License Agreement between City of Aspen, Ute
Place Homeowners' Association and iiita t ificioration
Dear Jed: ilitana Sid
I am pleased to enclose four (4) notarized counterpart
signature pages for the Encroachment License and four (4) notarized
counterpart signature pages for the Memorandum of Encroachment
License. Please note that the Developer's address on page 5 of the
Encroachment License should be "11777" (not 117777) San Vicente
Boulevard" and the address on the Memorandum should include the
words "Suite 900".
I have also enclosed a letter, dated June 12, 1990, from
Schmueser Gordon Meyer, Inc., regarding the drainage system at Ute
Place. The letter states that, to the best of Dean Gordon's
knowledge, "there is no connection between the site drainage
facilities and the sanitary sewer system". I have also enclosed
three (3) revised Wall Encroachment Maps showing the true name of
the subdivision, Ute Place Subdivision, rather than Ten Ten Ute.
I have in my possession a check from 1010 Ute Corporation to
the City for $32,000.00. Please let me know when the License and
Memorandum have been fully executed, and I will deliver the check to
you in exchange for fully executed counterparts of the License and
Memorandum.
I do want to compliment you on a job exceedingly well done. It
is a minor miracle that you could engineer this settlement, which in
addition to settling the specific issue of the trail may be seen as
a form of catharsis for all involved.
Very truly yours,
LAW OFFICES OF GIDEON I. KAUFMAN, P.C.,
a Profes-lonj Corporation
By
Ner 1. Karbank
NDK /bw
Enclosures
cc: Skip Behrhorst
cc: Richard Neiley, Esq.
LAW OFFICES OF
RICHARD Y. NEILEY, Jr., P.C.
201 North Mill Street, Suite 102 /ni Jp
Aspen, Colorado 81611 �/�
Richard Y. Neiley, Jr. u mber
Eugene M. Alder (303) 925-9393 (3079 }96
July 24, 1990 4 9 ��'
env 020
4
HAND DELIVERY '
Edward Caswall, Esquire
Aspen City Attorney
130 South Galena Street
Aspen, Colorado 81611 -
Re: Ute Place Subdivision Encroachment License Agree-
ment
Dear Jed:
Enclosed herewith you will find four original copies of
the above- referenced Agreement, all of which are fully executed by
the Ute Place Homeowners Association. We have previously provided
you with the original of our insurance binder naming the City of
Aspen as an additional insured. I am also returning two copies of
the wall encroachment map which were delivered to me with the
Agreement. I presume additional copies exist for attachment to the
Agreement as Exhibit "A."
Although Ute Place Homeowners Association has now fully
executed the Agreement and Exhibit "B," the Agreement is not fully
executed by the City and the original is not executed by Ten Ten
Ute Corporation. Ten Ten Ute Corporation has executed all of the
additional copies.
Several blanks need to be filled in prior to concluding
this matter. The date on the first page of the Encroachment
License Agreement needs to be filled in. Please advise regarding
what you believe to be the effective date of the Agreement. This
date also needs to be inserted on the first page of Exhibit "B" in
both the date of license and term of license provisions. Once this
has been accomplished, would you please return a fully executed
copy of the Agreement to me?
I also enclose a check in the amount of $20.00 to cover
recording costs. I would appreciate it if you would ask Cathy
Strickland to make a notation regarding the recording information
for Exhibits "A" and "B" prior to returning a copy of the Agreement
to my office.
Once the Agreement is fully executed by the City and
recorded, I assume payment will be promptly received from Ten Ten
Ute Corporation.