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HomeMy WebLinkAboutencroachment.815 Roarking Fork Rd.Boundary.2017ACKNOWLEDGMENT OF NO BOUNDARY FENCE AND DISCLAIMER OF INTEREST THIS ACKNOWLEDGMENT OF NO BOUNDARY FENCE AND DISCLAIMER OF INTEREST (this "Acknowledgment'), is made and entered into as of the 39day of May, 2017, by and between the Charles and Elizabeth Koch Real Estate Trust u/t/a dated April 11,1997, whose legal address is 4111 E. 371h Street North, Wichita, Kansas, Attention: Koch Family Management ("Koch"), and Aspen Residence Holdings, LLC, a Utah limited liability company, whose legal address is c/o RE Investment Group, 7373 E. Doubletree Ranch Rd., Suite 200, Scottsdale, AZ 85254 ("ARH"). Recitals WHEREAS, ARH is the owner of that certain real property that is legally described on Exhibit A ("ARH Lot'); and WHEREAS, Koch is the owner of that certain real property adjacent to the ARH Lot at the Eastern boundary and that is legally described on Exhibit B ("Koch Lot'); and WHEREAS, with the consent and agreement of ARH by unrecorded Memorandum dated February 17, 2014, Koch removed and replaced an existing fence along the Northeastern lot line of the ARH Lot, such reconstructed fence being depicted on the survey excerpt attached as Exhibit C (the "Fence"); and WHEREAS, a portion of the Fence is not located on the surveyed boundary of the Koch Lot, but is located on the ARH Lot; and WHEREAS, a portion of the Fence just before it intersects a stone wall (as depicted on such survey excerpt) is within the surveyed boundary of the Koch Lot, thereby giving the appearance of an extension of the ARH Lot onto the Koch Lot; and WHEREAS, the parties desire to make this Acknowledgment to memorialize their understanding pertaining to the rights of the parties to the land adjacent to the surveyed boundary between the ARH Lot and the Koch Lot along the Fence. Agreement NOW THEREFORE, in consideration of the covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ARH and Koch, for themselves, their successors and assigns, acknowledge, agree, and disclaim as follows: 1. Acknowledgment of No Boundary Fence. The Fence does not constitute a boundary fence between the Koch Lot and the ARH Lot. IIIYIIIINIuiiiiiIIN1iilillimillI RECEPTIONM 638071, R: $48.00, D: $0.00 DOC CODE: ENCROACH (Ao 104836 / 6) Pg 1 of 8, 06t04t2017 at 03:23:27 PM Janice K. Vos Caudill, Pitkin County, CO RECEPTION#: 638071, 0510412017 at 03:23:27 PM, Pgs 2 of 8, Janice K. Vos Caudill, Pitkin County, CO 2. Disclaimer of Interest by Koch. Koch acknowledges that the Koch Lot shall not be entitled to any ownership interest in the ARH Lot by virtue of the Fence and that its use of any of the ARH Lot that is bounded by the Fence does not entitle it to any right, title or interest in and to the ARE Lot — whether by adverse possession, estoppel, laches, prescriptive rights, or otherwise. To that end, Koch hereby waives, relinquishes and quit claims to ARE any claim, right, title and interest it may have in the ARH Lot. 3. Disclaimer of Interest by ARH. ARE acknowledges that the ARH Lot shall not be entitled to any ownership interest in the Koch Lot by virtue of the Fence and that its use of any of the Koch Lot that is bounded by the Fence does not entitle it to any right, title or interest in and to the Koch Lot — whether by adverse possession, estoppel, laches, prescriptive rights, or otherwise. To that end, ARH hereby waives, relinquishes and quit claims to Koch any claim, right, title and interest it may have in the Koch Lot. 4. Removal of Fence. Except where the failure to do so is beyond the reasonable control of Koch (a "Force Majeure"), the parties agree that Koch will remove the portion of the Fence located on the ARH Lot at Koch's own expense within ninety (90) days of receipt of written request from ARE to Koch. If the Fence is not removed by Koch within such ninety (90) days period (other than by reason of a Force Majeure), then ARH shall be permitted to remove the portions of the Fence located on the ARH Lot, and to dispose of the same without any liability therefor. Notwithstanding the foregoing, an event of Force Majeure shall serve to extend the ninety (90) day period by no more than an additional thirty (30) days. The parties acknowledge and agree that Koch shall have no obligation to relocate or reconstruct any portion of the Fence that has been removed pursuant to this Section. 5. Run with the Land. The terms and provisions of this Acknowledgment shall enure to the benefit of and be binding upon the successors in interest to ARH and Koch, and all future owners of the ARH Lot and the Koch Lot, and this Acknowledgment shall run with the land. This Acknowledgment shall be recorded in the real property records of Pitkin County, Colorado. 6. Attorneys' Fees. If any litigation arises between the parties under this Acknowledgment, the prevailing party in such litigation shall be entitled to receive from the non - prevailing party, in addition to any other remedies awarded by the court, an award in the amount of his reasonable attorneys' fees and costs incurred in such litigation, including any appeals resulting therefrom. 7. Effect. This Acknowledgment represents the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, whether written or oral, between the parties with respect to the subject matter of this Acknowledgment, including without limitation that certain unrecorded Memorandum dated February 17, 2014. 8. Counterparts. This Acknowledgment may be signed in counterparts and all of which, when taken together, shall constitute one instrument. {A0104836 / 6 ) RECEPTION#: 638071, 0510412017 at 03:23:27 PM, Pgs 3 of 8, Janice K. Vos Caudill, Pitkin County, CO IN WITNESS WHEREOF, the parties have executed this Acknowledgment as of the day and year first above written. Aspen Residence Holdings, LLC, a Utah limited liability company te—�44 XA� By2 Ehren Haymore, Xttf ey-in-Fact STATE OF ss. COUNTY OF Charles and Elizabeth Koch Real Estate Trust u/t/a dated April 11, 1997 Charles G. Koch, Trustee Acknowledged before me this an day of (fill, 2017, by Ehren Haymore, as Attorney -in -Fact for Aspen Residence Holdings, LLC, a Utah limited liability company. Witness my hand and official seal My commission expires: Jun( b Ao l q STATE OF ss. COUNTY OF Acknowledged before me this day of 2017, by Charles G. Koch, as Trustee of the Charles and Elizabeth Koch Real Estate Trust u/t/a dated April 11, 1997. Witness my hand and official seal My commission expires: Notary Public {A010483616I RECEPTION#: 638071, 0510412017 at 03:23:27 PM, Pgs 4 of 8, Janice K. Vos Caudill, Pitkin County, CO IN WITNESS WHEREOF, the parties have executed this Acknowledgment as of the day and year first above written. Aspen Residence Holdings, LLC, a Utah limited liability company 0 Ehren Haymore, Attomey-in-Fact STATE OF ss. COUNTY OF Charles and Elizabeth Koch Real Estate Trust u/t/a dated April 11, 1997 By: 6j�'� 4 Charles G. Koch, Trustee Acknowledged before me this day of , 2017, by Ehren Haymore, as Attorney -in -Fact for Aspen Residence Holdings, LLC, a Utah limited liability company. Witness my hand and official seal My commission expires: Notary Public STATE OF ss. COUNTY OF WICK) Acknowledged before me this 3194L day of 2017, by Charles G. Koch, as Trustee of the Charles and Elizabeth Koch Real Estate rust u/t/a dated April 11, 1997. Witness my hand and official seal My commission expires: 4 ./Ayho IV Nott Public RUTH E. WILLIAP.iS R Ncas tary Public Eta of AN"Spt. Expies 9�5y�20/� I A0104836 / 6 l RECEPTION#: 638071, 0510412017 at 03:23:27 PM, Pgs 5 of 8, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT A ARH LOT Lot 15, THE SECOND ASPEN COMPANY SUBDIVISION, according to the Plat thereof recorded December 29, 1961 in Plat Book 2A at Page 263 as Reception No. 112664. County of Pitkin, State of Colorado also known by street and number as 815 Roaring Fork Road, Aspen, CO 81611 {A0104836 / 6 I A- I RECEPTION#: 638071, 0510412017 at 03:23:27 PM, Pgs 6 of 8, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT B KOCH LOT A Tract of Land Situated in the SE 1 /4 of the NE 1 /4 of Section 12, Township 10 South, Range 85 West of the 6th Principal Meridian, City of Aspen, Colorado and being more fully described as follows: Beginning at the Southwesterly Comer of Lot 10, Second Aspen Company Subdivision in said City of Aspen, Thence North 70' 23' East 140.18 feet to the Southeasterly Corner of said Lot 10, and being the point of intersection with the Westerly Boundary line of Lot 16 of said Second Aspen Company Subdivision; Thence along said Westerly boundary line South 23"00' East 85.85 feet to the point of intersection with the Northerly right-of-way line of Roaring Fork Road; Thence 22.21 feet along the arc of a curve to the left and said right-of-way line having a radius of 1467.46 feet; Thence South 65' 16' West 117.79 feet along said right-of-way line to the Southeasterly Corner of Lot 15 of said Second Aspen Company Subdivision; Thence North 23°00' West 98.20 feet along the Easterly boundary line of said Lot 15 to the Point of Beginning. AND HISTORICALLY DESCRIBED AS: A Tract of Land in Section in Section 12, Township 10 South, Range 85 West of the Sixth Principal Meridian being more formerly described as Lot 3 in Block 89 and parts of Lave Avenue and Maroon Avenue in Hallams Addition in and to the City and Townsite of Aspen, County of Pitkin, State of Colorado. Said above Tract being now located in and being part of the Aspen Company Subdivision and being described as follows: Beginning at a point on Street Right of Way line as Platted and recorded in the Pitkin County Recorders Office whence the Northeast Corner of Lot 6, Block 3, Aspen Company Subdivision bears South 02°40' West 56 feet, said point being the same as the Southeast Corner of Lot 14, Second Aspen Company Subdivision; Thence South 70*23' West 140.1 feet to the Southwest Corner of said Lot 10; Thence South 23°00' East 98.00 feet along the Easterly line of Lot 15, Second Aspen Company Subdivision to the Point of Beginning. County of Pitkin, State of Colorado also known by street and number as 825 Roaring Fork Road, Aspen, Colorado 81611 IA0104836/6 } B-1 RECEPTION#: 638071, 0510412017 at 03:23:27 PM, Pgs 7 of 8, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT C DEPICTION OF FENCE [see attached page] IA0104836 / 6 I C- I RECEPTION#: 638071, 0510412017 at 03:23:27 PM, Pgs 8 of 8, Janice K. Vos Caudill, Pitkin County, CO #5 CONNECTION EXHIBIT C N S Div°y;a� B o u � Wz w 7') 5' a Ia DETAEL GRAPHIC SCALE 1"= 10, KOCH LOT ARH LOT $ LOT 16A LOT 15 N � m ®© 5 -ELEC. C F METER IP 9\ A � m� i OGiFF, \',o STONE kC WALL DAY WELL GAS — METER E 45 REBAR & CAP L.S. #141 It i *-� 1 i FO.B 17. CRY OF ASPFN, CDLORADO 19U0➢ Feo.. pmless.ue9 FENCE LINE AGREEMENT M619. ]01] Fn prop»nm LOT 15, SECOND ASPEN CO. SUB. 9TeY� 815 ROARING FORK DRIVE 1 OF I I�ee Y07 a99®u�nwa