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HomeMy WebLinkAbout20051221degraeveMEETING DATE: AGENDA ITEM TITLE: STAFF RESPONSIBLE FOR ITEM: December 21, 2005 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, AUTHORIZING THE PARTIAL SETTLEMENT OF BOCC V. DEGRAEVE AND THE CONVEYANCE OF A NON-EXCLUSIVE EASEMENT AND QUITCLAIM DEED Chris Seldin, Assistant County Attorney DESCRIPTION OF TI-rE. ISSUE. Approval of this ordinance settles all but one claim in the Degraeve litigation, regarding real property disputes on Smuggler Mountain. RECOMMENDATION: It is requested that the Board of County Commissioners adopt a motion: Approving at first reading and set for second reading and public hearing on January 11, 2006, An ordinance of the Board of County Commissioners of Pitkin County, authorizing the partial settlement of BOCC v. Degraeve and the conveyance of a non-exclusive easement and quitclaim deed. ATTACHMENTS: Ordinance with Exhibits AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, AUTHORIZING THE PARTIAL SETTLEMENT OF BOCC V. DEGR,4EVE AND THE CONVEYANCE OF A NON-EXCLUSIVE EASEMENT AND QUITCLAIM DEED. ORDINANCE # -2005 RECITALS A. The Board of County Commissioners of Pitkin County (the "Board") is currently engaged in litigation with Alain DeGraeve ("Degraeve") in District Court, ?itkin County, Case No. 05 CV 141 (the "Litigation"), regarding certain real property disputes on Smuggler Mountain. The parties have reached a settlement agreement to resolve all of the disputes in the Litigation, except those identified in Recital C below. B. The terms of the settlement agreement call lbr, among other things: (1) a payment from DeGraeve to the Board of $70,000; (2) a quitclaim deed without and releasing restrictions from the Board to DeGraeve for Lot 2 of Aspen Electric Subdivision; and (3) conveyance of a non- exclusive easement that adjusts the alignrnent of DeGraeve's existing easement across the County-owned Molly Gibson Park parcel. DeGraeve has approved the terms of the settlement agreement, quitclaim deed, and easement agreement. C. The parties were unable to reach agreement with regards to DeGraeve's right to maintain an entry gate, pillars, and landscaping along the easement corridor. Litigation will continue on that issue. D. This Ordinance is required by the Pitkin County Home Rule Charter in order to effectuate a conveyance of County-owned interests in real property. Upon approval of this ordinance, the Board has full authority to enter into the settlement agreement and to grant the easement. NOW THEREFORE, be it resolved by the Board of County Commissioners of Pitkin County Colorado, as follows: I. Authorization to Execute Settlement Agreemer~t. The Board authorizes the chair to execute the Settlement Agreement attached hereto as Exhibit A. 2. Authorization to Convey Quitclaim Deed and Easement, and to Execute Settlement Agreement. The Board authorizes the chair to execute: (a) a quitclaim deed, from the Board to DeGraeve without and releasing restrictions for Lot 2 of the Aspen Electric Subdivision, in the form attached hereto as Exhibit B; (b) an easement document that adjusts the alignment of DeGraeve's existing easement across the Molly Gibson Park parcel, in the form attached hereto as Exhibit C. 3. Settlement Agreement Controls. The terms of the settlement agreement between the parties shall control in the event of any conflict with the terms of this Ordinance. INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON TIlE DAY OF DECEMBER, 2005. NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE TH DAY OF 200__. APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE OF ,200 DAY PUBLISHED AFTER ADOPTION IN THE ASPEN TIMES WEEKLY ON THE DAY OF ., 2006. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO Jeanette Jones Deputy Clerk APPROVED AS TO FORM: Patti Kay-Clapper Chair Date: Christopher G. Seldin Assistant County Attorney Hilary F. Smith County Manager 2 SETTLEMENT AGREEMENT AND MUTUAL RELEASE I. Purpose of Agreement This Settlement Agreement and Mutual Release (hereinafter referred to as "A. greement") is entered into between Alain Degraeve ("Degraeve") and the Board of County Commissioners of ['itkin County, Colorado ("BOCC") and their past, present or subsequent agents, employees, principals, officers, directors, shareholders, successors and assigns, insurers, attorneys, and associated entities of whatever kind, to effect a coruplete and final settlement, release, acquittal and final discharge of any and all disputes, claims, demands, causes of action and liability, of any kind or nature whatsoever, known or unknown, fixed or contingent, disclosed or undisclosed, discovered or undiscovered asserted by the parties which they ever had, now have, or may have in the future, arising from any occurrence or circumstances prior to the Ef£ective Date of this Agreement including, but not limited to, those disputes, claims, deruands, or causes of action described herein (hereinafter referred to as the "Claims"), except the Exempted Claim as specifically defined in Paragraph III(A), below. 1I. Recitals BOCC initiated a civil action against Degraeve entitled Board of County Commissioners of Pitkin County, Colorado v. Alain Degraeve, Case No 05-CV-141, in the District Court for Pitkin County, Colorado (the "Lawsuit"). Degraeve has asserted certain counterclaims against BOCC in the Lawsuit. B. The Lawsuit involves the following described real property owned by Deg-raeve in Pitkin County: Lot 2, ASPEN ELECTRIC SUBDIVISION, according to the Plate thereof recorded February 19, 1993 in Plat Book 30 at Page 85 as Reception No 354093, COUNTY OF PITKIN, STATE OF COLORADO Also known by street and number as 210 Sesame Street, Aspen, CO 81611 ("Lot 2") and, Lot 5, Sunny Park North Subdivision, COUNTY OF PITKIN, STATE OF COLORADO Also known by street and number as 200 Sesame Street, Aspen, Colorado 81611 ("Lot 5"). l of 7 C. Although Degraeve and BOCC each deny all of the other party's allegations and Claims in the Lawsuit in their entirety, to avoid the time and expense of further litigation, they have agreed to enter into this Agreement. By entering into this Agreement, the parties hereto do not admit to any wrongdoing and expressly and affirmalively deny the same. D. On the basis of the foregoing recitals, Degraeve and BOCC desire to mutually and amicably settle the Claims and the Lawsuit between them as set forth below and under the terms and conditions of this Agreement, including without limitation, matters that were raised or could have been raised by the parties in the Lawsuit. 111. Temps and Conditions A. Dismissal of Claims in the Lawsuit Degraeve and BOCC shall dismiss all claims and counterclaims in the Lawsuit with prejudice except that certain claim for declaratory relief pertaining to the sole issue as to whether or not Degraeve is entitled to maintain the gate, pillars and landscaping (collectively, the "Improvements") along the easement corridor located on the access easement over the current access alignment serving Lot 5 and Lot 2 (the "Exempted Claim"). The parties agree that this Exempted Claim shall be litigated solely as a declaratory judgment claim in the Lawsuit, and that all claims for damages relating thereto shall be dismissed, including claims for attorneys fees. B. Maintenance of the Status Quo as to the Improvements Degraeve and BOCC agree to maintain the status quo as to the Improvements, pending a final judg,m~ent upon a trial on the merits, or settlement of the Exempted Claim. C. Release of Lis Pendens The parties, upon execution of this Agreement, shall cause the Court in the Lawsuit to issue an order releasing and discharging the lis pendens filed on Lot 2 by the BOCC. D. Lot 2 The BOCC shall execute and deliver to Degraeve a Quitclaim Deed (the "Deed"), in the form attached hereto as Exhibit A, whereby it shall release, remise and forever quitclaim unto Degraeve all of its fight, title and interest, together with improvements, if any, in and to Lot 2, and further forever and irrevocably release and discharge Lot 2 from any and all building envelopes, and building or development restrictions or limitations, including without limitation those contained in the Resolution of the Board of County Commissioners of Pitkin County, Colorado, Granting the Aspen Electric Subdivision 2 of 7 Exemption for a Lot Line Adjustment, Resolution No. 92-387, recorded on November 13, 1992 as Reception No. 350755 in the office of the Clerk and Recorder, Pitkin County, and the Final Plat of Siegel · Mascotte Lot Line Adjustment recorded On February 19, 1993 as Reception No. 354092 in the office of the Clerk and Recorder, Pitkin County. E. Access Easement./hr Lot 2 and Lot 5 The BOCC shall execute and deliver to Degraeve an Easement Agreement (the Easement ), in the form and content attached hereto as Exhibit B, whereby it shall gn'ant to Degraeve and his successor and assigns a perpetual non-exclusive access easement over the current access alignment serving Lot 2 and Lot 5. F. BOCC Ordinance The BOCC shall duly introduce and approve an Ordinance, in the fonu and content attached hereto as Exhibit C, approving the terms and form o~; and authorizing the execution and delivery to Degraeve of this Settlement Agreement, the Deed, and the Easement Agreement, and the conveyances effectuated thereby. G. Costs and Attorney's Fees Degraeve and BOCC shall pay their own costs and attorney's fees, now and hereafter incurred. Payment Degraeve shall pay to BOCC Seventy Thousand and 00/I00 Dollars ($70,000.00) within ten (10) days of delivery to him or his counsel of this Agreement executed by BOCC. BOCC shall not execute the Agreement until it has duly approved and executed the Ordinance, and shall provide Degraeve with a copy of the Ordinance after its execution. Alternative Settlement Offer Alternatively, DeGraeve offers to pay One Hundred Twenty Thousand and 00/100 ($120,000.00), instead of $70,000.00, in full settlement of all Claims plus the Exempted Claim, otherwise on the same terms and conditions as stated herein in this Agreement, except that the Exempt Claim shall also be fully settled, resolved and dismissed with prejudice, and Degraeve shall be entitled to permanently maintain the Improvements. This alte~ native settlement offer by Degraeve shall expire 14 days from the Effective Date. d. Mutual Release of Claims. For and in consideration of the payments, covenants, and promises described in this Agreement, Degraeve and BOCC hereby release, acquit, and forever discharge each other from any and all disputes, claims, demands, causes of action and liability, of any kind or nature whatsoever, known or unknown, fixed or contingent, disclosed or 3 of 7 undisclosed, discovered or undiscovered which they ever had, now have, or may have in the fi~tu,-e, arising fi.om any occurrence or circumstances prior to the Effective Date of this Agreement, including the Claims, and any and all matters or claims alleged or asserted, or which could have been alleged or asserted in the Lawsuit, except fbr and excluding the Exempted Claim and the BOCC's right to remove the Improvements should it prevail on the Exempted Claim. K. Compromise. The parties agree that this settlement is the compromise of disputed and unliquidated claims and such compromise is not an admission of liability, in fact the parties expressly deny the same. L. Existing and Future Damages. The parties understand and agree that the consideration received in exchange for this Agreement is accepted not only for alleged damages and injuries which are now known to exist, but also for any damages, injuries or complications which may arise or develop in the future and which are currently unknown, in order to avoid the uncertainty, expense and delay of subsequent dealings or litigation. Provided, however, that this release is not intended to extend to actions or omissions taken or made after the Effective Date of this Agreement. M. No Other Consideration to the Parties. Each party will bear its own costs and attorney fees except as otherwise set forth herein. No consideration between the part/es shall be provided in any manner or on account of any charge, other than as described above. N. Choice of Law and Venue. This document is to be construed and interpreted in accordance with the laws of the State of Colorado, and the parties agree that any action initiated to enforce any term of this agreement shall be brought in the District Court for Pitkin County, Colorado. O. Severability. In case any one or more of the provisions of this Agreement shall be found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Further, any provision found to be invalid, illegal or unenforceable shall be deemed, without further action on the part of the parties hereto, to be modified, amended and/or limited to the minimum extent necessary to render such clauses and/or provisions valid and enforceable. P. Entire Agreement. The parties hereto acknowledge that no promise, inducement or agreement not expressed herein has been made to the parties, that this Agreement contains the entire agreement between the parties, and that the terms of this Agreement are contractual and not a mere recital. Any modification to this Agreement must be in writing and signed by the parties to be effective. Q. Effective Date. The effective date of this Agreement shall be the date upon which the last party executes this Agreement. 4 of 7 R. Execution by Facsimile Signature. The parties hereto agree that a fhcsimile signature may substitute for and have the same legal effect as the original signature and this Agreement may be executed by the parties in counterparts. S. Authority. Each signatory hereto represents that he or she has full and.. adequate authority to enter into this Agreement and bind the entity that he or she represents to the terms hereof. T. Voluntariness and Finality. BY SIGNING BELOW, THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, HAVE HAD THE OPPORTUNITY TO CONSULT WITH THEIR RESPECTIVE ATTORNEYS REGARDING THIS RELEASE, THAT THEY HAVE HAD A REASONABLE TIME TO REVIEW ITS TERMS, AND THAT THEY FULLY UNDERSTAND ITS TERMS AND ARE ENTERING INTO IT FREELY AND VOLUNTARILY. SIGNED this . day of 200__: Alain Degraeve STATE OF COLORADO COUNTY OF PITKIN Subscribed and Sworn to before me, the undersigned Notary Public, this __ day of ,200__ by Alain Degraeve known personally to me. My Commission Expires: [SEAL] Notary Public 5 of 7 SIGNED this__day of 200 : BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO By: Its: STATE OF COLORADO COUNTY OF PITKIN Subscribed and Sworn to befbre me, the undersigned Notary Public, this day of ,200__ by known personally to me, on behalf of the Board of County Commissioners of Pitkin County, Colorado, as so authorized as thereof. My Commission Expires: [SEAL] 6 of 7 QUIT CLAIM DEED THIS QUIT CLAIM DEED made on this day of ,200__, between the BOARD OF cOUNTY COMMISSIONERS OF PITICIN COUNTY, COLORADO, whose mailing address is 530 East Main Street, Aspen, Colorado 81611, Grantor, and ALAIN DEGRAEVE, whose address is P.O. Box 7975, Aspen, CO 81612, Grantee. That for and in the consideration of the sum of Twenty Dollars, ($20.00), and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Grantor does hereby release, remise and forever quitclaim unto Grantee all of its right, title and interest, together with improvements, if any, in and to that certain real property located in the County of Pitkin, State of Colorado, described as follows: Lot 2, ASPEN ELECTRIC SUBDMSION, according to the Plate thereof recorded February 19, 1993 in Plat Book 30 at Page 85 as Reception No 354093, COUNTY OF PITK1N, STATE OF COLORADO Also known by street and number as 210 Sesame Street, Aspen, CO 81611 To have and hold the same, together with all the tenements, hereditaments, and appurtenances thereunto belonging, and the reversions, remainders, rents, issues, and profits thereof, and privileges thereunto belonging, or in anywise thereunto appertaining, unto Grantee and his heirs and assigns forever. Grantor further hereby forever and irrevocably releases and discharges this property from any and all building envelopes, and building or development restrictions or limitations, including without limitation, as may be contained in the Resolution of the Board of County Commissioners of Pitkin County, Colorado, Granting the Aspen Electric Subdivision Exemption for a Lot Line Adjustment, Resolution No. 92-387, recorded on November 13, 1992 as Reception No. 350755 in the office of the Clerk and Recorder, Pitkin County, and the Final Plat of Siegel · Mascotte Lot Line Adjustment recorded On February 19, 1993 as Reception No. 354092 in the office of the Clerk and Recorder, Pitkin County. In witness whereof, Grantor has executed this Deed on the date set forth above. BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO ATTEST: By: , Chairperson , Clerk and Recorder STATE OF COLORADO } cOUNTY OF PITKIN } The foregoing instrument was acknowledged before me this __ day of 200__, by Witness my hand and official seal. My commission expires: Notary Public EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (the "Easement Agreement") is made this __ day of , 200___, between ALAIN R. DEGRAEVE and his heirs, successors and assigns ("Degraeve"), whose address is P.O. Box 7975, Aspen, Colorado 81612 and the COUNTY OF PITKIN, COLORADO, A POLICTICAL SUBDIVISION and its successors and assigns ("Pitkin County"), with an address of 506 East Main Street, Aspen, Colorado 81611. Whereas, Pitkin County is the owner of a certain parcel of land located within Pitldn County, Colorado (the "Mollie Gibson Park Property"). Whereas, the Mollie Gibson Park Property is adjacent to the Sunny Park North Subdivision as shown on the Plat there&recorded November 22, 1965 in Plat Book 3 at Page 52, Pitkin County, Colorado. Whereas, Degraeve is the owner of Lot 5, Sunny Park North Subdivision. Whereas, Degraeve is also the owner of Lot 2, Aspen Electric Subdivision, according to the Plat thereof recorded February 19, 1993 in Plat Book 30 at Page 85 as Reception No. 354093, Pitkin County, Colorado ("Lot 2, Aspen Electric Subdivision"). Whereas, Lots 1 and 2, Aspen Electric Subdivision formerly comprised Lot 3, Sunt~y Park North Subdivision. Whereas, Pitkin County as the owner of the Mollie Gibson Park Property and Barry C. Siegel and Sharon L. Siegel, as the previous owners of Lot 3, Sunny Park North Subdivision, previously entered into that certain Access Easement (the "Lot 3 Access Easement") recorded February 4, 1993 in Book 702 at Page 756, Pitkin County, Colorado. Whereas, the Lot 3 Access Easement provides for a perpetual non-exclusive easement appurtenant to Lot 3, Sunny Park North Subdivision which runs from Smuggler Mountain Road, over and across the Mollie Gibson Park Property to the common boundary of the Mollie Gibson Park Property and the "Parcel Being Subtracted from Lot 7" owned by the City of Aspen (the "City Property") as depicted on the Sunny Park North Boundary Adjustment and Annexation Map, recorded in Plat Book 20 at Page 2, Pitkin County, Colorado, and then continues over and across the City Property from the common boundary of the Mollie Gibson Park Property and the City Property to the boundary between Lots 7 and Lot 5 of the Sunny Park North Subdivision. Whereas, Degraeve and Pitkin County are parties to a civil action pending in Pitkin County District Court, Board of County Commissioners v. Degraeve. Case No. 05 CV 141-2. The parties have entered into a Settlement Agreement in that action. The Settlement Agreement provides for execution of this Easement Agreement. The parties have not reached agreement on the effect of Ordinance No. 003-2004 or on Degraeve's Page I of 4 ~ /l right to maintain an entry gate, pillars, and certain landscaping along the easement corridor, and litigation will continue on those issues. Whereas, Pitkin County as the owner of the Mollie Gibson Park Property and Degraeve do not desire change or alter the portion of the Lot 3 Access Easement which hms over and across the City Property from the common boundary of the Mollie Gibson Park Property and the City Property to the bouna,ry between Lots 7 and Lot 5, of the Sunny Park North Subdivision. Whereas, Pitkin County as the owner of the Mollie Gibson Park Property and Degraeve desire to modify the location of the portion of the Lot 3 Access Easement which crosses the Mollie Gibson Park Property, and to provide for Pitkin County's conveyance, and Degraeve's acceptance of the perpetual non-exclusive easements appurtenant to Lot 2, Aspen Electric Subdivision and Lot 5, Snnny Park North Subdivision, over and across the Mollie Gibson Park Property, as provided for herein. Whereas, the parties hereto represent to one another that they have full authority to enter into this Easement Agreement. Now, therefore, for a good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Pitkin County and Degraeve hereby enter into this Easement Agreement. 1. No Vacation or Modification of Lot 3 Access Easement Over City Property. Pitkin County and Degraeve hereby agree that the portion of the Lot 3 Access Easement which hms over and across the City Property from the common boundary of the Mollie Gibson Park Property and the City Property to the boundm3' between Lots 7 and Lot 5, of the Sunny Park North Subdivision as shown on the Plat of the Sunny Park North Boundary Adjustment and Annexation Map, recorded in Plat Book 20 at Page 2, Pitkin County, Colorado shall not be affected or modified by this Agreement. 2. Modification and Relocation of Lot 3 Access Easement. Pitkin County, as the owner of the Mollie Gibson Park Property and Degraeve and Degraeve's heirs, successors and assigns, as the owners of Lot 2, Aspen Electric Subdivision and Lot 5, Sunny Park North Subdivision, hereby amend the Lot 3 Access Easement which runs over and across the Mollie Gibson Park Property from Smuggler Mountain Road to the common boundary of the Mollie Gibson Park Property and the City Property and to provide for the following perpetual non-exclusive easements appurtenant to Lot 2, Aspen Electric Subdivision and Lot 5, Sunny Park North Subdivision. 3. Driveway Access Easement. A perpetual non-exclusive easement on the terms set forth below which is ten (10) feet on either side of the line identified and described as "DRIVE EASEMENT" on the attached plat. Page 2 of 4 /9- (a) Degraeve accepts this easement based upon the condition of the Smuggler Mountain Road as it ex/sts on the date of this Agreement, and shall make no demands upon Pitkin County for any improvement to the condition of the access at any time. Co) Degraeve shall enter into an Easement, Use and Maintenance Agreement in a form satisfactory to Pitkin County to provide the Owner of Lot 5 with an easement appurtenant for ingress and egress for the use of pedestrian and vehicular traffic over Lot 3 to Lot 5. Degraeve shall also agree to maintain the easement in a condition suitable for the ingress and egress of pedestrian and vehicular traffic over the full length of the easement granted herein. Degraeve shall agree to share in the cost of maintenance and repair of said easement. The Agreement shall be binding upon the successors and assigns of Degraeve. (c) Degraeve shall not interfere with access to Lot 7, Sunny Park North Subdivision over this easement, and shall not cause undue hardship to the Owners of Lot 7 regarding the use of this easement. (d) Degraeve shall assume all liability based upon the condition of the easement, and Pitkin County shall not be liable for damage caused to persons or property, including the interests of the Salvation Ditch Company, caused by the condition of the road at any time or vehicular or pedestrian traffic on the easement or other use thereof. (e) The rights, duties and obligations herein contained shall inure to the benefit of and be binding upon the parties hereto, their successors and assigns. Pitkin County warrants and agrees to defend the title to the Easement Premises as conveyed herein. IN WITNESS WHEREOF, the parties have duly executed this Easement Agreement on the date set forth above. DEGRAEVE: Dated: ,200 Alain R. Degraeve as owner of Lot 5, Sunny Park North Subdivision and as owner of Lot 2, Aspen Electric Subdivision Page 3 of 4 /5 BOARD OF COUNTY COMMISIONERS PITKIN COUNTY, COLORADO Dated: 200__ Title STATE OF COLORADO ) ) SS COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this __ ,200__, by Alain R. Degraeve. Witness my hand and official seal. My Commission Expires: day of Notary Public STATE OF COLORADO ) ) ss COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this __ , 200 , by. as County, Colorado. Wimess my hand and official seal. My Commission Expires: day of of Pitkin Notary Public Page 4 of 4