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HomeMy WebLinkAbout1998 Ordinance No. 069. t · • • • ORDINANCE NO.ft!/_ SERIES OF 1998 BY AUTHORITY COUNCIL BILL NO. 60 INTRODUCED BY COUNCIL MEMBER BRADSHAW AN ORDINANCE APPROVING A SETTLEMENT OF AND AUTHORIZING THE SIGNING OF DOCUMENTS FOR THE SETTLEMENT OF GESIN VS. CITY OF ENGLEWOOD. ET.AL.. WHEREAS, the owner of the property located at 3605 South Bannock Street, Englewood applied for a building permit to enlarge or remodel the structure; and WHEREAS, in the course of review it was found that the existing residence encroached a total of four square feet (4 ') into the City of Englewood's Right-Of-Way for the City Ditch and any increase in the size of the structure would further encroach into the Right-Of-Way; and WHEREAS, the owner sued the City in a quiet title action concerning the property saying the property was hers and the City was exercising control without due process of law and the City counterclaimed for a determination of exact boundaries among other claims; and WHEREAS, the parties have reached a settlement in the lawsuit in which the City Quit Claims four square feet (4 ') under the current structure which allows the owner to maintain the current residence; and WHEREAS, the City also gives the owner a standard City Ditch License to use another 1,617 square feet of the Right-Of-Way as lawn only; NOW, THEREFORE , BE IT ORDAINED BY THE CITY COUNCIL OF THf CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Pursuant to the Settlement Agreement the Englewood City Council hereby approves the following documents: License Agreement -attached hereto as Exhibit A ; ""'- Quit Claim Deed -attached hereto as Exhibit B; and Mutual Release and Settlement Agreement -attached hereto as Exhibit C. Section 2. The Mayor is authorized to execute and the City Clerk to attest and ~ Quit Claim Deed and the Mutual Release and Settlement Agreement for and on behalf of the City of Englewood , Colorado. Section 3 .. The Director of Utilities and the Chairman of the Englewood Water and Sewer Board are authorized to execute the License Agreement for and on behalf of the City of Englewood, Colorado . -1- • • • Introduced, read in full, and p assed on first reading on the 21st day of September, 1998. Published as a Bill for an Ordinance on the 25th day of September, 1998. Read by title and passed on final reading on the 19th day of October, 1998 . Published by title as Ordinance No . fr!J.. Series of 1998, on the 23rd day of October, 1998. I, Loucrishia A. Ellis, City Clerk of the City of Englewood , Colorado, hereby certify that the above and foregoing is a t rue copy of the Ordinance pa~sed on final reading and published by title as Ordinance No. "(p_!/., Series of 1998. 'a.~ Loucrishia A. Ellis -2- • • • LICENSE AGREEMENT TIITS LICENSE AGREEMENT, made and entered into as of the day of September, 1998, by and between the CITY OF ENGLEWOOD, a municipal corporation of Colorado, hereinafter referred to as "City" and I,era ,;1 Gesin a/k/a I .era M Poynter 3605 South Bannock Street, Englewood, Colorado 80110 hereinafter ref erred to as "Licensee, " WITNESSETH : The City without any warranty of its title or interest whatsoever, hereby grants the following license to Licensee for the following : A parcel of land being a part of the land known as City Ditch, located in a portion of the Northeast Quarter of the Northwest Quarter of Section 3, Township 5 South , Range 68 West, of the Sixth Principal Meridian, City of Englewood , County of Arapahoe, State of Colorado, being more particularly described as follows : Beginning at the Northeast corne r of Lot 14 , Block 3 of the Englewood Heights Subdivision, said point also being a point on the Southeast line of said City Ditch ; l, Thence South 46 °00'00" West, along said Southeast line, a distance of 111.12 feet; 2. Thence South 55°30'00 " West, continuing along said Southeast line , a distance of 53 .49 feet, to a point on the Northwest line of Lot 12, Block 3 of said Englewood Heights Subdivision; 3 . Thence North 01°18'35" West, leaving said Southeast line of the City Ditch and said Northwest line of said Lot 12 , a distance of 10 .69 feet, to the intersection of fences; 4. Thence North 50°13 '39 " East, along a fence line, a distance of91.18 feet; 5. Thence North 48°16'45" East, continuing along said fence line, a distance of 19 .99 feet; 6 , Thence North 50°05'48" East, continuing along said fence line, a distance of 49.44 feet; 7, Thence South 11°26'22" East, a distance of 6.68 feet, w the point of Beginning, containing 1,617 square feet, more or less. The basis of bearings was formed between 2 pin and caps on the Southeast line of said City Ditch, being South 46000'00" West. • x H I II I T A • • • 1. Licensee is granted an exclusive license to the Licensed Property subject to the provisions of this Agreement. In addition, Licensee is granted the following specific rights subject to all provisions contained in this Agreement; to wit: a. The existing Residential Structure and/or its foundation located on lots 13 and 14, Block 3, Englewood, Colorado, (the "Residential Structure") will not be removed by the City. b·. The right to maintain and repair the existing Residential Structure and/or its foundation, within the boundaries of Lots 13 and 14, Block 3, as they are defined and ·-described in the surveyor's plat attached hereto as Exhibit A. It is understood and agreed that no part of the Residential Structure is located on the Licensed Property. c. The right to receive a variance from the City for a set back, the purpose of which is to place additional foundation to the existing strucrure. d. The right to any use of the Residential Structure, Lots 13 and 14 and Licensed Property as specifically permitted under current R-3 zoning . 2. In granting this License, the City reserves the right to make full use of the Licensed Property as may be necessary or convenient in the operation of the City and the City retains all right to operate, maintain, install, repair, remove or relocate any of its facilities located within the Licensed Property, at any time, and in such a manner as it deems necessary or convenient . In the event Licensee makes structural improvements on the Licensed Property and such structural improvements should interfere with the City's use or operation of the Licensed Property, at any time hereafter, Licensee shall, upon request by the City at Licensee's sole expense, immediately relocate, rearrange or remove such structural improvement so as not to interfere with any such City use ·and to remove the structural improvement of Licensee when necessary or convenient for . the City, its successors and assigns. 3. Subject to the provisions contained in paragraphs 1 and 2, the City shall have the right to maintain, install, repair, remove or relocate the City Ditch or any other of its facilities or installations within the Licensed Property at any time and in such manner as the City deems necessary or convenient. The City reserves the exclusive right to control all easements and installations . 4 . The Licensee shall have the right to maintain and improve the Licensed Property including, but not limited to, planting and trimming grass and/or bushes, • • • 5. 6. 7. 8. 9. fertilization and irrigation, and removal of trash and brush. Licensee is not permitted to construct any permanent structure(s) or encroach upon the Licensed Property in a manner not permitted under this License Agreement. Access to the parcel by City personnel must be maintained by Licensee for inspection and maintenance. No construction of permanent structures shall be allowed. Upon abandonment of any right or privilege herein granted, the right of Licensee to that extent shall terminate, but its obiigatio,n to indemnify and save harmless the City, its officers and employees, shall not terminate in any event. The rights granted Licensee hereunder may not be assigned to subsequent purchasers of Lots 13 and 14, Block 3, Englewood, Colorado, without the written consent of the City; however, consent by the City to assignment of this License may not be unreasonably withheld. Licensee shall comply with all applicable state or federal laws and ordinances and all rules, regulations and requirements of any environmental standards and conditions applicable to the City Ditch or City Right-of-Way. If, as a result of the Licensee's occupancy of the premises and its operation hereunder, any such law, ordinance, rule or regulation is violated, Licensee shall protect, save harmless, defend and indemnify the City from and against any penalties, fines, costs and expenses including legal fees and court costs incurred by the City, caused by, resulting from or connected with such violation or violations, and this License shall terminate immediately. This provision shall not, however, operate to relieve the City of any liability it may have under any state or federal law for release of any hazardous material or waste for which the City may be liable. IN WITNESS WHEREOF, this instrument has been executed as of the day and year first above written. APPROVED: Stewart Fonda APPROVED AS TO FOR.i\1 CITY OF ENGLEWOOD acting through and by its Water and Sewer Board By:~~~~~~~~~~~~ Chairman LICENSEE • • • QUIT CLATh1 DEED THIS DEED made this __ day of September, 1998, between the CITY OF ENGLEWOOD, a municipal corporation, whose address is 3400 South Elati Street, Englewood, Colorado (hereinafter "Grantor") and Lera M. Poynter, whose address is 3605 South Bannock Street, Englewood, Colorado (hereinafter "Grantee"): W I T N E S S E T H: That the Grantor, for and in consideration for the dismissal of Civil Action No . 97CV3608 styled Lera M. Gesin alk/a Lera M. Poynter v. City of Englewood, et al. and Settlement Agreement and Release dated __ day of , 1998, and incorporated by reference herein, the receipt and sufficiency of which is hereby acknowledged, by the presents does remise, release, sell, convey, and Quit Claim unto Grantee, her successors and assigns forever all the rights, title, interest, claim and demand which the Granter has in and to the following described real property, lying and being in the City of Englewood and State of Colorado, described as follows: A parcel of land be ing a part of the land known as City Ditch, located in a portion of the Northeast Quarter of the Northwest Quarter of Section 3, Township 5 South, Range 68 West, of the Sixth Principal Meridian , City of Englewood, County of Arapahoe , State of Colorado , being more particularly described as follows: Commencing at the Northeast corner of Lot 14, Block 3 of the Englewood Heights Subdivision, said point also being a point on the Southeast line of said City Ditch ; Thence South 46 oQQ 'OO" West, along the Southeast line of said City Ditch and along the Northwest line of said Lot 14, a distance of 61.40 feet , to the True Point of Beginning ; Thence along the following four (4) courses ; 1.) South 46 oQQ'OO " West, along the Southeast line of said City Ditch, a distance of 2 .00 feet; 2.) North 44 oQO'OO " West , leaving last said Southeast line , a distance of 2 .00 feet; 3 .) North 46 oQQ'OO" East, along a line parallel with said Southeast line, a distance of2.00 feet; 4 .) South 44 oQQ 'OO " East, a distance of2 .00 feet, to the True Point of Beginning, containing 4 square feet, more or less. The basis of bearings was formed between 2 pin and caps on the Southeast line of said City Ditch, being South 46 oQQ 'OO " West . The above described parcel is conveyed for purposes of maintaining the foundation to the residential structure at 3605 South Bannock Street, Englewood, Colorado . If and when the parcel ceases to be used for this purpose it shall immediately revert to the City of Englewood, State of Colorado . TO HA VE AND TO HOLD the same, together with all and singular the appurtenances and privileges thereunder belonging or in anywise thereto appertaining, and all the estate, right, title, interest and claim whatsoever, of the Grantor, either in law or equity, to the only proper use, benefit and behoof of the Grantees, their successors and assigns forever . I! x H I B I T B • • • IN WITNESS WHEREOF, the Gran.tor has executed this deed on the date set forth above. TIIE CITY OF ENGLEWOOD By:_· ___________ _ Thomas J. Burns, 11ayor AITEST: Loucrishia A. Ellis, City Clerk STATE OF COLORADO ) ) SS. CITY OF ENGLEWOOD ) Acknowledged, subscribed, and sworn to before me this day of 1998, by Thomas J. Burns , as Mayor ------of_th_e_C_i_ty of Englewood . WITNESS my hand and official seal. My commission expires : ~----------------- Notary Public Address AFfER RECORDING PLEASE MAIL TO : The City of Englewood 3400 South Elati Street Englewood, Colorado 80110-2304 Attn: City Attorney • • • EXHIBIT SCALE : 1"= 20' s 55·30·00" w .o AREA= 4 SQ . FT . POST 2 STORY BRICK & FRAME HOUSE ·- LINE SEARING DISTANCE L1 s 45·00·00" w 2.00· L2 N 44·00·00" w 2.00· L3 N 46"00'00 " E 2.00· L4 S 44·00·00" E 2.00· ROCKY MOUNTAlN CONSULTANTS. INC. LOT 14 N 8 ·75 ' " I=" 83 .75" 2.o·x5. 7' PLANTER LCT 13 LOT 12 -.J ID 0 o. t-w w a: t- (/) ~ 0 0 z z < ID =rmc 8301 E. Prentice A•c . Suite 101 Enqlcwood. CO 80111 (303) 741-6000 FIJ. (303) 741-6106 EXH3.DWC .1nA •1n ?i.A? nn7 oo OATE 06/18/98 c. RE'llSED 0151215 /98 • • • l\1UTUAL RELEASE AND SETILEMENT AGREEMENT This Mutual Release and Settlement Agreement made and entered into this day of September, 1998 , by and between Lera M. Gesin a/kla Lera M. Poynter ("Plaintiff") and The City of Englewood, ("Defendant The City of Englewood"). A. RECITALS Plaintiff filed a Complaint against several defendants in the Arapahoe County District Court, Civil Action No. 97 CV 3608 , entitled Lera M . Gesin a/kl a Lera M . Poynter v. Ciry of Englewood, et al. (the "Complaint"), which Complaint arose out of a dispute concerning ownership and title to a parcel of real property located within the City of Englewood, within an area commonly known as the "Englewood City Ditch " or "Right-of-Wa y " (hereinafter referred to as the City Right-of-Way). In the Complaint, Plaintiff sought a judicial declaration under C .R.C.P . 105 that Plaintiff was the exclusive owner and exclusive title holder to a specific parcel of property contained within the City Right-of-Way. Defendant The City of Englewood filed certain counterclaims for trespass and declaratory relief under C .R.C.P . 57 as part of this civil action . B. Upon the terms and conditions se t forth below, the parties desire to enter into this Mutual Release and Settlement Agreement in order to discharge all claims of Plaintiff which are, or might have been, the subject matter of the Complaint, and all claims of Defendant The City of Englewood, which are the subject matter of the Counterclaims contained in the above described Civil Action. AGREEMENT The parties agree as follows: 1. 0 Release and Discharge 1.1 In consideration of the execution for a License Agreement and Quit Claim Deed as set forth in Section 2, Plaintiff hereby completely releases and forever discharges Defendants from any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which the Plaintiff now has, or which may hereafter accrue or otherwise be acquired , on account of, or may in any way grow out of, or which are, or which could be , the subject of th~ Complaint (an_d all related pleadings). II x H I B I T c • • • 1.2 This release and discharge shall also apply to Defendants' past, present and future officers, directors, council persons, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, predecessors and successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated. 1.3 The Plaintiff acknowledges and agrees that the release and discharge set forth above is a general release . Plaintiff expressly waives and assumes the risk of any and all claims which exist as of this date, but of which the Plaintiff does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect Plaintiff's decision to enter into this Mutual Release and Settlement Agreement . . ·- 1.4 It is understood and agreed to by Plaintiff that this settlement is a compromise of a disputed claim. 1.5 This release shall be a fully binding and complete settlement among the Plaintiff and Defendant, and its heirs , assigns, and successors, forever. 2. 0 Consideration 2.1 In exchange for consideration described herein. Defendant Cirv of Englewood agrees to the following : a. Contemporaneously with the execution of this Mutual Release and Settlement Agreement, Plaintiff and Defendant The City of Englewood, have executed a License Ag reement providing that Plaintiff shall have the exclusive use of a parcel of the City Right-of-Way property adjacent to her property , and in accord with the terms of the License Agreement. The licensed property is described and set forth in the License Agreement attached to this Release as "Exhibit A" and is incorporated by reference as if fully set forth herein. b . Contemporaneously with the execution of this Mutual Release and Settlement Agreement , Defendant The City of Englewood shall execute a Quit Claim Deed granting ownership of a parcel of real property to Plaintiff for the purposes of reinforcing existing foundation to the current residential structure. A copy of the Quit Claim Deed is attached hereto as Exhibit "B" and is incorporated by reference as if fully set forth herein. c. Dismissal with prejudice of all counterclaims or causes of action which could have been pleaded against Plaintiff, in a lawsuit now filed in the Arapahoe County District Court for the District of Colorado, under Case No. 97 CV 3608 entitled Lera M. Gesin alk/a Lera M. Poynter v. City of Englewood, et al . 2 • • • 2.2 In exchange for consideration described herein. Plaintiff agrees to the following: a. Dismissal with prejudice of all claims and causes of actions which could have been pleaded against the City, in a lawsuit now filed in the Arapahoe County District Court for the District of Colorado, under Case No. 97 CV 3608 entitled Lera M. Gesin a!k!a Lera M. Poynter v. City of Englewood, et al. 3.0 Attorney's Fees Each party hereto shall bear all attorney's fees and costs arising from the actions of its own counsel in connection with the Complaint, this Mutual Release and Settlement Agreement and the matters and documents referred to herein , the filing of a Stipulated Motion of Dismissal of the Complaint, and all related matters . 4.0 Delivery of Dismissal Without Prejudice Concurrently with the execution of this Mutual Release and Settlement Agreement, Plaintiff shall deliver to counsel for the Defendant an executed Stipulated Motion for Dismissal With Prejudice of the Complaint. Plaintiff hereby authorizes counsel for the Defendant to file said Motion with the Court and enter it as a matter of record. 5 .0 Representation of Comprehension of Document In entering into this Mutual Release and Settlement Agreement, Plaintiff and Defendant represent that each of them has relied upon the advice of individuals and/or attorneys, who are individuals of their own choice, concerning the legal consequences of this Mutual Release and Settlement Agreement; that the terms of this Mutual Release and Settlement Agreement have been completely read by Plaintiff and Defendant; and that the terms of this Mutual Release and Settlement Agreement are fully understood and voluntarily accepted by Plaintiff and Defendant. 6. 0 Governing Law This Mutual Release and Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of Colorado . 7.0 Entire Agreement and Successors in Interest This Mutual Release and Settlement Agreement contains the entire agreement between the Plaintiff and the Defendant with regard to the matters set forth in it and shall be binding upon and enure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each . 3 • • • 8.0 Effectiveness This Mutual Release and Settlement Agreement shall become effective immediately following execution by Plaintiff and Defendant, the City of Englewood. STATE OF COLORADO COUNTY OF ARAPAHOE Lera M. Gesin, Plaintiff By: ) ) SS.. ) Subscribed and sworn to before me on this __ day of September, 1998 , by WITNESS my hand and official seal. My Commission expires: -------- Notary Public Lera M. Poynter, Plaintiff Lera M. Poynter STATE OF COLORADO COUNTY OF ARAPAHOE ) ) SS. ) Subscribed and sworn to before me on this __ day of September, 1998, by WITNESS my hand and official seal. My Commission expires: -------- Notary Public 4 •' • • • The City of Englewood, Defendant STATE OF COLORADO COUNTY OF ARAPAHOE ) ) SS. ) Thomas J. Burns, Mayor Subscribed and sworn to before me on this __ day of September, 1998, by Thomas J. Burns as Mayor. · - WITNESS my hand and official seal. My Commission expires: -------- Notary Public 5 • • • COUNCIL COMMUNICATION Date Agenda Item Subject Gesin Settlement - September 21, 1998 11 a ii 3605 S. Bannock Stree t Initiated By Staff Source Utilities Department Stewart Fonda, Director of Utilities COUNCIL GOAL AND PREVIOUS COUNCIL ACTION Council authorized the City Attorney to represent City Council in the lawsuit filed by Lera Gesin. RECOMMENDED ACTION Council approval of the Quit Claim Deed, License Agreement and Mutual Release and Settlement Agreement from Lera Gesin. BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED Mrs. Gesin originally filed for a building permit approximately one year ago to build an addition onto her house at 3605 S. Bannock St. The addition would have encroached into Englewood's City Ditch right- of-way. The northwest corner of her house encroaches four square feet into the City Ditch right-of- way. The City denied her request whereupon she filed suit against the City to allow the proposed addition. The suit was mediated at Arapahoe County District Court and the above listed documents a re the result of the mediation. Englewood is proposing to quit claim Mrs. Gesin four square feet of City Ditch right-of-way to allow room for improvements to her existing residence. No further expansion will be allowed. The License Agreement will allow her to use and maintain the City Ditch right-of-way as part of her back yard, but no permanent improvements may be constructed in this area. The Mutual Release and Settlement Agreement is the final settlement that was agreed to by all parties. FINANCIAL IMPACT None. LIST OF ATTACHMENTS Ordinance Quit Claim Deed, License Agreement and Mutual Release and Settlemen t .