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HomeMy WebLinkAboutR91-008 Beard subdivision exemptionc3 441933 B -545 P -789 01/16/91 16:24 PG 1 OF 10 REC JOHNNETTE PHILLIPS EAGLE COUNTY CLERI {y COLORADO 0.00 Commissioner Gu.M FS9,AJ moved adoption of the following Resolution: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 91 - �_ RE SUBDIVISION EXEMPTION JOHN P. BEARD AND SUNNY J. BEARD AND THE ROSE KIMMEL ESTATE O 1-t v DOC 0.00 WHEREAS, the Board of County Commissioners of the County of Eagle, State of Colorado (hereinafter the referred to as the "Board ") , authorized the Eagle County Attorney to accept a Stipulation on behalf of the Board regarding the property rights owned by the Estate Rose Kimmel; and WHEREAS, the Eagle County District Court ordered the acceptance of. a Stipulation, wherein the property rights owned by the Estate of Rose Kimmel were subdivided; and WHEREAS, pursuant to § 2.15.03 of the Eagle County Land Use Regulations, the Board may, pursuant to a Resolution adopted at a public meeting, exempt from the provisions of Subdivision Regulations, any division of land if the Board determines that such division is not within the purposes of these Subdivision Regulations, and, in addition, the method of disposition adopted is not for the purpose of evading the provisions of said Subdivision Regulations including any division of land which is created by any court in this State pursuant to the law of eminent domain, or by operation of law, or by order of any court in this State if the Board of County Commissioners is given timely notice of any such pending action by the court and given opportunity to join as a party in interest in such proceeding for the purpose of raising the issue of evasion prior to entry of the court order. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO: THAT, the Board has no objection to and therefore approves of the subdivision of the property rights owned by the Estate of Rose Kimmel pursuant to the Stipulation accepted by and made an Order of the Court, as set forth in Exhibit A attached hereto and made a part hereof by this reference. THAT, said property is exempted from the regular Subdivision Regulations, pursuant to § 2.15.03 of the Eagle County Land Use Regulations. THAT, the Board finds, determines and declares that this Resolution is necessary for the public health, safety and welfare of the citizens of the County of Eagle, State of Colorado. MOVED, READ AND ADOPTED by the Board of County Commissioners of the County of Eagle, ate of Colorado, at its regular meeting held the day of , 1991. COUN4 OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS v County Commissioners EA Commissioner (o 44 -7e.-5 seconded adoption of the foregoing resolution. The roll having been called, the vote was as follows: Commissioner George A. Gatesy/�O Commissioner Richard L. Gustafson Commissioner Donald H. Welch At? c.Gl7� This Resolution passed by oR 1-&-6 vote of the Board of County Commissioners of the County of Eagle, State of Colorado. 441933 B -545 P -789 01/16/91 16:24 PG 2 OF 10 W DISTRICT COURT, COUNTY OF EAGLE, STATE OF COLORADO Case No. 89 CV 291 JUDGMENT AND ORDER ESTATE OF ROSE M. KIMMEL, DECEASED, Plaintiff, V. JOHN P. BEARD and SUNNY J. BEARD, Defendants. and BOARD OF THE COUNTY COMMISSIONERS. OF THE COUNTY OF EAGLE, STATE OF COLORADO, Intervenor. Pursuant to Motion for Entry of Judgment entered into between the plaintiffs and defendants and Stipulation by the Intervenor, judgment is here entered approving the Stipulation and Agreement heretofore filed herein by the plaintiff and defendants and the ` plaintiffs and defendants are ordered to carry out the terms and conditions of the Stipulation and Agreement. IT IS FURTHER ORDERED that upon fulfillment of the terms and conditions of the Stipulation and Agreement by all parties thereto, this matter shall be deemed dismissed with each party to pay its own costs and expenses, including attorney fees. Dated this � � � day of Imo) ( �— , 1990. D OCT "I'll EAGLE COUNTY BY COURT: Judge XHIBITA 441933 B -545 P -789 01/16/91 16:24 PG 3 OF 10 B � '4"�_e`FILED IN THE COMBINED CLERKS OFFICE IN THE DISTRICT COURT, COUNTY OF EAGLE, STATE OF COLORADCbC 3 1990 CASE NO. 89 CV 291 Eagle Cy ado STIPULATION By ESTATE OF ROSE M. KIMMEL, DECEASED, Plaintiff, vs. JOHN P. BEARD and SUNNY J. BEARD, Defendants, and BOARD OF THE COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO, Intervenor. COMES NOW Intervenor, Board of the County Commissioners of the County of Eagle, State of Colorado ( "Intervenor Board "), by the Office of the Eagle County Attorney, Kevin Lindahl, County Attorney, and hereby Stipulates, as follows: 1. Intervenor Board was permitted to intervene in this matter for the purpose of raising the issue of evasion of § 30 -28 -101, et seg, C.R.S. Intervenor Board's interest is limited to seeing that no partition is accomplished which is contrary to Eagle County's zoning or subdivision regulations. 2. Intervenor Board has reviewed the proposed Stipulation and Agreement signed by the other parties of record, as set forth in Exhibit A attached hereto and made a part hereof by this reference. 3. Intervenor Board has no objection to the proposed partition and finds it to be consistent with Eagle County's zoning and subdivision regulations. 4. Intervenor Board has no objection with regard to its limited interest to an Entry of Judgment based on the Stipulation and Agreement signed by other parties of record. 5. Upon adoption of the proposed Stipulation and Agreement, Intervenor Board has no objection to dismissal of the above - entitled matter, with all parties to pay their own costs, including attorney fees. 441933 B -545 P- 789 01/16/91 16:24 PG 4 OF 10 v CA 3 DATED this ;14day of October, 1990. EAGLE COUNTYAORNEY.S 3FFICE By: J Ke Lindahl, Reg. # 16076 Eagle County Attorney Attorney for Intervenor Board P.O. Box 850 Eagle, Colorado 81631 (303) 328 -8685 CERTIFICATE OF MAILING r I HEREBY CERTIFY that on the 3 day of October, 1990, f placed a true and correct Court Certified Copy of the foregoing Stipulation in the United States mails, postage prepaid, addressed to: James E. Fahrenholtz, Esq. P.O. Box 1988 Avon, Colorado 81620 John A. Thulson, Esq. P.O. Drawer 790 Glenwood Springs, Colorado 81602 wc - Paula Warzon, Paraleg I 441933 B -545 P -789 01/16/91 16:24 PG 5 OF 10 �a I J ®d STIPULATION AND AGREEMENT A_PARTI ES The parties to this Agreement are ESTATE OF ROSE M. KIMMEL, DECEASED (Estate), JOHN P. BEARD and SUNNY J. BEARD (Beards) and BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO (Eagle). B. RECITALS The reason and purpose for entering into this Stipulation and Agreement is premised upon the following: 1. Prior to April 29, 1988, Beards and Rose M. Kimmel were the owners of the following described real property located in the County of Eagle and State of Colorado, to -wit: A parcel of land in Tract 85, Township 5 South, Range 85 West of the 6th Principal Meridian according to the m Independent Resurvey dated June '20, 1922, said parcel being more particularly described as follows: , Beginning at a point from whence a properly marked and set brass cap set for Corner No. 2 of said Tract 85 bears N. 0 012'00" E. 2990.30 feet; thence East 1324.04 feet; thence S. 0°16119" W. 1152.1 feet; thence West 1322.6 feet; thence N. 0 °12100" E. 1152.1 feet to the place of beginning, containing 35 acres more or less. LL o LD Together with an easement and right -of -way for road purposes leading from the County Road Southerly across cD u. Tract 80 to the Northern line of Tract 85 as presently in place and in use. Further commencing at the Northern boundary of said Tract 85 an easement and right -of -way It for road purposes twenty -five feet along each side of the center line of the existing road now in place and in use, a running in a Southernly direction to the Southern boundary of the subject property. All being in Township m 5 South, Range 85 West of the 6th Principal Meridian. w \ (Property) 5 Beards and Rose M. Kimmel were also the owners of the following In described water rights: C3 i Cooley L.E. No. 1 Ditch, Priority No. 303, .10 cfs. Cooley L.E. No. 2 Ditch, Priority No. 302, .10 cfs. Ln M White Beard Ditch, conditional decree for 1.0 cfs, Case No. W -3598, District Court, Water Division No. 5. r� r� rn s EMBITA Beard White Pond, conditional water right for 25 acre -feet of water, Case,No. W -3689, District Court, Water Division 5. (Water Rights). 2. Rose M. Kimmel became deceased on April 29, 1988. A probate proceeding is now pending in the District Court of Eagle County, Colorado entitled "In the Matter of the Estate of Rose Halligan Kimmel, aka Rose M. Kimmel, Deceased," Case No. 88PR14. 3. Vera Best and Lelarose Wishon are the duly appointed and acting personal representatives of the Estate. 4. A dispute has arisen between the Estate and Beards as to how the Property and Water Rights should be divided. A partition action has been filed by the Estate against the Beards in the District Court of Eagle County, Colorado (Case No. 89CV291) wherein a statutory partition of the Property was requested (Partition Action). 5. Eagle has intervened in the Partition Action and the same remains pending,, 6. The parties, after much negotiation and investigation, have now agreed upon a method of partitioning the Property and Water Rights and settling the Partition Action. GO C. AGREEMENT The parties agree as follows: 1. The recitals above set forth are true and correct. 2. The Property and Water Rights will be divided between the parties with the Estate receiving the southerly 13.125 acres of the Property and 3 /8ths of the Water Rights and the Beards receiving the.northerly 21.875 acres of the Property and 5 /8ths of the Water Rights. 3. The boundary line separating the two parcels of the Property shall be computed by a surveyor licensed in the State of Colorado. That boundary line shall be imposed upon the plat which now exists entitled "Beard Subdivision," certified by B. James Burk on December 17, 1987. The surveyor shall also draft descriptions of each parcel and pin the corners of each parcel on the land, the cost of which shall be paid by Beards. 4. The Estate and Beards shall share the presently adjudicated point of diversion for the Water Rights. Beards shall - 2 - 441933 B -545 P -789 01/16/91 16:24 PG 7 OF 10 grant to the Estate an easement and right -of -way for water carriage from the existing point of diversion over and across to the easterly side of the current and existing fifty (50) foot wide road easement to the northerly property line to be owned by the Estate. The cost of completing the ditch or other water carriage structure for the benefit of the Estate parcel shall be paid by the Estate. 5. Rose M. Kimmel, John P. Beard and Sunny Beard entered into an agreement with the Board of County of Commissioners of the County of Eagle, Colorado pertaining to domestic water taps. The agreement is recorded in the office of the Clerk and Recorder of Eagle County, Colorado in Book 456 at Page 101. At such time as the agreement is implemented, the Beards shall receive two (2) water taps and the Estate shall receive two (2) water taps pursuant to the terms of the agreement. 6. Proceedings shall be instituted in the water court for Division 5 seeking to adjudicate new points of storage for the Beard White Pond, which points of storage will allocate 9.4 acre -feet of storage for the Estate and 15.6 acre -feet of storage for the Beards. Expenses for advertising, filing and attorney fees necessary to adjudicate new points of storage for the Beard White Pond shall be shared by the Estate and Beards one -half (1/2) each. 7. Upon the entry of an order by the District Court in the Partition Action approving this Stipulation and ordering the fulfillment hereof by the parties, the Estate shall cause deeds to - the parcels and Water Rights to be prepared in conformity with the terms and conditions of this Stipulation and Agreement. The deeds shall be specifically subject to the road easement described in document recorded in Book 257 at Page 161, telephone easement described in document recorded in Book 260 at Page 211, easements granted to Holy Cross Electric Association in Book 260 at Page 174, Book 448 at Page 528 and Book 464 at Page 961, and prior mineral reservations of public record. The Beard parcel shall also be -subject to an easement and right -of -way in favor of the Estate for the existing roadway and the water carriage easement as provided in paragraph 4 above. The Estate will divide the conveyance of the Beards parcel in separate deeds conveying one parcel to John P. Beard and one parcel to Sunny J. Beard. 8. The mobile home now situated upon that portion of the Property which will be owned by the Estate will be appraised 'and the value of that mobile home paid into the Estate at such time as the parcel owned by the Estate is sold. 9. Sunny J. Beard is, by the fulfillment of this Stipulation and Agreement, receiving her share of the value of the Property as an heir of the Estate. - 3 - 441933 8 -545 P -789 01/16/91 16:24 PG 8 OF 10 R lo. Jerry D. Halligan has heretofore disposed of his interest in the Property and, to the extent of the value of the parcel to be conveyed to the Estate, will not share in the value thereof in the Estate. 11. The Estate will offer the Estate parcel for sale at such time as this Stipulation and Agreement has been fulfilled. The Estate will remain open and pending until such time as the parcel is sold to a third party, whereupon the net proceeds of the sale will be paid into the Estate, the Estate will be closed and the personal representatives will distribute the assets of the Estate to the heirs, subject to the provisions of paragraphs 8 and 9 above, omitting Sunny J. Beard and Jerry D. Halligan from receiving any distribution from the sale of the Estate parcel. 12. The Estate, Beards and the County, by execution hereof, direct their respective counsel of record to enter into a joint motion for entry.of judgment to which will be attached a copy of this Stipulation and Agreement requesting that the District Court in the Partition Action approve the Stipulation and Agreement and order that the parties hereto carry out the terms and conditions hereof as herein agreed. 13. A copy of this Stipulation and Agreement may be filed in the Estate evidencing the agreement of the parties as to the W distribution of Estate assets insofar as the same pertain to the sale of the Estate parcel, g 14. Each of the parties hereto agree to do and perform such other and further acts as shall be necessary in order to carry out the intent and purpose of the parties hereto. _ 15. The terms and conditions hereof shall extend to and be binding upon the parties hereto, their successors and assigns of all kinds. 16. This Stipulation and Agreement may be executed in counterparts. Such counterparts shall be considered as one fully executed document. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year set opposite the name of each. ESTATE OF ROSE M. KIMMEL, DECEASED By- - - - -- Vera Best Personal Representative 441933 B -545 P -789 01/16/91 16:24 P6 9 OF 10 By Lelarose.Wishon Personal Represen-t_ative SUNNY J. BEARD BOARD OF COUNTY COMMISSIONERS OF EAGLE - COUNTY) STATE OF COLORADO By 441933 B-545 P-789 01/16/91 16:24 PG 10 OF 10