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HomeMy WebLinkAboutR13-096 Diemoz River Ranch Vacation of Fishing Easement Commissioner YJL w. --moved adoption of the following Resolution: BOARD OF EAGLE COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 2013- Q 1 (0 VACATION OF THE PUBLIC FISHING EASEMENT FOR THE DIEMOZ RIVER RANCH PUD (A.K.A the "CARRICARTE PROPERTY") File Number G-4097 WHEREAS, on November 26, 2012, Michael and Natalie Carricarte (the "Applicants") submitted a request to the Board of County Commissioners (hereinafter the"Board")to vacate the Final Plat(the"Final Plat") for the Diemoz River Ranch Planned Unit Development(the"Diemoz River Ranch PUD"),a 46.7 acre parcel(the"Property")located adjacent to Hooks Spur Road Right- of-Way, and due West of the Hooks Spur Road Bridge; SE 1/ of Section 3;NW 1/ Section 11, and ; NE 1/ Section 10; Township 8 South, Ranch 87 West of the 6th Principle Meridian, in El Jebel, Colorado, and; WHEREAS, the Final Plat, attached hereto as Exhibit "A" and incorporated herein, was approved on April 24,2001,and was subsequently recorded on May 10,2001,at Reception Number 756794, in accordance with the Diemoz River Ranch Preliminary Plan for PUD, creating four(4) lots and associated building envelopes,associated easements and rights-of-way,and a common open space area(Eagle County File No. PDF-00049), and; WHEREAS,the Final Plat was approved subsequent to approval of the Diemoz River Ranch Preliminary Plan for Planned Unit Development (Eagle County File No. PDP-00007) and the companion request for an Amendment to the Official Zone District Map for Eagle County(Eagle County File No.ZC-00022)to rezone the Property from Resource(R)Zone District to Planned Unit Development(PUD), and; WHEREAS,the Final Plat includes and describes a five foot public fishing easement on or over portions of the Property(the "Fishing Easement"); a public right-of-way dedication to Eagle County for a portion of Hooks Spur Road; a private access easement granted to an individual by the name of Amy French; and a utility easement granted to Holy Cross Energy(the"Holy Cross Utility Easement"); and Page 1 of 4 WHEREAS, in conjunction with the request to vacate the Final Plat, Applicants also submitted a request to vacate the Fishing Easement,and a request to amend the Official Zone District Map for Eagle County(Eagle County File No. ZC-4096)to re-zone the Property from the Planned Unit Development Zone District(PUD) to the Resource(R) Zone District, and; WHEREAS,in conjunction with the request to vacate the Fishing Easement,the Applicants have proposed to grant to Eagle County a new public fishing easement for the benefit of the public (the"New Fishing Easement"), to be conveyed via a separate easement agreement and recorded in the records of the Eagle County Clerk and Recorder; and WHEREAS, the New Fishing Easement has been recorded at Reception Number 9-01'39'1010 in the records of the Eagle County Clerk and Recorder, a copy of which is attached hereto as Exhibit"B"; and WHEREAS, in conjunction with the request to vacate the Final Plat, the Applicants proposed to execute a quit claim deed to evidence the dedication to Eagle County of the public right- of-way for a portion of Hooks Spur Road, to be recorded in the records of the Eagle County Clerk and Recorder; and to record evidence of the Holy Cross Utility Easement and the private access easement to Amy French; and WHEREAS,a quit-claim deed to evidence the right-of-way dedication to Eagle County for the portion of Hooks Spur Road described on the Final Plat has been recorded in the records of the Eagle County Clerk and Recorder at Reception No. 201319671; and WHEREAS,the Applicants recorded an easement agreement dated January 18,2013,in the records of the Eagle County Clerk and Recorder at Reception No.901301168 to evidence the private access easement with Amy French described on the Final Plat; and WHEREAS,the legal description of the Holy Cross Utility Easement and a letter from Holy Cross Energy have been recorded in the records of the Eagle County Clerk and Recorder at Reception No. 201319670 to evidence the utility easement described on the Final Plat; and WHEREAS, no development permits for the Property have been issued since the time of Final Plat approval and no construction activities have commenced on the Property pursuant to the PUD Preliminary Plan, Final Plat and associated SIA, and; WHEREAS, at a public hearing held on May 2, 2013, the Roaring Fork Valley Regional Planning Commission unanimously voted to recommend approval of the Applicants' request to vacate the Fishing Easement; and WHEREAS,at a public hearing held on May 28,2013,the Board considered the Applicants' request; and Page 2 of 4 WHEREAS,at the aforesaid public hearing,the Board determined that the Fishing Easement described in Exhibit"A"attached hereto lies entirely within Eagle County,and not within the limits of any Town; and that all easement holders of record, affected governmental entities and adjacent property owners have been notified of the proposed vacation,and have been given an opportunity to comment, and all such comments have been fully considered by the Board; and WHEREAS,the Board has considered all the evidence,exhibits and arguments presented at the hearing; and WHEREFORE, based on the evidence presented, the Board finds that the Applicants' request meets the intent of Section 5-2200 of the Eagle County Land Use Regulations which govern Public Way and Easement Vacations. NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of the County of Eagle, State of Colorado: THAT, the application for approval of the vacation of the Fishing Easement described in Exhibit"A"is hereby approved, subject to compliance with the following conditions: 1. Except as otherwise modified by this development permit,all material representations made by the Applicant in this application and in public meeting shall be adhered to and considered conditions of approval. 2. The vacation will not be in effect until an easement agreement evidencing the New Fishing Easement and a quit claim deed evidencing the public right of way for a portion of Hooks Spur Road have been recorded with the Eagle County Clerk and Recorder. 3. Evidence of the Holy Cross Utility Easement and the Amy French access easement have been recorded with the Eagle County Clerk and Recorder. 4. The vacation will not be in effect until the Resolution of the Eagle County Board of County Commissioners approving the vacation is recorded with the Eagle County Clerk and Recorder. The Resolution will be recorded upon the completion of conditions two and three. THAT, upon the date on which this Resolution of the Eagle County Board of County Commissioners is recorded,the Board thereupon divests,relinquishes and vacates any and all rights it may have in the portion of the easement described in this Resolution and described in the attached Exhibit "A". THAT the Board hereby finds,determines and declares that this Resolution is necessary for the health, safety and welfare of the inhabitants of the County of Eagle, State of Colorado. Page 3 of 4 THAT, the Board authorizes the Chairman of the Eagle County Board of County Commissioners to execute any and all documents,instruments,papers or other forms necessary for the vacation of the Fishing Easement. MOVED,READ AND ADOPTED by the Board of County Commissioners of the County of Eagle, State of Colorado, at its regular meeting held the (s day of October, 2013, nunc pro tunc to the 28th day of May, 2013. COUNTY OF EAGLE, STATE OF * _ A DO,by and Through Its • : +'~�i'�:' 1F COUNTY COMMISSIONERS ATTEST: . .� •By: CYG.4474Vo .- ka, , Teak J. Simonton ara J. Fisher, Chairman Clerk to the Board of County Commissioners �— �-•--— _.. ► v,' By: ' (-71/4111P J' ian H. Ryan, Co • issioner Y Kathy handler-Henry, Com ission Commissioner t2-Y/�-�--% seconded adoption of the foregoing Resolution. The roll having been called, the vote was as follows: Commissioner Sara J. Fisher Commissioner Jillian H. Ryan i4 v Commissioner Kathy Chandler-Henry 0-1.Lu Z This Resolution passed by 11) vote of the Board of County Commissioners of the County of Eagle, State of Colorado. 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';i'„,g. :i1111g g, W ;;;ki .44- 7-----------------------'""l'- g lt! g / — I 1 i Val , CO fa%--------------------,,,,,,,--4,,,, • PUBLIC FISHING EASEMENT AGREEMENT BETWEEN MICHAEL AND NATALIE CARRICARTE AND EAGLE COUNTY,COLORADO THI,S�PUBLIC FISHING EASEMENT AGREEMENT (this "Agreement") is granted on this 2 day of i „r.{% , 2013, by MICHAEL AND NATALIE CARRICARTE, whose address is 1093 AlA Beach Blvd., #389, St. Augustine, FL 32080 ("Grantor"), to the COUNTY OF EAGLE, STATE OF COLORADO, whose address is P.O. Box 850, 500 Broadway,Eagle, Colorado 81631 ("Grantee"), collectively,the "Parties". RECITALS: A. Grantor is the owner of real property located in Eagle County, State of Colorado, described on Exhibit A, attached hereto and made a part hereof(the "Property"). B. The Parties desire to provide for a public fishing easement over a certain portion of the Roaring Fork River situated within the Property for the recreational use and enjoyment of the public, all in accordance with the terms and conditions of this Agreement. EASEMENT: NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, Grantor and Grantee mutually agree as follows: 1. Grant of Fishing Easement. Grantor hereby grants to Grantee a non-exclusive easement within the portion of the Roaring Fork River situated on the Property from the southern and western high water mark on the Property to the northern and eastern Property boundaries in the Roaring Fork River, as further described and depicted as the "Fishing Easement" on Exhibit B attached hereto (the "Easement Area"). The Fishing Easement shall be made available to, and is for the benefit of, the public for the limited purposes of floating by boats and rafts, anchoring by boats on the river bottom to allow for fishing from the boat, and, in cases where a boat becomes immobile or capsized, the right to portage around impediments in the river (the "Easement"). Except for cases where a boat becomes immobile or capsized, the Easement does not include the right of any person to step onto any dry land on the Property and, in no event, shall the Easement include the right of any person to access or exit the river by or through the Property. 2. Maintenance. Grantor shall have no obligation for repair and/or maintenance of the Easement and/or the Easement Area. 3. Rights of Grantor. Grantor shall have the rights accorded to the general public to use the Easement. Grantor reserves the right, but is not obligated to, remove or exclude from the Property any persons who are in locations other than within the Easement Area (such as areas of dry land on the Property). 1 EXHIBIT (13) 4. No Charge for Access. Neither Grantee nor Grantor shall charge a fee for use of the Easement. 7. No Liability. Grantor by entering into this Agreement shall not assume any liability to the general public with respect to use of the Easement or Easement Area including, without limitation, the following: (i) any unsafe condition within the Easement Area; (ii) the failure to inspect for or warn against possible unsafe conditions within the Easement Area; or (iii) the failure to close the Easement when unsafe conditions may be present. Grantor shall not be liable for injury or damages occurring in the Easement or within the Easement Area, and subject to the foregoing, Grantee hereby assumes any and all liability for injury or damages occurring within the Easement Area. Such liability shall not exceed an amount equal to any limits set forth in the Colorado Governmental Immunity Act now existing or as may hereinafter be amended, nor confer any rights or benefits on any person not a party to this Agreement. Grantor shall have all of the protections available to it under Colorado law including limitations of liability pursuant to Title 33, Article 41 of the Colorado Revised Statutes. Grantee shall have all protections available to it under Colorado law and Grantee does not waive or intend to waive the limitations on liability which are provided to it under the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq. 8. Insurance. Grantee shall obtain and maintain at all times commercial general liability insurance ("CGL"), which policy shall provide for insurance consistent with the limits of liability under the Colorado Governmental Immunity Act. The CGL policy shall name Grantor, its successors and assigns, as an additional insured. Grantee shall provide Grantor, its successors and assigns, with evidence of such insurance and verification of payment of premiums therefor, upon any request therefor by Grantor. 9. Indemnification. To the extent permitted by law, Grantee agrees to indemnify, defend and save harmless Grantor, its successors and assigns forever, from and against any and all demands, claims, causes of action or judgments, losses, liabilities, costs and expenses of any kind or nature (including, without limitation, those involving death, personal injury or property damage, attorney's fees and costs of litigation) suffered or incurred by Grantor in investigating or defending the same and arising out of or incurred in any way in connection with Grantee's or the public's use of the Easement or the Easement Area, or by any employee, agent, guest, licensee or invitee of Grantee or by any other person permitted by Grantee to use the Easement or the Easement Area, or arising from any condition of the Easement or the Easement Area, or by any act of negligence of Grantee or of its agents, guests, licensees or invitees or arising from any breach or default on the part of Grantee in the performance of any covenant or agreement on the part of Grantee to be performed pursuant to the terms of this Agreement. Notwithstanding anything in this Easement Agreement to the contrary, Grantee shall have all of the protections available to it under Colorado law and Grantee does not waive or intend to waive the limitations of liability which are provided to it under the Colorado Governmental Immunity Act. Likewise, Grantor does not waive or intend to waive limitations of liability which are provided pursuant to C.R.S. 33-41-101 et.seq. 2 10. Recording. Upon execution by the Parties, this Agreement shall be recorded in the records of the Eagle County Clerk and Recorder's Office. 11. Governing Law and Venue. It is the intention of the Parties hereto that all questions with respect to the construction and interpretation of this Agreement and the rights and liabilities of the Parties hereunder shall be determined in accordance with the laws of the State of Colorado. 12. Annual Appropriations. All financial obligations of Grantee set forth in this Agreement are subject to annual appropriation pursuant to C.R.S. § 29-1-110, as amended. 13. Termination. Notwithstanding the provisions of paragraph 12 above, in the event Grantee fails or refuses to appropriate on an annual basis sums sufficient to pay its financial obligations as set forth in this Agreement, including without limitation, the obligations for insurance, or in the event of a breach of the terms and conditions of this Agreement that are within Grantee's control, then Grantor may terminate this Easement Agreement provided that Grantor shall first send by certified mail to the Grantee, a notice of default. The notice of default shall specify the nature of the alleged default and Grantor's intent to terminate. If, within ninety (90) days from the date of mailing said notice, the Grantee shall have appropriated sums to pay its financial obligations as set forth in this Agreement, and/or shall have begun in good faith to correct such other default within its control and shall thereafter diligently prosecute correction of such default, there shall not be termination therefor. If such default is not corrected, or correction thereof is not begun in good faith as hereinabove required, within ninety (90) days after mailing of such notice, this Easement Agreement will terminate. In the event Eagle County is no longer the Grantee under this Agreement, notice of any default and intent to terminate shall also be provided to Eagle County. In such event Eagle County shall have the right but not the obligation to cure. 14. Duration. The Parties agree that this Easement Agreement shall be perpetual unless earlier terminated pursuant to the terms of paragraph 13 hereof or by mutual written agreement of the parties. 15. Notice.All notices or other communications made pursuant hereto shall be in writing and shall be deemed properly delivered, given or served (i) when personally delivered, or (ii) two (2) calendar days after being deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below their signatures, or (iv) when sent via facsimile so long as the sending party can provide a facsimile machine or other confirmation showing the date, time, and receiving facsimile number for the transmission. Either party may change its address for the purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. GRANTEE: Eagle County, Colorado 500 Broadway 3 Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8605 Facsimile: 970-328-8692 And a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 GRANTOR: Michael and Natalie Carricarte 1093 AlA Beach Blvd., #389 St. Augustine, FL 32080 And a copy to: Genshaft Cramer LLP 420 E. Main Street, Suite 420 Aspen, CO 81611 Attn: Ben Genshaft Telephone: 970-925-9450 Facsimile: 888-266-0103 16. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law; provided, however, if any provision of this Agreement shall be invalid or prohibited under applicable law, such provision shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of this Agreement. 17. Assignment. Neither Grantor nor Grantee may assign any of its rights and obligations under this Agreement to any other person or entity without the prior written permission of the other. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successor and assigns. 18. Warranty of Title. Grantor represents that it is the record owner of the Property upon which the Easement Area is located and that it has full power and authority to execute this Agreement. Otherwise, Grantor makes no warranties as to the title of the easement conveyed. 4 • 19. Modifications. The Parties agree that any modifications of this Agreement shall be effective only when made in writing signed by both Parties and recorded with the Clerk and Recorder of Eagle County, Colorado. IN WITNESS WHEREOF, Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRAN OR: LINDSEY H.LATHROP-ALM Notary Public State of Colorado Notary ID 20134046529 i 7 .e `'carte Commission E 'ires Jul 25,2017 IL Natalie Carricarte STATE OF COLORADO ) )ss. COUNTY OF The foregoing instrument was acknowledged before me this q-rt-day of SE P—CM C' , 2013, by Michael Carricarte. Witness my hand and official seal. My commission expires: 1/ 5 f a c f l 4A Notary Public STATE OF COLORADO ) )ss. COUNTY OF SAC- l- ) The foregoing instrument was acknowledged before me this "i-rtday of Si✓Q�"lll(ate , 2013,by Natalie Carricarte. Witness my hand and official seal. My commission expires: 7 I 51 G I Notary Public LINDSEY H. LATHROP-ALM Notary Public State of Colorado Notary ID 20134046529 es Jul 25,2017 5 GRANTEE: EAGLE COUNTY, STATE OF COLORADO By and through its Board of County Commissioners By: Sara Fisher, Chairman STATE OF COLORADO ) )ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 2013, by Sara Fisher, Chairman Eagle County Board of County Commissioners. Witness my hand and official seal. My commission expires: Notary Public 6 PROPERTY DESCRIPTION OF: EXH I B IT A CARRICARTE PROPERTY EXH 1 D /-i A PARCEL OF LAND SITUATED IN A PORTION OF TRACT 53 WITHIN SECTIONS 3,10&11 OF TOWNSHIP 8 SOUTH,RANGE 87 WEST OF THE 6th P.M. COUNTY OF EAGLE,STATE OF COLORADO SHEET 1 OF 1 PROPERTY DESCRIPTION ATract of Land being situated in Government Tract 53,being a portion of the SE1/4 of Section 3,the NW1/4 of Section 11 and the NE1/4 of Section 10,Township 8 South,Range 87 West of the 6th P.M.County of Eagle,State of Colorado,said tract of land being more particularly described as follows: Beginning at a point on the East Line of said Tract 53 from whence the witness corner for A.P.4 of said Tract 53 bears S.00°15'57".E,a distance of 393.45 feet and N.88°57'22".E.,a distance of 17.16 feet,said point also being on the northerly Hooks Spur Road Right-of-Way as described in that document recorded as reception no.141670 of the Eagle County records; thence the following two(2)courses along said northerly Hooks Spur Road Right-of-Way: 1) S.75°44'56"W.,a distance of 36.18 feet; 2) 91.93 feet along the arc of a curve to the right having a radius of 79.32 feet and a central angle of 66°24'15",chord bears N.71°02'56"W.,a distance of 86.87 feet,to a point on the northeasterly line of the Roaring Fork Transit Authority Railroad Right-of-Way as established per The Railroad Right-of-Way Survey of the El Jebel Segment performed by Farnsworth Group dated December 28,2007; thence N.37°50'49"W.along said Northeasterly line of the Roaring Fork Transit Authority Railroad Right-of-Way,a distance of 1,996.16 feet,to a point on the West Line of said Tract 53;thence leaving said Northeasterly line N.00°24'42"W.along said West Line,a distance of 882.81 feet,to a point on the North Line of said Tract 53;thence leaving said West line N.87°32'11"E. along said North line,a distance of 293.26 feet,more or less to a point in the centerline of the Roaring Fork River;thence leaving said North line along said river centerline the following four(4)courses: 1) S.55°54'05"E.,a distance of 556.29 feet; 2) S.74°28'05"E.,a distance of 198.00 feet; 3) S.67°46'05"E.,a distance of 139.00 feet; 4) S.68°5318"E.,a distance of 285.25 feet,to a point on the East line of said Tract 53; thence S.00°15'57"E.along said East line,a distance of 1,535.47 feet;thence leaving said East line N.89°44'02"W.,a distance of 12.33 feet;thence S.00°41'12"W.,a distance of 97.13 feet;thence S.89°18'48"E.,a distance of 13.94 feet,to a point on the East line of said Tract 53;thence S.00°15'57"E.along said East line,a distance of 338.07 feet to the POINT OF BEGINNING. Containing 2,028,928 square feet or 46.578 acres,more or less. COUNTY OF EAGLE STATE OF COLORADO Excludes area being deeded to Eagle County for Hooks Spur Road right-of-way. Basis of Bearing: A bearing of S 00°15'57"E along the East boundary line of Tract 53,within sections 2,3,10,&11 Township 8 South Range 87 West of the 6th Principal Meridian. Established based on Angle Point 1,Tract 53 monumented by a found P.K. nail in the asphalt of Willits Lane and Angle Point 4 being witnessed by a 1"pipe and 2.5"brass cap stamped U.S General Land Office Survey 1924 W.C.AP 4 Tract 53,AP 3 Tract 52,AP 2 tract 58,AP 1 tract 57,as shown. NOTICE: ACCORDING TO COLORADO LAW YOU MUST COMMENCE ANY LEGAL ACTION BASED UPON ANY SOPRIS ENGINEERING - LLC DEFECT IN THIS SURVEY WITHIN THREE YEARS AFTER YOU FIRST DISCOVER SUCH DEFECT. IN NO EVENT MAY CIVIL CONSULTANTS ANY ACTION BASED UPON ANY DEFECT IN THIS SURVEY 502 MAIN STREET,SUITE A3 BE COMMENCED MORE THAN TEN YEARS FROM THE CARBONDALE,COLORADO 81623 DATE OF CERTIFICATION SHOWN HEREON. (970)704-0311 SOPRISENG @SOPRISENG.COM sb RAB 13005 2013-08-09 13005-LSP.dwg FISHING EASEMENT EXHIBIT ON: EXHIBIT B. CARRICARTE PROPERTY A PARCEL OF LAND SITUATED IN A PORTION OF TRACT 53 WITHIN SECTIONS 3,10&11 OF TOWNSHIP 8 SOUTH,RANGE 87 WEST OF THE 6th P.M. COUNTY OF EAGLE,STATE OF COLORADO SHEET 1 O 1 - NORTH BOUNDARY TRACT 53_ _ _ it 9TJ14 FR`jvF �li4n `. NiLV N 0=.1 • ; w \MEI 7 AREA OF FISHING EASEMENT e + \ i il ` \ I Ir, \ 1 MICHAEL&NATALIE CARRICARTE �f A" PARCEL#246510101002'fit,, REC#201301168 1 . o AREA OF FISHING EASEMENT , o _/ Iz p -mac D P2 . D 9 .rq O 0 150 9e \CA] \\I'''f.0 BUILDING I \r•-or t i SOUTH BOUNDARY TRACT 53 SCALE Z 400' NOTICE: ACCORDING TO COLORADO LAW YOU MUST COMMENCE ANY LEGAL ACTION BASED UPON ANY SOPRIS ENGINEERING - LLC DEFECT IN THIS SURVEY WITHIN THREE YEARS AFTER CIVIL CONSULTANTS YOU FIRST DISCOVER SUCH DEFECT. IN NO EVENT MAY ANY ACTION BASED UPON ANY DEFECT IN THIS SURVEY 502 MAIN STREET,SUITE A3 BE COMMENCED MORE THAN TEN YEARS FROM THE CARBONDALE,COLORADO 81623 DATE OF CERTIFICATION SHOWN HEREON. (970)704-0311 SOPRISENG @SOPRISENG.COM sb RAB 13005 2013-08-09 13005-LSP.dwg