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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 09/05/2006 - FIRST READING OF ORDINANCE NO. 134, 2006, VACATING ITEM NUMBER: 15 AGENDA ITEM SUMMARY DATE: September 5, 2006 FORT COLLINS CITY COUNCIL STAFF: Randy Maizland SUBJECT First Reading of Ordinance No. 134,2006,Vacating a Portion of Street Right-of-Way on Oak Street Located West of College Avenue, Established as Part of the 1873 Map of the Town of Fort Collins, for Purposes of Constructing Oak Street Plaza Park Improvements. RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. EXECUTIVE SUMMARY This Ordinance vacates a portion of right-of-way for Oak Street,retaining a blanket easement over the entire vacated portion for access,drainage and public utilities. This portion of Oak Street right- of-way is being vacated to facilitate the use, management and regulation of Oak Street Plaza Park as a park,rather than as right-of-way. Property dedicated to the public for particular purposes, such as street right-of-way, must be used for that purpose. Additionally, the City Code does not permit park project funding to be used for projects within City right-of-way. Therefore,the street right-of- way needs to be vacated back to the adjoining property owners and subsequently deeded back to the City by the property owners. Once deeded back to the City, the property will then be a City-owned parcel but will no longer be dedicated as a street right-of-way. This will allow City Park funding to be used to complete the Oak Street Plaza project. Agreements with the adjoining property owners to deed this vacated right-of-way back to the City have already been secured by the City. The Ordinance is worded in such a way that the vacation shall not be effective until the Ordinance is recorded by the City Clerk. If the Council approves this Ordinance,the City will then secure deeds to the vacated portion of the right-of-way from the adjoining property owners and promptly record the Ordinance and the deeds. In that way, the transfer of ownership back to the City would take place immediately following the vacation of the right-of-way. A blanket access,drainage and utility easement shall be retained with the vacation of Oak Street to ensure that no public services will be compromised as a result of the vacation. ATTACHMENTS 1. Example of Agreement with adjoining property owners. , A ATTACHMENT page 1 of 7 AGREEMENT FOR CONVEYANCE OF REAL PROPERTY Dated February �$ , 2006 THIS AGREEMENT is made and entered into by and between FORT COLLINS MUSEUM OF CONTEMPORARY ART, INC., f/k/a POWERPLANT VISUAL ARTS CENTER INC. d/b/a ONE WEST CONTEMPORARY ART CENTER, hereinafter referred to as "Seller", and THE CITY OF FORT COLLINS, a Colorado municipal corporation, hereinafter referred to as "Purchaser". WITNESSETH: For and in consideration of the promise of the Purchaser to purchase and of the Seller to sell the real estate described hereinafter, the sum of $10.00, and other good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties agree to be legally bound whereby the Seller agrees to sell and the Purchaser agrees to purchase the said real estate on the terms and conditions hereinafter set forth. 1. The Seller is the owner of that certain parcel of real property located in Larimer County, Colorado more particularly described on Exhibit "A" hereto ("Seller's Property'), a portion of which is bounded on the north side by the public right-of-way of Oak Street, in the City of Fort Collins. 2. The Purchaser, owner of the Oak Street right-of-way, wishes to change a section of the right-of-way abutting Sellers' Property from right-of-way to park property, and to operate and manage the existing Oak Street pedestrian plaza as a neighborhood park. 3. Pursuant to Section 43-2-302 of the Colorado Revised Statutes, upon vacation of the Oak Street right-of-way, title to the vacated land shall vest in the owners of the abutting land, each abutting owner taking to the center of the roadway. By this Agreement, Sellers agree to re-convey to Purchaser that portion of the said right-of-way of Oak Street that is to be vacated and that abuts the Seller's Property. 4. Description of Fee Interest to be Conveyed. The property interest which is the subject matter of this Agreement is that portion of said Oak Street right-of-way abutting Seller's Property and more particularly described as: that portion of the east 134.00 feet of Oak Street, lying west of the West Right of Way line of College Avenue and abutting that portion of Lot 16, Block 112, City of Fort Collins, Larimer County, Colorado that is owned by Seller, from the northern lot line of Lot 16 to the centerline of Oak Street, as shown on the Original Plat of the City of Fort Collins, 1 s ATTACHMENT page 2 of 7 together with all improvements and appurtenances thereto (the "Plaza Property"). The Plaza Property shall include any landscaping, and other improvements now located thereon, including all fixtures of a permanent nature. In addition, the Plaza Property shall include all of the Seller's right, title and interest in and to easements, rights-of-way, future interests and rights to the same belonging and inuring to the benefit of the Plaza Property, and in and to all strips and gores of land lying between the Plaza Property and adjoining Property or streets, roads or highways, open or proposed. 5. Vacation of Oak Street. The Purchaser intends to take an Ordinance to Purchaser's City Council requesting the vacation of the portion of Oak Street that includes the Plaza Property. This vacation is entirely in the Council's discretion. Should Council pass the Ordinance, by its terms, the vacation of Oak Street shall not be effective until the Ordinance is recorded by the City. It is the intent of the parties that the deed from Seller conveying the Plaza Property shall be signed, and the Ordinance and deed recorded on the same day (the "Closing Date', as described in Paragraph 4, below). Should the Council fail to pass the Ordinance vacating Oak Street, or should the Purchaser otherwise decide not to proceed with the vacation, this Agreement shall be terminated, and the parties will have no further obligation hereunder. 6. Method of Conveyance. The Seller agrees to sell to the Purchaser and the Purchaser agrees to purchase from the Seller, subject to the terms and conditions as set forth herein, the Plaza Property. The Plaza Property shall be conveyed by the Seller at the time of closing to the Purchaser by special warranty deed, free and clear of any liens or encumbrances. 7. Closing. The closing of t his transaction shall be held at least 10 days following second reading of the vacation ordinance, on a date and time mutually agreeable to the parties, at the Fort Collins City Attorney's Office, 300 LaPorte Avenue, Fort Collins, Colorado, or at such other reasonable location as the parties may mutually agree upon. 8. Remedies on Default. If any obligation hereunder is not performed as herein provided, the non-defaulting party shall have the right to an action for specific performance or damages or both. 9. Legal Fees and Costs. In the event either of the respective parties hereto shall default in any of their covenants or obligations herein provided and the party not in default commences and prevails in any legal or equitable action against the defaulting party, the defaulting party expressly agrees to pay all reasonable expenses of said litigation, including a reasonable sum for attomeys' fees. 10. Governing Law. It is expressly understood and agreed by and between the parties hereto that this Agreement is made in and shall be construed and interpreted in accordance with the laws of the State of Colorado. 2 ATTACHMENT page 3 of 7 11. Notices. Any notice or other communication given by either party hereto to the other relating to this Agreement shall be hand delivered or sent by registered or certified mail, return receipt requested, addressed to such other party at their respective address as set forth below; and such notice or other communication shall be deemed given when so hand delivered or on the third business day after when so mailed; If to Seller: Fort Collins Museum of Contemporary Art 201 S. College Ave. Fort Collins, CO 80524 If to Purchaser: City of Fort Collins City Attorney's Office P.O. Box 580 Fort Collins, CO 80522 a With a copy to: Real Estate Services Manager City of Fort Collins Colorado 117 N. Mason Fort Collins, CO 80524 12. Assignment. This Agreement shall not be assigned by either of the parties hereto without the prior written consent of the other party, which consent shall not be unreasonably withheld. 13. Terms Survive Closing. To the extent necessary to carry out all of the terms and provisions hereof, the said terms, obligations and rights set forth herein shall be deemed not terminated at the time of closing; nor shall they be necessarily merged with the various documents executed and delivered at such time. 14. Construction. Words of the masculine gender shall include the feminine and neuter gender and when the sentence so indicates, words of the neuter gender shall refer to any gender. Words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by both parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto. There shall be deemed to be no other terms, conditions, promises, understandings, statements or representation, expressed or implied, concerning this Agreement unless set forth in writing and signed by both parties hereto. 15. Time is of the Essence. It is agreed that time shall be of the essence of this Agreement and each and every provision hereof. 3 i 1 ATTACHMENT page 4 of 7 16. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, successors and assigns. 17. Authority. The persons who have executed this agreement represent and warrant that they are duly authorized to execute this agreement in their individual or representative capacity as indicated. 18. Counterpart Signatures. This Agreement may be executed in as many counterparts as may be deemed necessary and convenient, and by the different parties hereto on separate counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. In addition, this Agreement may be executed initially, by facsimile counterpart copies, and upon receipt of the same, shall be deemed legally enforceable. Thereafter, original signatures shall be obtained and substituted for facsimiles. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. SELLER: FORT COLLINS MUSEUM OF CONTEMPORARY ART, INC., f/k/a POWERPLANT VISUAL ARTS CENTER INC. d/b/a ONE WEST CONTEMPORARY ART CENTER By: / Michael Powers, Chairman of the Board, ATTEST: Corporate Secretary 4 ATTACHMENT page 5 of 7 PURCHASER: The City of Fort Collins A Colorado Municipal Corporation By: Darin A. Atteberry, City Manager ATTEST: e'- .. IX Wanda M. Kraji C ADO APPROVED AS TO FORM: Assists it ttorney 5 ATTACHMENT page 6 of 7 EXHIBIT "A" DESCRIPTION OF PROPERTY OWNED BY FORT COLLINS MUSEUM OF CONTEMPORARY ART, INC. , f/k/a POWERPLANT VISUAL ARTS CENTER INC. d/b/a ONE WEST CONTEMPORARY ART CENTER _ A tract of land located in the Southeast quarter of Section 11, Township 7 North, Range 69 West of the Sixth Principal Meridian, City of Fort Collins, Larimer County, Colorado, being more particularly described as follows: The east 160 feet of the north 22-1/2 feet of Lot 12 and the east 160 feet of Lots 13 through 16, Block 112 City of Fort Collins, County of Larimer, State of Colorado, less two tracts of land previously conveyed to the City of Fort Collins, which two tracts of land are described as follows: Considering the east line of the said Block 112 as bearing South 00 degrees 19 minutes 02 seconds West based upon found 7 feet by 7 feet brass cap block corner off-sets, GPS observation and City of Fort Collins coordinate base, and with all bearings contained herein relative thereto; Commencing at the northeast corner of Block 112; THENCE along the north line of the said Block 112 , North 89 degrees 39 minutes 01 seconds West for a distance of 82. 85 feet to the TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE continuing along the said north line of Block 112, North 89 degrees 39 minutes 01 seconds West for a distance of 51. 11 feet; THENCE leaving the said north line, South 00 degrees 19 minutes 02 seconds West for a distance of 11.66 feet to the westerly extension of the north line of the granite face of the existing building (being the old Post Office building) on the said Lots 13 thru 16 Block 112; THENCE along the said westerly extension, South 89 degrees 47 minutes 38 seconds East for a distance of 7 . 03 feet; ?HENCE leaving the said extension, North 00 degrees 12 minutes 22 seconds East for a distance of 2 .00 feet; THENCE South 89 degrees 47 minutes 38 seconds East for a distance of 11.64 feet; THENCE South 00 degrees 12 minutes 22 seconds West for a distance of 2. 00 feet to the said north building face; THENCE along the said building face, South 89 degrees 47 minutes 38 seconds East for a distance of 32 .51 feet; THENCE leaving the said building face, North 00 degrees 03 minutes 13 seconds West for a distance of 11. 53 feet to the point of beginning. Containing 570 square feet more or less. PAGE 1 OF 2 j I ATTACHMENT page 7 of 7 EXHIBIT "A" TOGETHER WITH: With the above described basis of bearings; Commencing at the said northeast corner of Block 112, the said northeast corner is also the TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE along the east line of the said Block 112, South 00 degrees 19 minutes 02 seconds West for a distance of 34 .54 feet; THENCE leaving the said east line, North 89 degrees 40 minutes 58 seconds West for a distance of 2 .69 feet; THENCE South 00 degrees 20 minutes 11 seconds West for a distance of 2.41 feet; THENCE North 89 degrees 42 minutes 47 seconds West for a distance of 19.30 feet; THENCE North 00 degrees 19 minutes 09 seconds East for a distance of 27. 60 feet; THENCE North 89 degrees 47 minutes 38 seconds West for a distance of 9.32 feet THENCE South 00 degrees 12 minutes 22 seconds West for a distance of 2.00 feet to the above described north granite face of the existing building; THENCE along the said north building face, North 89 degrees 47 minutes 38 seconds West for a distance of 30 .31 feet; THENCE leaving the said building face, North 01 degrees 03 minutes 29 seconds East for a distance of 11 .48 feet to the north line of the said Block 112 ; THENCE along the said north line of Block 112, South 89 degrees 39 minutes 01 seconds East for a distance of 61.48 feet to the point of beginning. Containing 1240 square feet more or less . The above described tracts are subject to all easements and rights of ways now existing or of record. PAGE 2 OF 2 ORDINANCE NO. 134, 2006 OF THE COUNCIL OF THE CITY OF FORT COLLINS VACATING A PORTION OF STREET RIGHT-OF-WAY ON OAK STREET LOCATED WEST OF COLLEGE AVENUE, ESTABLISHED AS PART OF THE 1873 MAP OF THE TOWN OF FORT COLLINS, FOR PURPOSES OF CONSTRUCTING OAK STREET PLAZA PARK IMPROVEMENTS WHEREAS, in 1873, by an order of the Board of County Commissioners of Larimer County, the Town of Fort Collins was incorporated; and WHEREAS, in its order the Board of County Commissioners also established the Town Map, which included Oak Street right-of-way on Block 11 of the Town of Fort Collins; and WHEREAS, a portion of Oak Street known as the "Oak Street Plaza" has been utilized in a limited capacity for pedestrian purposes only for a number of years; and WHEREAS, the Council desires to convert that portion of Oak Street into an urban park and to vacate that portion of the Oak Street right-of-way known as Oak Street Plaza; and WHEREAS, said portion of street right-of-way is no longer necessary or desirable to retain for street purposes; and WHEREAS, upon vacation, in accordance with Colorado law, the vacated property would revert to fee ownership by the abutting properties; and WHEREAS, the owners of the abutting properties have agreed to cooperate in a coordinated conveyance of the vacated property in fee back to the City to be utilized for the Oak Street Plaza Park improvements project; and WHEREAS, in order to ensure the coordinated conveyance of the fee interest to the City upon vacation, this ordinance has been prepared in such a manner as to not become effective until the City Clerk has recorded the same with the Larimer County Clerk and Recorder; and WHEREAS, pertinent City agencies and private utility companies have been contacted and have reported no objection to the proposed vacation, provided that an access, drainage, and utility easement be reserved unto the City; and WHEREAS, the rights of the residents of the City of Fort Collins will not be prejudiced or injured by the vacation of said street right-of-way. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the portion of street right-of-way more particularly described on Exhibit "A", attached hereto and incorporated herein by this reference, is hereby vacated, abated and abolished, reserving the same unto the City as an access, drainage and utility easement, provided, however, that such vacation shall not become effective until this ordinance has been recorded in the office of the Larimer County Clerk and Recorder by the City Clerk of the City of Fort Collins or her designee, and that recording of this ordinance by any other person shall not be sufficient to cause the vacation to become effective. Proof of City Clerk recordation shall be accomplished by the City Clerk executing at the time of recordation the certification that is made a part of this ordinance. If this ordinance has not been recorded by the City Clerk, and so certified, by September 19, 2011, then this ordinance shall be of no further force and effect. Introduced, considered favorably on first reading, and ordered published this 5th day of September, A.D. 2006, and to be presented for final passage on the 19th day of September, A.D. 2006. Mayor ATTEST: City Clerk Passed and adopted on final reading on the 19th day of September, A.D. 2006. Mayor ATTEST: City Clerk I, being the City Clerk of the City of Fort Collins, do hereby certify that I have presented this ordinance to the Latimer County Clerk and Recorder for recordation on this day of 200 . City Clerk STATE OF COLORADO ) ) as. COUNTY OF LARIMER ) Subscribed and sworn to before me this day of 200 by Witness my hand and official seal. Notary Public My Commission Expires: EXHIBIT "A" LEGAL DESCRIPTION DESCRIPTION OF A PORTION OF OAK STREET TO BE VACATED That portion of Oak Street as shown on the Original Plat of the City of Fort Collins, located in the Southeast quarter of Section 11, Township 7 North, Range 69 West of the Sixth Principal Meridian, City of Fort Collins, Larimer County, Colorado to be vacated, is more particularly described as follows; The east 134 .00 feet of Oak Street, lying west of the West Right of way line of College Avenue. I hereby state that the above description was prepared by me and is true and correct to the best of my professional knowledge, belief and opinion. The description is based upon previously recorded plats and deeds and not upon a actual field survey. WALLACE C. MUSCOTT COLORADO P.L.S. 17497 P.O. 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