HomeMy WebLinkAboutresolution.council.090-08RESOLUTION NO. ~_
(Series of 2008)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO
WHEREAS, the City owns an interest in the Si Johnson Ditch, and in February, 2007, filed Case
No. 2007CV22 ("Pitkin County Litigation') in the Pitkin County District Court, seeking
confirmation of certain claimed ditch access road easement rights in connection with the Si
Johnson Ditch, and an injunction to protect the City's easement rights in the ditch access road;
and
WHEREAS, the Pitkin County Litigation claimed, in particular, that the City had rights of access
to the Si Johnson Ditch via an historic ditch access route as it crossed a property described as Lot
1, Peter Vought Subdivision, according to the Plat thereof recorded August 3, 1983, in Plat Book
15 at Page 24, and also known as 715 South Seventh Street, in Pitkin County; and
WHEREAS, Westchester Investments, Inc. ("Westchester"), which also owns an interest in the
Si Johnson Ditch, is a co-plaintiff with the City in the Pitkin County Litigation; and
WHEREAS, the property located at 715 South Seventh Street is owned by Alan Quasha and
Ilona Nemeth ("Property Owners"), and is referred to in this Resolution as the "Quasha
Property;" and
WHEREAS, the Court granted the City's request for preliminary injunction by Order dated April
23, 2007; and
WHEREAS, the Property Owners disputed the claims of easement made by the City and
Westchester, and filed counterclaims relating to the easement against the City, as well as against
a City employee and a City contractor; and
WHEREAS, the Property Owners also filed other counterclaims against the City with regard to
extratemtorial provision of City water service to the Quasha Property; and
WHEREAS, the City and the Property Owners have reached a resolution of these disputes that
confirms easement rights in the ditch access road for the benefit of the City, authorizes a new
connection of the Quasha Property to City water service should the Property Owners (or their
successors) request such service within a specified time period, and comply with other City
requirements for extraterritorial water service, including payment of applicable fees and
disconnection from the well now serving the Quasha Property; and
WHEREAS, the City Council has reviewed the Si Johnson Ditch: Ditch Access Easement
Agreement with the Property Owners, and the Release and Settlement Agreement among the
City, the Property Owners, and the City employee and contractor, has been advised that the City
Water Department, the City Attorney and the City's special water counsel recommend approval
of these agreements, and has obtained such other advice and information as it deems appropriate
regarding the these agreements and resolution of the Pitkin County Litigation,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN as follows:
Section One. Approval of Si Johnson Ditch: Ditch Access Easement Agreement.
The City Council hereby approves the Si Johnson Ditch: Ditch Access Easement Agreement
with Alan Quasha and Ilona Nemeth ("Ditch Access Agreement") in the form attached hereto,
regarding access to the Si Johnson Ditch via the ditch access road on the Quasha Property for
routine maintenance operations as well as major repairs.
Section Two. Approval of Settlement Agreement and Mutual Release. The City
Council hereby approves the Settlement Agreement and Mutual Release ("Settlement
Agreement") among the City, City employee, City contractor and Alan Quasha and Ilona
Nemeth, which fully and finally resolves the Pitkin County Litigation, and provides an
opportunity for the Quasha Property to be connected to City water service in the future under
specified terms and conditions, including payment of all applicable fees and disconnection from
the well on the Quasha Property, and does not require payment of funds by the City or its
insurer.
Section Three. Execution of Documents. The Mayor and City Clerk are hereby
authorized and directed to execute the Ditch Access Agreement and the Settlement Agreement,
and the Mayor, City Clerk, City Manager, City Attorney and Water Director, as appropriate, are
authorized and directed to execute such other documents and perform such other actions as may
be necessary or desirable to effectuate the consummation of said agreements as contemplated by
this Resolution.
RESOLVED, APPROVED AND ADOPTED this ~ day of __LZ2008.
CITY OF ASPEN, COL
By: ___ ~
Mayor
ATTEST:
GC..--li7 ~ ~ ~~~ (SEAL)
City Clerk
z
SI JOHNSON DITCH: DITCH ACCESS EASEMENT AGREEMENT
~ _ 'HIS AGREEMENT ("Agreement") is made and entered into this ~ day of
~'r-p~ri'{y" ~, 2008 by and between ALAN QUASHA aid ILONA NEMETH
(`Grantors") and the CITY OP ASPEN, COLORADO, a home rule Colorado
nnmicipality ("City").
WHEREAS, the City claims an interest in the water rights and ditch structure and
ditch access rights to the Si Johnson Ditch ("Ditch"), which water rights were decreed by
the Gazfield County District Court in Case No. 3082 on August 25,1936, for 3.5 cubic
feet per second (cfs) with priority number 422 and 2.0 cfs with priority uurnber 435, with
a point of diversion on the right bank of Castle Creek at a point whence the quarter
section corner on the North side of Section 13, Township 10 South, Range 85 West of the
6`~' P.M. bears North 42° 15' East 1630 feet distant; aid
WHEREAS, the "Ditch" as used in tlis Agreement is defined as the Si Johnson
Ditch itself, iu its present location, azid any headgate stnicttre, cutting, pipeline and
related ditch infiastucttue; aztd
WHEREAS, other water users ate served by the Ditch, and the City bas assumed
responsibility to those users for inspection, cleaning, operation, maintenance, repair and
replacement of certain portions of the Ditch; and
WHEREAS, Grantors are the owners of a parcel of laud in Pitkin Cotmty,
Colorado more particularly described as Lot 1, Peter Vought Subdivision, according to
the Plat thereof recorded August 3, 1983 in Plat Book 15 at Page 24 (hereinafter "Quasha
Property") upon which certaui segments of the Ditch ate located; and
WHEREAS, the City claims an interest iu a strip of laid crossuig the Quasha
Property to access the Ditch for ptnposes of inspection, cleaning, operation, maintenance,
repair aztd replacement of the Ditch; and
WHEREAS, to resolve existhtg disputes over the City's right to use this strip of
laid to access the Ditch, Grantors are willing to grant and convey certain easements azrd
access rights in and to this strip of land ("Ditch Access Easement") on the terms and
conditions herein provided in this Agreement as a full and final resolution to the City's
disputed claims to this strip of laid and the City agrees to accept the Ditch Access
Easement as herehi provided,
THEREFORE, IN CONSIDERATION of the pronises and agreements set forth
below, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Gruit of Easement: Ditch Access Easement. Grantors hereby giant azid convey to
the City anon-exclusive easement azid right of way in, on azid over the Ditch Access
Easement (described below) as it is located on the Quasha Property for the sole access
RECEPTION#: 553463, 10/09/2008 at
12:02:26 PM,
~ of t7, R 586.00 Doc Code EASEMENT
Janice K. Vos Caudill, Pitkin County, CO
route across the Quasha Property to the Ditch (separate from the City's access hi, on top
of and alongside the Ditch itself), for purposes of inspection, cleaning, operation,
maintenance and repair and replacement of the Ditch and maintenatnce and repair of the
Ditch Access Easement itself, subject to the terms aid condirions of this Agreement.
The Ditch Access Easement is depicted and described on Exhibit A, which is attached
hereto azid iicotporated herein by reference azid includes the area described on Exhibit A
as the "Staging Area" located south of an existing rock scree field. A photograph
showiig the general location of the Staging Area as marked in the field on September 11,
2008, is attached as Exhibit B. The Ditch Access Easement will Ue surveyed by a
licensed surveyor no later tlnui October 10, 2008, azid the survey will be attached hereto
and will replace the existing Exhibit A. The formal survey will be identified as "Fiial
Exhibit A" and will Ue attached to this Agreement when it is recorded with the Pitlciu
Cotmty Recorder. Iu the area just south of Toby Lane by the utility haz~sformer box,
Grantors will provide at their expense, by May 15, 2009, a clewed, graded, four-foot
wide path along the surveyed aligmneut so that the Ditch Access Easement will be to the
east of this trazisforiuer box. Until tlis segment of the Ditch Access Easement is created,
the City shall be allowed to traverse tluough this area on the west side of the trazisfonner
box.
The width of the Ditch Access Easement from the north edge of the Staging Area, to the
northern boundary lire of the Quasha Property, is four (4) feet, to accotmnodate foot
traffic, hand-carried equipment, wheelbazrows or siiilarly-sized, non-motorized
vehicles. The dimensions of the Staging Area (including the portion of the Ditch Access
Easement fi'om the north edge of the Staging Area to the southern boundary of the
Quasha Property) aze shown on Exhibit A. This grant of easement shall run with the laid
for the benefit of the City, and shall be binding upon azid imtre to the benefit of the City,
azid its successors and assigns and the Grantors, and their successors azid assigns. The
parties expressly aclmowledge and agree that tlis Agreement does not address or limit:
a. any easement rights iu, on top of, or alongside the Si Joluison Ditch sh-uchu-e
itself;
b. any easement rights, access rights or other rights relating to any ditch, shlichue
or water rights other than the 5i Johtnson Ditch; provided, however, that this Agreement
shall not be construed in any mamier whatsoever to be a grant of easement tights, access
rights or other rights on the Quasha Property for any purpose not set forth in this
Agreement, including easement or access rights to any ditch, structure or water rights
other than the Si Jolmson Ditch, and access turder this Agreement is strictly limited to the
terms of this Agreement and does not allow general access across all parts of the Quasha
Property; or
c. any easement rights, access rights or other rights on lands other than the Quasha
Property.
2
Foot urd Non-motorized Velicrdar Use of Ditch Access Easement.
a. Daring the irrigation season (as defined herein), the City's agents,
employees and compactors may go upon the Ditch Access Easement by foot during
daylight hours for pturposes related to non-emergency inspection, cleanhig, operation,
maintenance, repair' and replacement of the Ditch, uid may also transport hued-canied
equipment or use wheelbarrows or similarly-sized, non-motorized vehicles on the Ditch
Access Easement.
b. Droirg the non-hrigation season, the City's agents, employees and
contractors may go upon the Ditch Access Easement by foot dtuing the hours of 7:30
a.m. to 4:30 p.m. Monday through Friday, for proposes related to non-emergency
hispection, cleuiing, operation, maintenance, repair uid replacement of the Ditch, and
may also transport hand-canied equipment or use wheelbwrows or other similu'ly sized
iron-motorized vehicles on the Ditch Access Easemetrt.
c. For proposes of tlis Agreement, the "irrigation season" is the tune period
in any given year that beghis two weeks before the time water is fast diverted into the Si
Johnson Ditch, and ends two weeks after the Ditch headgate is closed for the scason. The
Ditch is typically used for hiigation between April 1 wid October 31 each year, but this
time may vwy somewhat fiom year to year based on the water users' irrigation needs.
d. It is expressly understood by all pu'lies hereto that the City's "agents,
employees, and conhactors" as used herein shall not include the general puUlic, any
lessees, delegees or tt'ansferees of the City, or any other persons or entities claiming to
have wi interest in the Ditch or the water and water rights associated with the Ditch, or
their agents, employees or conhactors (except as provided in Paragraph 11 below).
e. The City may use the Ditch Access Easement by foot wrd may tranansport
hand cu-ried equipment or use wheelburows or other similw•ly-sized non-motorized
vehicles at any time without notice to respond to an emergency.
£ Additionally, in accordance with the seasonal and time limitations
described above for non-emergencies, and at any time without notice to respond to an
emergency, the City may go upon the Ditch Access Easement by foot (and may transport
hued carried equipment, uid use wheelburows and other similarly-sized non-motorized
equipment) for inspection, clewing, tnaimtenwrce, repair and replacement of the Ditch
Access Easement itself for purposes of hrsttring the Ditch Access Easement is fi'ee fiom
damage and obstructions and to ollierwise effechtate, in the least invasive manner
reasmrably possible, the ability of the City to utilize the Ditch Access Easement for its
intended purposes under this Agreement. The parties acknowledge that portions of the
Ditch Access Easement are located in ui u'ea, as approximately shown on Exhibit A,
where the supporting rock shlictm'e beneath the Ditch Access Easement may be
tmderrnixted, requiring the City, at its cost, to re-stabilize this area to maintahi the four-
foot wide access route described in this pw•agraph. Maintenance of the Ditch Access
Easement hi this area may require such re-stabilization from tune to time, as well as
removal of rocks, boulders, and other debris that may shift or fall onto the Ditch Access
Easement, or other such actions to restore the Ditch Access Easement to its usable uid
approximate pre-existing condition. Arty work that requires more than restoring or re-
stabilizing the existing, supporting rock strnchtre (for exunple, installing a retaining wall
or rock fall fencing) must Ue expressly consented to by Urantors, which consent shall not
Ue unreasonably withheld. Grantors acknowledge and agree that maintenance and repair
of the Ditclt Access Easement includes, but is not limited to, such re-stabilization,
removal of rocks, Uoulders and debris, Ureaking down rocks and boulders, and placing
such material on the Staguig Area. The City may perform such maintenance and repair
ptusuant to this Puagraph 2 to the extent it cur be done without use of motorized
vehicles. Otherwise, such maintenance and repair will be perfonued as provided in
Paragraphs 3 and 4.
g. Access to the Ditch by motorized vehicles uid equipment via the Ditch
Access Easement, and use of motorized vehicles and equipment on the Ditch Access
Easement shall not be allowed, except iu accordance with paragraphs 3 and 4.
3. Limited Use of Motorized Vehicles and Equipment on Ditch Access Easement.
In addition to foot and non-motorized vehicle use of the Ditch Access Easement as
providedin paragraph 2 aUove:
a. Motorized vehicles and other motorized equipment may Ue used on the
Ditch Access Easement as provided nt this paragaph and paagraph 4 Uelow for proposes
of Major Repairs. "Major Repairs" include unusual or non-routuie maintenance,
improvement, repair' or replacement work to the Ditch and Ditch structures, or the Ditch
Access Easement itself where foot and non-motorized vehicle access alone would, in the
City's reasonable judgment, be inadequate to allow the work to be performed ui a
practical uid efficient manner.
U. Such motorized velcles and motorized equipment shall only use and
occupy the Ditch Access Easement from the southern Uoundary lute of the Quasha
Property to the north edge of the Staging Area, and trader no circunistuices u'e motorized
vehicles and motorized equipment pern~itted ingress and egress or any other use of the
Ditch Access Easement north of the north edge of the Staging Area. The areas where
motorized vehicles utd equipment may be used are shown on Exhibit A.
c. Such motorized vehicles uid motorized equipment may be deployed and
used on the Ditch Access Easement south of the Staging Area uid within the Staging
Area itself for Major Repairs, subject to the terms and conditions of paragraph 4 of this
Agreement.
4. Conditions of Limited Use of Motorized Vehicles and Equipment on Ditch
Access Easement.
a. Iu the event the City plans a Major Repair project that requires use of
motorized vehicles or equipment on the Ditch Access Easement in accordance with
Paragraph 3 above, it shall provide Grantors with at least 20 days notice of the work to be
mtdertaken and the estimated time of completion. Notwithstanding the foregoing, the
City may go upon the Ditch Access Easement south of the Staging Area and within the
Staging Area itself with motorized vehicles and equipment without advance notice at ury
tune iv the event of an emergency sihiation or condition, and the City may undertake
such repair or replacement activities as it deems necessary to properly resolve the
emergency sihiation. In the event that the City goes upon the Ditch Access Easement
without such prior notice to respond to an emergency, it will, Wlthlll 4g hnttrs Of sllCll
entry, use reasonable efforts to give notice to Grantors, in the mamter described in
paragraph 7(c), of the date and purpose of such entry.
b. The City shall undertake Major Repair projects in a workrnutlike manna
and shall complete such projects within a reasonable tune, absent extenuating
circtunstazrces outside of the City's reasonable control or events of force ntajeure.
c. Vehicles and other egtipment that have been located on the Ditch Access
Easement in the manner authorized by this Agreement may remain on the Ditch Access
Easement as needed dm-ing the course of the Major Repairs being tuidertaken. Such
vehicle or equipment use azid occupation of the Ditch Access Easement shall be made in
a safe uid workmuilike manner. Any materials, tools, equipment or vehicles stored
temporarily on the Ditch Access Easement durng Major Repairs shall be stored neatly,
azid removed promptly upon completion of the Major Repair project. The patties
recognize that deplo}nnent of cranes or other vehicles or equipment on the Staging Area
during the course of Major Repairs may require crossing or ttse of a sliver of laud
("Sliver of Land") on the Qnasha property east of the Staging Area because a portion of
the flat area needed for Major Repairs extends easterly from the Stagnig Area. The Sliver
of Land is also shown on Exhibit A. The polies agree that this Sliver of Land maybe
temporarily used or occupied if the Major Repair project requires use of a crane or other
equipment that must cross tlis Sliver of Land, or be deployed iu part on this Sliver of
Land in order to accomplish the Maj or Repair. The patties fitrther acknowledge and
agree that this Sliver of Land shall not be used as a vehicle access road or airy type of
road or access for ingress or egress to reach the Staging Area fi'om the eastern boundary
of the Qnasha Property. The parties agree to leave the Sliver of Land in substantially the
same condition as found on the day of execution of this Agreement. City she]] have no
rights to remove trees or other ttahual vegetation in the Sliver of Land, as such items are
shown on the photos attached as Exhibit B; and to the extent any such items az'e disturbed
or desh~oyed during the City's use of the Sliver of Land, the City shall replace, at its cost,
such items to their condition existing at the time of the dishtrbance or destntction. The
pazties' obligations tinder the indemrtificationperagraph below shall also apply to any use
of this Sliver of Land.
d. After completion of Major Repah's, the City shall, if necessary, u7d at its
cost, grade the surface of the Ditch Access Easement that was disturbed by the Major
Repairs to its former condition uid contow', and the City shall re-seed the surface with
native grasses similar to gasses that inay have been destroyed by the Major Repair
project. The City shall not be required to restore or replace any trees, bushes, Urush, or
gardens on the Ditch Access Easement, nor any boulders, struchues or paving on the
Ditch Access Easement, that were placed by Grantors, their contractors or agents, in
violation of Paragraph 5 Uelow, or any Uoulders, rocks or debris that inay have fallen onto
the Ditch Access Easement, or Ueen placed on the Ditch Access Easement by persons
other than the City or Grantors, or their respective contractors or agents.
5. Use of Ditch Access Easement Uy Grantors. Subject to the lhnitations herein set
forth, Grantors shall retain the right to use and enjoy the lands underlyhig the Ditch
Access Easement to the fiill extent allowed Uy law so long as Gruitors do not
mueasonaUly interfere with the City's rights under this Agreetnent.
a. From the south boundary line of the Quasha Property to the north edge of
the Staging Area (as shown on Exhibit A), Grantors shall not alter or change the length,
width, size or surface grade of the Ditch Access Easement, install, allow or suffer the
installation or placement Uy Cn'antors, then agents, contractors or invitees, of any
oUstntctions or permanent encroachments within, on or under the Ditch Access
Easement, including Uut not limited to fences, buildings, gates, or other structm'es, or
trees, bushes, Utvsh, gardens, Uoulders, rocks or pavement. Grantors tnay install on this
portion of the Ditclt Access Easement native grasses that can Ue mowed or removed in
the event of Major Repairs that the City determines require such mowing or removal.
b. From the north edge of the Staghig Area to the northern boundary lute of
the Quasha Property (as shown on Exhibit A), Grurtors shall not alter or change the
length, width, size or surface Bade of the Ditch Access Easement, allow or suffer the
installation or placement of any obsttttctions or encroachments of any kind, including but
not limited to fences, buildings or other shvchues, landscaping, trees, bushes, Untsh,
gardens, boulders, rocks or pavement on or within the Ditch Access Easement, or
adjacent to or overhanging the Ditch Access Easement so as to impede or impair the
City's aUility to use the Ditch Access Easement as herein described, provided, however,
that Grantors shall Ue permitted to install a locked gate across the Ditch Access Easement
at ttte norWern botmduy of the Ditch Access Easement on the Quasha Property so long
as the City is at all tunes provided a Ivey to the lock on that gate.
c. City acknowledges that there are pre-existing utilities trader and over the
Ditch Access Easement, that are not subject to limitations of this Paragraph 5(a) and 5(b).
Grantors agree that they will not uistall or place, or permit or authorize installation or
placement of new utilities on, under or over the Ditch Access Easement without the
City's prior written approval, which approval shall not be tutreasonably withheld.
d. Grantors agree that if they or their employees, contractors, agents, or
invitees, or any utility companies conducting work on, ut or over the Ditch Access
Easement, causes damage to the Ditch Access Easement, Grantors will reimburse the
City's reasonable costs of repairhig such damage.
6. Lrdeumification
a. To the extent permitted by law, the City shall protect, indenmify and hold
harmless Grantors from and agahst any loss, damage or clauns, including reasonable
attorneys' fees azid costs, arising out of: (i) the use of the Ditch Access Easement by the
City or its agents, employees, contractors, guests or invitees, which u~denmity shall
include, but not be 1uuited to, iujmy or loss to persons or property; azid (ii) any mechanic
lien claims for unpaid labor, services or materials affecting any of the Quasha Property,
Ditch Access Easement on the Quasha Property or Ditch on the Quasha Property arising
out of work by the City, its contractors or agents, on the Ditch or Ditch Access Easement.
The City shall include the Ditch Access Easement iu its general public liability insurance
coverage azid, during times of Major Repairs, shall maaitain (or cause its contractors to
maintain) worlonen's compensation and builder's risk insurance and the City shall provide
Grantors with proof of such insurance upon request. The foregoing agreement by the
City to indemmify and hold harmless shall not apply if the claim or demand for loss or
damages arises out of or from the negligence or willful misconduct of Grantors. Nothing
hereut shall be constnied to abrogate or dinirish any protections and limitations afforded
to the City by the Colorado Govenunental Inuuunity Act, C.R.S. § 24-10-101 et seq. as
amended, or other law
b. Grantors shall protect, indemnify and hold harmless the City from and
against any loss, damage or claims, including reasonable attorneys' fees azid costs, arising
out of the use or occupation of the Ditch Access Easement by Grantors or thee- guests or
invitees, which indcnurity shall include, but not be limited to, injury or loss to persons or
property. The foregoing agreement by Grantors to indemnify and hold harmless shall not
apply if the claim or demand far loss or damages ariscs out of or fiorn the negligence or
willfitl misconduct of the City.
c. The Quasha Property contains areas of steep slopes and loose rock.
Accordingly, the City will take appropriate precautions to protect its property and
persormel, as well as the property and persomrel of its agents and subcontractors.
7. Nofices. All notices required to be given shall be deemed given upon deposit in
the United States mail, £u'st class postage prepaid, addressed to:
a. Grantors c/o Curtis B. Sanders, Krabacher & Saziders, P.C., 201 North
Mill Street, Suite 201, Aspen, Colorado 81611 (tel. (970) 925-6300)(fax (970) 925-
1181)(email; csanders chi krabacher.com); and/or to Quasha and Nemeth, 40 W 57th
Street, 20 Floor, New York, NY 10019;
b. The City c/o City Attorney, City of Aspen, 130 South Galena Street,
Aspen, Colorado 81611.
c. Notwithstanding the foregoing, in the event the City uses the Ditch Access
Easement in order to respond to an emergency, the City will make a reasonable attempt to
provide notice to the Grazrtors by telephone, telefacsimile or electronic mail as set forth
above.
d. Any party may change its address or contact information by notice to the
others given pursuant to this paragraph.
e. For airy matter which the City deems to bean "emergency" under this
Agreement, before taking azry action with respect to such emergency, the City will use
good faith, reasonable efforts to fast contact Grantors and Grazitors' attorney at the phone
numbers set forth herehi advising Grazitors and Grantors' attorney of the existence of the
emergency
8. Binding Agreement - Recordurg. This Agreement is binding upon the parties
hereto and all those off rming this Agreement, and their heirs, successors and assigns, and
any conveyance of the Quasha Property, or any portion thereof shall be subject to this
Agreement. This Agreement shall be recorded with the Pitkin County Clerk and
Recorder, azid shall impose an easement and covenants numirrg with the land upon the
Quasha Property as herein provided.
9. Unauthorized Use of Ditch Access Easement. The City shall not use, or permit
the use of the Ditch Access Easement for any proposes or in azry manner not expressly set
forth in this Agreement. The City acknowledges and agrees that if, by ordinance or other
official governmental action, it authorizes, acquiesces or permits use of the Ditch Access
Road by the public (not including City agents, employees, contractors or assignees), this
Agreement shall terminate and all rights granted by Grazrtors shall be revoked and revert
back to them, unless such utilization of the Ditch Access Easement is expressly agreed to
in writing by the Grantors. Any dispute under this provision shall be subject to the
ubitration Paragraph 10 below.
10. ?,rbihation. hi the event of a dispute among the parties concerning this
Agreement, the dispute shall be resolved exclusively by binding arbitration in accordance
with this paragraph.
a. The parties to the dispute shall mutually select one qualified arbitrator to
render a decision for the parties settling the dispute and the patties agree to be bormd by
such decision of the arbitrator, provided however, the parties may always muhially agree
together to reject or not be bormd by that decision.
b. If the parties camlot agree as to selection of an arbitrator, each party shall
nomnrate one qualified neutral azbitrator and selection from the nominees shall be made
by a coin toss. All costs and fees of such arbitration proceedings shall be divided equally
between the patties.
c. The poly that is determiied by the arbitrator to be the substantially
prevailing patty will be entitled to recover its costs and reasonable attorney fees in
accordance with the azbitrator's order. The arbitrator's deternunation may be made an
order of the Court.
d. Notwithstanding the arbitration provisions of this paragraph 10, however,
any poly may first seek a temporary restrainiig order or preliminary injunction to enjoin
err unauthorized use or occupation of the Ditch Access Easement.
11. Assi~mnent to Ditch Comkany. Grantors agree that the City may assign all, but
not less than all its rights and obligations raider this Agreement to a mutual ditch
company formed to operate, maintaii, inspect, clean, repair and replace the Ditch and
Ditch Access Easement. Grantors hereby consent to such assignment, provided that the
City remains ultimately responsible for perfonnauce of its obligations hereunder it the
event the Ditch Company fails to do so, and provided that the City's covenuit in
pazagraph 9, above, regarding unauthorized use of the Ditch Access Easement, survives
any assigmmeut. The City may not otherwise assign its rights and obligations under this
Agreement without the Grantors' prior written consent.
12. Governire Law; Venue; Attorrtevs' Fees. This Agreement and the tights and
obligations of the parties hereunder shall be governed by uid constnued in accordance
with the laws of the State of Colorado. Venue for all actions arisiig under this
Agreement (including color confumatiou of an azbitrator's decision under puagraph 10)
shall exclusively be Yitkin Cotmty, Colorado.
13. Incorporation of Recitals. All of the recitals set forth above are incorporated into
the terms and conditions of this Agreement vid constihrte part of this Agreement.
14. No Construction Asainst Drafter. Each party agrees that it has received advice of
comisel regarding the terms, conditions and implications of this Agreement, and that
counsel for both Grantors and the City have participated ii draftiig this Agreement. This
Agreement will not be considered to have been drafted by one party, uid for that reason
construed agaiist the drafting party.
15. Authorization of Siynahues. All of the undersigned acknowledge and represent to
each other that all procedtues necessary to validly contract and execute this Agreement
have been performed and that the persons signing for each entity has been duly
authorized to do so.
16. Counterparts. This Agreement maybe signed using counterpart signature pages,
with the same force and effect as if all parties signed on the same signahue page.
1N WITNESS WHEREOF, the parties have executed this Agreement the daze and
year first above written.
G~gtor: Alan Quasha
~/lu:>, ~ . ~ ~. ,
Grantor. Ilona Nemeth
~y
Grantee: City of Aspen, Colorado, a nicipal Corporation and Home Rule City
gy: ~ ~~ Attest ~~~~~
Mayor ity Clerk ~~ ~~
Approved as to form:
BY ; -
ity ttor y
STATE OP Ew ~o~-6C )
,u, II J ) ss. ,
COUNTY OF f Vim' L°~~ )
SUBSCRTBED AND SWORN to befom me [his 3o day of .SP ~ , 20~
by Mex~QuaskaanA Ilona Nemeth, Grantors.
WITNESS my hand and official seal.
[SEAL] ~ _ _.. _~ ~~~~
Notary Public
My commission expires: ~~~ [~r}•Di ~ '
IRENE TAR40WSKI
Notary Pu51ic, State of NewYo•k
No. 01 TA5029025
Qualifed in Nassau County
Certificate Filed In New York County
Commission Expires ~tc.~r l3~ Yol~
10
IN WITNESS WHERHOE, the parties have executed this Agreement the date and
year first above written.
Grantor: Alan~~'j1jtQua/sha
I ~~. Y~. l L-G C
Grantor: Ilona Nemeth
Grantee: City of Aspen, Colorado, a Municipal Corporation and Home Rule City
Dy: Attest:
Mayor
Approved as to form:
By:
City Attorney
City Clerk
STATE OF N~QW r-lL )
`` ) ss.
COUNTY OF ~1Q _~p~~ )
SUBSCRIBED AND SWORN to before me this ~ day of ~, 20~~
by Alan Quasha meth, Grau[ors.
WITNESS my hand and official seal.
[SEAL)
r -
Notary Public
My commission expires: ~.~~ ~ .~ i ?OI
VIOLETA FIGUEROA
~ryNo~O1Fl605 9 ~weYerts
4uatili~d in'~ooY41k¢oun
Csmmiaaion Rapines April 30, 20~
10
IN WITNESS WHEREOF, the parties have executed this Agreement the date and
year first above written.
G~~tor: Alan Quasha
Grantor: Ilona Nemeth
~___~~
Grantee: City of Aspen, Colorado, a Municipal Corporation and Home Rule City
i
v
By:
Mayor
Approved as to form:
sy:
City Attorney
STATE OF rU~w `(~`~~ )
COUNTY OF I V ~ ~ovtl L )
Attest:
City Clerk
SUBSCRTBED AND SWORN to before me this 3v day of .5 P ~~ , 20
by Alan Quasha and Ilona Nemeth, Grantors.
WITNESS my hand and ofI•iciat seal. -
,~ ~ ~\'
[SEAL] _~~
Notary Public
My commission expires: -~iLnt (~ , ~ t ~ '
IRENE TAR'VOWSKI
(Votary Public, State of NewYo•k
No. 01 TA5029025
Qualified in Nassau County
Certificate Filed In New York County
Commission Expires ~..~.~ l3~ ~! ~
10
STATE OF C~ grad n )
ss.
COUNTY OF QI~kIY~ )
S SCRIBED SWORN to before me this
by - (~~ C. 1~Z A the l DK of
Grazitee.
my baud and official seal.
~~'day of ~, 20~
the City of Aspen, Colorado,
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Tlus Settlement Agreement and Mutual Release (the "AgreemenP') dated
September ,~j~, 2008, is made by and among the CITY OF ASPEN, COLORADO
("Aspen"), ALAN QUASHA ("Quasha"), ILONA NEMETH ("Nemeth"), JOHN HINES
("Hines"), CANYON ENGINEERING, INC. ("Canyon") and CHARLES PETERSON
("Peterson") with the patties to this Agreement collectively referred to as the Parties.
RECITALS
WHEREAS, disputes have arisen among the Parties regarding certain access
across certain property owned by Quasha and Nemeth, located at ?15 South Seventh
Street, Aspen, Colorado (the "Subject Property") and regarding extraterritiorial provision
of Aspen's municipal water service to the Subject Property; and
WHEREAS, Aspen has asserted claims against Quasha and Nemeth (the "Aspen
Claims"} in the lawsuit, Case No. 07 CV 22, currently pending in the District Court fox
Pitkin County, Colorado (the "Pitkin County Litigation"); and
WHEREAS, Quasha and Nemeth have asserted counterclaims in the Pitkin
County Litigation against Aspen; Hines, Canyon and Peterson (the "Counterclaims"); and
WHEREAS, each of the Pasties has generally denied any liability to the other in
the Pitkin County Litigation; and
WHEREAS, the Parties have determined to compromise and settle their
differences in an amicable manner according to the terms described in this Agreement;
and
WHEREAS, each party has determined that this Agreement is fair and in their
mutual interest.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows.
l . Aspen, Quasha and Nemeth have, contemporaneously herewith, entered into a
Ditch Access Agreement in the form attached hereto as Exhibit A. The Ditch Access
Agreement will be recorded with the Pitkin County Clerk and Recorder.
2. Quasha and Nemeth agree that they will not dispute or challenge at any time, in
any forum, Aspen's clahn of ownership to water rights decreed to the Si Johnson Ditch.
3. Aspen agrees that if, at any tirne froth Januazy 1, 2011 to and including December
31, 2024, the then-owner of the Subject Property makes a new application to Aspen for
exhaterritorial water service for the Subject Property, Aspen will provide such service
subject to the following conditions:
(a) Said owner has made application for extraterritorial water service for one
main residence and one caretaker dwelling unit on the Subject Property, using Aspen's
then-required exhatenitorial water service application forms, and has paid all fees
required in conmection with such application;
(b) Aspen shall not be required to provide such new extraterritorial water
service to the Subject Property for more than 6.5 ECUs (equivalent capacity units}, to be
allocated between the main residence and caretaker unit on the basis of fixtures in the
manner provided by the Aspen Municipal Code, as such Code may be amended from
time to time, with any remaining ECUs available for outdoor irrigation. use to the extent
permitted in the Aspen Municipal Code (as such Code may be amended from time to
time). T1te Code currently authorizes irrigation of 100 square feet of landscaping per
0.01 ECU;
(c) Aspen, Quasha, and Nemeth acknowledge that the Subject Property is
presently served by an individual well that is shared with the ovaner of an adjacent
property, and that one-half acre of irrigated acreage is allowable on the Subject Property
by the well. Aspen requires abandonment and plugging of wells as a condition of
receiving water service from Aspen. Because Quasha and Nemeth could not abandon
artd plug the shared well, Aspen withdrew its approval of wafer service to the Subject
Property in 2007. Aspen has agreed, solely in order to settle the Pitkin County Lirigation
as herein provided, and not as precedent for any other water service request, that it wlll
permit water service to the Subject Property pursuant to this paragraph 3 notwithstanding
the existence of the'shared well provided that the owner of the Subject Property
disconnects the Subject Property from the shared well at or before connection to Aspen's
municipal water service, and advises the Colorado State Engineer in writing (with copy to
Aspen) that the Subject Property is no longer served by the shared well, and requests the
Colorado State Engineer to amend the well permit to reflect that the well serves only one
residence, and to reduce the allowable irrigated acreage pursuant to said well permit by
one-half acre. However, ultimate Colorado State Engineer approval or amendment of the
well permit is not a condition precedent to receiving water service from Aspen as herein
provided.
(d) A memorandum of the parties' agreements set forth in this paragraph 3
shall be recorded with the Pitkin County Recorder.
MUNAL RELEASES
4. Aspen, for itself, and/or its insurer, Colotxdo Intergovernmental Risk Sharing
Agency, and all other insurance carriers, administrators, successors, assigns, directors,
City council members, officers, agents, employees, attorneys, independent contractors
and anyone holding claims which derive fiom Aspen, and Hines, Canyon, and Peterson,
for themselves, and all heirs, executors, administrators, successors, directors, officers,
employees, agents, attomeys, independent contractors, insurance carriers and assigns oi;
and anyone holding claims which derive from Hines, Canyon and Peterson (collectively,
"City Releasors"), hereby fully release, forever discharge and acquit Quasha and Nemeth
and their respective past and present employees, contractors, agents, predecessors,
successors, assigns, guarantors, indemnitors, sureties, insurers, subrogors, and attomeys
(each an "Owner Releasee"), fiom any claims, causes of action or liabilities which City
Releasors, or any of them, may now have, or hereafter have, may have had or claim to
.have had, whether directly or indirectly, whether accrued in the past, present or future,
whether known or unknown, whether for damages or equitable relief of any sort,
including, without limitation, injunctive relief, economic damages, lost profits, exemplary
damages, treble damages, consequential damages and attorney fees in any way wising
from the relationships; facts, circumstances, events and agreements which gave rise to or
which ue related to the Aspen Claims, the Counterclaims and/or the Pitkin County
Litigation, but this release shall not waive or release any claims regarding the scope and
extent of the ditch easement in, on top of, or alongside of the Si Johnson Ditch as it
crosses the Subject Property. The foregoing does not affect the ability of Aspen, Canyon,
Peterson, and Hines to bring a cause of action against any Owner Releasee for a breach of
any representation, warranty or covenant contained in this Agi'eement.
5. Quasha and Nemeth, for themselves and all heirs, executors, administrators,
successors, directors, officers, employees, agents, attomeys, independent contractors,
insurance carriers and assigns of, and anyone holding claims which derive from Quasha
and Nemeth, hereby fully release, acquit and forever discharge Aspen, Canyon, Peterson,
and Hines, and, where applicable, each of his or its subsidiaries, parent corporations,
affiliates, and each of their xespecfive past and present officers, directors, shareholders,
employees, contractors, agents, predecessors, successors, assigns, guarantors,
indemnitors, sm~eties, insurers, subrogors, and attorneys (each a "City Releasee"), from
alt claims, causes of action, damages, injuries, losses and liabilities of whatsoever kind
and naiw•e which Quasha and/or Nemeth may now have, or hereafter have, may have had
or claim to have had, whetlrer directly or indirectly, whether accrued in the past, present
or future, whether known or unknown, whether fox damages or equitable relief of any
sort, including, without limitation, injunctive relief, economic damages, lost profits,
exemplary damages, treble damages, consequential damages and attorney fees in any way
az~ising from the relationships, facts, circumstances, events and agreements which gave
rise to or u~luch are related to the Aspen Claims, the Counterclaims and/or the Pitkin
County Litigation ,but this release shall not waive or release any claims regarding the
scope and extent of the ditch easement in, on top of, or alongside of the Si Johnson Ditch
as it crosses the Subject Property. The foregoing does not affect the abllity of Quasha
uid/or Nemeth to bring a cause of action against any City Releasee for a breach of any
representation, warranty or covenant contained in this Agreement.
MISCELLANEOUS
(,, The Parties to this Agreement deny any liability to each other and agree that this
Agreement and the Pazties' performance in accordance with its terms is not to be
construed as an admission of liability on the part of any of the Parties but is only a
settlement of disputed claims and counterclaims.
~, For the consideration stated herein, the Parties assume the risk that the settlement
underlying the execution of this document was made on the basis of mistake or mistakes,
mutual or unilateral, including but not limited to mistakes regarding: the natru'e or extent
of the underlying damages, injuries, losses or liabilities; the future course, effector
consequences of known or unknown damages, injuries, losses or liabilities; the
impression that the Parties are fully informed as to the nature, extent, or effects of the
underlying damages, injuries, losses or liabIlities; and the possibility of mistake as to
damages, injuries, losses or liabilities which az'e presently unknown or unforeseen but
which the Parties sustained or will in the future sustain resulting directly or indirectly
from the Aspen Claims, the Counterclaims and/or the Pitkin County Litigation.
g. The parties wan'ant that no promise or inducement has been offered except as set
forth herein azid that this document was executed without reliance upon any statement or
representation by the other Parties and that the Parties are legally competent t mi etake of
this document and accept full responsibility for it and assume the risks of any
fact as stated herein.
9, The Parties understand and agree that the signing of this document shall be
from the te~ms of thistdocument will be made fo rany rteasonr release of the other Parties
10. The Parties agree to take all necessary steps to implement this Agreement and to
file all necessary pleadings in order to dismiss with prejudice all claims and
counterclaims asserted ui the Pitkin CouYtoy atthishher o itseown costuand attorney fees,
execution of this Agreemea t, ha ha ~Ye~p ~g a~eement to defend and/or pay the fees
except to the extent any p 'ty P
and costs of another party.
I I . No later than 3 business days after a final order dismissing the Pitkin County
Litigation, Aspen shall cause to be executed and recorded a release of the notice of lis
pendens regarding the property in the records of the Pitkin Cooantltie reco deda eeaseder,
and shall provide to counsel for Quasha and Nemeth a copy
within tlnee business days of recording, or if not then available, promptly on receipt of
the recorded release from the Pitkin CountS~ Clerk and Recorder.
I2. This Agreement, including the exhibits hereto, constitutes Bement and the Dit h 3
and among the Parties with respect to its subject matter. This Agr
Access Agreement are intended to implement the Parties' settlement of the Pitkin County
Litigation. Wherever possible, this Agreement and the Ditch Access Agreement are to be
construed together in harmony. Neither Agreement is intended to supersede or alter the
provisions, and enforceability of the provisions, of the other. Any and all understandings
by and among the Parties, either written or oral, with respect to the subject matter of this
Agreement and the Ditch Access Agi'eement prior to the date of these Agreements are
superseded by these Agreements.
13. This Agreement shall be construed and interpreted in accordance with the laws of
the State of Colorado. Venue for all legal actions hereunder shall be Pitkin County
District Court. This Agreement may be modified or amended only by a written
instrwnent signed by all the Parties.
14. This Agreement may be executed in one or more counterparts, each of which shall
be deemed au original but all of which, together, shall constitute one and the same
Agreement.
15. Every notice, demand, request, or other instrument required to be given pursuant
to this Agreement shall be in writing and sent by United States certified mail, return
receipt requested, postage prepaid, or by a recognized overnight delivery service, and
shall be deemed effective five days after mailing or two days after deposit with the
overnight delivery service, if properly addressed as follows:
(a) If to Aspen or Hines:
City Attorney, City of Aspen
130 South Galena Street
Aspen, CO 81611
with a copy toi
Cynthia F. Covell
Alperstein & Covell P.C.
1600 Broadway Suite 2350
Denver, CO 80202
(b) If to Canyon or Peterson:
Canyon Engineering Inc.
P.O. Boa 398
Glenwood Springs, CO 81602
with a copy to:
Cynthia F. Covell
Alperstein & Covell P.C.
1600 Broadway Suite 2350
Denver, CO 80202
Sep ~25 2008 11:25PM HP LRSERJET FRX
(c) if to Quasha and/or Nemeth:
Ilona Nemeth
Alan Quasha
40 West 57~' Street, 20`s Floor
New York, NY 10019
with a copy to:
Klein, CotB, & Edwazds, LLC
Attention: Lance R Cot6, Esq.
201 North Mill Street, Suite 203
Aspen, CO 81611
Any party may designate an alternate or additional address by written notice given
pursuant to this section.
16. Attorney Fees. A court shall award reason olreaues udicialtinterventronlto
party in the event that it is necess for any party q 1
interpret or enforce any provisions of [his Agreement.
17. The undersigned have cerefu]ly read the above and foregoing Agreement, and
understand and agree to the contents and have obtained such Iega1 advice as they deem
necessa~ry~f and appropriate prior to execution of this Agreement.
Alan Quasha Ilona Nemeth
City of Aspen, Colorado
By. ~ ISQf
Title: ~~
p.3
l
Attest: ,G=~ ~-""
City Clerk ~~~
Canyon Engineering, Inc.
sy
Charles Peterson, President
(c) if to Quasha and/or Nemeth:
Ilona Nemeth
Alan Quasha
40 West 57°i Street, 20~"Floor
New York, NY 10019
with a copy to:
Klein, Cote, & Edwards, LLC
Attention: Lance R Cote, Esq.
20] North Mill Street, Srrite 203
Aspen, CO 81611
Any party may designate an alternate or additional address by written notice given
pursuant to this section.
16. Attorney Fees. A court shall award reasonable attorney fees to the prevailing
party in the event that it is necessary for any party to request judicial intervention to
interpret or enforce any provisions of this Agreement,
17. The undersigned have cazefully read the above and foregoing Agreement, and
understand and agree to the contents and have obtained such legal advice as they deem
necessary and appropriate prior to execution of this Agreement.
Alan Quasha Ilona Nemeth
City of Aspen, Colorado
By, Attest:
Title: City Clerk
Canyon Engineering, Inc.
By G~
Charles Peter on, President
Charles Peletson, luctividually
ohn Hines, Individually
(AclmoFVledgments on followntg pages)
(luasba and N„e Imeth
STATE OF IV1%`'` ~~C" )
tt II ) ss.
COIJN'1'Y OF IVY `~olc~L )
Acknowledged before me~..U'en~ IC ~~~ o tuS[ ~ q 2008, by Alau Quasha and
Ilona Nemeth.
My commission expires ~I't'~ i~ ~^'~ f ~
\T/ituess my hand and official seal ~ -~
IRENE TAR'VOINSKI
~_ '~, ~#o' ry~Public, State of NewYo~k
N tazyPnblic No. OlTA5029025
Ouali6ed in Nassau County
Ce_rtificata Filed In New York County
City of Aspen Commissirn Expires ~n~f3 DLO
STA'T'E OF COLORAI>O )
ss.
COUNTY OPPITICIN )
,v v ~, ~re(a~
Aclcno~uledged before me 12008, by ~I C~>'I~l as
rc..a~.._.., rrmu ~
m_ v~ and,..=~+~~ ~s City Clet~i Cryf spy ~
kct+~leen Stri rkla nd CF p fy
My commission expires R_~'7-IX> `t
Witness my hand and official seal.
:~, . -
/Y
a>:~` .
V~h 4r r1 ~1
V`
Notary Public
Notary Public
1V~'Y ri0lihl:i0'i (w,`:~~~i Q'3~~2o120Q9
G~.~~~
Charges eterson, Individually
(Acknowledgrnents on following pages)
Ouasha and Nemeth
STATE OF )
ss.
COUNTY OF )
Acknowledged before me
Ilona Nemeth.
John Hines, Individually
2008, by Alan Quasha and
My commission expires
Witness my hand and official seal.
City of Aspen
STATE OF COLORADO )
ss.
COUNTY OF PITHIN )
Notary Public
Acknowledged before me , 2008, by as
and Kathryn Koch as City Clerk, City of Aspen
My commission expires
Witness my hand and official seal.
Notary Public
Notary Public
John Hines
STATE OF COLORADO )
ss.
COUNTY OF PI ,'Lt~R~ }
Ac ~~dg~al3el'Dx~~
~ VJ ul
S
My ~~ sion expires
Wi ss any hand an~ ofd seal.
tDJ~~. All:': ~-~J:kJ
'
'1
T•_ ... ' ri~
My Contrti5.v `w~ s 0912512009
L' , 2008, by John Hines.
Notary Public
Canyon Engineering Inc. and Chazles Peterson Individually
STATE OF COLORADO )
} ss.
COUNTY OF ~F lEl_l~ )
Acknowledged before me SE, T>=r[13E}Z a(o , 2008, Charles Peterson,
individually and as President of Canyon Engineering, Inc.
My conunission expires 7~~(p'ZQl
Witness my hand and official seal.
_ nwn1~ otary ublic
'ANYELLE L.
CARLSON .
Mp ~ Expires Ol118f1pt1