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HomeMy WebLinkAboutresolution.council.106-08RESOLUTION NO. l (Series of 2008) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO WHEREAS, the City is party to an extraterritorial Water Service Agreement dated December 19, 1996, with Billy Ray Eubanks and Bonnie Jean Eubanks ("Eubanks") which, among other things, provided for Eubanks to pay approximately 60% of the cost of constructing a new water main (AMain@) that would be required to provide water service to the Eubanks' property; and WHEREAS, the Water Service Agreement also provided that, for a period often years, the Eubanks could recover a portion of their payment for the Main from owners of other properties that were connected to the Main; and WHEREAS, Shadow Mountain, LLC ("Shadow Mountain"), owner of property located at 312 South Seventh Street in Pitkin County, Colorado, requested City water service before expiration of the 10-year recoupment period and the City advised that a recoupment payment of approximately $41,754.50 should be made to Eubanks; and WHEREAS, Shadow Mountain, asserting that no such recoupment payment was required, made the payment to the City "under protest," and obtained City water service; and WHEREAS, the City filed Case No. 2007CV71 in the Pitkin County District Court and deposited the recoupment payment into the registry of the Pitkin County District; and WHEREAS, Shadow Mountain filed counterclaims against the City in Case No. 2007CV71, and the City has denied said counterclaims; and WHEREAS, the City, Eubanks and Shadow Mountain have reached a negotiated settlement regarding disposition of the recoupment payment and settlement of Case No. 2007CV71; and WHEREAS, pursuant to the parties' settlement agreement, Shadow Mountain will pay $13,918.17 as recoupment to Eubanks, the City will also pay $13,918.17 to Eubanks to facilitate the settlement, and Eubanks will forego $13,918.17 to which it claims entitlement pursuant to the Water Service Agreement, and Case No. 2007CV71 will be dismissed with prejudice, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN as follows: Section One. Approval of Mutual Release. The City Council hereby approves the Mutual Release between and among the City of Aspen, Billy Ray Eubanks and Bonnie Jean Eubanks, and Shadow Mountain LLC in the form attached hereto, and authorizes payment of $13,918.17 to Billy Ray Eubanks and Bonnie Jean Eubanks in order to facilitate this settlement and end the litigation. Section Two. Execution of Documents. The Mayor and City Clerk are hereby authorized and directed to execute the Mutual Release described in Section One above, 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 the Mutual Release, release of the funds from the registry of the Court consistent with the terms of the Mutual Release, and dismissal of the litigation as contemplated by this Resolution. RESOLVED, APPROVED AND ADOPTED this ~~ day of 2008. CITY OF ASPEN, COLD O , By: //' 3 _o~ Mayor ATTEST: (SEAL) City Clerk MUTUAL RELEASE 1.0. DEFINITIONS 1.1 "Eubanks" as used herein shall mean Billy Ray Eubanks and Bonnie Jean Eubanks, and all heirs, executors, administrators, successors, directors, officers, employees, agents, attorneys, independent contractors, insurance carriers, and assigns of, and anyone holding claims which derive from Eubanks. 1.2 "Shadow Mountain" as used herein shall mean Shadow Mountain, LLC, and all member, managers, administrators, successors, .assigns, directors, officers, agents, employees, attorneys, independent contractors, insurance carriers, and assigns of, and anyone holding claims which derive from Shadow Mountain. 1.3 "Aspen" as used herein shall mean the City of Aspen and/or its insurer, Colorado Intergovernmental Risk Sharing Agency, and all other insurance carriers, administrators, successors, assigns, directors, City council members, officers, agents, employees, attorneys, independent contractors and predecessors in interest of Aspen and/or Colorado Intergovernmental Risk Sharing Agency. 1.4 "Parties" as used herein shall mean Eubanks, Shadow Mountain and Aspen collectively. 1.5 "Occurrence" as used herein shall mean the assessment of a Recoupment Fee on Shadow Mountain for extraterritorial municipal water service provided for Shadow Mountain's real property and residence located at 312 S. Seventh Street, Aspen, Pitkin County, Colorado ("Subject Property"~, as partial reimbursement to Eubanks for costs Eubanks incurred in relation to construction of a new water. main which provided extraterritorial municipal water service to the Eubanks real property and residence located at 1 Toby Lane, Pitkin County, Colorado, and to which the Subject Property has also been connected for its extraterritorial water service,- and all matters relating thereto and any and .all consequences thereof which Eubanks, Shadow Mountain and Aspen have claimed or could have claimed against any or all other Parties, and any claims which were asserted or which could have been asserted in District Court, Pitkin County, Colorado Case No. 07 CV 71, by way of counterclaim, cross-claim or otherwise. 1.6 "Recoupment Fee" as used herein shall mean the amount of $41,754.50 assessed to Shadow Mountain for receipt of extraterritorial municipal water service, which amount Shadow Mountain paid to Aspen under protest and Aspen interpleaded with the court in District Court, Pitkin County, Colorado Case No. 07 CV 71. 2.0. RELEASE 2.1 In consideration of Aspen's payment to Eubanks in the amount of Thirteen Thousand Nine Hundred Eighteen Dollars and Seventeen Cents ($13,918.17); the release to Eubanks of Thirteen Thousand Nine Hundred Eighteen Dollars and Sixteen Cents ($13,918.16) from the Recoupment Fee interpleaded with the court; and, the release of the balance of the Recoupment Fee interpleaded with the court in the amount of Twenty-Seven Thousand Eight Hundred Thirty-Six Dollars and Thirty-Four Cents ($27,836.34} to Shadow Mountain, the receipt and sufficiency of which is hereby acknowledged, the Parties do hereby release, acquit and forever discharge each other of and from liability for any and all damages, injuries, losses and liabilities of whatsoever kind and nature arising from or in any way arising out of any and all known and unknown, foreseen and unforeseen damages, injuries, losses, claims, costs, expenses, attorneys fees and liabilities which the Parties may now have or hereafter have, resulting directly or indirectly from the Occurrence. 3.0. DISMISSAL OF LAWSUIT 3.1 The. Parties shall dismiss all claims asserted in the lawsuit filed in. Pitkin County, Colorado District Court Case No. 07 CV 71 with prejudice and sign any and all further documents necessary to accomplish such dismissal with prejudice. 4.0. WARRANTIES AND REPRESENTATIONS 4.1 The Parties fully realize that they .may have sustained or will sustain unknown or unforeseen damages, injuries, losses and liabilities resulting directly or indirectly from the Occurrence. By executing this document, the Parties fully intend to release each other from any and all liability for any and all such unknown or unforeseen damages, injuries, losses and liabilities resulting directly or indirectly from the Occurrence. 6.2 The Parties state that the settlement underlying the execution of this document was made in contemplation not only of known damages, injuries, losses and liabilities, but also in contemplation of the possibility that the Parties have sustained or will in the future sustain damages, injuries, losses and liabilities which are presently in existence but unknown to them or which may not now be in existence, but which may arise or become 2 known in the future resulting directly or indirectly from the Occurrence and the Parties fully intend to release each other from liability for any and all such known or unknown, or unrealized damages, injuries, losses and liabilities. 6.3 The Parties are fully informed as to the nature, extent and character of their damages, injuries, and losses and liabilities and as to the nature, extent, duration, risk of consequences, aggravation, and all other known and unknown, foreseen and unforeseen consequences of those damages, injuries, losses or liabilities. 6.4 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 nature or extent of the underlying damages, injuries, losses or liabilities; the future course, effect or consequences of known or unknown damages, injuries, losses or liabilities; the impression that the Parties are fully informed as to the nature, extent, effects, or consequences of the underlying damages, injuries, losses or liabilities; and the possibility of mistake as to damages, injuries, losses or liabilities, which are presently unknown or unforeseen but which the Parties have sustained or will in the future sustain resulting directly or indirectly from the Occurrence. 6.5 The Parties have been advised of their right to consult, at their expense, additional professionals of their choosing, regarding any and all known and unknown, foreseen and unforeseen, damages, injuries, losses and liabilities of whatsoever kind and nature the Parties may have or will incur resulting directly or indirectly from the Occurrence.. 6.6 The Parties warrant that no promise or inducement has been offered except as set forth herein and that this document was executed without reliance upon any statement or representation by the other Parties and that the Parties are legally competent to execute this document and accept full responsibility for it and assume the risk of any mistake of fact as stated herein. 6.7 The Parties understand and agree that the acceptance of the consideration is in full accord end satisfaction of disputed claims for which the Parties expressly deny liability. 6.8 The Parties further understand and agree that all agreements and understandings between them are embodied and 3 expressed in this document and that the terms of this document are contractual and not mere recitals. 6.9 The Parties understand and agree that the signing of this document shall be forever binding upon them and no rescission; modification, or release of the Parties from the terms of this document will be made for any reason. 6.10 Eubanks and Shadow Mountain understand that it is their decision as to how the settlement is characterized. Aspen cannot and does not make any representations as to the tax consequences of the settlement. If any state and/or federal authority determines that any part of the payments to Eubanks and/or Shadow Mountain under this settlement are taxable, Eubanks and/or Shadow Mountain agree to be solely responsible and liable for payment of all such taxes, including interest and penalties. If Aspen is directed to pay any such taxes, interest or penalties for any reason (including, without limitation, late payment, non-payment and/or non-reporting), Eubanks and/or Shadow Mountain--which ever party from which the taxes, interest or penalties are derived and only that party--shall indemnify and defend Aspen and hold Aspen harmless from liability for same. 6,11 The Parties warrant and agree that they have neither assigned nor transferred any portion of their claim to any insurance company or other person or entity, and they agree that they will not hereafter assign or allow any assignment to any insurance company or other person or entity. Furthermore, the undersigned represent that they know of no subrogation interest, or interest by assignment regarding their claim, of any insurance company or other person or entity, nor do they know of any assignment, transfer, subrogation interest, or any other interest in any other person or entity, including liens, as the result of any conveyance or operation of law, including derivative claim(s). 6.12 This Mutual Release may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same Mutual Release. 6.13 This Mutual Release shall be construed and interpreted in accordance with the laws of the State of Colorado. Venue for any legal actions in relation to this Mutual Release shall be in District Court in Pitkin County, Colorado. In the event it becomes necessary for any of the Parties to initiate litigation to enforce the provisions of this Mutual Release, the prevailing party shall be entitled to' recover their reasonable attorney's fees incurred in the enforcement thereof. 4 DATED effective this day of September, 2008. a Billy Ray ubanks Bonnie Jean Euba ks Shadow Mountain, LLC by Robert K. Coretz, Member City of Aspen 5 OCT-1-2~8 16:14 FROM: 70:919709253977 P.6 DATED effective this day of September, 2008. 6i].ly Ray Eubanks Bonnie Jean Eubanks ~~~ Shadow Mount by Robert K. Member LLC City of Aspen retz, 5 STATE OF Cc~I drC~G~Q ) . ) ss. COUNTY OF P ~ }~~j irk ) Subscribed to before me this Z.~t day of cJ 2008, by Billy Ray Eubanks and Bonnie Jean Eubanks. Witness my hand an My commission expi STATE OF COUNTY OF ss . ~ Commission Subscribed to before me this day of by Robert K. Coretz, Member of Shadow Mountain, LLC. witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO COUNTY OF PITKIN ) } ss. 08~5t201i 2008, ~% c ~ i~'ed t b~ fo r~ me this ~ day of ~W 1 2008, ~I by ~~~M~VI Q ~ ~ WI ~r ~rP wlJ~, on behalf of the City of Aspen. ~~,. NE~~ o ry Public ~~ ~,OSARy•.ti 6 ~~~ F COLO~P witness my hand and offici 1 seal.',~.~.,,~ My commission expixe ~~~~`~y y ~/ N t My Commission Expires 0912512009 OCT-1-2008 16:14 FROM: 70:919709253977 STATE OF ~ ss . COUNTY OF ) Subscribed to before me this day of , 2008, by Billy Ray Eubanks and Bonnie Jean Eubanks. Witness my hand and official seal. My commission expires: Notary Public STATE OF ~~~~ H 0'mc~.. ) }} ) ss. COUNTY OF ~ Ll G~~ ) Subscribed to before me this 1 ~ day of , 2008, by Robert K. Coretz, Member of Shadow Mountain, LLC. P.7 Witness my hand and offi al sea ~~ 1~ My commission expires: ~.1~ Notary Public ~1-~do•MOIrdOliOfpmq L~ ~0100~l01 ~1arMiMoe fir/ ?~ 1010 STATE OF COLORADO } ss . COUNTY OF PXTKIN } Subscribed to before me this day of , 2008, by , on behalf of the City of Aspen. Witness my hand and official seal. My commission expires: Notary Public b ~L'