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HomeMy WebLinkAboutresolution.council.058-10RESOLUTION NO. S8 Series of 2010 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONDITIONAL SETTLEMENT AGREEMENT BETWEEN THE CITY OF ASPEN AND 633 SPRING II, LLC, AS AMENDED. WHEREAS, the City Council previously approved the execution of a certain Conditional Settlement Agreement; and WHEREAS the City Council desires to approve an amendment tot eh Agreement in substantially in the form as appended hereto as Exhibit A. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT The City Council approves the terms and conditions for compromising and settling that certain court case currently pending before the Colorado Court of Appeals (Case no. 09CA1382) between the City of Aspen and 633 Spring II LLC as set forth in the Conditional Settlement Agreement appended hereto as Exhibit A and hereby authorize the City Manager to execute the same on behalf of the City of Aspen. Dated: SGT Z 2010. Michael C. Ireland, Mayo I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that solution adopted by the City Council of the City of Aspen, Colorado, at a meeting held I ' 2010. Kathryn S. K City Clerk 1 CONDITIONAL SETTLEMENT AGREEMENT This Conditional Settlement Agreement dated July _, 2010, is entered into by and among (1) the City of Aspen (the "City ") and (2) 633 Spring II LLC, a Colorado limited liability company ("633 Spring"). The parties to this Conditional Settlement Agreement shall be collectively referred to as the "Parties" or individually as a "Party." I. RECITALS 1. On March 3, 2008, the City adopted Ordinance No. 29 (Series of 2008), in which the City denied the request of 633 Spring to subdivide a proposed redeveloped building at 307 South Spring Street and 625 East Hyman Avenue, Lot D -I, City and Town of Aspen (the "Property ") into separate condominium interests. 2. On March 31, 2008, the 633 Spring filed a C.R.C.P. 106(a)(4) Complaint in Pitkin County District Court (Case No. 08CV49) seeking judicial review of the adoption of Ordinance No. 29 (Series of 2008) alleging that the City exceeded its jurisdiction and abused its discretion in denying the request of 633 Spring Owners to subdivide the proposed redeveloped building at 633 Spring Street into separate condominium interests (the "C.R.C.P. 106(a)(4) Trial Court Appeal"). 3. In its Answer, the City denied that it abused its discretion or exceeded its jurisdiction in adopting Ordinance No. 29 (Series of 2008). 4. On June 3, 2009, the Pitkin County District Court denied Plaintiffs appeal of City Council's denial of the subdivision request of 633 Spring Street in the C.R.C.P. 106(a)(4) Trial Court Appeal. 5. On July 1, 2009, 633 Spring Street filed a Notice of Appeal in the Colorado Court of Appeals Case No. 09CA1382 (the "C.R.C.P. 106(a)(4) Court of Appeals Appeal"), which is currently pending. 6. The Parties have determined to compromise and settle the the C.R.C.P. 106(a)(4) Court of Appeals Appeal in an amicable manner 1 540612 -2 according to the terms described in this Conditional Settlement Agreement. 7. Each Party has determined that this Conditional Settlement Agreement is fair to all Parties and that it is in each Party's mutual interest that it become a binding agreement. II. CONDITIONAL SETTLEMENT AGREEMENT Condition Precedent 1. Condition Precedent to the Enforceability of This Conditional Settlement Agreement This Conditional Settlement Agreement shall become a binding settlement agreement only if the City Council approves an ordinance approving the request by 633 Spring to subdivide the Property at 633 Spring into two separate subdivision lots in the form of ordinance attached hereto as Exhibit A following all required public notices and hearings (the "Condition Precedent "). If the Condition Precedent is satisfied, this Conditional Settlement Agreement shall automatically become a binding settlement agreement for all purposes. If the condition precedent is not satisfied, however, this Conditional Settlement Agreement shall be null and void for all purposes. Terms 1. Mutual Right to Terminate the Settlement Agreement Either Party shall have the right to terminate the Settlement Agreement if any person files an appeal, petition for referendum, petition for initiative or any other pleadings, petitions or filings appealing or otherwise challenging the adoption of the Ordinance attached hereto as Exhibit A. The exercise of each party's right to terminate the Settlement Agreement may be exercised at any time prior to the final resolution of any challenge to the adoption of the ordinance attached hereto as Exhibit A. For purposes of this Conditional Settlement Agreement, final resolution shall mean a final determination of the challenge by Court Order or public vote and the expiration of all rights of appeal. 2 540612 -2 2. Exercise of Right to Terminate Any exercise of each Party's right to terminate within the Right -to- Terminate Period shall be in writing and may be personally delivered, given by facsimile transmission, given by e -mail, given by overnight courier or given by United States certified mail, return receipt requested, at the following addresses. Any notice to the City of Aspen shall be given to Steve Barwick, City Manager, 130 South Galena Street, Aspen, CO 81611, with a copy to John Worcester, 130 South Galena Street, Aspen, CO 81611. Any notice to 633 Spring Street shall be given to Nikos Hecht, Aspen Advisors LLC, 314 South Galena Street, Suite 3, Aspen, CO 81611, with a copy to Andrew V. Hecht, Esquire, Garfield & Hecht, 601 East Hyman Avenue, Aspen, CO 81611. 3. Dismissal of Court of Appeals Appeal If the Condition Precedent is satisfied, the Parties agree to take all necessary steps and to file all necessary pleadings to dismiss with prejudice the C.R.C.P. 106(a)(4) Appeal within 60 days of the date of the satisfaction of the Condition Precedent, each Party to pay its own costs and attorney fees. 4. In the event of any dispute relating to this Conditional Settlement Agreement, including any dispute regarding the enforceability of the Conditional Settlement Agreement as a final binding agreement, the prevailing Party shall be entitled to recover its attorney fees and costs. 5. This Conditional Settlement Agreement 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 Conditional Settlement Agreement. 6. The undersigned have carefully read the above and foregoing Conditional Settlement Agreement, know the contents thereof, and 3 540612 -2 have signed the same on behalf of each of the Parties, after having first had the benefit of legal counsel. City of Aspen By Steve Barwick, City Manager 633 Spring Street II LLC By % .. 4 54061.2 -2