HomeMy WebLinkAboutcoa.en.Molterer Sports.1974 1976 Reg^rded 3:23 PM September 3, 1 976 Reception No. Julie Hane Recorder
186772
BOOK 316 PACE 259
CERTIFICATE
The undersigned, City Clerk of the City of Aspen,
Colorado, does hereby certify that the attached is a true and
accurate copy of an agreement between the City of Aspen and
Kathryn B. Clark, representing Molterer Sports, Inc., granting
a revocable license to encroach upon public right -of -way;
which license was granted for the benefit of of improvements
located on Lots 0, and Q of Block 95, City and Townsite of
Aspen, Colorado.
Dated: ( :Guieca-A ,51 / Y4'
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Kathryn S Hauter
City Clerk
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CITY ' "'t;(':- PEN
aspen ,e , - A. �` ` ` ') `- box v
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July 29, 1975
John A. F. Wendt, Esq.
Attorney -at -Law
P. 0. Box 8429
Aspen, Colorado 81611
Re: Permission for Encroachment - Molterer Sports
Dear John:
Pursuant to City Council action taken at the meeting
held July 28, 1975, the following letter agreement is sub-
mitted for acceptance by your client, Molterer Sports, Inc.
The terms and conditions itemized, and their acceptance by
the corporation, are a prerequisite to the exercise of any
right to encroach.
It is understood that Molterer Sports, Inc., ( "Molterer ")
will withdraw the canopy structure from the public right -of -way
(or or before September 1, 1975), and place all structural
elements of the canopy on private property, except that an over-
hang of the canopy, not to exceed two (2') feet in length and
not less than eight (8') feet in height, shall be permitted to
encroach on the Cooper Street sidewalk right -of -way. Molterer
agrees that:
1. The license to encroach is given solely at the
discretion of the City Council, and permission to encroach
may be withdrawn whenever the City Council shall determine
it necessary or desirable for the public health, safety,
welfare or convenience. Molterer agrees that it will, on
receiving such request, remove the overhang from the City
right -of -way, and all costs of demolition or removal will
be assumed by it.
2. Molterer agrees that it will be responsible for
any maintenance and repairs of the right -of -way encroach-
ment necessary to keep the same, and the right -of -way,
in a clean and safe condition as determined by the City
of Aspen.
3. Finally, Molterer agrees to indemnify and hold
the City harmless from any and all damages or liability
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BOOK 316 PAGE261
John A. F. Wendt, Esq.
July 29, 1975
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by reason of death, injury or property loss suffered
by any person as a result of the placement of the
improvements over the right -of -way. In addition, if
the City Council shall ever so require, you agree to
obtain comprehensive public liability insurance cover-
ing property loss and bodily injury or death in an
amount at least equal to the comprehensive liability
insurance maintained by the City at the time.
The City Council has agreed that, on acceptance of the terms
of this agreement and compliance with the requirement that the
structures (with the exception of the overhang) be removed from
the right -of -way on or before September 1st of this year, it
will dismiss both its District Court Action No. 5482, and
the criminal law citations pending before the Municipal Court.
This grant of permission does not supersede any building,
zoning or other local regulations, full compliance with which is
required and this grant of right to encroach shall not be con-
strued to exonerate Molterer from full compliance with the same.
Please have a representative of Molterer Sports indicate
acceptance of these conditions by signature below and return this
original to us. A copy is enclosed for your file.
Thanking you for your cooperation to date, I am,
Very truly yours,
Sandra M. Stuller
City Attorney
The undersigned, on behalf of Molterer Sports, Inc., a
Colorado corporation, accepts the above conditions for the grant
of permission to encroach and assumes the responsibilities
enumerated.
MOLTERER SPORTS, INC.,
a Colorado Corporation
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CITY C-J ASPEN
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MEMORANDUM
DATE: July 25, 1975
TO: Members of City Council
1
FROM-X- M. Stuller
RE: Molterer Sports Canopy
The City has pending two legal actions against Molterer
in an attempt to have the red canopy removed from the public right
of way. The first is a civil action initiated in the District
Court on February 5th of this year in which the cause of action
alleged is one for trespass on public property with a request to
the Court to enjoin further occupancy of the right of way. The
legal premises on which we rely are the basic common law principles
that (1) an owner of land abutting a public right of way may assert
a right to only egress, ingress, air, light, view and lateral
support, but in no event may he assert a right to make a private
business use of a street unless specifically authorized by the
City, (2) authorization must be given for every encroachment on
the public right of way even if the structure is in fact neither
dangerous nor annoying to pedestrians, (3) unauthorized encroach-
ments are a nuisance per se,and (4) any authorization to encroach
is a license only and is revocable at will of the City. This civil
action has not progressed rapidly because of the scheduling problems
with the District Court.
We have instituted a parallel criminal action in our
. Municipal Court under Section 19 -5 of the street code (not yet
codified) which prohibits construction and occupancy of structures
in a public right of way without prior Council approval. Trial on
this criminal citation was scheduled for yesterday (July 24th) but
prior to the setting we began discussing ways to resolve the matter
without further proceedings.
Specifically, it was suggested that Molterer Sports may
be able t� achieve their purposes (and not interfere with the mutual
right of the Magic Pan to public view of their premises), if the canopy
structure is cut back to the property line, but the canopy is permitted
f
Members of City Council
July 25, 1975
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to overhang the sidewalk for not more than two feet. Represent-
atives from Molterer will appear Monday and Stacy will, under
councilmanic comments, request your consideration of this
alternative approach. The rationale in .support of this approach
is that (1) the canopy is indeed attractive, (2) others have been
allowed to use canopies absent objection from abutting owners,
and (3) the City Zoning Code, in any event, permits projecting
signs to hang four feet over a pedestrian walkway provided the
sign is eight feet above grade. There remains only the question
of whether such a restricted canopy would still interfere with
the Magic Pan signing and by delivery of a copy of this memo to
the acting manager of the Pan, we are noticing them of the meeting
Monday and of their opportunity to object.
For the benefit of the new members of the Council I
am attaching a copy of my memo of January 21st which should
summarize the past actions of Council in this matter. The memo
was mailed in anticipation of a special meeting called by Pete
for January 22nd, at which time the Council affirmed its earlier
decision to deny encroachment approval absent the consent of the
Magic Pan.
SS /pk
Attachment
cc: M. Mahoney
D. Ellis
K. Hauter
F. Mostrom, Acting Manager
The Magic Pan
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CITY OF ASPEN
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aspen ,cor, G ci CIO, SIGH box v
MEMORANDUM
DATE: January 21, 1975
TO: Members of the City Council
FROM: Sandra M. Stuller
RE: Molterer Sports Canopy
For your special meeting noticed for Wednesday, let me
recite the record history of the matter to date.
cannot locate the minutes covering the original
presentation of this matter to council but, as I recall, John
Wendt appeared before Council and requested the encroachment
in the Summer of 1973. The Council gave tentative approval
conditioned on the proposed structure being acceptable to
the Magic Pan.
The issue was next raised at the meeting of
September 24, 1973, which meeting minutes read:
"i".olterer Sports - Attorney John Wendt reported
the applicant has worked out an arrangement with the
Magic Pan to change their sign that is agreeable
to both parties. Councilman Behrendt moved to
grant the request as submitted. Seconded by
Councilwoman Pedersen
City Engineer Ellis requested the agreement for the
encroachment include the conditions that the City
will be held harmless, agree at some future date
to provide City with a liability policy, applicant
maintain the structure and the City can require
its removal if they so desire at some future date.
Councilman Behrendt moved to amend his motion to
include the conditions outlined by the City
Engineer. Seconded by Councilwoman Pedersen.
All in favor the motion carried."
Inasmuch as Mr. Wendt represents both the Magic Pan and
Molterer, I relied on his statement and submitted the usual
encroachment agreement to him, and the same was returned
signed by Androl.
The matter next appeared before Council on November 24,
1974, the minutes reading as follows:
"Bob Rosener, representing the Magic Pan, appeared
before Council to state their objections to the Molterer
Sports canopy which hid the Magic Pan's sign from
public view east on Cooper Street. Rosener stated that
13 months ago Attorney John Wendt had appeared before
Council asking that an encroachment be given for an
awning from the building on East Cooper Street out
past the sidewalk. Rosener said that he objected at
that time because it would obstruct his sign but
agreed that an awning could be put up out to the brick
wall. Rosener said he had heard nothing else until
the awning went up ten days ago.
Attorney Wendt said he had talked with Mrs. Kay Cheek
and Chuck of the Magic Pan in Denver and then had made
application for a building permit. The permit was
issued and the awning went up according to the build- •
ing permit. Wendt had checked with the Building
Inspector who had no complaint with regard to the
canopy.
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Bob Rosener submitted photos to demonstrate that the
canopy did in fact obstruct the Magic Pan sign from
'the corner of Galena and Cooper.
Councilman Behrendt asked if the sign could be lowered
or raised so people from a reasonable distance away
could see it. Rosener said at least ten feet.
Androl Molterer said the canopy was to attract people
to the off - street entrance of his store. Councilman
Breasted said he liked the canopy and felt it was a
good addition to the building. Rosener said it would
hurt the Magic Pan's business. Councilman Breasted
suggested the Magic Pan could cooperate with Molterer
and make their sign part of the canopy.
i.iayor Standley read from the minutes of the September 24,
1973 Council Meeting at which the endorsement for the
canopy was granted. According to the minutes the
encroachment had to be agreed upon by both parties.
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Mayor Standley suggested both parties get verific-
ation of the agreement in writing. The Council will
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not make a decision until they see this agreement
in writing. This item will be on the agenda at
the next meeting unless all parties can come to an
outside agreement."
Again, the December 9, 1974, minutes read:
"Bob Rosener of the Magic Pan was before Council to
give them the sworn affidavits requested from the
• previous meeting reference the remedy of the Molterer
Sports Canopy. All three affidavits stated there was
no agreement between Magic Pan and Molterer Sports on
the extention of the canopy. °osener said he and
Andrel Molterer had met after last Council meeting and
the only agreeable solution was to raise the canopy
4 feet up and 6 feet out, which would make it very
awkard. Molterer said he felt the sign only had to
be raised 2 1/4 feet up.
Councilwoman Markalunas told the parties involved that
the solution should become rather obvious to them and
the Council was acting only as a third party.
Councilwoman Markalunas moved that the Council stand
on their original agreement, that an agreement amenable
to both parties had to be worked out in ten days or the
canopy would come down; seconded by Councilwoman Pedersen.
All in favor, motion carried."
After this meeting Mrs. Cheek came to see me and requested an
extension of time to cut back the canopy inasmuch as the company
agent would not be able to come to Aspen until about mid - January
to work on it. I discussed this request with Council at the
noon luncheon before the last Council meeting in December and the
members then approved the arrangement. You all are cognizant of
Mrs. Cheek's appeal to you on January llth. his was precipitated
• by my January 5th notice to Androl that he would be held to the
January 15th date earlier agreed upon (copy attached). The notice
was given when it became apparent to me (by my receipt -of
correspondence dated December 28 and January 2 between Mrs. Cheek
and the Magic Pan) that Mrs. Cheek never did intend to cut back
the canopy as earlier promised.
_doscitation has been issued against Androl pending the out-
come of your special meeting on the 22nd.
FS /pk
Attachments
MEMORANDUM
TO: City Council DATE: December 4, 1974
FROM: Sandra M. Stuller RE: Molterer Sports Canopy
Attached are the requested affidavits submitted by The
Magic Pan in support of their contention that no consent was
ever given by their representatives for the canopy to extend
beyond the sidewalk. .
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Subscribed and sworned to before me on this date
November 27 , 1974
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Subscribed and sworned to before me on this date
November 27 , 1974.
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GHIRARDELLI SQUARE 900 NORTH POINT SAN FRANCISCO. CALIFORNIA 94109 (415) 474 -5771
November 27, 1974
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Mr. John A. F. Wendt
Wendt & Kistler
P. 0. Box 12
Aspen, uoioiaao blot'
Dear John:
I understand from Bob Rosener that there is a problem regarding
the awning which has been installed by the ski shop upstairs, and
which obscures the Magic Pan sign.
In answer to the question of whether this awning was ever approved
by anyone at Magic Pan, it wasn't.
•
I understand the ski shop is also one of your clients, and so with
the interest of both clients at heart, I wonder if you could bring
this matter to some agreement, which there isn't right now.
Bob Rosener is suggesting having the awning stop at the sidewalk, •
which sounds like a reasonable and wise solution. What's the
matter with that?
Thanks for your help in this matter and here's hoping some answer
. can be found that is satisfactory to Bob and the ski shop.
Sincerely,
F. D. Montgomery
General Manager
FDM:jkl
cc: Bob Rosener v'
Roger Ashton
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CITY OF PEN
aspen ,colorad box v
October 11, 1973
John A. F. Wendt, Esq.
P. 0. Box 12
Aspen, Colorado
Re: Permission for Encroachment
on City Right of Way -
Molterer Sports
Dear John:
You will recall that when the City Council at its September
24, 1973, meeting gave permission to your client, Molterer Sports,
to Construct a canopy on the city right of way, that it was sub-
ject to acceptance of three conditions. They are as follows:
1. That Molterer Sports agrees that the license is solely
at the discretion of the City Council and permission may be
withdrawn for any reason at any time. Molterer Sports agrees
that it will, on such request, remove the structure from any city
right of way, and all costs of removal and /or demolition shall be
assumed by Molterer Sports.
2. Molterer Sports agrees that is shall be responsible
for any maintenance and repair of the canopy or right of way
encroached necessary to keep the same in a clean, safe and
attractive condition as determined by the City of Aspen.
3. Finally, Molterer Sports agrees to indemnify and hold
the City of Aspen harmless from any and all damages or liability
by reason of death, injury or property damage suffered by any
person as a result of the placement of the canopy on the city
property. In addition, if the City shall so require, Molterer
Sports agrees to obtain comprehensive public liability insurance
covering bodily injury or death in the amount of at least $300,000
for each person in any one accident, $300,000 for each accident,
and property damage in the amount of $100,000 for each occurrence.
John A. F. Wendt, Esq.
October 11, 1973
Page 2
Please have a representative of Molterer Sports indicate
acceptance of these conditions by signature below, and return
the original to us.
Very truly yours,
Sandra M. Stuller
City Attorney
SMS:mw
The undersigned, on behalf of Molterer Sports, accepts the
above conditions for the grant of permission to encroach and
assumes the responsibilities enumerated.
C) 4 r(-\ \ Molterer Sports
Date ' 1 /
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