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HomeMy WebLinkAboutresolution.council.155-00 RESOLUTION NO. 155, (Series of 2000) A RESOLUTION OF THE CITY COUNCIL OF TIlE CITY OF ASPEN APPROVING A SETTLEMENT AGREEMENT BETWEEN THE CITY OF ASPEN AND CHARLES TOWER FOR A PROPERTY LEGALLY DESCRIBED AS LOTS I-I AND I, BLOCK 35, CITY AND TOWNSITE OF ASPEN WI-IICIt IS IMPROVED BY THREE CABINS KNOWN AND LOCATED AT 303, 305, AND 307 SOUTH CLEVELAND STREET. Parcel ID: 2 717-182-31-002 WHEREAS, the Applicant, Charles Tower, represented by Michael Hoffman, requested approval from the Historic Preservation Commission to have certain structures removed from Aspen's Inventory of Historic Sites and Structures on a property described as 303,305,307 South Cleveland Street; and WHEREAS, the Historic Preservation Commission reviewed the request for removal from Aspen's Inventory of Historic Sites and Structures with the correct and applicable criteria with which it has authority, and the Historic Preservation Commission chose to unanimously deny approval, via Resolution No. 54, Series 2000, for removing the structures from Aspen's Inventory of Historic Sites and Structures during a duly noticed regular public hearing on November 15th, 2000, finding that the buildings currently listed on the Inventory maintain the "Rustic" style; and WHEREAS, the Applicant submitted to the Community Development Department an application for appeal of the Historic Preservation Commission's decision to maintain the subject cabins on Aspen's Inventory of Historic Sites and Structures. Staff has reviewed the appeal request to City Council and recommended that City Council uphold the decision made by the Historic Preservation Commission on November 15, 2000, that is to maintain the property located at 303, 305, and 307 South Cleveland Street on Aspen's Inventory of Historic Sites and Structures; and WHEREAS, during the regularly held and duly noticed public hearing before the City Council on December 18; 2000, the Applicant offered, in order to settle this apparent dispute, to have the three subject cabins relocated off the subject property at the Applicant's cost; and WHEREAS, at the direction of City Council and through ongoing negotiations between City Staff and the Applicant, the Applicant has proposed a "Settlement Agreement" between the City of Aspen and Charles Tower; and WHEREAS, the Applicant, Charles Tower, agrees to withdraw his appeal request to City Council regarding the decision made by the Historic Preservation Commission via Resolution No. 54, Series of 2000 following the adoption of this Resolution No 155, Series of 2000; and WHEREAS, City Council finds that the proposed "Settlement Agreement" attached hereto regarding the relocation of three cabins at 303, 305, and 307 South Cleveland Street will not diminish the public interest, health, and welfare. NOW, TIiEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN, COLORADO, THAT: Section 1: In accordance with Section 26.316 of the Aspen Municipal Code, the City Council of the City of Aspen, Colorado, does hereby affirm this Resolution and thereby agrees to the terms of the proposed "Settlement Agreement" between the City of Aspen and Charles Tower attached hereto regarding the property legally described as Lots H and I, Block 35, City and Townsite of Aspen and improved by three cabins known and located at 303, 305, and 307 South Cleveland Street. Section 2: By the action of the City Council approving the proposed "Settlement Agreement" attached hereto regarding the relocation of three subject cabins known and located at 303,305, and 307 South Cleveland Street to Cozy Point Ranch, the Applicant, Charles Tower, agrees to withdraw his appeal request of Resolution 54, Series 2000 in which the HPC maintained 303,305,307, on the City's Inventory of Historic Sites and Structures; and Section 3: By the action of the City Council approving the proposed "Settlement Agreement" attached hereto regarding the relocation of three cabins at 303, 305, and 307 South Cleveland Street to Cozy Point Ranch, the property known and legally described as Lots H and I, Block 35, City and Townsite of Aspen is hereby removed from the Inventory of Historic Sites and Structures. Section 4: This Resolution shall not effect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 5: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 6: A duly noticed public hearing on this Resolution was held on the 18th day of December, 2000 and effectively continued to July 23, 2001, at 5:00 in the City Council Chambers, Aspen City Hall, Aspen, Colorado. FINALLY, adopted, passed, and approved this 23rd day of July, 2001. Approved as to form: Approved as to content: Ci~ A'ttornSy- Attest: -;~athry.~S. K~I~, ~ity Clerk~ SETTLEMENT AGREEMENT This Agreement is made this 23r~ day of July, 2001, by and between Charles Tower ("Tower") and the City of Aspen, a home rule municipality (the "City") RECITALS A. Tower is the current owner of certain real property located in the City of Aspen described as Lots H & I, Block 35, City and Townsite of Aspen (collectively, "the Property"). The Property is improved by three cabins known as 303 S. Cleveland, 305 S. Cleveland and 307 S. Cleveland ("the Cabins"l built between 1948 and 1952. B. In 1992 the City listed the Cabins on its Inventory of Non-Landmark Historic Sites and Structures (the "Historic Inventory"). ("Historic Inventory," as utilized in this Agreement shall m~an the Historic Inventory as it exists as of date of the execution of this Agreement and any other restriction or limitation on demolition, redevelopment, development or improvement of the Property related to or arising from any historic preservation ordinance, resolution or other regulation of the City.) The City's Historic Preservation Commission ("HPC"/confirmed the listing of the Cabins on the Historic Inventory at a public hearing on November 15, 2000. C. On November 20, 2000, Tower filed with the City a Notice of Appeal of the HPC's action. Tower asserted a number of bases for his appeal, as set forth in correspondence to the Aspen City Council dated December 11, 2000 (the "Summary of Basis for Appeal"), a copy of which is attached hereto as Exhibit A. D. The City Council considered Tower's appeal at a public hearing held December 18, 2000. At that hearing Tower and the City explored the idea of settling Tower's claims by allowing the Cabins to be moved to a location offthe Property. E. Additional discussion between the City and Tower regarding the settlement proposal took place at continued public heatings held January 22 and March 26, 2001. A further continuance scheduled for May 28, 2001 was rescheduled for June 11, 2001, then rescheduled for June 25,2001, and then July 9, 2001. No discussion concerning Tower, the Property or the Cabins took place at the City Council meetings of May 28, June 1 I, June 25 or July 9, 2001. (Tower appeared before the City Council on July 9, 2001 and made a statement to City Council, but no discussion ensUed from that statement.) F. The City and Tower have completed their discussion regarding a settlement of Tower's appeal and his other claims and wish to enter into this Settlement Agreement for the purpose of memorializing their agreement. NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agrees as follows: 1. Filing of Land Use Application to Pitkin County. The City hereby (a) removes the Property and Settlement Agreement - Charles Tower and City of Aspen, Colorado July 23, 2001 Page 2 all three Cabins from the Historic Inventory, and (b) grants its approval to the relocation of all three Cabins from the Property to certain real property owned by the City at the intersection of Juniper. Hills Road and Highway 82 in Pitkin County {."the County") known as "Cozy Point Ranch." The parties acknowledge that such relocation cannot be accomplished without the City first receiving appropriate land use approvals from the County. Tower agrees to cause a land use application ("the Application") to be submitted to the County on behalf of the City for those approvals. However, Tower shall be responsible only for the first $2,000.00 of attorney's or professional planner's fees incurred in the preparation of the Application following the approval of Agreemem. The City shall be responsible for all other costs reasonably associated with the preparation and filing of the Application, including without limitation the cost of any application fee or deposit(s) required by the County, any referral agency fees or costs, the cost of preparing any survey or maps required as part of the Application, the cost of preparing any and all expert reports or studies reasonably necessary for the County's use in evaluating the Application and attorney's or professional planner' s fees in excess of $2,000.00. Tower agrees to consult with the City's Community Development Director (or her designate) ("the Director") in the preparation of the Application and before any costs are incurred for map preparation and prior to engaging any expert whose opinion may be used in the Application. Tower further agrees to defer to the Director's wishes in the choice of any person, entity or organization whose work may be used in the preparation of the Application and to utilize City personnel for such work whenever requested by the Director. Tower will cause the completed Application to be delivered to the Director within 60 days of the date of this Agreement for filing with the County. Tower shall have no further obligation to process the Application or to be otherwise involved in the City's efforts to receive approval from the County. The City shall diligently pursue the Application with the County and shall~make reasonable efforts to minimize the time required by the application process. 2. Effect of Approval of Application by County. No later than ten (10) days from the County's final approval of the Application, the City shall provide notice (the "Notice of Readiness") to Tower. In the alternative and only if the County has not yet finally approved the Application, the City may provide Tower a Notice of Readiness at the time it has completed its preparation of three "receiver sites" at Cozy Point Ranch for the Cabins and that it is ready to accept the Cabins at that property. Provided Tower has received a Notice of Readiness on or before July 9, 2002, Tower shall: (1) pay to the City within thirty (30) days of invoice up to ~of the actual construction cost of three concrete pads at Cozy Point Ranch designed as "receiver sites" for the Cabins (the concrete pads shall be located at Cozy Point Ranch by the City and installed by or on behalf of the City no later than July 9, 2002, and (2) deliver on or before October 9, 2002, at his expense, all three Cabins to the concrete pads described above. The City shall pay or have waived the cost of any building permit, tax and any other fee or expense imposed by any governmental entity incurred as a result of the relocation of the Cabins to Cozy Point Ranch. Tower's delivery of the Cabins may be delayed as reasonably necessary to accommodate the schedule of the moving company, the vicissitudes of the weather or the readiness of Settlement Agreement - Charles Tower and City of Aspen, Colorado July 23, 2001 Page 3 the concrete pads. Tower shall convey, and the City shall accept, title to the Cabins at the time they are delivered to Cozy Point Ranch. Conveyance shall be by Bill of Sale in the form attached hereto as Exhibit B. A. The Cabins shall be conveyed without warranty of any kind, including any implied warranties including without limitation the warranties of fitness for a particular use and of merchantability. Tower shall transport the Cabins to Cozy Point Ranch in a commercially reasonable manner, but shall not be responsible for any damage caused to the Cabins resulting from said transport. Tower shall provide, or shall have provided, such property and casualty ansurance for the Cabins which as reasonable under the carcumstances in Tower's sole and absolute discretion and which is commercially available. B. Upon delivery of the Cabins to Cozy Point Ranch as set forth in this Agreement, the Property shall be free of any encumbrance or restriction resulting from or caused by the inclusion of the Cabins on the Historic Inventory. 3. Effect of Failure of City to Provide Notice. In the event City has not or cannot provide a Notice of Readiness to Tower by July 9, 2002, or if the City is in material breach of this Agreement, the City agrees that Tower, his successors or assigns, shall be entitled to receive a demolition permit to raze the Cabins and remove them from the Property, or to otherwise dispose of them, upon the filing of an application for the same to the City's Building Department. Any such application shall be administered as would any other similar request, except that it will be given the highest priority for action by the City. 4. No Action by City to Include Cabins or Property on National or State Historic Preservation List. Neither the City nor any member of its staff shall take any action, or cooperate in any manner with others, to cause or promote the inclusion of the Property on the National Register of Historic Places, any historic register of the State of Colorado or the Colorado Historical Society or of any other governmental, quasa-govemmental or private historic preservation program. 5. Enforcement. The parties acknowledge that breach of the provisions of this Agreement may cause irreparable injury to the them for which monetary damages are inadequate, difficult to compute, or both. Accordingly, the parties agree that the provisions of this Agreement may be enforced by an action for specific performance. 6. Miscellaneous Provisions. A. Time of Essence. Time is of the essence hereof. Settlement Agreement - Charles Tower and City of Aspen, Colorado July 23, 2001 Page 4 B. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by certified mail, return receipt requested, postage prepaid, addressed, or hand delivered, as follows: If to Tower: Charles Tower P.O. Box 3014 Aspen, Colorado 81612 With copy to: E. Michael Hoffman, Frei'lich, Myler, Leitner & Carlisle, 106 S. Mill Street, Suite 202, Aspen, Colorado 8161 I; If to the City: City of Aspen Atto: Community Development Director 130 S. Galena Street Aspen, Colorado 81611 With copy to: City of Aspen Attn: City Attorney 130 S. Galena Street Aspen, Colorado 81611 Any party may designate a further or different addresses to which subsequent notices, certificates or other communications shall be sent by providing notice thereof to all parties to this Agreement. C. Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon all of the parties hereto, and their respective successors and assigns. D. Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof provided that the intent of the parties remains the same. Settlement Agreement - Charles Tower and City of Aspen, Colorado July 23, 2001 Page 5 E. Amendments, Changes and Modifications. Except as otherwise provided in this Agreement or in the Indenture, this Agreement may not be effectively amended, changed, modified, altered or terminated without the prior written consent of the parties. F. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. G. Govemin~ Law. This Agreement shall be governed and construed in accordance with the laws of the State of Colorado. H. Prior A~reements Superseded. This Agreement, together with all agreements executed by the parties concurrently herewith, shall completely and fully supersedes all other prior understandings or agreements, both written and oral, between the parties concerning the subject matter of this Agreement. I. Captions. The captions and headings in this Agreement are for convenience only and in no way define, limit, or describe the scope or intent of any provisions or sections of this Agreemem. J. Attorney's Fees. Should any party hereunder be required m resort to legal or equitable process for the enforcement of any of the provisions of this Agreement, the prevailing party shall be entitled to collect all reasonable attorneys' fees, expenses and costs from the other parry. In the event any party shall fail to perform under any provision hereunder which that party is required to perform with reasoBable dispatch after notice in writing from any other party, the non-defaulting party may, but without any obligation on its part to do so, perform it s obligation at the sole expense of the defaulting party, who shall reimburse the non-defaulting party therefor upon demand. Settlement Agreemem - Charles Tower and City of Aspen, Colorado July 23, 2001 Page 6 1N WITNESS WHEREOF, the parties have this Settlement Agreemem as of the date first above written. Charles Tower ATTEST: CITY OF ASPEN, a Colorado home role ~ity l~therine Ko~!~/' City Clerk Mayor STATE OF COLORADO ) )SS. COUNTY OF PITKIN ) ..~ ~,-. _ :l'h~foregoing Settlement Agreement was acknowledged before me this 23a day of July, ~2.1J0~i;,~y Chiles T~ver. ~ : d WITNjESS my han and official seal. My commission expires: ~//~/~ ( . f~.~ Notary Pubhc' STATE OF COLORADO ) )SS. COUNTY OF PITKIN ) The foregoing Settlement Agreement was acknowledged before me this 23rd day of July, 2001, by Helen Klandemd as Mayor of the City of Aspen and Katherine Koch as City Clerk of the City of Aspen. and and official seal.