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HomeMy WebLinkAboutresolution.council.041-19 RESOLUTION#41 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A SETTLEMENT AGREEMENT IN THE CASE OF 119 NEALEAVENUE, LLC V. THE CITY OFASPEN, PITKIN COUNTY DISTRICT COURT, CASE# 2017CV30131. WHEREAS, on November 20,2017, 119 Neale Ave. LLC filed suit in Pitkin County, Colorado District Court challenging City Council's denial of an application, filed in 2015,to sever 3 TDRs from the property located at 119 Neal Avenue,Aspen, Colorado; and, WHEREAS,while the lawsuit has been pending the parties have been in discussions regarding a resolution of the litigation; and, WHEREAS, there has been submitted to the City Council a Release and Settlement Agreement, a true and accurate copy of which is attached hereto as"Exhibit A"that would resolve all of the issues set forth in such litigation; and, WHEREAS,the City Council has determined that it is in the best interest of the City of Aspen to approve such Release and Settlement and authorizes the Mayor to execute the agreement on behalf of the City of Aspen. NOW,THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves the Release and Settlement Agreement between the 119 Neale Avenue, LLC and the City of Aspen, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor to execute such agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the y Cou cil of the City of Aspen on the 25`h day of March, 2019. r C75 — Steven Skadron, ayor 1, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the 25th`h day of March, 201 f Linda Mannin , City Clerk RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("Agreement") is made on the day indicated below,by and between 119 Neale Avenue,LLC(hereinafter referred to as the"Claimant")and the City of Aspen(hereinafter referred to as"the City"). Claimant includes its assigns,all current and former principles, agents, and attorneys. The City includes its assigns, all current and former employees, volunteers, agents, current and former elected and appointed officials, members, successors, predecessors, attorneys, and self-insurance pools. The Claimant and the City are hereby jointly referred to as the"Parties." Whereas, the Parties are desirous of settling several disputes among them, including the claims asserted by both Parties in Pitkin County case 2017CV30131, 119 Neale Avenue, LLC v City of Aspen. The parties intend this to be a full and final settlement concerning Claimant's right to Transferable Development Rights("TDRs"),Claimant's shed,and the past allegations that 119 Neale Avenue was being used as a duplex in violation of the City's Code. I. GENERAL TERMS AND CONDITIONS NOW,THEREFORE,the Parties for the following described consideration,the receipt and sufficiency of which is hereby acknowledged, do hereby REMISE, RELEASE AND FOREVER DISCHARGE each other of and from any and all actions,claims and demands,which exist as of the date of this Agreement, whatsoever,which the Parties now have, of any kind, including all actions, claims and demands arising out of the Claimant's rights to TDRs, Claimant's shed built on 119 Neale Avenue, and past allegations that 119 Neale Avenue was being used as a duplex in violation of the City's Code,as well as all claims and demands that were raised or which could have been raised in 2017CV30131, 119 Neale Avenue, LLC v. City of Aspen U. CONSIDERATION TO THE CLAIMANT The consideration to the Claimant is as follows: 1. The execution by the City of this Agreement and agreement to the provisions contained herein. 2. The City shall grant 119 Neale Avenue two(2)TDRs based upon Claimant's 2015 application for TDRs, previously denied on October 23, 2017. The TDRs shall be granted via ordinance adoption. The TDRs may be severed from lot 1, which certificates may be issued individually or collectively at any time upon the request of Mr. Shoaf. The ordinance granting the two (2) TDRs shall affirm that lot 1 is entitled to 4,200 square feet of floor area, and the TDRs shall be deducted from that floor area- 3. rea3. The City will not assess any additional application fees for the two TDRs beyond the$2,762.50 already owed to the City for Claimant's original TDR application. 1 4. The City will dismiss, with prejudice, all counterclaims pled against Claimant in 2017CV30131,each side to bear their own costs and attorney's fees. 5. Claimant will be permitted to submit a demolition permit for the shed on 119 Neale Avenue and the City's grant of such permit shall not be unreasonably withheld. HI. CONSIDERATION TO THE CITY The consideration to the City is as follows: 1. The execution by Claimant of this Agreement and agreement to the provisions contained herein. 2. Claimant agrees to dismiss, with prejudice, all of its claims pled against the City in 2017CV30131,each side to bear their own attorney's fees and costs. 3. Beyond the two(2)TDRs granted to Claimant as part of this Agreement, Claimant agrees that 119 Neale Avenue will not be eligible for additional TDRs in the future. Claimant agrees that the City ordinance granting him the two(2)TDRs under this Agreement will include a provision restricting current and future owners of 119 Neale Avenue from submitting applications for additional TDRs. Such ordinance shall be recorded and run with the land. 4. Within thirty days of execution of this agreement, Claimant agrees to pay the outstanding fees owed to the City for its TDR application, which is $2,762.50. 5. Claimant agrees to demolish the shed on 119 Neale Avenue within ninety(90)days of receiving a demolition permit. Claimant agrees to comply with all applicable provisions of the City Code during demolition. Claimant must submit his complete permit for demolition with thirty (30)days of execution of this Agreement. 6. Claimant and Jeffrey Shoaf, individually, agree not to assert this settlement as a basis for any future claim of retaliation related to contacts involving representatives or employees of the City. 7. Claimant and Jeffrey Shoaf, individually, agree that 119 Neale Avenue is subject to the provisions of the City Code in all other respects and that this Agreement only confers benefits as expressly stated herein. N. WARRANTY OF CLAIMANT CONCERNING CONSIDERATION RECEIVED The Parties warrant as follows: 1. No promise or agreement not herein expressed has been made to the Parties;that in executing this Agreement the Parties are not relying upon any statement or representation made by the parties hereby released or said parties' agents and servants concerning any matter or thing, 2 but are relying solely upon their own judgment and knowledge and that of their attorneys;that the above mentioned consideration is received by the Parties in full settlement and satisfaction of all the aforesaid claims and demands,whatsoever,whether said claims be in tort,contract, by statute or otherwise; including but not limited to,any claims based under,42 USC § 1983,C.R.C.P. 106, the Colorado Constitution, and/or C.R.S. § 13-51.5-101; that it is the Parties' clear intention to fully and forever release each other from any and all claims which were raised or which could have been raised as of the date of this Agreement,even if there may presently exist a mistaken belief on the part of the Parties as to the present nature and extent of their claims through the date of the execution of this Agreement; that a portion of the consideration provided to the Parties hereunder is being provided for the Parties' voluntary assumption of the risk that the Parties injuries or damages, if any,may worsen or increase in the future;that this Agreement was arrived at in good faith, at arms-length and after negotiation; that the above-mentioned consideration is received by the Parties in full settlement and satisfaction of any claims which the Parties may have for attorneys' fees or costs as of the date of this Agreement; that the Parties are over the age of 18 years and legally competent to execute, appreciate and fully understand this Agreement; that no claims for loss of consortium exist; AND THAT BEFORE SIGNING AND SEALING THIS AGREEMENT, THE PARTIES HAVE FULLY INFORMED THEMSELVES OF ITS CONTENT AND MEANING, HAVE CONSULTED WITH LEGAL COUNSEL, AND HAD THEIR LEGAL COUNSEL EXPLAIN THE MEANING AND LEGAL SIGNIFICANCE OF EACH AND EVERY PROVISION HEREOF AND HAVE EXECUTED THIS AGREEMENT WITH FULL KNOWLEDGE AND UNDERSTANDING THEREOF. 2. The Parties further warrant that there are no assignees, subrogees, or other third parties who have a right to participate in this settlement or receive any of the consideration provided hereunder. The Parties agree to indemnify,defend,and hold forever harmless each other of and from any and all further claims which may be made against the Parties by any person,firm, or corporation acting for the City or Claimant or asserting a derivative claim from the Claimant or City. V. NO ADMISSION OF LIABILITY The Parties acknowledge that each other strongly deny liability or wrongdoing on their part and that this Agreement is not to be construed, in any way,as an admission of liability,but is only a settlement done for economic reasons to resolve disagreements amongst the parties. V. INCOME TAX CONSEQUENCES Claimant warrants that no opinions or statements have been made by the City relating to any income tax consequences of this Agreement. Claimant agrees to indemnify,defend and hold harmless the City from any and all claims with respect to the income tax consequences of the consideration provided for under this Agreement as asserted by any taxing authority,including the United States Government or its Internal Revenue Service. 3 VI. MISCELLANEOUS PROVISIONS I. This Agreement contains the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior oral and written understandings and agreements between the parties. 2. This Agreement shall be binding upon the Parties, their heirs, administrators, personal representatives, assigns and subrogees, if any, as well as all other persons, firms, or corporations acting on the behalf of the Parties or asserting a derivative claim. 3. The Claimant and the City agree that each shall bear their own costs, including attorney fees related to this action. 4. The Parties have participated and had an equal opportunity to participate in the drafting of this Agreement. No ambiguity shall be construed against any Party based upon a claim that either party was a drafter. 5. The Parties warrant and acknowledge that this Agreement is clear, convincing, specific, unequivocal,and they have not entered into it under any duress and instead have done so of their own volition. 6. This Agreement shall be construed and interpreted in accordance with the laws of the State of Colorado, without reference to its choice of law rules or principles. 7. This Agreement may be executed in counterparts, each of which, when executed and delivered, shall be deemed an original and all of which together shall constitute but one and the same agreement. Signatures obtained by facsimile or email in pdf format shall be deemed to be original signatures. 8. This Agreement is not intended to govern any issues unrelated to the current property disputes involving TDRs, the shed on 119 Neale Avenue, and past allegations that 119 Neale Avenue was being used as a duplex in violation of the City's Code.The Parties acknowledge and agree that 1 l 9 Neale Avenue is subject to all provisions of the City Code(as may be amended from time to time), now and in the future. 9. Claimant understands that its renewed TDR application will need to be placed on the City Council's agenda and may go through a first or second reading before being adopted and ratified. Upon execution and approval by the City Council of this Agreement,the City will move expeditiously to process Claimant's two TDRs. 10. Claimant acknowledges that the City makes no representations as to the present or future value of TDRs. [End of Release] 4 Approval C il, Resolution No. By: Steve Ska ro , ity spen Mayor 6 - L *,%, A- STATE OF COLORADO Jeffrey hoaf ci al of 11 eale e,LLC ) ) SS. COUNTY OF f� Subscribed and sworn to before me on this _day of 2019. Witness my hand and official seal. My Commission expires Lo zz OUS FITZGERALD NOTARY PUBLIC Notary Pub STATE OF COLORADO NOTARY ID 20184008810 MY COMMISSION EXPIRES FEBRUARY 00 2012 Form and content approved by: Peter Thomas, Esq. Je6eySht 'n vi ually STATE OF COLORADO ) )SS. COUNTY OF?,-f X , ) A Subscribed and sworn to before me on this t day o 019. Witness my hand and official seal. My Commission expires O 2. 07. Zo tZ Notary Pu Form and content approved by: GUS nrZCERU NOTARY PUBLIC STATE OF COLORADO Peter Thomas, Esq. NOTARY ID 20184006610 MY COMMISSION WIRES FEBRUARY 09,2022 5