HomeMy WebLinkAboutresolution.council.024-13 RESOLUTION NO.24
(Series of 2013)
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A SETTLEMENT
AGREEMENT AND MUTUAL RELEASE BETWEEN ASPEN FSP-ABR, LLC AND THE
CITY OF ASPEN AND AUTHORIZING THE MAYOR TO EXECUTE SAID DOCUMENT ON
BEHALF OF THE CITY OF ASPEN.
WHEREAS, there has been submitted to the City Council a Settlement Agreement and
Mutual Release between Aspen FSP-ABR, LLC and the City of Aspen copy of which agreement
is annexed hereto as Exhibit 1 and incorporated by this reference(the"Settlement Agreement"); and
WHEREAS, the City Council believes that it is in the best interests of the City to approve
the Settlement Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, that the Settlement Agreement is hereby approved and the Mayor is hereby
authorized to execute the Settlement Agreement.
Dated: f �� ,2013.
Michael C. Ireland,Mayor'
I, Kathryn S. Koch, 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 March 11,2013.
Kathryn S. Ko , City Clerk
y
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE is entered into as of
the 14"' day of January, 2013 (the "Effective Date"), by and between Aspen FSP-ABR, LLC, a
Delaware limited liability company ("Owner"), and the City of Aspen, a Colorado home rule
municipality ("City"). (Owner and City may be referred to herein collectively as the "Parties"
and each of them as a"Party.")
RECITALS
A. Owner is the owner of real property described as Lots K, L, M, N, O, P, Q, R and S,
Block 31, City and Townsite of Aspen, County of Pitkin, State of Colorado (the "Property").
B. The City provided water to the Property while it was improved and operated as a hotel
known as the Boomerang Lodge. The Boomerang Lodge maintained three separate accounts
with the City's Water Department assigned to addresses known as 500, 510 and 512 West
Hopkins Avenue. The water service lines associated with the accounts for 500 and 512 West
Hopkins are 1 '/z inches in diameter; the water service line for 510 West Hopkins has a diameter
of 3/4 inches.
C. The Boomerang Lodge ceased operations in early April of 2007. All but the"East Wing"
of the Boomerang Lodge was demolished in the spring and summer of 2007. No new
improvements have been constructed on, and no water has been used in connection with, the
Property since the Boomerang Lodge was closed. Water meters were removed as part of the
demolition and water was billed by the City at its construction rate after operations ceased and
before the unmetered rate was implemented.
D. On June 13, 2008, the City started to bill Owner for water service at 500 and 510 West
Hopkins at its "unmetered flat rate." The City began charging Owner for water service to 512
West Hopkins at the unmetered flat rate on June 8, 2008. The City has continued to bill Owner
at the unmetered flat rate since those dates. Sec. 25.12.150 (c) of the Aspen Municipal Code
provides: In such event a meter or meter remote is damaged or concealed or otherwise made
inaccessible, the Superintendent shall direct that the water user be billed the unmetered rate for
his or her water service until such time as the meter or meter remote is again made operable or
accessible by the owner. (Code 1971, § 23-70; Ord. No. 27-1985, § 1).
E. Through July of 2012 Owner paid all charges imposed by the City for water service to the
Property. Owner has made no payment to the City for water service to the Property since it
made the July 2012 payments.
F. There have been no water meters on the Property since billing began at the unmetered
rate and Owner has decided not to install water meters at this time. Sec. 25.16.030 of the Aspen
Municipal Code provides: Meter regulations; mandatory metering.
(a) All water service shall be metered.
Settlement Agreement ZV5
Aspen FSP-ABR,LLC and the City of Aspen Owner City
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(b) The installation of all meters shall conform to specifications of the Water
Department.
(c) The Superintendent may, in his or her sole discretion, install a meter on any
connection which has not been converted to metered service by June 1, 1985 and
shall charge the customer all costs of such installation. The Superintendent may
also, in his or her sole discretion, disconnect any water service which has not been
converted to metered service by June 1, 1985 and may not reconnect such service
until it is metered. The customer shall pay all costs of any such connection and
reconnection including any utility investment and hookup charges which may be
due. (Code 1971, § 23-104; Ord.No. 27-1985, § 1)
G. In the 12-month period ending July of 2012, Owner paid the City approximately
$34,496.96 for water service to the Property despite the fact that it did not use any water. If
meters had been installed on the three service lines located on the Property, Owner would have
been required to pay approximately $2,696.24 for water service. If Owner had requested and
received an adjustment in billing based on the minimum unmetered rate which is now being
implemented as a result of this Agreement, Owner would have been required to pay
approximately $7,964.91.
H. Owner asserts that the City never informed it of the opportunity to reduce the cost of
water service to the Property by installing meters on the three lines associated with the
Boomerang Lodge. The City denies that assertion and believes that it provided adequate notice
to Owner and that, in any event, Owner is charged with knowledge of the City's Municipal Code
even if the City did not specifically inform Owner of the potential cost savings associated with
the installation of water meters.
I. Owner asserts that it has been damaged by the City's failure to inform it of the savings
which Owner could have realized by installing meters on the three water service lines located on
the Property. The City asserts that it was Owner's responsibility to inquire and request a change
in its billing rather than paying without protest what Owner now contends was an inappropriate
amount. The City also contends that the statute of limitations is a bar to a portion of Owner's
claim.
J. In lieu of the cost, expense and uncertainty of litigating Owner's claim for damages in
this matter, the Parties wish to enter into this Agreement to set forth their mutual understandings
and to establish a resolution of said claim.
NOW, THEREFORE, in consideration of the resolution of the disputes between them
and the full performance of the obligations, promises, and agreements set forth below, the
sufficiency of which is expressly acknowledged, the Parties hereby agree as follows:
1. Reduction in Charges Applied to the Three Accounts. Until such time as Owner
receives a building permit for the construction of improvements on the Property which requires a
change in the billing status for any account related to the Property, water service for each such
account shall be billed at the City's minimum unmetered rate based on the size of the water lines.
Settlement Agreement -5/D
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For the period beginning in August of 2012 through the Effective Date of this Agreement, the
minimum ECU's attributed to the accounts for 500 and 512 West Hopkins is four (4) and the
resulting monthly charge for each such account is $1,259.94; the current minimum ECU's for
510 West Hopkins is one (1) and the resulting monthly charge is $631.85. The City may change,
from time to time, both the minimum ECU's attributed to each of the accounts or the charge per
ECU applied to each account at the times it imposes identical changes on a system-wide basis.
2. Credit for Payments Previously Made by Owner. Effective August 1, 2012,
Owner shall have a credit of$26,532.05 (the "Water Credit"), which is equal to the difference
between the amount actually paid by Owner for water service to the Property during the year
ended July 31, 2012, and the amount it would have paid if the charges described in the
penultimate sentence of Section 1, immediately above, had applied during that year. The Water
Credit may be used only to offset water charges related to or arising from the Property after July
of 2012. Owner shall receive a second Water Credit in an amount not to exceed $26,532.05 in
the event it installs appliances and fixtures within improvements constructed on the Property
which result in a projected reduction in water usage of at least ten percent (10%) from what
would have been expected if appliances and fixtures had been installed which meet the minimum
requirements of the City's Building Code in effect at the time of building permit issuance. The
second Water Credit shall be applied to the Owner's accounts at the time the City issues a
Certificate of Occupancy for improvements on the Property and its receipt of certification,
together with invoices for the particular appliances and fixtures installed, from Owner's architect
or builder that the conditions set forth in the preceding sentence have been met. The second
Water Credit may be applied to the Owner's accounts incrementally, based on the invoiced cost
of the appliances and fixtures at the time the Certificate of Occupancy is issued and the request
for credit is submitted. If improvements are not constructed for all three accounts at the same
time, necessitating more than one Certificate of Occupancy, allocation of the second Water
Credit shall be applied to the account or accounts related to the water line(s) servicing the
improvements which received a Certificate of Occupancy from the City. In no event will the
second Water Credit exceed $26,532.05. If at the time the last Certificate of Occupancy issues
for improvements to the Property there is credit remaining, it shall be extinquished.
3. Release of the Owner by Upon the execution of this Agreement, City, on
behalf of itself, its shareholders, directors, officers, agents, attorneys, representatives,
predecessors, successors, heirs and assigns, hereby fully and finally releases and discharges the
Owner, its respective members, managers, employees, agents, attorneys, representatives,
subsidiaries, predecessors, successors, heirs and assigns, forever from any and all causes of
action, judgments, liens, indebtedness, any accounts, damages, losses, claims, liabilities,
attorney's fees, costs, obligations, and demands whatsoever, accrued or contingent, known or
unknown, whether in equity or in law, pending or potential, suspected or unsuspected, arising
from or relating in any manner to the amounts currently due under the three accounts for water
service to the Property.
4. Release of City by the Owner. Upon the execution of this Agreement, the Owner,
on behalf of itself, its members, managers, agents, attorneys, representatives, predecessors,
successors, heirs and assigns hereby fully and finally releases and discharges City, and its
Settlement Agreement IDZ5
Aspen FSP-ABF,LLC and the City of Aspen Owner City
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shareholders, officers, directors, members, managers, employees, agents, attorneys,
representatives, subsidiaries, predecessors, successors, heirs and assigns, forever from any and
all causes of action, judgments, liens, indebtedness, any accounts, damages, losses, claims,
liabilities, attorney's fees, costs, obligations, and demands whatsoever, accrued or contingent,
known or unknown, whether in equity or in law, pending or potential, suspected or unsuspected,
arising from or relating in any manner to charges imposed on Owner for water service to the
Property.
5. Full Release. This Agreement is intended to effect a full and complete release by
City of all claims it has or may have against the Owner related to the accounts for water service
to the Property and by the Owner of all claims it has or may have against City related to the
accounts for water service to the Property, all in accordance with the terms set forth herein.
Unless otherwise addressed in this Agreement, the Parties acknowledge and agree that the claims
assigned or released by the Agreement include claims which are accrued or contingent, known or
unknown, whether in equity or in law, pending or potential, suspected or unsuspected, arising
from or relating in any manner to the core of operative facts described in the Recitals found
above; regardless of whether either party may hereafter discover facts different from or in
addition to those that they now know or believe to be true with respect to the claims released.
6. Assignment of Rights, Authority. Each Party to this Agreement represents and
warrants that it, he or she has not sold, assigned, conveyed, or otherwise transferred, prior to the
final execution of this Agreement, any interest in the Property or the claims described in the
Recital found above. Each Party represents and warrants that it has full internal authority to
enter into this Agreement and that all actions required to memorialize that authority have been
carried out.
7. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of all Parties hereto, their respective current and former members, managers,
shareholders, trustees, beneficiaries, officers, managers, directors, employees, agents, affiliates,
predecessors, successors, heirs and assigns. FURTHER, THE RIGHTS AND OBLIGATIONS
ESTABLISHED IN OWNER BY SECTIONS 1 AND 2, ABOVE, SHALL RUN WITH THE
LAND and may be exercised by or against any successor of Owner in the Property, but only to
the extent of such successor's interest in the Property.
8. Voluntary Agreement. The Parties agree and understand that this Agreement has
been freely and voluntarily entered into, and that no representations or promises of any kind
other than those contained in this Agreement and the covenants made herein have been made by
each Party to induce the other Party to enter into this Agreement. The parties have read and
understand this Agreement in its entirety. The parties acknowledge that each of them has been,
or has had the opportunity to be, represented by counsel in connection with the negotiation,
drafting, and execution of this Agreement.
9. Consideration Sufficient. It is intended by the Parties to this Agreement, and each
of them, that this Agreement shall be complete and shall not be subject to any claim of mistake
of fact or law by the undersigned, that this Agreement expresses a full, final and complete
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settlement of all claims as against the other parties and that regardless of the adequacy or
inadequacy of the consideration, this Agreement is intended to avoid litigation and to be final
and complete.
10. Power and Authority of Parties' Representatives. The signatories to this
Agreement specifically represent and warrant that they have the power and authority to
compromise the Parties' claims, settle the Parties' dispute, enter into this Agreement, and bind
the party for whom they sign to the terms of this Agreement.
11. Execution in Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall constitute a single
Agreement. Without limiting the manner in which execution of this Agreement may otherwise
be effected, execution by any Party may be effected by facsimile or email transmission of a
signature page hereof executed by such Party. If any Party effects execution by facsimile or
email, such Party shall also promptly deliver to the other Parties counterparts bearing the original
signature of such Party, but the failure of any such Party to do so shall not invalidate the
execution of this Agreement effected by facsimile or email transmission.
12. Entire Agreement. This Agreement constitutes the complete, final and entire
agreement between the Parties and supersedes all prior written or oral negotiations,
representations, or agreements between the Parties relating in any way to the subject matter of
this Agreement. The Parties state that, in executing this Agreement, they did not rely on any
statement, representation, or warranty, except as expressly set forth in this Agreement. The
terms of this Agreement may not be modified except by a writing signed by all of the Parties.
13. Interpretation and Enforcement.
a. The captions in this Agreement are inserted for convenience of reference and do
not define, describe, or limit the scope or intent of this Agreement or any of its terms.
Whenever the context requires, the singular number includes the plural, and vice-versa.
b. It is the express intent of the Parties that all the provisions of this Agreement be
given full force and effect as written. Should any judicial determination be made that any
provision of this Agreement is unenforceable for any reason, all remaining provisions of
the Agreement will remain in full force and effect as written.
C. The interpretation and enforcement of this Agreement shall be governed by the
laws of the State of Colorado.
d. The Parties expressly acknowledge that this Agreement represents a settlement
and compromise of disputed claims. Nothing contained in this Agreement shall
constitute or be interpreted as an admission of any wrongdoing, breach of contract,
negligence, or other misconduct of any kind by any party hereto. This Agreement is for
purposes of settlement only and shall not be admissible in any civil or criminal
proceedings other than an action between the Parties to enforce this Agreement.
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e. The Parties acknowledge that this Agreement was produced by arm's length
negotiation between sophisticated parties with equal bargaining power. The Parties agree
that the rule of construction that any ambiguities are to be construed against the drafting
party shall not be employed in any interpretation of this Agreement.
f. The Parties are authorized to institute and prosecute any proceedings at law or in
equity that are necessary and appropriate to enforce the provisions of this Agreement. In
the event of any action for breach of, to enforce the provisions of, or otherwise involving
this Agreement, including but not limited to, its interpretation, and the duties, obligations,
and responsibilities of the Parties hereto, the court in such action shall award a reasonable
sum as attorneys' fees to the party who, in light of the issues litigated and the court's
decision on those issues, was the prevailing party in the action.
14. Notice. Any notice, demand or document which any Party is required or may
desire to give, deliver or make to another Party concerning this Agreement shall be in writing
and may be personally delivered, or given by overnight courier, or given by United States
certified mail, postage pre-paid, return receipt requested, addressed as follows:
If to the Owner: Aspen FSP-ABR, LLC
c/o Alex Brown Realty, Inc.
300 E Lombard Street, Suite 1200
Baltimore, MD 21202
With Copy to: E. Michael Hoffman, Esq.
Garfield&Hecht, P.C.
601 E. Hyman Avenue
Aspen, Colorado 81611
If to City: City of Aspen
Attn: City Attorney
130 South Galena Street, Second Floor
Aspen, CO 81611
All notices so given shall be considered effective (i) if hand-delivered, when received; (ii) if by
certified mail, three (3) days after receipt or refusal; (iii) if by overnight courier, one (1) day after
receipt or refusal, or(iv) if by e-mail, upon telephonic or return e-mail confirmation of receipt by
the intended recipient. Any Party or any attorney identified above may change the address or
person to whose attention future notices shall be sent by notice given in accordance with this
paragraph. Notice via e-mail may only be given in accordance with the express and limited
provisions of this Agreement; otherwise any e-mail addresses provided or used by the Parties or
their agents, employees, or legal counsel are only for the convenience of the Parties and shall not
be used for effectuating notice under this Agreement.
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15. Parties Bound. This Agreement binds and inures to the benefit of the Parties, and
their successors in interest, heirs, assigns, representatives, agents, insurers, employees, and any
other person or entity claiming through any party to this Agreement.
16. Acknowled eg_ment. The Parties expressly acknowledge that: (a) they are
represented by and have discussed this Agreement with legal counsel of their choosing; (b) they
have read this Agreement, understand and appreciate its terms, and are fully informed with
regard to their rights and obligations under this Agreement, and (c) they have executed this
Agreement voluntarily with a full and complete understanding of the consequences of that
execution.
IN WITNESS WHEREOF,the Parties have signed this Agreement the date first set forth
above.
Owner:
ASPEN FS -ABR, LLC, a De ware limited liability company
By:
Steve Stunda
Authorized Representative 1
STATE OF )
ss.
COUNTY OF )
µ
The foregoing instrument was acknowledged before me on the Z Z day of January,
2013, by Steve Stunda, as Authorized Representative of Aspen FSP-ABR, LLC, a Delaware
limited liability company.
My commission expires:
l
Notary Public
E. MICHAEL HOFFMAN
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID#19974013304
My Commission Expires August 18,2013
Settlement Agreement
Aspen FSP-ABR,LLC and the City of Aspen Owner City
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CITY:
CITY OF ASPEN,
a Colorado Municipal Corporation
By:
Michael C. Ireland
Mayor
A st:
Kathryn S och
City Clerk'
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