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HomeMy WebLinkAboutFile Documents.807 McSkimming Rd.0271.2018 (2).ARBKSETTLEMENT AGREEMENT This Settlement Agreement ("Agreement') is made and entered into by and between RUFUS CROCKETf, ROBIN SUPPLEE, SHELLEY SUPPLEE, STEPHEN GREENWAY, PAM IIRANEK, JOHN MCHUGH, AND RICKI LITTLE McHUGH (`Pla n iffs') and WARREN FIR, LL AND AVID 2LLC,COLORADO LIMITED LIABILITY COMPANIES("Defendanis')this dayof ooh 007. Plamtiffs and Defendants are also refected to herein individually as a "Party" and �¢ collectively as "Parties." 1 Plaintiffs and Defendants are all owners of Lots within Block 3, Aspen Grove Subdivision, according to the plat thereof recorded m Reception No. 116127, Ditch Book 2A at Page 291 of the records of Pitkin County, Colorado, as governed by the Aspen Grove Subdivision Home Owners Association, and subject to the Restrictive Covenants for the Aspen Grove Subdivision recorded at Reception No. 116601 of the records of PiWn County, Colorado (the "Covenants'). 2. Defendants own Lot 14, Block 3, Aspen Grove Subdivision, by deed recorded at Reception No. 502171 of the records of Pitkin County, Colorado (the "Property'). "Owner"heremaHershallrefer to theownerofrecordofthe Property and includes the Defendants during dreirownerslnp andanY subsequent ownerth=after. Defendants havehhedarchitect Stan Mathis who has prepared arehitectsal designplans and spacrfiodions (the "Awbitectural Plans") forthepurpose ofobtainmg a B' 7d++aPemritfmmtheC4ty of Aspento construct a single family residence on the Property. A true and correct 8.5"x11"scaled copy of the Architectural Plans, dated February 19, 2007 and submitted to the City of Aspen Community Development Department in connection with Building Permit Application No. 00382007 ARBK, are attached hereto as Exhibit A and incorporated herein by this reference. The Architectural Plans depict, among other things, specific height, set back, building envelop, and access features of the proposed residence on the Property. 3. A dispute has arisen between Plaintiffs and Defendants regarding Defendants' proposed development of the Property according to the Architectural Plans. Plaintiffs assert that the proposed development of the Property in accordance with the Architectural Plans violates certain provisions of the Covenants, and Plaintiffs have sought declaratory relief in their Amended Complaint filed inPitkin Comity District Court, Case No. 06 -CV -60 ; Defendar shave demodPlaintrffs' assertions and claims as setforthin the Lawsuit, and have asserted a Counterclaim against ore Plahttiff Rufus Crockett ("Crockett'), for trespass (the Plaintiffs' AmendedComplaurt and the Defendants' Counterclaim are referred to hereinafter as the "Lawsuif). The Lawson seekstodetermine and resolve the validity and enforceability of certain restrictions contained in the Covenants of Block 3, Aspen Grove Subdivision including specifically, but not limited to: () restrictions on the location ofany improvements to the Property relative tri the existing platted access mad easement as shown on the Plat of Block 3, and Lots 7 & 11 (Amended) Block 2, Aspen Grove Subdivision, recorded September 3, 1963 in Plat Book 2A, Page 291 reception # 116127 ("SPARE"); (m)b4it MUMAL RELEASE AND SETTLEMENT AGREEMENT Page 2 restrictions; and (iu)set backrestictions relative to die property hotlines(collectivelyhereinaft referred to as the "Dispute'). 4. In accordance withthe terms, conditions,representations, andsssumices ofthis Agreement, and in order to fully and fma➢y settle the Lawsuit, die Parties have agreed to a full and final resolution and settlement of the Dispute and the lawsuit and all related issues regarding the validity and enforceability of the Covenants and the development restrictions applicable to the Properly. In so doing, the parties understand and agree that the settlement is not to becommued as anadmissionofliability orwrongdomgon the part of any Parry. The terms and provisions of this Agreement apply only to the Properly and do not alter or abridge any right or restriction applicable to any other properties. The Parties rmdastand and agree that they enter into this Agreement to avoid further disagreement, to resolve the Dispute, to settle the Lawsuit and all related issues, to clarify and record against the Property certain development restnetions, and to affix certain rights and obligations between the Parties and their successors and assigns as specified herein. 5. Now therefore, n consideration of the mutual promises and obligations set forth in this Agrcement, and to fully and finally settle this Dispute and the Lawsuit and all related issues, Defendants agree to the following design and development restrictions for any and all improvements on the Property a) Building Envelop Site: The Defendants agree that no improvements, buildings, or snuctures of any nature whatsoever, except for landscaping, grading, and retarru g walls shall be permitted northerly of the northern edge of EPARE which the parties hereto deem to be aprivate access road for the benefit of Lots 14 and 15, Block 3 Aspen Grove Subdivision b.) Height: The Architectural plans show specific Mean Sea Level Elevation of all roof elements including at the garage Ridge of8285.9' and at the living roomroofRidges of 8273.1' for the planned development of one single-family residence and garage Defendants agree to reduce the overall height of the garage roof area and the living mom roof area, as shown on attached Exbib@B, by five (5) feet from whatis shownon the Architect" Plans, creating arrnunumMear Sea Level height of 8280.9' to the top of the Ridge of any Roof Form at the garage mof height zone and a maximum Mean Sea Level height of 8268.1' to the top of the Ridge myRoofForm at the livingmomroofheight zone and all other roofelenums. The phrase "RoofFomi' isdefinredasa roof shape that is pitched, flat, shed, curved, or any combination thereof; along with all appurtenancesandelementstbemto. Thephrase "top ofthe Ridge" is defined as thehighestfraane of the roof or element thereof, including but wtlimitedto, aparapet, gravel stop, roofing ventcap other similar roof features. The phrase "garage roof height zone" is defined as the zone of the residence consisting ofthie garage and related elements whichmay mcludeamad room,mechanical room, closets, stairs, elevator, and hallway, but shall not include living areas such as bedrooms, dining rooms, entry ways, great rooms, living moms, media rooms, bathrooms, and the lace, such elements being located m the `living room height zone." Any and all actual construction of MuruAL RELEASE AND SETTLEMENT AGREE.MENr Page 3 improvements to theproperty wmllnot exceedthese heights except forf replace chimneys including decorative terminal cap, which together (chimney plus cap) shall not exceed four foot in height beyond allowable roofheight as defined berem, andmechanical vents orequipment, which shall not exceed thrce foot in heightbeyond allowable roof height as defined herein. The Parties agree that any covenants that may have burdened the Property prior to the date of this Agreement shall be void and no longer apply with respect to any restriction on the slope of the roof for any structure built onthe Property after the date oftfiis Declaration. Allotherheightrestrictionscontained in any prior covenants, if any, are hereby waived and shall be void, of no further effect and shall no longer apply to the Property. Grantors have installed two benchmark poles demarcating the two maximum heights (8280.9' at the garage roofheightzone and 8268.1' at the living room mofheigbt zone) as defined iothis Declaration. The top of the benchmark poles represent the height restrictions defined in the roof height zAnes. They shall serve to assist in verifying compliance with the height restrictions as set forth in this Declaration, as well as avoid contusion or later dispute regarding the physical height restrictions as herein agreed to by the Parties. The benchmark poles shall remain in place, undisturbed and unaltered, until final certificate of occupancy has been issued for any residence. c.) Set -back The Ambitcwhsal Plans depict the development's set -back relative to the Property's side (east and west) lot -litre boundaries as well as set -backs relative to the EPARE at the north-easterly location of the proposed building. Defendamsagreethattheminim mmeastand west side -yard setbacks for any and all improvementsto be constructed on the Propertyshallbe7- 1/2 feet. In addition, the minimum set -back from the EPARE shall be ten (10') feet from the southern edge ofentire length of the EPARE [through the property. Defendants agreeto relocate any portion of the proposed building that would otherwise encroach into this ten foot set -back, Affi the exception of landscaping, grading, driveway walkway, padong, rethimangwalls, andutilitiesand that any and all improvements actually constructed on the Property shall conform to this set -back restriction, except for roof overhangs which may extend 18" into the side yard and SPARE setbacks. d.) Landscaping Bander:Defchhdams agree to allow Crockett to place a landscape barrier ("landscape Barrier') anywhere within that portion of Defendants' Property on Lot 14 located northerly of the north boundary of the EPARE and within seven and one half feet (7.5') of the common property linebetween Defendants' Lot 14 and Crockett's Lot 13. In addition, thereshall be a line within the EPARE the western temmvms of which shall be the point on the common boundary line between Defendants' Lot 14 and Crockett's Lot 13 that lies two feet (2') south of the northerly edge of the EPARE and the eastern terminus of which shall be the point on the common boundary line between Crockett's Lot 13 and Lot 12 that lies six and me half feet (6.5') south of the northerly edge of the SPARE. The straight line connecting these two points, as depicted on Exhibit C hereto, shallbe referred to as the "Landscape Boundary". Defendantsand muruAL RELEASE AND sE'PI'LEMENT AGREEMENT Page 4 Crockett agree that Crockett shall place a Landscape Barrier within the EPARE north of the Landscape Boundary and that no portion of said Landscape Barrier sba0 extend south of the Landscape Boundary. DefendantsageetbatanyhWovementsconstmctedby Defendantswidin the SPARE shallbe placed south of the Landscape Boundary. The Parties acknowledge andagree that theintentoftheLandscape Barrieristc pemritCrocketto install an adequate numberandtype of trees and other natural features sufficient to shield the visual and sound nuisance impacts of the proposed developmentfrom the Crockettpropertytothema,&m extentpossble. Ownersagme to giant Crockett an easement for the portion of the Landscape Barrier situated on Lot 14 as described above, to be recorded intherecords of the Pitkin County Clerk and Recorder's Office, upon commencement of installation of the Landscape Defendants shall bear no cost or expense in connection with the installation and maintenance of the Landscape Barrier. The Landscape Bander shall be permanent, and Crockett shall be responsible for the maintenance and adequate irrigation of the Landscape Barrer. Owners agree not to interfew with Crockett in connection with Crockett's location, installation, and maintenance ofthe Landscape Barderdming both the construction phase of the Property as well as after completion of the Property's development Theparties further agree thatinorderto accommodate the location andplacement of thatportion of the Landscape Barrier located alongtbe impmvedEPARE adjacentto orwithm the Crockett property, the new driveway serving the Property shall beconstmcted within ftEPARE south of the Landscape Boundary. IfrequkedbyDefendants, the Owners ofLot 10 hereby agree to grant Defendants atemporary licensefm access and constiuctionpurposesoverthatarea on Lot 10 immediately to the muth of the EPARE to facilitate construction of the new driveway and associated improvements within the EPARE. All permanent improvements shall he within the EPARE. This temporary license for construction shall be over an area running parallel to the southem boundaryofthe EPARE andshallbeofthe widthreasonably necessary to accommodate Defendants' conshnctionwithin the EPARE. Upon completion ofconshnctionofthedriveway and associated improvements, Defendants shall return the license area to the condition in which it existed prior to the commencement of work Owners shall replace any trees either taller Ulan 10 feet or 3 inches in diameter that are removed by them as a result of improvements to the EPARE with evergreen or smrilar trees of approximately sunilar height placed as nem as possible to the original trees. Owners agree not to disturb the existing retaining wall on Crockett's property located along the northerly edge of the EPARE, except that a stone or other natural, architectural veneer may beplacedon the face oftheretaini ng wall. Owners agree that any improvements to the EPARE will not interfere with or interrupt utility service to Plaintiffs' properties, except for temporary relocation of utility services, nor adversely affect any wafer drainage related to such Properties. Plaintiffs shall not be responsible for any costs associatedwith accessing andre aamg any utility service to any Aspen Grove Subdivision Lot, including any demolition or restoration of the improved Access Road Lot 14 driveway. 6. The Parties agree to enter into, execute and be bound by and record in the records of Pitkin County, Colorado, Lot 14 DesignResaicnons andCovenmds, reflecting the design restrictions set forth in MUTUAL RELEASE AND SETTLEMENT AGREEMENT Page 5 Paragraph 5a. through 5d. herein oftius Agreement as well as reflecting the terms ofthis Agreement. Atrue and correct copy of the Lot 14 Design Restrictions and Covenants to be recorded against the Property is attached hereto as Exhibit D. The Parties agree to include, in connectionwiththerecording ofthe Lot 14 Design Restrictions and Covenants, sufficient information for into appear in the chain of title. The Parkes further agree that this Agreement shall not be recorded. Defendants further agree to dismiss their Counterclaim against Crockett with prejudice. Owners agree to allow Plaintiffs, and any one of them, to take any such actions, measurements, readings or calculations reasonably necessary in order to ensure compliance with the Lot 14 Design Restrictions and Covenants applicable to the Property, including but not limited to permission to enter the Property for such purpose as necessary. Owners further agree to cooperate with any such compliance verification efforts. 7. In order to insure full transparency ofthe terms of this Agreementandprovide clearnotice to all future owners in the Aspen Grove Subdivision, the parties hereto agree totally cooperate in Eneamendnert of the Covenants applicable to the Property should any party deem such amendment necessary, including execution of any and all documents necessaryto=endthe Covenants, in order to ensure that construction of the Property in the Aspen Grove Subdivision is carried out in accordance with the terms of this Agreement. All parties hereto tinnier agree not to block, hinder or otherwise discourage in any way the passage of any such amendments to the Covenants. The terms and provisions of this Paragraph 7 apply only to the Property and do not imply any agreement to cooperate in the amendment of arty Covenant relating to arty other properties. 8. In consideration of the promises, assurances, covenants and conditions set forth in paragraphs 5 and 6 of this Agreement above, and the further mutual promises and obligations otherwise set forth in this Agreement, and to fully and finally settle this Dispute, the Lawsuit and all related issues, Plaintiffs agree to dismissal of their Complaint and the Lawsuit against the Defendants with prejudice. 9. The mutual promises, obligations, conditions, and covenants of anis Agreement shall be deemed to survive execution and satisfaction of any one or all of the tents of this Agreement, to nun with the WA and shall apply to and be binding on each and every Parry for itself and on behalf of its counsel, officers, principals, employees, agents, representatives, successors, businesses, subsidiaries, transferees, hem and assignswhatsoever. However, actions ofany ldnd taken to enibmethe terms ofthis Agreementmay only be brought against the lot owner who violates any ofthe temnsherein and not agamsta prior or subsequent lot owner. 10. Each Party shall bear his own costs and attorneys fees incurred in connection with the Dispute and the Lawsuit. In the event that any Party initiates any legal action to secure compliance by the other Party with the terns of this Agreement, the prevailing Party shall be entitled to an award of its reasonable attorney's fees and litigation costs incurred in connection with securing such compliance. Jurisdiction and venue for any such proceeding shall be Pitkin County Colorado District Court, and the Agreement shall be interpreted according to Colorado law. T17�1 4--•69 �\`1 Ild'I ` 7 a'I ` 11. This Agreement shall not be construed more strictly against one Parry than against the other merely by virtue of the fact that it may have been prepared by one of the Parties. 12. The Parties hereto shall execute any and all further documents and perfomr any and all further acts reasonably necessary or usefiil in carrying out the provisions of this Agreement. 13. The Parties represent that they have had legal counsel in connection with the review and approval of this Agreement. The undersigned Parties hereby represent that they have fully and duly approved the provisions of this Agreement and voluntarily agree to be bound by its teras and obligations. 14. 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 or mistake of fact or law by any Party, and that this Agreement expresses a full, final and complete setdementof the Dispute and the Lawsuit, regardless of the adequacy or inadequacy ofthe consideration. This Agreementis intended to avoid litigation and to be final and complete, and itmaynotbe altered, amendedormodified exceptby express written agreement among the Parties. 15. This Agreement may be executed in counterparts and, as executed shall constitute one Agreementbinding on all of the Parties hereto nomithstandmg thatall said Parties are not signatories to the original or same counterpart. Date: November, 2007 Plaintiffs: B Crockett By Robin Supplee By Shelley Supplee By Stephen Greenway MUTUAL RELEASE AND SETMEMENT AGRFEMEW Page 6 11. This Agreement shall not be consuuedmore strictly against one Party dren againsi the otrermerelyby vatic of the fact float itmay have beenptepared by one ofdte Parties. 12, he Parties bereto shall a Int any and all furtberdocomeuts and perform any and all feather acts reasonably necessary a useful in carrying our the provisions of this Agecmmt 13. The Parties represent that they have had legal oormsel in connection with the review and approval of Ibis Agreement. The undersigned Partes Lemby represent that they Lave fully and drily approved the provisions of this Agreement and voluntarily ageetobeboundbyits tents and obligafions. 14. Itis intended by the Parties to this Agreement, and each ofdtem, shat this Agreement shall be complete and shall not be subject to any claim or mistake of fact or law by any Party, and that tris Ageemenitexpnessa a fill, final and complete settlememofthe Dispute ard the Lawsuit,regradim ofthe adequacymmdequacyoftheconsideratmh. ThisAgreementis intended to avoidlif;gatonaudrobe final and complete, and itmay nutbealter d amendedormodified Ows tby exlaesswnftuageemem among the Parties. 15. This Agreement may be executed in mount Twin and, as executed shall constitute one Age,,,,Abmdmgonall of the Partes hereto notwithstandmgdhat all said Panties areitotsignatories to the original or same counterpart. Date; lq3 2007 Pluififi s: B fns 6��� Crockett MA M Robin Supplee 1 M MAL RELEASE AND SETTLEMENT AGREEMENT Page 6 11. This Agreement shall not be conffi¢ed more shicdy against one Party than against the other merely by virtue of the fact that it may have beenprepared by one of the Parties. 12. The Parties hereto shall execute any and all fir therdocuments and perform arty and all further acts reasonably necessary or useful in carrying out the provisions of this Agreement 13. The Parties represent that they have had legal counsel m connection with the review and approval of this Agreement. The undersigned Pames hereby represent that they have fully and duly approved the provisions of this Agreement and voluntarily agmetobe bound byits terms and obligations. 14. It is intandcdby the Parties to this Agreernent, and each ofthem, that this Agreemerdshall be comply and shall not be subject to any claim or ndsWac of fact or law by arty Party, and that this Agreement expresses a full, final and complete settlement of the DNp rte and theLawauit, regardless of the adeVacyormadaluacyoftheconsideretioa ThisAgreanentis intended to avoidlitigafion and to be final andcomplete, and it may notbe altered, amendedormodified except byexpretswritlenagreementamong the Parties. 15. This Agreement may be executed in counterparts and, as executed sbail constitute one A@reementbinding on all ofthe Parnes harem notwithstanding that all said Parties arenotsignatories to the original or same counterpart ()l"c brf t'% Date: November=, --2007 Plaintiffs. B �rrfus Crockett By, , � 5, „ S Robin Supplee By Shelley Supplee By SbVhen Greenway MUTUAL RELEASE AND SETTLEMENT AG@EEb1 n Page 7 By Pam Tumtek By Jolm McHugh By Riclde Litfle McHugh Defendants: WARREN FIR LLC, a Colorado limited flawcompany By Wa=n Coffin, Manager By DAVID FIR, LLC, a. Colorado limited habflity company Waren Cohan, Manage[ MMAL RELEASE AND SETTLEMENT AGREEMENT Pagel By Pam Jhnnek ByC 6 Jo McHugh _L By Riel i, Little McHugh Defendants: WARREN FH2, LLC, a Colorado limited liability company In Warren Cohen, Manager DAVID FIR, LLC, a Cobrado limited liability company By. Warren Cohen, Manager MUTUAL RELEASE AND SETTLEMENT AGREEMENT Page 7 Defendants: Um Rickie Little McHugh WARREN IR, C, a Co redo limited liability p By Davi Gitlitz, Manager DAV FIlt, LLC, a lolimited liabi y B avid Cntlitz, Man er