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HomeMy WebLinkAboutresolution.council.107-20 RESOLUTION #107 (Series of 2020) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A SETTLEMENT AGREEMENT IN LITIGATION KNOWN AS THE THOMAS M. AMRSHALL REVOCABLE TR UST AND THE ELLEN M. MARSHALL REVOCABLE TRUST V. THE CITY OF ASPEN, ET AL., PITKIN COUNTY DISTRICT COURT CASE NO.: 2016 CV 30119, AND THE ACCEPTANCE OF A QUIT CLAIM DEED FOR AND EASEMENT OVER CERTAIN PROPERTY ALONG RIVERSIDE DRIVE AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID SETTLEMENT AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Settlement Agreement in litigation known as The Thomas M. Marshall Revocable Trust and The Ellen M. Marshall Revocable Trust v. The City of Aspen, et al., Pitkin County District Court Case No.: 2016 CV 30119, which Settlement Agreement, attached hereto as Exhibit "A", includes the acceptance of a quit claim deed for and easement over certain property along Riverside Drive. 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 that Settlement Agreement attached hereto as Exhibit "A", and does hereby authorize the City Manager to execute said Settlement Agreement on behalf of the City of Aspen and does hereby accept the quit claim deed and easement that are part of such Settlement Agreement. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 81h day of December 2020. Torre, Mayor I, Nicole Henning, 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, December Bch 2020. Nicole Hennitrg,Pity Clerk SETTLEMENT AGREEMENT This Settlement Agreement (the "Agreement") is entered into this jj*4- day of N101— � 202k (the "Effective Date") by and between the Thomas M. Marshall Revocable Trust and the Ellen M. Marshall Revocable Trust (collectively hereinafter"Marshall") and the City of Aspen, a Colorado municipal corporation("City"). The above-named entities and individuals shall hereafter be collectively referred to as the "Parties", and each entity or individual shall be separately referred to as a "Party". RECITALS WHEREAS, Marshall is the owner of the real property known as Lot 1, Block 6, RIVERSIDE ADDITION TO THE CITY AND TOWNSITE OF ASPEN, together with the South one-half of Dale Avenue lying between Riverside Avenue and Park Avenue adjacent to said Lot 1, also known as 300 North Riverside Avenue, Aspen, Colorado 81611(the "Property"); and WHEREAS, the City owns Riverside Avenue and Dale Avenue, which border the Property to the north and west; and WHEREAS, there is a dispute between the parties regarding ownership of the alleyway between the Property and Lot 10, Block 6, Riverside Addition, and a portion of Dale Avenue, which areas are labeled as Parcels A and B on Exhibit A, attached and incorporated herein, which dispute is currently in litigation in Pitkin County District Court Case No. 2016CV30119 (the "Litigation"); and WHEREAS, the northwestern corner of the Property, shown on Exhibit A as Parcel C, is used by the City for the passage of cars along Riverside Avenue; and WHEREAS, the Parties have reached an agreement to settle their disputes and desire to reduce the terms and conditions of their agreement to writing; and WHEREAS, the intent of this Agreement is to amicably and finally resolve all claims the Parties may have against each other in accordance with this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and of the conditions, covenants and agreements set forth below, the amount and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. License Agreement. The City agrees to grant Marshall a license agreement for the areas labeled as Parcels A and B, which license agreement shall be irrevocable for so long as the main residence on the Property is not redeveloped or relocated, regardless of the ownership of the Property. During the period during which the license agreement is in effect, Marshall or 1318956.1 10/23/14 its successors in interest may use Parcels A and B for uses normally incident to ownership of the Property, including landscaping, parking and maintenance of the structures currently located on said parcels, provided, however, that no such structure shall prohibit or interfere with the installation or maintenance of utilities within the right-of-way. In the event any structure or improvement located within Parcels A or B is destroyed by an act other than that of the property owner, Marshall may replace that improvement within the currently existing footprint. During the period of the license agreement, Marshall may install fencing within Parcels A and/or B but agrees the installation of the fencing shall not constitute or serve as evidence of any claim of ownership. Fencing shall comply with all applicable Land Use Code regulations in place at the time a fence permit is requested, and shall provide a clear zone for vehicles as described in the City's January 2019 Engineering Standards, 7 feet(7') in width from the edge of asphalt. 2. Conveyance of Parcel C. Marshall hereby agrees to quit claim to the City its interest in Parcel C and shall upon execution of this agreement deliver to the City an executed Quit Claim Deed in the form attached hereto. Upon execution and recording of the Quit Claim Deed, Marshall shall be relieved of any responsibilities or obligations related to Parcel C, including but not limited to the obligation to maintain insurance on Parcel C. 3. Grant of Easement. Marshall hereby grants a non-exclusive easement to the City, 7 feet (7') in width from the edge of asphalt on the western boundary of the Property as shown in Exhibit A for the limited purpose of serving as a clear zone for vehicles as described in the City's January 2019 Engineering Standards. The Riverside Avenue roadway may not be extended into the easement area. Marshall agrees to not install any new structures or new plantings that will exceed two feet(2') in height at maturity in the easement area but shall not be required to remove any existing landscaping. Marshall may replace any existing plantings in the easement area provided, however,that the new plantings do not exceed two feet(2') in height at maturity. 4. Re-Development of the Property. The City agrees that in the event Marshall or its successors-in-interest as owner of the Property ever desire to enlarge the main residence more than ten percent(10%) of its current floor area or replace it with a new structure, the License Agreement set forth in paragraph 1, above shall be terminated. All construction of a remodeled or new structure shall be within the boundaries of the Property as defined above and set forth in Exhibit A, complying with all applicable setbacks and other regulations. The parties specifically agree, based on the particular circumstances of the claims set forth in the litigation and the terms of this settlement, that the allowable floor area of the remodeled or new structure shall be calculated based upon the entire area of the Property, as described above, and that there shall be no deductions of allowable floor area due to any past, proposed roadway dedication. Nothing in the paragraph 4, shall preclude the owner from applying for an encroachment license into any of the portions of Parcel A or B under then applicable Engineering requirements but the grant of such encroachment license shall be within the sole discretion of the City. Further, the Property is deemed one lot, and nothing set forth herein shall be deemed to provide Marshall with any authority to subdivide the Property, except as otherwise authorized by the City of Aspen Land Use Code as amended from time to time. 5. Disposition of Claims. In consideration of the City's issuance of license agreement to Marshall for Parcels A and B, and Marshall's conveyance of Parcel C to the City and granting of an easement as described in Paragraphs 1 through 3 above, and to fully dispose 2 1318956.1 10/23/14 of the claims brought in the Litigation, the Parties agree to stipulate to Marshall's dismissal of the Litigation. Conveyance of Parcel C shall occur by separate quit claim deed to be recorded in Pitkin County, Colorado. Any and all other claims raised by the Parties in the Litigation shall be dismissed by the Parties, with prejudice, with each Party to pay its own costs and fees. Further, it is acknowledged that this Agreement is a compromise of disputed claims and shall not be construed as an admission on the part of either party of the validity or lack thereof regarding or concerning any claim or defense asserted by either party in the Litigation described above. 6. Release. In consideration for and upon full and timely completion of the provisions of Paragraphs 1 —3 and 5 above, the Parties for themselves and their successors, representatives, agents, heirs and assigns will completely release and forever discharge the others of and from any and all past,present or future claims, demands, obligations, actions and causes of action of any nature that were, or could have been brought in the Litigation relating to the ownership of Parcels A and B. 7. Covenant Not to Sue. Except to enforce the express obligations of the Parties under this Agreement, each Party covenants, as of the Effective Date, not to institute any action or proceeding (including, but not limited to, any action or proceeding arising out of or related to the Litigation) against the other Party under this Agreement related to the matters released above, or to cause such Party to be joined or substituted as a party in any other lawsuit or proceeding, or at all arising out of or in connection with the released claims. 8. Further Assurances. Each party to this Agreement shall execute and deliver any and all additional papers, documents, and other assurances, and shall do any and all acts and things reasonably necessary or appropriate in connection with the performance of his/her/its obligations hereunder and to carry out the intent of the Parties hereto, and to correct or modify in good faith any errors or omissions which shall subsequently be discovered following the Effective Date. Each Party to this Agreement agrees to cooperate to the extent necessary and appropriate to effectuate all terms and conditions of this Agreement following the Effective Date. 9. Authority. The Parties represent and warrant that they possess the sole and full authority to enter into this Agreement free of any rights of settlement, approval, subrogation, or other condition or impediment. Each Party represents and warrants that the entry of this Agreement or performance of any obligation called for hereunder does not violate any contractual or other obligation by which it is bound. 10. Nonreliance. The Parties to this Agreement expressly assume the risks that the facts or law may be, or become, different from the facts or law as presently believed by the Parties. The Parties represent that they have had the opportunity to consult with, and/or have consulted with, counsel regarding this Agreement. The Parties acknowledge that their adversary relationship precludes any obligation of disclosure. 11. Entire Agreement. The Parties represent and agree that no promise, inducement, or agreement other than that expressed herein has been made to them and that this Agreement is fully integrated, supersedes all prior agreements, understandings, statements or representations and contains the entire agreement between them with respect to the subject matter hereof. 3 1318956.1 10/23/14 12. Voluntary and Informed Assent. The Parties represent and agree that they have read and fully understand this Agreement, that they are fully competent to manage their own personal and business affairs and to enter into and sign this Agreement, and that they are executing this Agreement voluntarily, free of any duress or coercion. 13. Governing Law, Forum and Attorneys' Fees. The laws of the State of Colorado shall apply to and control any interpretation, construction,performance or enforcement of this Agreement. Any action or proceeding to construe or enforce this Agreement, or to recover damages for its breach, shall be brought in the District Court for Pitkin County, Colorado and the Parties consent to the exercise of that Court's jurisdiction over them. In the event any litigation or other proceeding is brought for the enforcement of this Agreement or because of an alleged dispute, default, misrepresentation, or breach in connection with any of the provisions of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs and expenses actually incurred in initiating or responding to such proceeding, in addition to any other relief to which such Party may be entitled. 14. Construction. This Agreement and its exhibits shall be construed as if the Parties jointly prepared them and any uncertainty or ambiguity shall not be interpreted against any one party. 15. Modification. This Agreement shall not be modified except in writing signed by the Parties or their authorized representatives. 16. Severability. The Parties agree that if, for any reason, a provision of this Agreement shall be held unenforceable by any court of competent jurisdiction this Agreement shall be automatically conformed to the law or determination and otherwise this Agreement shall continue in full force and effect. 17. Headings. The headings of paragraphs herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement. 18. Counterparts. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties are not signatories to the original or the same counterpart. Facsimile or electronic signatures shall be accepted the same as an original signature. A photocopy of this agreement may be used in any action brought to enforce or construe this Agreement. 19. No Waiver. No failure to exercise and no delay in exercising any right, power or remedy under this Agreement shall impair any right,power or remedy which any Party may have, nor shall any such delay be construed to be a waiver of any such rights, powers or remedies or an acquiescence in any breach or default under the Agreement, nor shall any waiver of any breach or default of any Party be deemed a waiver of any default or breach subsequently appearing. SIGNATURES TO FOLLOW ON NEXT PAGE 4 1318956.1 10/23/14 THE CITY OF ASPEN, a Colorado municipal corporation Jam: By: Date: 3 / ZoZr SCoI i- rA t LL-aQ (print name) PUBLi,-- Dime (title) THOMAS M. MARSHALL REVOCABLE TRUST By: g Date: 1 — Z oz-o Thomas M. Marshall, Trustee ELLEN M. MARSHALL REVOCABLE TRUST By:_ '�A\ �/` - �V �SUAate: D L ID Ellen M. Marshall, Trustee 5 1318956.1 10/23/14