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Home My WebLink Aboutresolution.council.140-22RESOLUTION # 140 (Series of 2022) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING SETTLEMENT AGREEMENTS TO RESOLVE EXISTING APPEALS AND DISPUTES REGARDING APPLICATIONS FOR DEMOLITION ALLOTMENTS PURSUANT ORDINANCE NO. 13, SERIES OF 2022 AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID SETTLEMENT AGREEMENTS ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of 2022. Ordinance No. 13 provided numerous code amendments following the institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance #6, Series of 2022. Among the items adopted pursuant to Ordinance No. 13 was a restriction on the number of demolition allotments that would be issued each year; and, WHEREAS, because Ordinance No. 13 included Growth Management Quota System amendments that provide a cap of six standard demolition allotments, and states that such allotments must be granted on a first come/first served basis, the Community Development Department instituted a process for submission of applications for the 2022 demolition allotments following the sunset of the moratorium established pursuant to Ordinance #6, Series of 2022; and, WHEREAS, numerous applicants filed individual applications for a demolition allotment on August 8, 2022; and WHEREAS, the Community Development Director issued a Notice of Denial to six of the applicants that had applied for demolition allotments; and WHEREAS, all six of these applicants timely filed a notice of appeal of the Notice of Denial pursuant to Section 26.470.160 A., which appeal is presently pending before the City's Planning and Zoning Commission; and WHEREAS, the City staff and all six applicants desire to resolve the appeals and any further disputes that could arise involving the City and these parties concerning these applications and appeals; and WHEREAS, there has been submitted to the City Council six Settlement Agreements, which if approved by the City Council would resolve these six appeals by granting to each of these six applicants a 2023 demolition allotment. The proposed Settlement Agreements are attached hereto as Exhibits "A" through «F» 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 Settlement Agreements attached hereto as Exhibit "A" through "F" and does hereby authorize the City Manager to execute said Settlement Agreements on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 29t' day of November 2022. -774q�,K= 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, November 29, 2022. Nicole H-aming, City Clerk DocuSign Envelope ID: 5E2DBFD4-80D4-44EC-9DAF-FBD1CF5A1364 Exhibit "A" SETTLEMENT AGREEMENT This ettl ent Agreement (the "Agreement") is entered into this )q*d-ay of 2 (the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation ("City") and Muy Bonita LLC, a Colorado Limited Liability Company ("Applicant"). The above -named entities and individuals may hereafter be collectively referred to as the "Parties", and each entity or individual may be separately referred to as a "Party". RECITALS WHEREAS, Applicant is the owner of the real property known as Parcel A, Lot 25, Filing of the West Aspen Subdivision also known as 825 Bonita Drive, Aspen, Colorado 81611(the "Property"); and WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of 2022. Ordinance No. 13 provided numerous code amendments following the institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance. #6, Series of 2022. Among the items adopted pursuant to Ordinance No. 13 was a restriction on the number of Demolition allotments that would be issued each year; and, WHEREAS, because Ordinance No. 13 included Growth Management Quota System amendments that provide a cap of six (6) standard Demolition allotments, and states that such allotments must be granted on a first comelfirst served basis, the Community Development Department instituted a process for submission of applications for the 2022 Demolition allotments following the sunset of the moratorium established pursuant to Ordinance 46, Series of 2022; and, WHEREAS, the Applicant filed an application for a demolition allotment on August 8, 2022 (the "Application"); and WHEREAS, the Community Development Director ("Director") issued a Notice of Denial (the "Notice") of the Application on September 23, 2022. The City contends the Notice was issued pursuant to the procedures set forth by the City of Aspen Community Development Department and the City of Aspen Municipal Code, including Ordinance #13, Series of 2022. Applicant contends that the Director did not comply with the Code in denying the Application; and WHEREAS, the Applicant timely filed a notice of appeal of the Notice pursuant to Section 26.470.160 A., which appeal is presently pending before the City's Planning and Zoning Commission; (the "Appeal"); 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 1318956.1 10/23/14 DocuSign Envelope ID: 5E2DBFD4-60D4-44EC-9DAF-FBD1CF5A1364 WHEREAS, the Applicant has indicated that should its Appeal be denied by the Planning and Zoning Commission, it intends to appeal such decision to City Council and/or institute litigation pursuant to C.R.C.P. 106(a)(4); 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; and WHEREAS, the Aspen City Council finds that this Resolution fiuthers and is necessary for the promotion of public health, safety, and welfare; and, is in the best interest of the City, the Applicant and the other current applicants for a demolition allotment, and the Community as a whole. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and of the conditions, covenants and agreements set forth below, the Parties agree as follows: 1. Amendment of Notice of Denial. Subject to the terms and conditions set forth herein, the City hereby amends the Notice provided to Applicant to set forth a denial based on full allocation of 2022 allotments to other properties and applicants. 2. A meal Amendment. Subject to the terms and conditions set forth herein, the Applicant hereby agrees to amend its Appeal to submit the Appeal pursuant to Section 26.470.160 C., of the Land Use Code based on the amended denial finding that all 2022 allotments have been allocated to other properties and applicants, and the City agrees to accept such amended Appeal. 3. Appeal Requirements. Section 26.470.160 C., of the Land Use Code, states as follows: A. Insufficient development allotments. Any property owner within the City who is prevented from developing a property because that year's development allotments have been entirely allocated may appeal to the City Council for development approval. An application requesting allotments must first be denied due to lack of necessary allotments. The appeal procedures set forth at Chapter 26.316 shall apply. The City Council may take any such action determined necessary, including but not limited to making a one-time increase of the annual development allotment sufficient to accommodate the application. 4. Resolution of Appeal. The City Council has the inherent authority to resolve an appeal that has been submitted to it through hearing or agreement. In this instance, this Agreement is submitted as a proposed resolution of the Appeal and related dispute. By accepting this Agreement, the City Council is not concluding that the Applicant has met its burdens of appeal set forth'in Chapter 26.316. This Agreement is being accepted as a compromise to a disputed matter and is deemed in the best interest of the City of Aspen. 5. Grant of a Multi -Year Allotment. As noted in paragraph 3, above, Section 26.470.160 C., allows the City Council, as part of the resolution of the appeal to "take any such 2 131B956.1 10/23/14 DocuSign Envelope ID: 5E2DBFD4-80D4-44EC-9DAF-FBDICF5A1364 action determined necessary, ... [and] sufficient to accommodate the application." Therefore, subject to conditions set forth herein, the City Council hereby grants to the Applicant a 2023 multi -year demolition allotment that may be utilized consistent with the as -submitted Application. The project utilizing the demolition allotment granted pursuant to this Agreement shall comply with all other provisions of the Aspen Land Use Code and must apply for and receive all necessary approvals from the Historic Preservation Commission, the Planning and Zoning Commission and City Council as applicable. Following approval of this Agreement by City Council, the Director is directed to reduce the applicable annual development allotments for 2023 as provided in Section 26.470.120 of the Code. 6. Disposition of Claims. In consideration of the City's issuance of a 2023 allotment for this Applicant pursuant to the multi -year allotment provisions of the code, all appeals of the applicant shall be deemed withdrawn and any and all other claims raised by the Applicant in the appeal 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 appeal described above. The grant of the 2023 demolition allotment to Applicant is an exercise of the power, authority, and discretion granted to Council under Section 26.470.160 C., a compromise of a disputed claim, and is the resolution of an ongoing appeal and potential future litigation and the specific facts associated with the Application and Appeal, and therefore shall not be construed as binding upon the review and grant or denial of any multi -year allotment application by future Councils or in any other way precedential in the consideration of such multi -year allotment requests. 7. Release. In consideration for and upon full and timely completion of the provisions of this Agreement set forth above, the Parties for themselves and their successors, representatives, agents, heirs and assigns will completely release and forever discharge the other 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 Appeal or subsequent litigation relating to this matter. However, such release shall not release applicant from the requirements of any applicable City Codes required for development activities resulting from the receipt of the 2023 demolition allotment. 8. 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 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. 9. 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. 3 1319956.1 10=14 DocuSign Envelope ID: 5E2DBFD4-80D4-44EC-9DAF-FBD1CF5A1364 10. Authori. Except as set forth herein, 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. However, the Parties acknowledge and agree that the execution of this Agreement by the City Manageris specifically subject to the approval of this Agreement by the Aspen City Council as set forth in paragraph 11, below. 11. Approval by City Council. Notwithstanding the agreements to amend the denial and the Appeal and all other provisions set forth above, the Parties agree that the current appeal remains valid but stayed until this agreement is approved by the Aspen City Council by Resolution at a public meeting, which approval shall be at the sole and absolute discretion of City Council. If a Resolution of approval is not adopted on or before December 7, 2022, this agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, the parties have agreed that the original appeal shall be held before the Planning and Zoning Commission on December 20, 2022. 12. 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. 13. Entire AgKeement. 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. 14. V_ oluntary 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. 15. Governin 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. 4 13199561 16d13/14 DocuSign Envelope ID: 5E2DBFD4-80D4-44EC-9DAF-FBD1CF5A1364 16. 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 17. Modification. This Agreement shall not be modified except in writing signed by the Parties or their authorized representatives. 18. Severabili . 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. Further, if the effect of any finding of unenforceability is that Applicant is denied its 2023 demolition allotment, this Agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, Applicant's original Appeal to the Planning and Zoning Commission shall be reinstated and rescheduled for a hearing. 19. 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. 20. - Countemarts. 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. 21. 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. THE CITY OF ASPEN, a Colorado municipal corporation E2DMPJI-IEE194g@ pocuftned by: Araa.H12/7/2022 1 4:35:21 AM Ps7By.Date: Sara Ott City Manager 1318956.1 10123/14 DocuSign Envelope ID: 5E2Dl3FD4-80D4-44EC-9DAF-Fl3D1 CF5A1 364 MUY BONITA LLC By: �.. Date: Y Zz Frederick eirce, Manager 1316956.1 10M/14 DocuSign Envelope ID: C773D4BC-AD01-40F4-ADE3-6AD2F47AEF9B Exhibit "B" SETTLEMENT AGREEMENT if This Settlement Agreement (the "Agreement") is entered into this 4 � - day of 2022 (the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation ("City") and RED TABLE INITIAL, LLC, a Colorado limited liability company ("Applicant"). The above -named entities and individuals may hereafter be collectively referred to as the "Parties", and each entity or individual may be separately referred to as a "Party." RECITALS WHEREAS, Applicant is the owner of the real property known as Lot 12, Block 3, Aspen Grove Subdivision, according to the plat recorded September 3, 1963, in Plat Book 2A, Page 291, Reception No. 116127 also known as 782 McSkimming Road, Aspen, Colorado 81611 (the "Property"); and WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of 2022. Ordinance No. 13 provided numerous code amendments following the institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance #6, Series of 2022. Among the items adopted pursuant to Ordinance No. 13 was a restriction on the number of Demolition allotments that would be issued each year; and, WHEREAS, because Ordinance No. 13 included Growth Management Quota System amendments that provide a cap of six (6) standard Demolition allotments, and states that such allotments must be granted on a first come/first served basis, the Community Development Department instituted a process for submission of applications for the 2022 Demolition allotments following the sunset of the moratorium established pursuant to Ordinance 46, Series of 2022; and, WHEREAS, the Applicant filed an application for a demolition allotment on August 8, 2022 (the "Application"); and WHEREAS, the Community Development Director ("Director") issued a Notice of Denial (the "Notice") of the Application on September 23, 2022. The City contends the Notice was issued pursuant to the procedures set forth by the City of Aspen Community Development Department and the City of Aspen Municipal Code, including Ordinance #13, Series of 2022. Applicant contends that the Director did not comply with the Code in denying the Application; and WHEREAS, the Applicant timely filed a notice of appeal of the Notice pursuant to Section 26.470.160 A., which appeal is presently pending before the City's Planning and Zoning Commission; (the "Appeal"); 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 2742767_1 DocuSign Envelope ID: C773D4BC-AD01-40F4-ADE3-6AD2F47AEF9B WHEREAS, the Applicant has indicated that should its Appeal be denied by the Planning and Zoning Commission, it intends to appeal such decision to City Council and/or institute litigation pursuant to C.R.C.P. 106(a)(4); 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; and WHEREAS, the Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare and is in the best interest of the City, the Applicant and the other current applicants for a demolition allotment, and the Community as a whole. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and of the conditions, covenants and agreements set forth below, the Parties agree as follows: 1. Amendment of Notice of Denial. Subject to the terms and conditions set forth herein, the City hereby amends the Notice provided to Applicant to set forth a denial based on full allocation of 2022 allotments to other properties and applicants. 2. Appeal Amendment. Subject to the terms and conditions set forth herein, the Applicant hereby agrees to amend its Appeal to submit the Appeal pursuant to Section 26.470.160 C., of the Land Use Code based on the amended Notice finding that all 2022 allotments have been allocated to other properties and applicants, and the City agrees to accept such amended Appeal. 3. Appeal Re uirernents. Section 26.470.160 C., of the Land Use Code, states as follows: A. Insufficient development allotments. Any property owner within the City who is prevented from developing a property because that year's development allotments have been entirely allocated may appeal to the City Council for development approval. An application requesting allotments must first be denied due to lack of necessary allotments. The appeal procedures set forth at Chapter 26.316 shall apply. The City Council may take any such action determined necessary, including but not limited to making a one-time increase of the annual development allotment sufficient to accommodate the application. 4. Resolution of Al2Real. The City Council has the inherent authority to resolve an appeal that has been submitted to it through hearing or agreement. In this instance, this Agreement is submitted as a proposed resolution of the Appeal and related dispute. By accepting this Agreement, the City Council is not concluding that the Applicant has met its burdens of appeal set forth in Chapter 26.316. This Agreement is being accepted as a compromise to a disputed matter and is deemed in [lie best interest of the City of Aspen. 5. Grant of a Multi -Year Allotment. As noted in paragraph 3, above, Section 26.470.160 C., allows the City Council, as part of the resolution of the appeal to "take any such action determined necessary, ... [and] sufficient to accommodate the application." Therefore, 2 27427671 DocuSign Envelope ID: C773D4BC-AD01-40F4-ADE3-6AD2F47AEF9B subject to conditions set forth herein, the City Council hereby grants to the Applicant a 2023 multi- year demolition allotment that may be utilized consistent with the as -submitted Application. The project utilizing the demolition allotment granted pursuant to this Agreement shall comply with all other provisions of the Aspen Land Use Code and must apply for and receive all necessary approvals from the Historic Preservation Commission, the Planning and Zoning Commission, and City Council, as applicable. Following approval of this Agreement by City Council, the Director is directed to reduce the applicable annual development allotments for 2023 as provided in Section 26.470.120 of the Code. 6. Disposition of Claims. In consideration of the City's issuance of a 2023 allotment for this Applicant pursuant to the multi -year allotment provisions of the code, all appeals of the applicant shall be deemed withdrawn and any and all other claims raised by the Applicant in the appeal 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 appeal described above. The grant of the 2023 demolition allotment to Applicant is an exercise of the power, authority, and discretion granted to Council under Section 26.470.160 C., a compromise of a disputed claim, and is the resolution of an ongoing appeal and potential future litigation and the specific facts associated with the Application and Appeal, and therefore shall not be construed as binding upon the review and grant or denial of any multi -year allotment application by future Councils or in any other way precedential in the consideration of such multi -year allotment requests. 7. Release. In consideration for and upon full and timely completion of the provisions of this Agreement set forth above, the Parties for themselves and their successors, representatives, agents, heirs and assigns will completely release and forever discharge the other 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 Appeal or subsequent litigation relating to this matter. However, such release shall not release applicant from the requirements of any applicable City Codes required for development activities resulting from the receipt of the 2023 demolition allotment. 8. 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 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. 9. 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. 3 27427671 DocuSign Envelope ID: C773D4BC-AD01-40F4-ADE3-6AD2F47AEF9B 10. Authori .. Except as set forth herein, 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. However, the Parties acknowledge and agree that the execution of this Agreement by the City Manager is specifically subject to the approval of this Agreement by the Aspen City Council as set forth in paragraph 11, below. 11. Approval by Ci1y Council. Notwithstanding the agreements to amend the denial and the Appeal and all other provisions set forth above, the Parties agree that the current appeal remains valid but stayed until this agreement is approved by the Aspen City Council by Resolution at a public meeting, which approval shall be at the sole and absolute discretion of City Council. If a Resolution of approval is not adopted on or before December 7, 2022, this agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, the parties have agreed that the original appeal shall be held before the Planning and Zoning Commission on December 20, 2022. 12. Nan -reliance. 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. 13. 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. 14. 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. 15. Governizi 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. 16. 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. 4 2742767_1 DocuSign Envelope ID: C773D4BC-AD01-40F4-ADE3-6AD2F47AEF9B 17. Modification. This Agreement shall not be modified except in writing signed by the Parties or their authorized representatives. 18. 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. Further, if the effect of any finding of unenforceability is that Applicant is denied its 2023 demolition allotment, this Agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, Applicant's original Appeal to the Planning and Zoning Commission shall be reinstated and rescheduled for a hearing. 19. I-lcadings. 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. 20. 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. 21. 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. THE CITY OF ASPEN, a Colorado municipal corporation Doc uSig ned by: I3� G' Date: 12/7/2022 1 4:35:38 AM PST Sara Ott City Manager RED TABLE INITIAL LLC, a Colorado limited liability company By: WAPP Manager LLC, Manager By; 0 Date: 11/18/2022 DMA A. Baker, Manager 27427671 DocuSign Envelope ID: 3D5DB02C-F5FF-423C-B69C-EEF7DDB645CD Exhibit "C" SETTLEMENT AGREEMENT T is Settlement Agreement (the "Agreement") is entered into this U � day of PI—b 2022 (the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation ("City") and RVW ASPEN LP, a Delaware limited partnership ("Applicant"). The above -named entities and individuals may hereafter be collectively referred to as the "Parties", and each entity or individual may be separately referred to as a "Party." RECITALS WHEREAS, Applicant is the owner of the real property known as Lot 1, Barbee Family Subdivision/PUD, according to the plat recorded December 6, 1999, in Plat Book 51, Page 86 also known as 701 S. Garmisch St., Aspen, Colorado 81611 (the "Property"); and WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of 2022. Ordinance No. 13 provided numerous code amendments following the institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance #6, Series of 2022. Among the items adopted pursuant to Ordinance No. 13 was a restriction on the number of Demolition allotments that would be issued each year; and, WHEREAS, because Ordinance No. 13 included Growth Management Quota System amendments that provide a cap of six (6) standard Demolition allotments, and states that such allotments must be granted on a first come/first served basis, the Community Development Department instituted a process for submission of applications for the 2022 Demolition allotments following the sunset of the moratorium established pursuant to Ordinance #6, Series of 2022; and, WHEREAS, the Applicant filed an application for a demolition allotment on August 8, 2022 (the "Application"); and WHEREAS, the Community Development Director ("Director") issued a Notice of Denial (the "Notice") of the Application on September 23, 2022. The City contends the Notice was issued pursuant to the procedures set forth by the City of Aspen Community Development Department and the City of Aspen Municipal Code, including Ordinance #13, Series of 2022. Applicant contends that the Director did not comply with the Code in denying the Application; and WHEREAS, the Applicant timely filed a notice of appeal of the Notice pursuant to Section 26.470.160 A., which appeal is presently pending before the City's Planning and Zoning Commission; (the "Appeal"); 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 2742667 1 DocuSign Envelope ID: 3D5DB02C-F5FF-423C-B69C-EEF7DDB645CD WHEREAS, the Applicant has indicated that should its Appeal be denied by the Planning and Zoning Commission, it intends to appeal such decision to City Council and/or institute litigation pursuant to C.R.C.P. 106(a)(4); 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; and WHEREAS, the Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare and is in the best interest of the City, the Applicant and the other current applicants for a demolition allotment, and the Community as a whole. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and of the conditions, covenants and agreements set forth below, the Parties agree as follows: 1. Amendment of Notice of Denial. Subject to the terms and conditions set forth herein, the City hereby amends the Notice provided to Applicant to set forth a dcnial based on full allocation of 2022 allotments to other properties and applicants. 2. AppeaI Amendment. Subject to the terms and conditions set forth herein, the Applicant hereby agrees to amend its Appeal to submit the Appeal pursuant to Section 26.470.160 C., of the Land Use Code based on the amended Notice finding that all 2022 allotments have been allocated to other properties and applicants, and the City agrees to accept such amended Appeal. 3. Appeal Requirements. Section 26.470.160 C., of the Land Use Code, states as follows: A. Insufficient development allotments. Any property owner within the City who is prevented from developing a property because that year's development allotments have been entirely allocated may appeal to the City Council for development approval. An application requesting allotments must first be denied due to lack of necessary allotments. The appeal procedures set forth at Chapter 26.316 shall apply. The City Council may take any such action determined necessary, including but not limited to making a one-time increase of the annual development allotment sufficient to accommodate the application. 4. Resolution of Appeal. The City Council has the inherent authority to resolve an appeal that has been submitted to it through hearing or agreement. In this instance, this Agreement is submitted as a proposed resolution of the Appeal and related dispute. By accepting this Agreement, the City Council is not concluding that the Applicant has met its burdens of appeal set forth in Chapter 26.316. This Agreement is being accepted as a compromise to a disputed matter and is deemed in the best interest of the City of Aspen. 5. Grant of a Multi -Year Allotment. As noted in paragraph 3, above, Section 26.470.160 C., allows the City Council, as part of the resolution of the appeal to "take any such action determined necessary, ... [and] sufficient to accommodate the application." Therefore, 2 2742667_1 DocuSign Envelope ID: 3D5DB02C-F5FF-423C-B69C-EEF7DDB645CD subject to conditions set forth herein, the City Council hereby grants to the Applicant a 2023 multi- year demolition allotment that may be utilized consistent with the as -submitted Application. The project utilizing the demolition allotment granted pursuant to this Agreement shall comply with all other provisions of the Aspen Land Use Code and must apply for and receive all necessary approvals from the Historic Preservation Commission, the Planning and Zoning Commission, and City Council, as applicable. Following approval of this Agreement by City Council, the Director is directed to reduce the applicable annual development allotments for 2023 as provided in Section 26.470.120 of the Code. 6. Disposition of Claims. In consideration of the City's issuance of a 2023 allotment for this Applicant pursuant to the multi -year allotment provisions of the code, all appeals of the applicant shall be deemed withdrawn and any and all other claims raised by the Applicant in the appeal 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 appeal described above. The grant of the 2023 demolition allotment to Applicant is an exercise of the power, authority, and discretion granted to Council under Section 26.470.160 C., a compromise of a disputed claim, and is the resolution of an ongoing appeal and potential future litigation and the specific facts associated with the Application and Appeal, and therefore shall not be construed as binding upon the review and grant or denial of any multi -year allotment application by future Councils or in any other way precedential in the consideration of such multi -year allotment requests. 7. Release. In consideration for and upon full and timely completion of the provisions of this Agreement set forth above, the Parties for themselves and their successors, representatives, agents, heirs and assigns will completely release and forever discharge the other 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 Appeal or subsequent litigation relating to this matter. However, such release shall not release applicant from the requirements of any applicable City Codes required for development activities resulting from the receipt of the 2023 demolition allotment. 8. 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 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. 9. 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. 2742667_1 DocuSign Envelope ID: 3D5DB02C-F5FF-423C-B69C-EEF7DDB645CD 10. Authority. Except as set forth herein, 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. However, the Parties acknowledge and agree that the execution of this Agreement by the City Manager is specifically subject to the approval of this Agreement by the Aspen City Council as set forth in paragraph 11, below. 11. AMroyal by City CounciI.. Notwithstanding the agreements to amend the denial and the Appeal and all other provisions set forth above, the Parties agree that the current appeal remains valid but stayed until this agreement is approved by the Aspen City Council by Resolution at a public meeting, which approval shall be at the sole and absolute discretion of City Council. If a Resolution of approval is not adopted on or before December 7, 2022, this agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, the parties have agreed that the original appeal shall be held before the Planning and Zoning Commission on December 20, 2022. 12. Non -reliance. 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. 13. 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. 14. 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. 15. 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 he entitled. 16. 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. 4 2742667_1 DocuSign Envelope ID: 3D5DB02C-F5FF-423C-B69C-EEF7DDB645CD 17. Modification. This Agreement shall not be modified except in writing signed by the Parties or their authorized representatives. 18. S everabi 1 itv. 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. Further, if the effect of any finding of unenforceability is that Applicant is denied its 2023 demolition allotment, this Agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, Applicant's original Appeal to the Planning and Zoning Commission shall be reinstated and rescheduled for a hearing. 19. 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. 20. C uunterparts. 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. 21. 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. THE CITY OF ASPEN, a Colorado municipal corporation 0 uslgntd by: By: S�^a G' Date: 12/7/2022 1 4:35:57 AM PST Sara tt City Manager RVW ASPEN LP, a Delaware limited partnership By: RVW Aspen Corp., Gen I Partner By: r Date: d ✓.1d, Lindsay Woitas, Pres' ent 11 274259O1 DocuSign Envelope ID: ED6F64BA-7851-487A-8843-36CFD225D55B Exhibit „D„ SETTLEMENT AGREEMENT This Settlement Agreement (the "Agreement") is entered into this d# day of i�022 (the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation ("City") and MIDLAND PROPERTIES LLC, a Texas limited liability company ("Applicant"). The above -named entities and individuals may hereafter be collectively referred to as the "Parties", and each entity or individual may be separately referred to as a "Party." RECITALS WHEREAS, Applicant is the owner of the real property known as Lot 1, Ferguson Exemption Plat, recorded June 1, 1981, in Plat Book 11, Page 59, Reception No. 233197 also known as 108 Midland Avenue, Aspen, Colorado 81611 (the "Property"); and WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of 2022. Ordinance No. 13 provided numerous code amendments following the institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance #6, Series of 2022. Among the items adopted pursuant to Ordinance No. 13 was a restriction on the number of Demolition allotments that would be issued each year; and WHEREAS, because Ordinance No. 13 included Growth Management Quota System amendments that provide a cap of six (6) standard Demolition allotments, and states that such allotments must be granted on a first co97me/first served basis, the Community Development Department instituted a process for submission of applications for the 2022 Demolition allotments following the sunset of the moratorium established pursuant to Ordinance #6, Series of 2022; and, WHEREAS, the Applicant filed an application for a demolition allotment on August 8, 2022 (the "Application"); and WHEREAS, the Community Development Director ("Director") issued a Notice of Denial (the "Notice") of the Application on September 23, 2022. The City contends the Notice was issued pursuant to the procedures set forth by the City of Aspen Community Development Department and the City of Aspen Municipal Code, including Ordinance #13, Series of 2022. Applicant contends that the Director did not comply with the Code in denying the Application; and WHEREAS, the Applicant timely filed a notice of appeal of the Notice pursuant to Section 26.470.160 A., which appeal is presently pending before the City's Planning and Zoning Commission; (the "Appeal"); 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 2742799_1 DocuSign Envelope ID: ED6F64BA-7851-487A-8843-36CFD225D55B WHEREAS, the Applicant has indicated that should its Appeal be denied by the Planning and Zoning Commission, it intends to appeal such decision to City Council and/or institute litigation pursuant to C.R.C.P. 106(a)(4); 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; and WHEREAS, the Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare and is in the best interest of the City, the Applicant and the other current applicants for a demolition allotment, and the Community as a whole. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and of the conditions, covenants and agreements set forth below, the Parties agree as follows: 1. Amendment of Notice of Denial. Subject to the terms and conditions set forth herein, the City hereby amends the Notice provided to Applicant to set forth a denial based on full allocation of 2022 allotments to other properties and applicants. 2. AppeaI Amendment. Subject to the terms and conditions set forth herein, the Applicant hereby agrees to amend its Appeal to submit the Appeal pursuant to Section 26.470.160 C., of the Land Use Code based on the amended Notice finding that all 2022 allotments have been allocated to other properties and applicants, and the City agrees to accept such amended Appeal. 3. Appeal Requirements. Section 26.470.160 C., of the Land Use Code, states as follows: A. Insufficient development allotments. Any property owner within the City who is prevented from developing a property because that year's development allotments have been entirely allocated may appeal to the City Council for development approval. An application requesting allotments must first be denied due to lack of necessary allotments. The appeal procedures set forth at Chapter 26.316 shall apply. The City Council may take any such action determined necessary, including but not limited to making a one-time increase of the annual development allotment sufficient to accommodate the application. 4. Resolution of Appeal. The City Council has the inherent authority to resolve an appeal that has been submitted to it through hearing or agreement. In this instance, this Agreement is submitted as a proposed resolution of the Appeal and related dispute. By accepting this Agreement, the City Council is not concluding that the Applicant has met its burdens of appeal set forth in Chapter 26.316. This Agreement is being accepted as a compromise to a disputed matter and is deemed in the best interest of the City of Aspen. 5. Grant of a Multi -Year Allotment. As noted in paragraph 3, above, Section 26.470.160 C., allows the City Council, as part of the resolution of the appeal to "take any such action determined necessary, ... [and] sufficient to accommodate the application." Therefore, 2 2742667_1 DocuSign Envelope ID: ED6F64BA-7851-487A-8843-36CFD225D55B subject to conditions set forth herein, the City Council hereby grants to the Applicant a 2023 multi- year demolition allotment that may be utilized consistent with the as -submitted Application. The project utilizing the demolition allotment granted pursuant to this Agreement shall comply with all other provisions of the Aspen Land Use Code and must apply for and receive all necessary approvals from the Historic Preservation Commission, the Planning and Zoning Commission, and City Council, as applicable. Following approval of this Agreement by City Council, the Director is directed to reduce the applicable annual development allotments for 2023 as provided in Section 26.470.120 of the Code. 6. _Disposition of Claims. In consideration of the City's issuance of a 2023 allotment for this Applicant pursuant to the multi -year allotment provisions of the code, all appeals of the applicant shall be deemed withdrawn and any and all other claims raised by the Applicant in the appeal 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 appeal described above. The grant of the 2023 demolition allotment to Applicant is an exercise of the power, authority, and discretion granted to Council under Section 26.470.160 C., a compromise of a disputed claim, and is the resolution of an ongoing appeal and potential future litigation and the specific facts associated with the Application and Appeal, and therefore shall not be construed as binding upon the review and grant or denial of any multi -year allotment application by future Councils or in any other way precedential in the consideration of such multi -year allotment requests. 7. Release. In consideration for and upon full and timely completion of the provisions of this Agreement set forth above, the Parties for themselves and their successors, representatives, agents, heirs and assigns will completely release and forever discharge the other 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 Appeal or subsequent litigation relating to this matter. However, such release shall not release applicant from the requirements of any applicable City Codes required for development activities resulting from the receipt of the 2023 demolition allotment. 8. 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 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. 9. 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. 27427891 DocuSign Envelope ID: ED6F64BA-7851-487A-8843-36CFD225D55B 10. Authori . Except as set forth herein, 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. However, the Parties acknowledge and agree that the execution of this Agreement by the City Manager is specifically subject to the approval of this Agreement by the Aspen City Council as set forth in paragraph 11, below. 11. Ai2proval by Ci1y Council. Notwithstanding the agreements to amend the denial and the Appeal and all other provisions set forth above, the Parties agree that the current appeal remains valid but stayed until this agreement is approved by the Aspen City Council by Resolution at a public meeting, which approval shall be at the sole and absolute discretion of City Council. If a Resolution of approval is not adopted on or before December 7, 2022, this agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, the parties have agreed that the original appeal shall be held before the Planning and Zoning Commission on December 20, 2022. 12. Non -reliance. 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. 13. 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. 14. Volunta 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. 15. 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, 16. 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. ll 2742789_1 DocuSign Envelope ID: ED6F64BA-7851-487A-8843-36CFD225D55B 17. Modification. This Agreement shall not be modified except in writing signed by the Parties or their authorized representatives. 18. Severabi I ity. 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. Further, if the effect of any finding of unenforceability is that Applicant is denied its 2023 demolition allotment, this Agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, Applicant's original Appeal to the Planning and Zoning Commission shall be reinstated and rescheduled for a hearing. 19. 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. 20. 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. 21. 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. THE CITY OF ASPEN, a Colorado municipal corporation 0"uSignsd by: EOAM G, 12/7/2022 1 4:36:13 AM PST By:R i 2rmr Date: Sara Ott City Manager MIDLAND PROPERTIES LLC, a Texas limited liability company By: Date: 11. 17.22 Justin Haynes, Manager 27427891 DocuSign Envelope ID: D3BCD57E-A46B-41 BA-A29D-BCAE80E92l3DD SETTLEMENT AGREEMENT TitsZlement Agreement (the "Agreement") is entered into this 9V aay of 022 (the "Effective Date"), by and between the City of Aspen, a Colorado municipal corporation ("City") and West Pond Drive LLC, a New York Limited Liability Company ("Applicant"). The above -named entities and individuals may hereafter be collectively referred to as the "Parties", and each entity or individual may be separately referred to as a "Party." RECITALS WHEREAS, Applicant is the owner of the real property known as North '/2 Lot K, L and M, Block 33, East Aspen Addition also known as 212 S. Cleveland Street, Aspen, Colorado 81611 (the "Property"); and WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of 2022. Ordinance No. 13 provided numerous code amendments following the institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance 46, Series of 2022. Among the items adopted pursuant to Ordinance No. 13 was a restriction on the number of Demolition allotments that would be issued each year; and, WHEREAS, because Ordinance No. 13 included Growth Management Quota System amendments that provide a cap of six (6) standard Demolition allotments, and states that such allotments must be granted on a first come/first served basis, the Community Development Department instituted a process for submission of applications for the 2022 Demolition allotments following the sunset of the moratorium established pursuant to Ordinance #6, Series of 2022; and, WHEREAS, the Applicant filed an application for a demolition allotment on August 8, 2022 (the "Application"); and WHEREAS, the Community Development Director ("Director") issued a Notice of Denial (the "Notice") of the Application on September 23, 2022. The City contends the Notice was issued pursuant to the procedures set forth by the City of Aspen Community Development Department and the City of Aspen Municipal Code, including Ordinance 413, Series of 2022. Applicant contends that the Director did not comply with the Code in denying the Application; and WHEREAS, the Applicant timely filed a notice of appeal of the Notice pursuant to Section 26.470.160 A., which appeal is presently pending before the City's Planning and Zoning Commission; (the "Appeal"); 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 1318956.1 10/23/14 DocuSign Envelope ID: D3BCD57E-A46B-41BA-A29D-BCAE80E92BDD WHEREAS, the Applicant has indicated that should its Appeal be denied by the Planning and Zoning Commission, it intends to appeal such decision to City Council and/or institute litigation pursuant to C.R.C.P. 106(a)(4); 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; and WHEREAS, the Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare and is in the best interest of the City, the Applicant and the other current applicants for a demolition allotment, and the Community as a whole. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and of the conditions, covenants and agreements set forth below, the Parties agree as follows: 1. Amendment of Notice of Denial. Subject to the terms and conditions set forth herein, the City hereby amends the Notice provided to Applicant to set forth a denial based on full allocation of 2022 allotments to other properties and applicants. 2. Appeal Amendment. Subject to the terms and conditions set forth herein, the Applicant hereby agrees to amend its Appeal to submit the Appeal pursuant to Section 26.470.160 C., of the Land Use Code based on the amended Notice finding that all 2022 allotments have been allocated to other properties and applicants, and the City agrees to accept such amended Appeal. 3. Appeal Requirements. Section 26.470.160 C., of the Land Use Code, states as follows: A. Insufficient development allotments. Any property owner within the City who is prevented from developing a property because that year's development allotments have been entirely allocated may appeal to the City Council for development approval. An application requesting allotments must first be denied due to lack of necessary allotments. The appeal procedures set forth at Chapter 26.316 shall apply. The City Council may take any such action determined necessary, including but not limited to making a one-time increase of the annual development allotment sufficient to accommodate the application. 4. Resolution of Appeal. The City Council has the inherent authority to resolve an appeal that has been submitted to it through hearing or agreement. In this instance, this Agreement is submitted as a proposed resolution of the Appeal and related dispute. By accepting this Agreement, the City Council is not concluding that the Applicant has met its burdens of appeal set forth in Chapter 26.316. This Agreement is being accepted as a compromise to a disputed matter and is deerrred in the best interest of the City of Aspen. 5. Grant of a Multi -Year Allou-nent. As noted in paragraph 3, above, Section 26.470.160 C., allows the City Council, as part of the resolution of the appeal to "take any such action determined necessary, ... [and] sufficient to accommodate the application." Therefore, 2 274259CLI DocuSign Envelope ID: D3BCD57E-A46B-41BA-A29D-BCAE80E92BDD subject to conditions set forth herein, the City Council hereby grants to the Applicant a 2023 multi- year demolition allotment that may be utilized consistent with the as -submitted Application. The project utilizing the demolition allotment granted pursuant to this Agreement shall comply with all other provisions of the Aspen Land Use Code and must apply for and receive all necessary approvals from the Historic Preservation Commission, the Planning and Zoning Commission, and City Council, as applicable. Following approval of this Agreement by City Council, the Director is directed to reduce the applicable annual development allotments for 2023 as provided in Section 26.470.120 of the Code. 6. Disposition of Claims. In consideration of the City's issuance of a 2023 allotment for this Applicant pursuant to the multi -year allotment provisions of the code, all appeals of the applicant shall be deemed withdrawn and any and all other claims raised by the Applicant in the appeal 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 appeal described above. The grant of the 2023 demolition allotment to Applicant is an exercise of the power, authority, and discretion granted to Council under Section 26.470.160 C., a compromise of a disputed claim, and is the resolution of an ongoing appeal and potential future litigation and the specific facts associated with the Application and Appeal, and therefore shall not be construed as binding upon the review and grant or denial of any multi -year allotment application by future Councils or in any other way precedential in the consideration of such multi -year allotment requests. 7. Release. In consideration for and upon full and timely completion of the provisions of this Agreement set forth above, the Parties for themselves and their successors, representatives, agents, heirs and assigns will completely release and forever discharge the other 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 Appeal or subsequent litigation relating to this matter. However, such release shall not release applicant from the requirements of any applicable City Codes required for development activities resulting from the receipt of the 2023 demolition allotment. 8. 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 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. 9. 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. 27425901 DocuSign Envelope ID: D3BCD57E-A46B-41 BA-A29D-BCAE80E92BDD 10. Authori1y. Except as set forth herein, 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. However, the Parties acknowledge and agree that the execution of this Agreement by the City Manager is specifically subject to the approval of this Agreement by the Aspen City Council as set forth in paragraph 11, below. 11. Approval by Ci1y Council. Notwithstanding the agreements to amend the denial and the Appeal and all other provisions set forth above, the Parties agree that the current appeal remains valid but stayed until this agreement is approved by the Aspen City Council by Resolution at a public meeting, which approval shall be at the sole and absolute discretion of City Council. If a Resolution of approval is not adopted on or before December 7, 2022, this agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, the parties have agreed that the original appeal shall be held before the Planning and Zoning Commission on December 20, 2022. 12. Non -reliance. 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. 13. 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. 14. Volunta 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. 15. 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 he 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 he entitled. 16. 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. 4 2742590_1 DocuSign Envelope ID: D3BCD67E-A46B-41 BA-A29D-BCAE80E92BDD 17. Modification. This Agreement shall not be modified except in writing signed by the Parties or their authorized representatives. 18. 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. Further, if the effect of any finding of unenforceability is that Applicant is denied its 2023 demolition allotment, this Agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, Applicant's original Appeal to the Planning and Zoning Commission shall be reinstated and rescheduled for a hearing. 19. 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. 20. 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. 21. 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. THE CITY OF ASPEN, a Colorado municipal corporation 09"$19nod by: By: Saga a. N Date: 12/7/2022 1 4:36:33 AM PSI Sara City Manager WEST POND DRIVE LLC, a New York limited liability company Dewaignad by: By: , Date: November 18, 2022 Gary Ruth. Member 2742590_1 DocuSign Envelope ID: EF62AD75-ED56-4CE5-9426-72D923B1642B SETTLEMENT AGREEMENT This Settlement Agreement (the "Agreement") is entered into this 25th day of November 2022 (the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation ("City") and 675 Meadows Road, LLC, (Applicant"). The above -named entities and individuals may hereafter be collectively referred to as the "Parties", and each entity or individual may be separately referred to as a "Party". RECITALS WHEREAS, Applicant is the owner of the real property known as Lot 1 Janss Subdivision also known as 675 Meadows Road, Aspen, Colorado 81611(the "Property"); and WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of 2022. Ordinance No. 13 provided numerous code amendments following the institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance #6, Series of 2022. Among the items adopted pursuant to Ordinance No. 13 was a restriction on the number of Demolition allotments that would be issued each year; and, WHEREAS, because Ordinance No. 13 included Growth Management Quota System amendments that provide a cap of six (6) standard Demolition allotments, and states that such allotments must be granted on a first come/first served basis, the Community Development Department instituted a process for submission of applications for the 2022 Demolition allotments following the sunset of the moratorium established pursuant to Ordinance #6, Series of 2022; and, WHEREAS, the Applicant filed an application for a demolition allotment on August 8, 2022 (the "Application"); and WHEREAS, the Community Development Director ("Director") issued a Notice of Denial (the "Notice") of the Application on November 21, 2022. The City contends the Notice was issued pursuant to the procedures set forth by the City of Aspen Community Development Department and the City of Aspen Municipal Code, including Ordinance #13, Series of 2022. WHEREAS, the Applicant timely filed a notice of appeal of the Notice pursuant to Section 26.470.160 A., which appeal is presently pending before the City's Planning and Zoning Commission; (the "Appeal"); 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 Applicant has indicated that should its Appeal be denied by the Planning and Zoning Commission, he attends to appeal to City Council and/or institute litigation pursuant to C.R.C.P. 106(a)(4); and 1318956.1 10/23/14 DocuSign Envelope ID: EF82AD75-ED56-4CE5-9426-72D923B1642B 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; and WHEREAS, the Aspen City Council finds that this resolution furthers and is necessary for the promotion of public health, safety, and welfare; and, is in the best interest of the City, the Applicant and the other current applicants for a demolition allotment, and the Community as a whole. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and of the conditions, covenants and agreements set forth below, the Parties agree as follows: 1. Appeal. Applicant's Notice of Appeal is submitted pursuant to 26.470.160.A of the Land Use Code and is premised upon Applicant's argument that due to unexpected technological abnormalities created by submission of multiple applications prior to and after the opening time set forth by the Director through the City's online portal not fully known to or accounted for by the Director, its timely submittal was inadvertently delayed while other applications were not, and therefore the Director errored in issuing a denial. 2. Appeal Amendment. Subject to the terms and conditions set forth herein, the Applicant hereby agrees to amend its Appeal to submit the Appeal pursuant to Section 26.470.160 C., of the Land Use Code based on the amended denial finding that all 2022 allotments have been allocated to other properties and applicants, and the City agrees to accept such amended Appeal. 3. Appeal Reg uirements. Section 26.470.160 C., of the Land Use Code, states as follows: A. Insufficient development allotments. Any property owner within the City who is prevented from developing a property because that year's development allotments have been entirely allocated may appeal to the City Council for development approval. An application requesting allotments must first be denied due to lack of necessary allotments. The appeal procedures set forth at Chapter 26.316 shall apply. The City Council may take any such action determined necessary, including but not limited to making a one-time increase of the annual development allotment sufficient to accommodate the application. 4. Resolution of Appeal. The City Council has the inherent authority to resolve an appeal that has been submitted to it through hearing or agreement. In this instance, this Agreement is submitted as a proposed resolution of the Appeal and related dispute. By accepting this Agreement, the City Council is not concluding that the Applicant has met its burdens of appeal set forth in Chapter 26.316. This Agreement is being accepted as a compromise to a disputed matter and is deemed in the best interest of the City of Aspen. 5. Grant of a Multi -Year Allotment. As noted in paragraph 3, above, Section 26.470.160 C., allows the City Council, as part of the resolution of the appeal to "take any such action determined necessary, ... [and] sufficient to accommodate the application." Therefore, 2 1318956 1 10/23/14 DocuSign Envelope ID: EF62AD75-ED56-4CE5-9426-72D923B1642B subject to conditions set forth herein, the City Council hereby grants to the Applicant a 2023 multi -year demolition allotment that may be utilized consistent with the as -submitted Application. The project utilizing the demolition allotment granted pursuant to this Agreement shall comply with all other provisions of the Aspen Land Use Code and must apply for and receive all necessary approvals from the Historic Preservation Commission, the Planning and Zoning Commission and City Council as applicable. Following approval of this Agreement by City Council, the Director is directed to reduce the applicable annual development allotments for 2023 as provided in Section 26.470.120 of the Code. 6. Disposition of Claims. In consideration of the City's issuance of a 2023 allotment for this Applicant pursuant to the multi -year allotment provisions of the code, all appeals of the applicant shall be deemed withdrawn and any and all other claims raised by the Applicant in the appeal 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 appeal described above. The grant of the 2023 demolition allotment to Applicant is an exercise of the power, authority, and discretion granted to Council under Section 26.470.160 C., a compromise of a disputed claim, and is the resolution of an ongoing appeal and potential future litigation and the specific facts associated with the Application and Appeal, and therefore shall not be construed as binding upon the review and grant or denial of any multi -year allotment application by future Councils or in any other way precedential in the consideration of such multi -year allotment requests. 7. Release. In consideration for and upon full and timely completion of the provisions of this Agreement set forth above, the Parties for themselves and their successors, representatives, agents, heirs and assigns will completely release and forever discharge the other 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 Appeal or subsequent litigation relating to this matter. However, such release shall not release applicant from the requirements of any applicable City Codes required for development activities resulting from the receipt of the 2023 demolition allotment. 8. 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 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. 9. 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. 1318956.1 10/23/14 DocuSign Envelope ID: EF82AD75-ED56-4CE5-9426-72D923B1642B 10. Authori1y. Except as set forth herein, 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. However, the Parties acknowledge and agree that the execution of this Agreement by the City Manager is specifically subject to the approval of this Agreement by the Aspen City Council as set forth in paragraph 11, below. 11. Approval by City Council. Notwithstanding the agreements to amend the denial and the Appeal and all other provisions set forth above, the Parties agree that the current appeal remains valid but stayed until this agreement is approved by the Aspen City Council by Resolution at a public meeting, which approval shall be at the sole and absolute discretion of City Council. 12. 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. 13. 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. 14. 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. 15. 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. 16. Construction. This Agreement and its exhibits shall be construed as if the Parties jointly prepared them, and any uncertainty or a.mhiguity shall not be interpreted against any one party. 17. Modification. This Agreement shall not be modified except in writing signed by the Parties or their authorized representatives. 4 1318956 1 10/23/14 DocuSign Envelope ID: EF62AD75-ED56-4CE5-9426-72D923B1642B 18. 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. Further, if the effect of any finding of unenforceability is that Applicant is denied its 2023 demolition allotment, this Agreement and all terms and conditions set forth herein shall be deemed void ab initio, including, without limitation, the amendment of Applicant's Appeal as set forth in Paragraph 2. In such event, Applicant's original Appeal to the Planning and Zoning Commission shall be reinstated and rescheduled for a hearing. 19. 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. 20. Counter ants. 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. 21. 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. THE CITY OF ASPEN, a Colorado municipal corporation 0*=S%lid by: FS-2DA4 A,a a. iv'T[ Date: 12/7/2022 1 7:21:16 PM PST By: ... Sara Ott City Manager 675 MEADOWS ROAD, LLC By:_ 4-21 Date: 11/25/2022 1318956.1 10/23/14 DocuSign Envelope ID: EF82AD75-ED56-4CE5-9426-72D923B1642B 1318956 1 10/23/14