HomeMy WebLinkAboutresolution.council.062-24RESOLUTION 462
(Series of 2024)
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 ORDINANCE NO, 23, SERIES OF 2023 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 # 13 ). Ordinance # 13 provided numerous code
amendments following the institution of a moratorium adopted by Council on
March 15, 2022, pursuant to Ordinance No.6, Series of 2022. Among the items
adopted pursuant to Ordinance # 13 was a restriction on the number of demolition
allotments that would be issued each years and,
WHEREAS, Ordinance # 13 included Growth Management Quota System
amendments that provide a cap of six (6) standard Demolition Allotments per year,
and stated that such allotments would be granted on a first come/first served basis.
Pursuant to previous action by City Council, four of the six available 2024
Demolition Allotments had been issued in 2023 and,
WHEREAS, pursuant to OrdinanceSeries of 2024 (Ordinance
a lottery system was adopted by City Council to distribute Demolition Allotments.
In addition, Ordinance #23 created two additional Demolition Allotments for 2024,
thus allowing four Demolition Allotments to be distributed by lottery; and,
WHEREAS, numerous applicants participated in the lottery that was
conducted on February 20, 2024; and
V�►THEREAS, the Community Development Director issued a Notice of
Denial to the applicants that had applied for demolition allotments but were not
selected in the lottery; and
WHEREAS, 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 City Council; and
W
HEREAS, 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, as well as current litigation that is
ongoing regarding one of the applicants; 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 2025 demolition allotment on
the agreements and conditions set forth within the Settlement Agreements. 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 14th day of May 2024,
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, May 14, 2024.
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Exhibit A
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into this 14th day of May 2024 (the
"Effective Date") by and between the City of Aspen, a Colorado municipal corporation ("City")
and the Gregory Mebel Revocable Living Trust and the Estate of Ron Ibara, Deceased
(collectively, "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 properties legally described as:
CONDOMINIUM UNITS 1 AND 2
MARLOW CONDOMINIUMS,
ACCORDING TO THE CONDOMINIUM PLAT THEREOF
RECORDED OCTOBER 14, 1981 IN PLAT BOOK 12, PAGE 22, AND
ACCORDING TO THE CONDOMINIUM DECLARATION THEREOF
RECORDED OCTOBER 14, 1981 IN BOOK 415, PAGE 846.
COUNTY OF PITKIN, STATE OF COLORADO
The above -referenced property is commonly known as 1075 Cemetery Lane, Unit 1 and Unit 2,
Aspen, Colorado 81611 (the "Property").
WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of
2022 (Ordinance 7113). Ordinance #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 413 was a restriction on the
number of "Demolition Allotments" that would be issued each year; and,
WI -AREAS, Ordinance # 13 included Growth Management Quota System amendments
that provide a cap of six (6) standard Demolition Allotments per year, and stated that such
allotments would be granted on a first come/first served basis. Pursuant to previous action by
City Council, four of the six available 2024 Demolition Allotments had been issued in 2023; and,
WHEREAS, pursuant to Ordinance No. 23, Series of 2024 (Ordinance #23), a lottery
system was adopted by City Council to distribute Demolition Allotments. In addition, Ordinance
123 created two additional Demolition Allotments for 2024, thus allowing four Demolition
Allotments to be distributed by lottery. On January 2, 2024, Applicant submitted an application
seeking a 2024 Demolition Allotment for the Property. The application was deemed complete,
and Applicant participated in the lottery; and,
WHEREAS, a lottery was held on February 20, 2024, and pursuant to such lottery, four
properties, not including the Property, were deemed eligible for 2024 Demolition Allotments;
and,
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WHEREAS, since Applicant was not deemed eligible for a 2024 Demolition Allotment,
following the lottery, it was issued a letter of denial; and,
WHEREAS, pursuant to Section 26.470.160 C. and Chapter 26.316 of the City's Land
Use Code, the Applicant timely filed a notice of appeal of the denial of Applicant's application
for a 2024 Demolition Allotment. The appeal asserted several claims challenging the denial of a
2024 Demolition Allotment to the Applicant. In addition, pursuant to Section 26.470.160 C.,
applicant requested the issuance of a Demolition Allotment given the fact that no 2024
Demolition Allotments remained available. The appeal is presently pending before the City
Council; (the "Appeal"); and,
WHEREAS, the Applicant has indicated that should its appeal be denied by the City
Council, it intends to initiate litigation pursuant to C.R.C.P. 106(a)(4); and,
WI�REAS, the Parties have reached an agreement to settle their disputes and desire to
reduce the terms and conditions of their agreement to writing for consideration by City Council,
and,
WI�REAS, the intent of this Agreement is to amicably and finally resolve all claims the
Parties may have against each other in accordance with the terms of this Agreement; and,
VVI�REAS, the Aspen City Council finds that this Agreement 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 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 Requirements. The appeal was filed pursuant to Section 26.470.160 C., of
the Land Use Code, which states as follows:
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.
As noted therein, the appeal procedures set forth in Chapter 26.316 shall apply. That
Chapter states in Section 26.316.030 (f), as follows:
Action by the decision -making body hearing the appeal. The decision -
making body hearing the appeal may reverse, affirm or modify the
ON
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decision or determination appealed from and, if the decision is modified,
shall be deemed to have all the powers of the officer, board or commission
from whom the appeal is taken, including the power to impose reasonable
conditions to be complied with by the appellant. The decision -making
body may also elect to remand an appeal to the body that originally heard
the matter for further proceedings consistent with that body's jurisdiction
anif any, by the body hearing the appeal. The decision
d directions given,
shall be approved by written resolution. All appeals shall be public
meetings.
In addition, any project granted a Demolition Allotment must comply with the provisions of the
Residential Demolition and Redevelopment Standards (Demolition Standards) adopted pursuant
to Ordinance #13. Such Demolition Standards provide, among other requirements, that "[a]ll
projects are required to source separate non -hazardous waste materials and divert a minimum of
35% by weight, from the landfill."
2. Resolution of Appeal. The City Council has the 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. By accepting the proposed Agreement, the
City Council is not concluding that the Applicant has met its burdens of appeal set forth in
Chapter 26.316. This proposed resolution is being accepted as a compromise to a disputed
matter and is deemed in the best interest of the City of Aspen.
3. Grant of a Multi -Year Allotment. As noted in paragraph 1, 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, ... sufficient to accommodate the application." Therefore, subject
to conditions set forth herein, the City Council hereby grants to the Applicant a 2025 Demolition
Allotment subject to all the terms and conditions set forth herein.
4. Disposition of Claims. In consideration of the City's issuance of a 2025
Demolition Allotment to Applicant, Applicant agrees that it will comply with all provisions of
the Demolition Standards, as amended from time -to -time prior to submission of an application
for issuance of a demolition permit. In addition, the Applicant agrees as follows:
a. A deconstruction expert shall be hired by Applicant to evaluate the existing
structure and identify all possible recoverable materials within the building on the
Property and list specific marketplaces the materials can be delivered for salvage
(the "Deconstruction Survey"). This must include interior fixtures (like built-in
furniture, appliances), if any, along with the building materials. A report from the
deconstruction expert shall be submitted to the City identifying the salvageable
materials and the existing marketplace(s) for these materials to be donated or sold
for reuse or recycling. The Deconstruction Survey shall include a good -faith
estimate of the percentage, by weight, of the non -hazardous waste materials from
3
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the deconstruction of the structures) on the Property that the deconstruction
expert believes can be diverted from Landfill Waste ("Diversion Percentage").
b. The Deconstruction Survey shall be submitted prior to issuance of the demolition
permit.
c. If demolition has not commenced within 365 days after issuance of the demolition
permit, an updated deconstruction survey shall be submitted to and reviewed by
the City prior to commencement of demolition. The parties agree this additional
survey is needed because multiple years may pass between the submission of the
initial survey and the actual commencement of demolition, and it is unknown if
additional resource recovery markets will come online and increase the potential
to divert additional building materials, or vice versa.
d. The City Building Department shall be involved throughout the duration of
demolition of the structure(s) on the Property. This will include plan reviews for
diversion pre -demolition and site evaluations throughout the demolition process.
A summary report of diversion post -demolition will be required and provided to
the City Building Department. This obligation shall be accomplished by
Applicant's participation in the Green Halo program.
e. The Applicant will divert ail possible locally salvageable materials pursuant to
subsection (a) and divert a minimum of 90% by weight of the non -hazardous
waste material that the Deconstruction Survey estimates can be diverted from the
landfill in accordance with Deconstruction Survey generated and submitted under
subsections (a) and (b). For the sake of clarity, if the Deconstruction Survey
estimates that 50% of the total weight of all non -hazardous waste material can be
diverted, Applicant shall divert a minimum of 90% of such 50% (that is, 45%) of
the overall weight of non -hazardous waste materials. The current code's 35%
minimum diversion requirement shall be waived by the City, if the existing
improvements on the property are less than 2100 square feet in total size and if
the Deconstruction Survey submitted pursuant to subsection 4.b., above, certifies
that 35% diversion cannot be reasonably obtained. So long as Applicant acts in
good faith to comply with the Deconstruction Survey and exercises commercially
reasonable practices to fulfill the obligations of this subsection, Applicant shall
not be deemed to have breached this Agreement if it fails to meet its diversion
obligation.
5. Release. 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. 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,
n
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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 Demolition Allotment.
6. 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 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.
7. 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.
8. Authority. The Parties represent and warrant that they possess the sole and full
authority to enter into this Agreement free of any rights of settlement, approval, subrogation, or
other condition or impediment. Each Party represents and warrants that the entry of this
Agreement or performance of any obligation called for hereunder does not violate any
contractual or other obligation by which it is bound. However, the Parties acknowledge and
agree that the execution of this Agreement by the City is specifically subject to the approval of
this Agreement by the Aspen City Council as set forth in paragraph 12, below.
9. Approval by City Council. 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 May 14, 2024, this agreement and all terms
and conditions set forth herein shall be deemed void ab initio. In such event, the parties have
agreed that the original appeal hearing shall be held before the City Council on date mutually
agreed to by the Parties.
10. Runs With the Land; Recording. This Agreement shall be a benefit and a burden
on the Property and shall run with the land. This Agreement may be recorded in the Pitkin
County records by either Party.
11. Nonreliance. The Parties to this Agreement expressly assume the risks that the
facts or law inay 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.
12. 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
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fully integrated, supersedes all prior agreements, understandings, statements or representations
and contains the entire agreement between them with respect to the subject matter hereof.
13. 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.
14. 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.
15. 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.
16. Modification. This Agreement shall not be modified except in writing signed by
the Parties or their authorized representatives.
17. 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.
18. 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.
19. 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.
20. 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.
G'!
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THE CITY OF ASPEN, a Colorado municipal corporation
DocuSigned by:
Lt6��J B 1119�dFF19�
Sara Ott
City Manager
Date:
]une 129 2024
THE ��,�eR� MEBEL REVOCABLE LIVING TRUST
flq=38310147E
2EGt)2i AUIEIEEL June S, 2024
y• Date.
Gregory Mebel, Trustee
THE ESTATE OF RON IBARA, DECEASED
DocuSigned by:
E6shers
ye 7DA1 F2807AB6427.10 Date
Luke Kosters, Personal Representative a.
7
Tune 10, Z024
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Exhibit D
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into this 14th day of May 2024
(the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation
("City") and the Christine Anne Lee Pope Revocable Trust ("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
WFIEREAS, Applicant is the owner of the real property legally described as:
LOTS K, L AND M, BLOCK 26, CITY AND TOWNSITE OF ASPEN,
COUNTY OF PITKIN, STATE OF COLORADO
commonly known as 540 West Smuggler Street, Aspen, Colorado 81611 (the "Property"); and
WIJEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of
2022 (Ordinance #13). Ordinance #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 #13 was a restriction on the
number of "Demolition Allotments" that would be issued each year; and,
WHEREAS, Ordinance # 13 included Growth Management Quota System amendments
that provide a cap of six (6) standard Demolition Allotments per year, and stated that such
allotments would be granted on a first come/first served basis. Pursuant to previous action by
City Council, four of the six available 2024 Demolition Allotments had been issued in 2023; and,
WHEREAS, pursuant to Ordinance No. 23, Series of 2024 (Ordinance #23), a lottery
system was adopted by City Council to distribute Demolition Allotments. In addition, Ordinance
#23 created two additional Demolition Allotments for 2024, thus allowing four Demolition
Allotments to be distributed by lottery. On January 2, 2024, Applicant submitted an application
seeking a 2024 Demolition Allotment for the Property. The application was deemed complete,
and Applicant participated in the lottery; and,
WHEREAS, a lottery was held on February 20, 2024, and pursuant to such lottery, four
properties, not including the Property, were deemed eligible for 2024 Demolition Allotments;
and,
WHEREAS, since Applicant was not deemed eligible fora 2024 Demolition Allotment,
following the lottery, it was issued a letter of denial; and,
WHEREAS, pursuant to Section 26.470.160 C. and Chapter 26.316 of the City's Land
Use Code, the Applicant timely filed a notice of appeal of the denial of Applicant's application
for a 2024 Demolition Allotment. The appeal asserted several claims challenging the denial of a
2024 Demolition Allotment to the Applicant. In addition, pursuant to Section 26.470.160 C.,
applicant requested the issuance of a Demolition Allotment given the fact that no 2024
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Demolition Allotments remained available. The appeal is presently pending before the City
Council; (the "Appeal"); and,
WIIEREAS, the Applicant has indicated that should its appeal be denied by the City
Council, it intends to initiate litigation pursuant to C.R.C.P. 106(a)(4); 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 for consideration by City Council,
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 the terms of this Agreement; and,
WHEREAS, the Aspen City Council finds that this Agreement 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 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 Requirements. The appeal was filed pursuant to Section 26.470.160 C., of
the Land Use Code, which states as follows:
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 aone-time increase of the annual development
allotment sufficient to accommodate the application.
As noted therein, the appeal procedures set forth in Chapter 26.316 shall apply. That
Chapter states in Section 26.316.030 (f), as follows:
Action by the decision -making body hearing the appeal. The decision-
malcing body hearing the appeal may reverse, affirm or modify the
decision or determination appealed from and, if the decision is modified,
shall be deemed to have all the powers of the officer, board or commission
from whom the appeal is taken, including the power to impose reasonable
conditions to be complied with by the appellant. The decision -making
body may also elect to remand an appeal to the body that originally heard
the matter for further proceedings consistent with that body's jurisdiction
if any, by the body hearing the appeal. The decision and directions given,
2
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shall be approved by written resolution. All appeals shall be public
meetings.
In addition, any project granted a Demolition Allotment must comply with the provisions of the
Residential Demolition and Redevelopment Standards (Demolition Standards) adopted pursuant
to Ordinance #13. Such Demolition Standards provide, among other requirements, that "[a]ll
projects are required to source separate non -hazardous waste materials and divert a minimum of
35% by weight, from the landfill."
2. Resolution of Appeal. The City Council has the 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. By accepting the proposed Agreement, the
City Council is not concluding that the Applicant has met its burdens of appeal set forth in
Chapter 26.316. This proposed resolution is being accepted as a compromise to a disputed
matter and is deemed in the best interest of the City of Aspen.
3. Grant of a Multi -Year Allotment. As noted in paragraph 1, 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, ... sufficient to accommodate the application." Therefore, subject
to conditions set forth herein, the City Council hereby grants to the Applicant a 2025 Demolition
Allotment subject to all the terms and conditions set forth herein.
4. Disposition of Claims. In consideration of the City's issuance of a 2025
Demolition Allotment to Applicant, Applicant agrees that it will comply with all provisions of
the Demolition Standards, as amended from time -to -time prior to submission of an application
for issuance of a demolition permit. In addition, the Applicant agrees as follows:
a. A deconstruction expert shall be hired by Applicant to evaluate the existing
structure and identify all possible recoverable materials within the building on the
Property and list specific marketplaces the materials can be delivered for salvage
(the "Deconstruction Survey"). This must include interior fixtures (like built-in
furniture, appliances), if any, along with the building materials. A report from the
deconstruction expert shall be submitted to the City identifying the salvageable
materials and the existing marketplace(s) for these materials to be donated or sold
for reuse or recycling. The Deconstruction Survey shall include a good -faith
estimate of the percentage, by weight, of the non -hazardous waste materials from
the deconstruction of the structure(s) on the Property that the deconstruction
expert believes can be diverted from Landfill Waste ("Diversion Percentage").
b. The Deconstruction Survey shall be submitted prior to issuance of the demolition
permit.
c. If demolition has not commenced within 365 days after issuance of the demolition
permit, an updated deconstruction survey shall be submitted to and reviewed by
the City prior to commencement of demolition. The parties agree this additional
survey is needed because multiple years may pass between the submission of the
initial survey and the actual commencement of demolition, and it is unknown if
3
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additional resource recovery markets will come online and increase the potential
to divert additional building materials, or vice versa.
d. The City Building Department shall be involved throughout the duration of
demolition of the structure(s) on the Property. This will include plan reviews for
diversion pre -demolition and site evaluations throughout the demolition process.
A summary report of diversion post -demolition will be required and provided to
the City Building Department. This obligation shall be accomplished by
Applicant's participation in the Green Halo program.
e. The Applicant will divert all possible locally salvageable materials pursuant to
subsection (a) and divert a minimum of 90% by weight of the non -hazardous
waste material that the Deconstruction Survey estimates can be diverted from the
landfill in accordance with Deconstruction Survey generated and submitted under
subsections (a) and (b). For the sake of clarity, if the Deconstruction Survey
estimates that 50% of the total weight of all non -hazardous waste material can be
diverted, Applicant shall divert a minimum of 90% of such 50% (that is, 45%) of
the overall weight of non -hazardous waste materials. The current code's 35%
minimum diversion requirement shall be waived by the City, if the existing
improvements on the property are less than 1500 square feet in total size and if
the Deconstruction Survey submitted pursuant to subsection 4.b., above, certifies
that 35% diversion cannot be reasonably obtained. So long as Applicant acts in
good faith to comply with the Deconstruction Survey and exercises commercially
reasonable practices to fulfill the obligations of this subsection, Applicant shall
not be deemed to have breached this Agreement if it fails to meet its diversion
obligation.
5. Release. 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. 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 Demolition Allotment.
6. 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 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.
3011519.1
DocuSign Envelope ID: 38FODA5C-2B51-4945-AFA5-532E630DA364
7. 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.
8. Authority. The Parties represent and warrant that they possess the sole and full
authority to enter into this Agreement free of any rights of settlement, approval, subrogation, or
other condition or impediment. Each Party represents and warrants that the entry of this
Agreement or performance of any obligation called for hereunder does not violate any
contractual or other obligation by which it is bound. However, the Parties acknowledge and
agree that the execution of this Agreement by the City is specifically subject to the approval of
this Agreement by the Aspen City Council as set forth in paragraph 12, below.
9. Approval by City Council. 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 May 14, 2024, this agreement and all terms
and conditions set forth herein shall be deemed void ab 14nitio. In such event, the parties have
agreed that the original appeal hearing shall be held before the City Council on date mutually
agreed to by the Parties.
10. Runs With the Land; Recordin;;. This Agreement shall be a benefit and a burden
on the Property and shall run with the land. This Agreement may be recorded in the Pitkin
County records by either Party.
11. 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.
12. Entire A;reement. 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.
13. 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.
14. 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
3011519.1
DocuSign Envelope ID: 38FODA5C-2B51-4945-AFA5-532E630DA364
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.
15. 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.
16. Modification. This Agreement shall not be modified except in writing signed by
the Parties or their authorized representatives.
17. 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.
18. 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.
19. 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.
20. 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
aWearing,
THE CITY OF ASPEN, a Colorado municipal corporation
DocuSigned by:
June 6, 2024
By: Spa Date:
Sara Ott
City Manager
C
3011519.1
DocuSign Envelope ID: 38FODA5C-2B51-4945-AFA5-532E630DA364
Christine Anne Lee Pope Revocable Trust
Docuftned by:
ne�T�ope
Trustee
7
]une 4, 2024
Date:
3011519.1
DocuSign Envelope ID: C3FE682E-8D1149EMA02-13AB980BD24B5
Exhibit C
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into this 14th day of May 2024
the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation
("City") and 981 King Street 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".
WHEREAS, Applicant is the owner of the real property legally described as:
LUT 4, ASTOR SUBDIVISION, AC:CORDING TO THE FIRST
AMENDED PLAT THEREOF RECORDED JUNE 28, 1994 IN PLAT
BOOK 34 AT PAGE 86. COUNTY OF PITKIN, STATE OF
COLORADO.
commonly known as 981 King Street, Aspen, Colorado 81611 (the "Property"); and
WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of
2022 (Ordinance #13). Ordinance #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 # 13 was a restriction on the
number of "Demolition Allotments" that would be issued each years and,
WHEREAS, Ordinance # 13 included Growth Management Quota System amendments
that provide a cap of six (6) standard Demolition Allotments per year, and stated that such
allotments would be granted on a first come/first served basis. Pursuant to previous action by
City Council, four of the six available 2024 Demolition Allotments had been issued in 20230 and,
WHEREAS, pursuant to Ordinance No. 23, Series of 2024 (Ordinance #23), a lottery
system was adopted by City Council to distribute Demolition Allotments. In addition, Ordinance
#23 created two additional Demolition Allotments for 2024, thus allowing four Demolition
Allotments to be distributed by lottery. On January 2, 2024, Applicant submitted an application
seeking a 2024 Demolition Allotment for the Property. The application was deemed complete,
and Applicant participated in the lottery; and,
WHEREAS, a lottery was held on February 20, 2024, and pursuant to such lottery, four
properties, not including the Property, were deemed eligible for 2024 Demolition Allotments;
and,
WHEREAS, since Applicant was not deemed eligible fora 2024 Demolition Allotment,
following the lottery, it was issued a letter of denial; and,
WHEREAS, pursuant to Section 26.470.160 C. and Chapter 26.316 of the City's Land
Use Code, the Applicant timely .filed a notice of appeal of the denial of Applicant's .application
for a 2024 Demolition Allotment. The appeal asserted several claims challenging the denial of a
2024 Demolition Allotment to the Applicant. In addition, pursuant to Section 26.470,160 C.,
3011506.1
DocuSign Envelope ID: C3FE682&8D11-49ED-9A02-13AB980BD24135
applicant requested the issuance of a Demolition Allotment given the fact that no 2024
Demolition Allotments remained available. The appeal is presently pending before the City
Council; (the "Appeal")3 and,
WHEREAS, the Applicant has indicated that should its appeal be denied by the City
Council, it intends to initiate litigation pursuant to C.R.C.P. 106(a)(4); 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 for consideration by City Council;
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 the terms of this Agreement$ and,
WHEREAS, the Aspen City Council finds that this Agreement 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 Community as a whole.
1 �1�W, THEREF®RE, in consideration of the foregoing recitals and of the conditions,
covenants and agreements set forth below, the Parties agree as follows.
1. Appeal Requirements. The appeal was filed pursuant to Section 26.470.160 C., of
the Land Use Code, which states as follows:
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.
As noted therein, the appeal procedures set forth in Chapter 26.316 shall apply. That
Chapter states in Section 26.316.030 (f), as follows:
Action by the decision -making body hearing the appeal. The decision -
making body hearing the appeal may reverse, affirm or modify the
decision or determination appealed from and, if the decision is modified,
shall be deemed to have all the powers of the officer, board or commission
from whom the appeal is taken, including the power to impose reasonable
conditions to be complied with by the appellant. The decision -malting
body may also elect to remand an appeal to the body that originally heard
the matter for further proceedings consistent with that body's jurisdiction
given, if any, by the body hearing the appeal. The decision
and directions g
2
3011506. I
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shall be approved by written resolution. All appeals shall be public
meetings.
In addition, any project granted a Demolition Allotment must comply with the provisions of the
Residential Demolition and Redevelopment Standards (Demolition Standards) adopted pursuant
to Ordinance #13. Such Demolition Standards provide, among other requirements, that "[a]ll
projects are required to source separate non -hazardous waste materials and divert a minimum of
35% by weight, from the landfill."
2. Resolution of Ap e9 0 The City Council has the 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. By accepting the proposed Agreement, the
City Council is not concluding that the Applicant has met its burdens of appeal set forth in
Chapter 26.316. This proposed resolution is being accepted as a compromise to a disputed
matter and is deemed in the best interest of the City of Aspen.
3. Grant of a Multi -Year Allotment. As noted in paragraph 1, above, Section
2604700160 C., allows the City Council, as part of the resolution of the appeal to "take any such
action determined necessary, ... sufficient to accommodate the application." Therefore, subject
to conditions set forth herein, the City Council hereby grants to the Applicant a 2025 Demolition
Allotment subject to all the teams and conditions set forth herein.
4. Disposition of Claims. In consideration of the City's issuance of an 2025
Demolition Allotment to Applicant, Applicant agrees that it will comply with all provisions of
the Demolition Standards, as amended from time -to -time prior to submission of an application
for issuance of a demolition permit. In addition, the Applicant agrees as follows:
a. A deconstruction expert shall be hired by Applicant to evaluate the existing
structure and identify all possible recoverable materials within Co building on the
Property and list specific marketplaces the materials can be delivered for salvage
(the "Deconstruction Survey"). This must include interior fixtures (like built-in
furniture, appliances), if any, along with the building materials. A report from the
deconstruction expert shall be submitted to the City identifying the salvageable
materials and the existing marketplace(s) for these materials to be donated or sold
for reuse or recycling. The Deconstruction Survey shall include a good -faith
estimate of the percentage, by weight, of the non -hazardous waste materials from
the deconstruction of the structure(s) on the Property that the deconstruction
expert believes can be diverted from Landfill Waste ("Diversion Percentage").
b. The Deconstruction Survey shall be submitted prior to issuance of the demolition
permit.
c. If demolition has not commenced within 365 days after issuance of the demolition
permit, an updated deconstruction survey shall be submitted to and reviewed by
the City prior to commencement of demolition. The parties agree this additional
survey is needed because multiple years may pass between the submission of the
initial survey and the actual commencement of demolition, and it is unknown if
3011506.1
DocuSign Envelope ID: C3FE682E-8D1149EMA02-13AB980BD24B5
additional resource recovery markets will come online and increase the potential
to divert additional building materials, or vice versa.
d. The City Building Department shall be involved throughout the duration of
demolition of the structure(s) on the Property. This will include plan reviews for
diversion pre -demolition and site evaluations throughout the demolition process.
A summary report of diversion post -demolition will be required and provided to
the City Building Department. This obligation shall be accomplished by
Applicant's participation in the Green Halo program.
e. The Applicant will divert all possible locally salvageable materials pursuant to
subsection (a) and divert a minimum of 90% by weight of the non -hazardous
waste material that the Deconstruction Survey estimates can be diverted from the
landfill in accordance with Deconstruction Survey generated and submitted under
subsections (a) and (b). For the sake of clarity, if the Deconstruction Survey
estimates that 50% of the total weight of all non -hazardous waste material can be
diverted, Applicant shall divert a minimum of 90% of such 50% (that is, 45%) of
the overall weight of non -hazardous waste materials. The current code's 35%
minimum diversion requirement shall be waived by the City, if the existing
improvements on the property are less than 1500 square feet in total size and if
the Deconstruction Survey submitted pursuant to subsection 4.b., above, certifies
that 35% diversion cannot be reasonably obtained. So long as Applicant acts in
good faith to comply with the Deconstruction Survey and exercises commercially
reasonable practices to fulfill the obligations of this subsection, Applicant shall
not be deemed to have breached this Agreement if it fails to meet its diversion
obligation.
5. Release. 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. 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 Demolition Allotment.
6. 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 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.
0
3011506.1
DocuSign Envelope ID: C3FE682E-8D11-49EMA02-13AB980BD24135
7. 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.
8. Authority. The Parties represent and warrant that they possess the sole and full
authority to enter into this Agreement free of any rights of settlement, approval, subrogation, or
other condition or impediment. Each Party represents and warrants that the entry of this
Agreement or performance of any obligation called for hereunder does not violate any
contractual or other obligation by which it is bound. However, the Parties acknowledge and
agree that the execution of this Agreement by the City is specifically subject to the approval of
this Agreement by the Aspen City Council as set forth in paragraph 12, below.
9. Approval by City Council. 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 May 14, 2024, this agreement and all terms
and conditions set forth herein shall be deemed void ab initio. In such event, the parties have
agreed that the original appeal hearing shall be held before the City Council on date mutually
agreed to by the Parties.
10. Runs With the Land; Recordin;;. This Agreement shall be a benefit and a burden
on the Property and shall run with the land. This Agreement may be recorded in the Pitkin
County records by either Party.
11. 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.
12. 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
frilly integrated, supersedes all prior agreements, understandings, statements or representations
and contains the entire agreement between them with respect to the subject matter hereof.
13. Voluntary and Informed Assent. The Parties represent and agree that they have
read arrd fully undersfiand 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.
14. Governing Law, Forum and Attorne s�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
5
301 1506. I
DocuSign Envelope ID: MFE682E-8D11-49ED-9A02-BAB980BD24H
Parties consent to the exercise of that Courts jurisdiction over them. In Lite 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.
15. 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.
16. Modification. This Agreement shall not be modified except in writing signed by
the Parties or their authorized representatives.
17. 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.
18. Headin>;s. 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.
19. 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.
20. 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
ned by:
City Manager
981 King Street LLC
G
Date:
Tune 6, 2024
3011506. I
DocuSign Envelope ID: C3FE682&8D1149EMA02-BAB980BD2465
3011506.1
DocuSign Envelope ID: FD3145BF-860C-4B5E-8700-70FE21ADC8C5
Exhibit B
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into this 14th day of May 2024
the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation
("City") and Reed Stilwell and Claire Stilwell (collectively, "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 legally described as:
LOTS A, B AND C,
BLOCK 43,
CITY AND TOWNSITE OF ASPEN
COUNTY OF PITh;IN
STATE OF COLORADO
commonly known as 327 West Hallam Street, Aspen, Colorado 81611 (the "Property"); and
WHEREAS, on June 28, 2022, Aspen City Council adopted OrdinanceSeries of
2022 (Ordinance #13). Ordinance #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 #13 was a restriction on the
number of "Demolition Allotments" that would be issued each year; and,
WHEREAS, Ordinance # 13 included Growth Management Quota System amendments
that provide a cap of six (6) standard Demolition Allotments per year, and stated that such
allotments would be granted on a first come/first served basis. Pursuant to previous action by
City Council, four of the six available 2024 Demolition Allotments had been issued in 2023; and,
WHEREAS, pursuant to Ordinance No. 23, Series of 2024 (Ordinance #23), a lottery
system was adopted by City Council to distribute Demolition Allotments. In addition, Ordinance
#23 created two additional Demolition Allotments for 2024, thus allowing four Demolition
Allotments to be distributed by lottery. On January 2, 2024, Applicant submitted an application
seeking a 2024 Demolition Allotment for the Property. The application was deemed complete,
and Applicant participated in the lottery; and,
WHEREAS, a lottery was held on February 20, 2024, and pursuant to such lottery, four
properties, not including the Property, were deemed eligible for 2024 Demolition Allotments;
and,
WHEREAS, since Applicant was not deemed eligible fora 2024 Demolition Allotment,
following the lottery, it was issued a letter of denial; and,
WHEREAS, pursuant to Section 26.470.160 C. and Chapter 26.316 of the City's Land
Use Code, the Applicant timely filed a notice of appeal of the denial of Applicant's application
DocuSign Envelope ID: FD3145BF-860C-4B5E-8700-70FE21ADC8C5
for a 2024 Demolition Allotment. The appeal asserted several claims challenging the denial of a
2024 Demolition Allotment to the Applicant. In addition, pursuant to Section 26.470.160 C.,
applicant requested the issuance of a Demolition Allotment given the fact that no 2024
Demolition Allotments remained available. The appeal is presently pending before the City
Council; (the "Appeal"); and,
WHEREAS, the Applicant has indicated that should its appeal be denied by the City
Council, it intends to initiate litigation pursuant to C.R.C.P. 106(a)(4); 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 for consideration by City Council,
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 the terms of this Agreement; and,
WHEREAS, the Aspen City Council finds that this Agreement 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 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 Requirements. The appeal was filed pursuant to Section 26.470.160 C., of
the Land Use Code, which states as follows:
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.
As noted therein, the appeal procedures set forth in Chapter 26.316 shall apply. That
Chapter states in Section 26.316.030 (f), as follows:
Action by the decision -making body hearing the appeal. The decision -
making body hearing the appeal may reverse, affirm or modify the
decision or determination appealed from and, if the decision is modified,
shall be deemed to have all the powers of the officer, board or commission
from whom the appeal is taken, including the power to impose reasonable
conditions to be complied with by the appellant. The decision -making
body may also elect to remand an appeal to the body that originally heard
K1
DocuSign Envelope ID: FD3145BF-860C-4B5E-8700-70FE21ADC8C5
the matter for further proceedings consistent with that body's jurisdiction
if any, by the body hearing the appeal. The decision
and directions given,
shall be approved by written resolution. All appeals shall be public
meetings.
In addition, any project granted a Demolition Allotment must comply with the provisions of the
Residential Demolition and Redevelopment Standards (Demolition Standards) adopted pursuant
to Ordinance #13. Such Demolition Standards provide, among other requirements, that "[a]ll
projects are required to source separate non -hazardous waste materials and divert a minimum of
35% by weight, from the landfill."
2. Resolution of Appeal. The City Council has the 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. By accepting the proposed Agreement, the
City Council is not concluding that the Applicant has met its burdens of appeal set forth in
Chapter 26.316. This proposed resolution is being accepted as a compromise to a disputed
matter and is deemed in the best interest of the City of Aspen.
3. Grant of a Multi -Year Allotment. As noted in paragraph 1, 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, ... sufficient to accommodate the application." Therefore, subject
to conditions set forth herein, the City Council hereby grants to the Applicant a 2025 Demolition
Allotment subject to all the terms and conditions set forth herein.
4. Disposition of Claims. In consideration of the City's issuance of a 2025
Demolition Allotment to Applicant, Applicant agrees that it will comply with all provisions of
the Demolition Standards, as amended from time -to -time prior to submission of an application
for issuance of a demolition permit. In addition, the Applicant agrees as follows:
a. A deconstruction expert shall be hired by Applicant to evaluate the existing
structure and identify all possible recoverable materials within the building on the
Property and list specific marketplaces the materials can be delivered for salvage
(the "Deconstruction Survey"). This must include interior fixtures (like but
furniture, appliances), if any, along with the building materials. A report from the
deconstruction expert shall be submitted to the City identifying the salvageable
materials and the existing marketplace(s) for these materials to be donated or sold
for reuse or recycling. The Deconstruction Survey shall include a good -faith
estimate of the percentage, by weight, of the non -hazardous waste materials from
the deconstruction of the structure(s) on the Property that the deconstruction
expert believes can be diverted from Landfill Waste ("Diversion Percentage").
b. The Deconstruction Survey shall be submitted prior to issuance of the demolition
permit.
c. If demolition has not commenced within 365 days after issuance of the demolition
permit, an updated deconstruction survey shall be submitted to and reviewed by
the City prior to commencement of demolition. The parties agree this additional
3
DocuSign Envelope ID: FD3145BF-860C-4B5E-8700-70FE21ADC8C5
survey is needed because multiple years may pass between the submission of the
initial survey and the actual commencement of demolition, and it is unknown if
additional resource recovery markets will come online and increase the potential
to divert additional building materials, or vice versa.
d. The City Building Department shall be involved throughout the duration of
demolition of the structure(s) on the Property. This will include plan reviews for
diversion pre -demolition and site evaluations throughout the demolition process.
A summary report of diversion post -demolition will be required and provided to
the City Building Department. This obligation shall be accomplished by
Applicant's participation in the Green Halo program.
e. The Applicant will divert all possible locally salvageable materials pursuant to
subsection (a) and divert a minimum of 90% by weight of the non -hazardous
waste material that the Deconstruction Survey estimates can be diverted from the
landfill in accordance with Deconstruction Survey generated and submitted under
subsections (a) and (b). For the sake of clarity, if the Deconstruction Survey
estimates that 50% of the total weight of all non -hazardous waste material can be
diverted, Applicant shall divert a minimum of 90% of such 50% (that is, 45%) of
the overall weight of non -hazardous waste materials. The current code's 35%
minimum diversion requirement shall be waived by the City, if the existing
improvements on the property are less than 1500 square feet in total size and if
the Deconstruction Survey submitted pursuant to subsection 4.b., above, certifies
that 35% diversion cannot be reasonably obtained. So long as Applicant acts in
good faith to comply with the Deconstruction Survey and exercises commercially
reasonable practices to fulfill the obligations of this subsection, Applicant shall
not be deemed to have breached this Agreement if it fails to meet its diversion
obligation.
5. Release. 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. 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 Demolition Allotment,
6. 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 related to the matters released above, or to cause such Party
0
DocuSign Envelope ID: FD3145BF-860C-4B5E-8700-70FE21ADC8C5
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.
7. 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.
8. Authority. The Parties represent and warrant that they possess the sole and full
authority to enter into this Agreement free of any rights of settlement, approval, subrogation, or
other condition or impediment. Each Party represents and warrants that the entry of this
Agreement or performance of any obligation called for hereunder does not violate any
contractual or other obligation by which it is bound. However, the Parties acknowledge and
agree that the execution of this Agreement by the City is specifically subject to the approval of
this Agreement by the Aspen City Council as set forth in paragraph 12, below.
9. Approval by City Council. 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 May 14, 2024, this agreement and all terms
and conditions set forth herein shall be deemed void ab initio. In such event, the parties have
agreed that the original appeal hearing shall be held before the City Council on date mutually
agreed to by the Parties.
10. Runs With the Land; Recording. This Agreement shall be a benefit and a burden
oIt the Property and shall run with the land. This Agreement may be recorded in the Pitkin
County records by either Party.
11. 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.
12. 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.
13. 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.
14. 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
5
DocuSign Envelope ID: FD3145BF-860C-4B5E-8700-70FE21ADC8C5
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.
15. 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.
16. Modification. This Agreement shall not be modified except in writing signed by
the Parties or their authorized representatives.
17. 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.
18. Headin;;s. The headings of paragraphs herein are included solely for convenience
oI reference and shall not control the meaning or interpretation of any of the provisions of this
Agreement.
19. 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.
20. 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
aWearing,
THE CITY OF ASPEN, a Colorado municipal corporation
DocuSigned by:
Sava
B
V : 2DA4D214€E1942B...
Sara Ott
City Manager
0
Date:
Tune 6, 2024
DocuSign Envelope ID: FD3145BF-860C-4B5E-8700-70FE21ADC8C5
DocuSigned Jr
REED STILWELL
c66876701422402 Date.
Reed Stilwell
DocuSigned by:
CLAIRE STILWELL
Claire Stilwell
7
Date:
dune
4, 2024
Tune 4, 2024
DocuSign Envelope ID: 996F1 FAF-E55E-495A-B3F3-OF886D376FA9
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into this 14th day of May 2024
the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation
("City") and Lake House Aspen LLC, a Colorado limited liability company ("Applicant"). The
above -named entities and individuals may hereafter be collectively referred to as the "Parties",
ividual may be separately referred to as a "Party and each entity or ind".
RECITALS
WHEREAS, Applicant is the owner of the real property legally described as:
LOT A,
MOORES LOT SPLIT
ACCORDING TO THE PLAT THEREOF RECORDED FEBRUARY 109
1995 IN PLAT BOOK 35 AT PAGE 99 AND AMENDED MOORES
LOT SPLIT RECORDED APRIL 25, 1996 IN PLAT BOOK 39 AT
PAGE 58 AND AMENDED MOORES LOT SPLIT -II RECORDED
DUNE 65 1996 IN PLAT BOOK 39 AT PAGE 87.
COUNTY OF PITKIN
STATE OF COLORADO
commonly known as 400 Lake Avenue, Aspen, Colorado 81611 (the "Property"); and
WHEREAS, on June 28, 2022, Aspen City Council adopted OrdinanceSeries of
2022 (Ordinance # 13). Ordinance 11.13 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 #13 was a restriction on the
number of "Demolition Allotments" that would be issued each years and,
WHEREAS, Ordinance #13 included Growth Management Quota System amendments
that provide a cap of six (6) standard Demolition Allotments per year, and stated that such
allotments would be granted on a first come/first served basis. Pursuant to previous action by
City Council, four of the six available 2024 Demolition Allotments had been issued in 2023 0 and,
WHEREAS, pursuant to Ordinance No. 23, Series of 2024 (Ordinance #23), a lottery
system was adopted by City Council to distribute Demolition Allotments. In addition, Ordinance
#23 created two additional Demolition Allotments for 2024, thus allowing four Demolition
Allotments to be distributed by lottery. On January 2, 2024, Applicant submitted an application
seeking a 2024 Demolition Allotment for the Property. The application was deemed complete,
and Applicant participated in the lottery; and,
WHEREAS, a lottery was held on February 20, 2024, and pursuant to such lottery, four
properties, not including the Property, were deemed eligible for 2024 Demolition Allotments;
and,
3011493.1
DocuSign Envelope ID: 996F1 FAF-E55E-495A-B3F3-OF886D376FA9
WHEREAS, since Applicant was not deemed eligible for a 2024 Demolition Allotment,
following the lottery, it was issued a letter of denial; and,
WHEREAS, pursuant to Section 26.470.160 C. and Chapter 26.316 of the City's an
Use Code, the Applicant timely filed a notice of appeal of the denial of Applicant's application
for a 2024 Demolition Allotment. The appeal asserted several claims challenging the denial of a
2024 Demolition Allotment to the Applicant. In addition, pursuant to Section 26.470.160 C.,
applicant requested the issuance of a Demolition Allotment given the fact that no 2024
Demolition Allotments remained available. The appeal is presently pending before the City
Council; (the "Appeal"); and,
WHEREAS, the Applicant has indicated that should its appeal be denied by the City
Council, it intends to initiate litigation pursuant to C.R.C.P. 106(a)(4); and,
UVHEREAS, the Parties have reached an agreement to settle their disputes and desire to
reduce the terms and conditions of their agreement to writing for consideration by City Council,
and,
WI�REAS, the intent of this Agreement is to amicably and finally resolve all claims the
Parties may have against each other in accordance with the terms of this Agreement, and,
WHEREAS, the Aspen City Council finds that this Agreement 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 Community as a whole.
AGREEl�'IENT
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 Requirements. The appeal was filed pursuant to Section 26.470.160 C., of
the Land Use Code, which states as follows:
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.
As noted therein, the appeal procedures set forth in Chapter 26.316 shall apply. That
Chapter states in Section 26.316.030 (f), as follows:
Action by the decision -making body hewing the appeal. The decision -
making body hearing the appeal may reverse, affirm or modify the
3011493.1
DocuSign Envelope ID: 996F1 FAF-E55E-495A-B3F3-OF886D376FA9
decision or determination appealed from and, if the decision is modified,
shall be deemed to have all the powers of the officer, board or commission
from whom the appeal is taken, including the power to impose reasonable
conditions to be complied with by the appellant. The decision -making
body may also elect to remand an appeal to the body that originally heard
the matter for further proceedings consistent with that body's jurisdiction
and directions given, if any, by the body hearing the appeal. The decision
shall be approved by written resolution. All appeals shall be public
meetings.
In addition, any project granted a Demolition Allotment must comply with the provisions of the
Residential Demolition and Redevelopment Standards (Demolition Standards) adopted pursuant
to Ordinance #13. Such Demolition Standards provide, among other requirements, that "[a]ll
projects are required to source separate non -hazardous waste materials and divert a minimum of
35% by weight, from the landfill."
2. Resolution of Appeal. The City Council has the 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. By accepting the proposed Agreement, the
City Council is not concluding that the Applicant has met its burdens of appeal set forth in
Chapter 26.316. This proposed resolution is being accepted as a compromise to a disputed
matter and is deemed in the best interest of the City of Aspen.
3. Grant of a Multi -Year Allotment. As noted in paragraph 1, 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, ... sufficient to accommodate the application." Therefore, subject
to conditions set forth herein, the City Council hereby grants to the Applicant a 2025 Demolition
Allotment subject to all the terms and conditions set forth herein.
4. Disposition of Claims. In consideration of the City's issuance of a 2025
Demolition Allotment to Applicant, Applicant agrees that it will comply with ail provisions of
the Demolition Standards, as amended from time -to -time prior to submission of an application
for issuance of a demolition permit. In addition, the Applicant agrees as follows:
a. A deconstruction expert shall be hired by Applicant to evaluate the existing
structure and identify all possible recoverable materials within the building on the
Property and list specific marketplaces the materials can be delivered for salvage
(the "Deconstruction Survey"). This must include interior fixtures (like built-in
furniture, appliances), if any, along with the building materials. A report from the
deconstruction expert shall be submitted to the City identifying the salvageable
materials and the existing marketplace(s) for these materials to be donated or sold
for reuse or recycling. The Deconstruction Survey shall include a good -faith
estimate of the percentage, by weight, of the non -hazardous waste materials from
3
3011493.1
DocuSign Envelope ID: 996F1 FAF-E55E-495A-B3F3-OF886D376FA9
the deconstruction of the structures) on the Property that the deconstruction
expert believes can be diverted from Landfill Waste ("Diversion Percentage").
b. The Deconstruction Survey shall be submitted prior to issuance of the demolition
permit.
c. If demolition has not commenced within 365 days after issuance of the demolition
permit, an updated deconstruction survey shall be submitted to and reviewed by
the City prior to commencement of demolition. The parties agree this additional
survey is needed because multiple years may pass between the submission of the
initial survey and the actual commencement of demolition, and it is unknown if
additional resource recovery markets will come online and increase the potential
to divert additional building materials, or vice versa.
d. The City Building Department shall be involved throughout the duration of
demolition of the structure(s) on the Property. This will include plan reviews for
diversion pre -demolition and site evaluations throughout the demolition process.
A summary report of diversion post -demolition will be required and provided to
the City Building Department. This obligation shall be accomplished by
Applicant's participation in the Green Halo program.
e. The Applicant will divert all possible locally salvageable materials pursuant to
subsection (a) and divert a minimum of 90% by weight of the non -hazardous
waste material that the Deconstruction Survey estimates can be diverted from the
landfill in accordance with Deconstruction Survey generated and submitted under
subsections (a) and (b). For the sake of clarity, if the Deconstruction Survey
estimates that 50% of the total weight of all non -hazardous waste material can be
diverted, Applicant shall divert a minimum of 90% of such 50% (that is, 45%) of
the overall weight of non -hazardous waste materials. The current code's 35%
minimum diversion requirement shall be waived by the City, if the existing
improvements on the property are less than 1500 square feet in total size and if
the Deconstruction Survey submitted pursuant to subsection 4.b., above, certifies
that 35% diversion cannot be reasonably obtained. So long as Applicant acts in
good faith to comply with the Deconstruction Survey and exercises commercially
reasonable practices to fulfill the obligations of this subsection, Applicant shall
not be deemed to have breached this Agreement if it fails to meet its diversion
obligation.
5. Release. 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. 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,
11
3011493.1
DocuSign Envelope ID: 996F1 FAF-E55&495A-133FMI'886D376FA9
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 Demolition Allotment,
6. 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 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.
7. 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.
8. Authori .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 is specifically subject to the approval of
this Agreement by the Aspen City Council as set forth in paragraph 12, below.
9. Approval by City Council. 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 May 14, 2024, this agreement and all terms
and conditions set forth herein shall be deemed void ab initio. In such event, the parties have
agreed that the original appeal hearing shall be held before the City Council on date mutually
agreed to by the Parties.
10. Runs With the Land; Recording. This Agreement shall be a benefit and a burden
on the Property and shall run with the land. This Agreement may be recorded in the Pitkin
County records by either Party.
11. 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.
12. 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
3011493.1
DocuSign Envelope ID: 996F1 FAF-E55E495A-133FMF886D376FA9
fully integrated, supersedes all prior agreements, understandings, statements or representations
and contains the entire agreement between them with respect to the subject matter hereof.
13. 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.
14. Disposition of Lawsuit. Within 7 days of full execution and this Agreement's
being approved by the Aspen City Council, Applicant will cause a Stipulation for Dismissal with
Prejudice pursuant to C.R.C.P. 41 to be filed in the civil action styled as Lake House Aspen LLC
v. City of Aspen, Pitkin County District Court Case No. 2023 CV 30125.
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 repared 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. 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.
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.
3011493.1
DocuSign Envelope ID: 996F1 FAF-E55&495A-133FMF886D376FA9
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
i appearng.
THE CITY OF ASPEN, a Colorado municipal corporation
DocuSigned by:
5/31/2024
2OW214EE19426...
City Manager
LAKE. HnTT�F A�PFN_ T,T,C
DocuSigned by:
L�,visf
DB8AB4E74FCF454...
Lnristopner U. tiryan
Authorized Signatory
7
Date: May 31,
2:24:05
2024
3011493.1
DocuSign Envelope ID: 1 E7D691 D-BCE3-4040-BB1 D-BE7BB4F3D917
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into this 14th day of May 2024
the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation
("City") and Survivor's Trust Created Under the Cambell Family Trust dated July 13, 1993, as
amended ("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 legally described as:
Beginning at the Northwest corner of Lot A, Block 41 East Aspen
Addition; Thence S 14°50'49"W 100.00 feet to the Southwest corner of Lot
A, Block 41 East Aspen Addition; Thence N75°09' 11 "W 74.91 feet to the
Southeast corner of Lot I, Block 120 Aspen Townsite; Thence
414050'49"E 100.00 feet to the Northeast Corner of Lot I, Block 120
Aspen Townsite; Thence S75°09' 11 "E 74.91 feet to the point of
beginning; aid parcel contains 7,491 square feet; City of Aspen, County
of Pitkin, Colorado;
commonly known as 919 Waters Ave., Aspen, Colorado 81611(the "Property"); and
WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of
2022 (Ordinance #13). Ordinance #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 #13 was a restriction on the
number of "Demolition Allotments" that would be issued each year; and,
WHEREAS, Ordinance # 13 included Growth Management Quota System amendments
that provide a cap of six (6) standard Demolition Allotments per year, and stated that such
allotments would be granted on a first come/first served basis. Pursuant to previous action by
City Council, four of the six available 2024 Demolition Allotments had been issued in 2023; and,
WHEREAS, pursuant to Ordinance No. 23, Series of 2024 (Ordinance #23), a lottery
system was adopted by City Council to distribute Demolition Allotments. In addition, Ordinance
#23 created two additional Demolition Allotments for 2024, thus allowing four Demolition
Allotments to be distributed by lottery. On January 2, 2024, Applicant submitted an application
seeking a 2024 Demolition Allotment for the Property. The application was deemed complete,
and Applicant participated in the lottery, and,
WHEREAS, a lottery was held on February 20, 2024, and pursuant to such lottery, four
properties, not including the Property, were deemed eligible for 2024 Demolition Allotments;
and,
1318956. I 10/23/14
DocuSign Envelope ID: 1 E7D691 D-BCE3-4040-BB1 D-BE7BB4F3D917
WHEREAS, since Applicant was not deemed eligible for a 2024 Demolition Allotment,
following the lottery, it was issued a letter of denial; and,
WHEREAS, pursuant to Section 26.470.160 C. and Chapter 26.316 %J the City's Land
Use Code, the Applicant timely filed a notice of appeal of the denial of Applicant's application
for a 2024 Demolition Allotment. The appeal asserted several claims challenging the denial of a
2024 Demolition Allotment to the Applicant. In addition, pursuant to Section 26.470.160 C.,
applicant requested the issuance of a Demolition Allotment given the fact that no 2024
Demolition Allotments remained available. The appeal is presently pending before the City
Council; (the "Appeal"); and,
WHEREAS, the Applicant has indicated that should its appeal be denied by the City
Council, it intends to initiate litigation pursuant to C.R.C.P. 106(a)(4); 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 for consideration by City Council,
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 the terms of this Agreement, and,
WHEREAS, the Aspen City Council finds that this Agreement 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 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 Requirements. The appeal was filed pursuant to Section 26.470.160 C., of
the Land Use Code, which states as follows:
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.
As noted therein, the appeal procedures set forth in Chapter 26.316 shall apply. That
Chapter states in Section 26.316.030 (f), as follows:
Action by the decision -making body hewing the appeal. The decision -
making body hearing the appeal may reverse, affirm or modify the
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decision or determination appealed from and, if the decision is modified,
shall be deemed to have all the powers of the officer, board or commission
from whom the appeal is taken, including the power to impose reasonable
conditions to be complied with by the appellant. The decision -making
body may also elect to remand an appeal to the body that originally heard
the matter for further proceedings consistent with that body's jurisdiction
if any, by the body hearing the appeal. The decision
and directions given,
shall be approved by written resolution. All appeals shall be public
meetings.
In addition, any project granted a Demolition Allotment must comply with the provisions of the
Residential Demolition and Redevelopment Standards (Demolition Standards) adopted pursuant
to Ordinance #13. Such Demolition Standards provide, among other requirements, that "[a]ll
projects are required to source separate non -hazardous waste materials and divert a minimum of
35% by weight, from the landfill."
2. Resolution of Appeal. The City Council has the 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. By accepting the proposed Agreement, the
City Council is not concluding that the Applicant has met its burdens of appeal set forth in
Chapter 26.316. This proposed resolution is being accepted as a compromise to a disputed
matter and is deemed in the best interest of the City of Aspen.
3. Grant of a Multi -Year Allotment. As noted in paragraph 1, 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, ... sufficient to accommodate the application." Therefore, subject
to conditions set forth herein, the City Council hereby grants to the Applicant a 2025 Demolition
Allotment subject to all the terms and conditions set forth herein.
4. Disposition of Claims. In consideration of the City's issuance of a 2025
Demolition Allotment to Applicant, Applicant agrees that it will comply with all provisions of
the Demolition Standards, as amended from time -to -time prior to submission of an application
for issuance of a demolition permit. In addition, the Applicant agrees as follows:
a. A deconstruction expert shall be hired by Applicant to evaluate the existing
structure and identify all possible recoverable materials within the building on the
Property and list specific marketplaces the materials can be delivered for salvage
(the "Deconstruction Survey"). This must include interior fixtures (like built-in
furniture, appliances), if any, along with the building materials. A report from the
deconstruction expert shall be submitted to the City identifying the salvageable
materials and the existing marketplace(s) for these materials to be donated or sold
for reuse or recycling. The Deconstruction Survey shall include a good -faith
estimate of the percentage, by weight, of the non -hazardous waste materials from
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the deconstruction of the structures) on the Property that the deconstruction
expert believes can be diverted from Landfill Wastes ("Diversion Percentage").
b. The Deconstruction Survey shall be submitted prior to issuance of the demolition
permit.
c. If demolition has not commenced within 365 days after issuance of the demolition
permit, an updated deconstruction survey shall be submitted to and reviewed by
the City prior to commencement of demolition. The parties agree this additional
survey is needed because multiple years may pass between the submission of the
initial survey and the actual commencement of demolition, and it is unknown if
additional resource recovery markets will come online and increase the potential
to divert additional building materials, or vice versa.
d. The City Building Department shall be involved throughout the duration of
demolition of the structure(s) on the Property. This will include plan reviews for
diversion pre -demolition and site evaluations throughout the demolition process.
A summary report of diversion post -demolition will be required and provided to
the City Building Department. This obligation shall be accomplished by
Applicant's participation in the Green Halo program.
e. The Applicant will divert all possible locally salvageable materials pursuant to
subsection (a) and divert a minimum of 90% by weight of the non -hazardous
waste material that the Deconstruction Survey estimates can be diverted from the
landfill in accordance with Deconstruction Survey generated and submitted under
subsections (a) and (b). For the sake of clarity, if the Deconstruction Survey
estimates that 50% of the total weight of all non -hazardous waste material can be
diverted, Applicant shall divert a minimum of 90% of such 50% (that is, 45%) of
the overall weight of non -hazardous waste materials. The current code's 35%
minimum diversion requirement shall be waived by the City, if the improvements
on the property are less than 1500 square feet in total size and if the
Deconstruction Survey submitted pursuant to subsection 4.b., above, certifies that
35% diversion cannot be reasonably obtained. So long as Applicant acts in good
faith to comply with the Deconstruction Survey and exercises commercially
reasonable practices to fulfill the obligations of this subsection, Applicant shall
not be deemed to have breached this Agreement if it fails to meet its diversion
obligation.
5. Release. 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. 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,
Cl
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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 Demolition Allotment.
6. 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 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.
7. 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.
8. Authority. The Parties represent and warrant that they possess the sole and full
authority to enter into this Agreement free of any rights of settlement, approval, subrogation, or
other condition or impediment. Each Party represents and warrants that the entry of this
Agreement or performance of any obligation called for hereunder does not violate any
contractual or other obligation by which it is bound. However, the Parties acknowledge and
agree that the execution of this Agreement by the City is specifically subject to the approval of
this Agreement by the Aspen City Council as set forth in paragraph 12, below.
9. Approval by City Council. 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 May 14, 2024, this agreement and all terms
and conditions set forth herein shall be deemed void ab initio. In such event, the parties have
agreed that the original appeal hearing shall be held before the City Council on date mutually
agreed to by the Parties.
10. Runs With the Land; Recordin;;. This Agreement shall be a benefit and a burden
on the Property and shall run with the land. This Agreement may be recorded in the Pitkin
County records by either Party.
11. 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.
12. 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
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fully integrated, supersedes all prior agreements, understandings, statements or representations
and contains the entire agreement between them with respect to the subject matter hereof.
13. 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.
14. 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.
15. 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.
16. Modification. This Agreement shall not be modified except in writing signed by
the Parties or their authorized representatives.
17. 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.
18. 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.
19. 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.
20. 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.
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THE CITY OF ASPEN, a Colorado municipal corporation
By:
DocuSigned by:
Salca_Qi DA4D"
City Manager
14EE1942B.
..
Date: 6/10/2024 � 3:32:09 PM PDT
SURVIVOR'S TRUST CREATED UNDER THE
CAMPBELL FAMILY TRUST, dated July 13, 1993, as
amended
DocuSigned by:
B . ats �pa
y . FAEA6F35C3E4467.11
Angus Campbell, Co -Trustee
By:
DocuSigned by:
LS Q CAy4p�
C93D259CF30946A..4
Stuart Campbell, Co -Trustee
7
5/16/2024
Date:
5/16/2024
Date:
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