HomeMy WebLinkAboutresolution.council.152-25RESOLUTION 7T152
(Series of 2025)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO3
APPROVING A SETTLEMENT AGREEMENT AND MUTUAL RELEASE BY AND
BETWEEN THE CITY OF ASPEN AND 359 DESIGN, LLC; SOPRIS ENGINEERING, LLC;
BLUEGREEN, INC. D/B/A BLUEGREEN; BG BUILDINGWORKS, INC. N/K/A RTM
ENGINEERING CONSULTANTS, LLC; AND ASCENT GROUP, INC. D/B/A ASCENT
STRUCTURAL ENGINEERING AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID SETTLEMENT AGREEMENT AND MUTUAL RELEASE ON BEHALF
OF THE CITY OF ASPEN, COLORADO,
WHEREAS, there has been submitted to the City Council a Settlement Agreement and Mutual
Release by and between the City of Aspen and 359 Design, LLC; Sopris Engineering, LLC;
Bluegreen, Inc. d/b/a Bluegreen; BG Buildingworks, Inc. n/k/a RTM Engineering Consultants,
LLC; and Ascent Group, Inc. d/b/a Ascent Structural Engineering, a true and accurate copy of
which is attached hereto as Exhibit "A".
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 Agreement
and Mutual Release by and between the City of Aspen and 359 Design, LLC; Sopris
Engineering, LLC; Bluegreen, Inc. d/b/a Bluegreen; BG Buildingworks, Inc. n/k/a RTM
Engineering Consultants, LLC; and Ascent Group, Inc. d/b/a Ascent Structural Engineering, and
hereby authorizes the City Manager to execute such Settlement Agreement and Mutual Release,
a copy of which are annexed hereto and incorporated herein, on behalf of the City of Aspen.
RESOLVED, APPROVED, AND ADOPTED FINALLY by the City ouncil of the
City of Aspen on the 1 lth day of November 2025.
Richards, 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 on the 1 l th day of Novembgr2025.,,,
Nicole Hennin� City Clerk
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SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Agreement") is entered into this 1 sc day of
October 2025 (the "Effective Date"), by and between: the City of Aspen, Colorado; 359 Design,
LLC; Sopris Engineering, LLC; Bluegreen, Inc. d/b/a Bluegreen; BG Buildingworks, Inc. k/n/a
RUM Engineering Consultants, LLC; and Ascent Group, Inc. as follows:
1�
D.
Bluegreen.
I. DEFINITIONS
As used herein, the term "City" shall mean and refer to the City of Aspen, Colorado.
As used herein, the term "359 Design" shall mean and refer to 359 Design, LLC.
As used herein, the term "Sopris" shall mean and refer to Sopris Engineering, LLC.
As used herein, the term "Bluegreen" shall mean and refer to Bluegreen, Inc. d/b/a
E. As used herein, "BG Buildingworks" shall mean and refer to BG Buildingworks,
Inc. k/n/a RTM Engineering Consultants, LLC.
F. As used herein, "Ascent" shall mean and refer to Ascent Group, Inc.
G. As used herein, "Subconsultants" shall refer collectively to Sopris, Bluegreen, BG
Buildingworks, and Ascent.
H. As used herein, the term "Parties" shall refer collectively to the foregoing, and
individually as "Party."
I. As used herein, the term "Project" shall mean and refer to Burlingame Ranch Phase
II. RECITALS
WHEREAS, the City was the Owner and declarant in control of the Project during its
construction;
WHEREAS, the City and 359 entered into an AIA Document B 132 — 2009 StandardForm
ofAgreement Between Owner and ANchitect, Construction ManageN as Advises Edition, dated June
24, 2019 under which 359 agreed to perform certain professional design services for the Project;
WHEREAS, 359 and Sopris entered into a Letter Agreement and series of Service Request
Agreements, pursuant to Sopris Proposals under which Sopris agreed to perform certain
professional civil engineering services on the Project as 359's subconsultants
WHEREAS, 359 and Bluegreen entered into a Letter Agreement pursuant to a Bluegreen
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Proposal and subsequent Amendments to the Proposal under which Bluegreen agreed to perform
certain professional landscape architecture services on the Project as 359's subconsultant;
WHEREAS, 359 and BG Buildingworks entered into a Letter Agreement with a series of
subsequent Scope Modification Letters, under which BG Buildingworks agreed to perform certain
professional mechanical, electrical and plumbing engineering services on the Project as 359's
subconsultant;
WHEREAS, 359 and Ascent entered into
Proposal, under which Ascent agreed to perform
services on the Project as 359's subconsultant.
a Letter Agreement pursuant to an Ascent
certain professional structural engineering
WHEREAS, during the course of construction of the Project, the City claims errors and
omissions in 359's design services, which in turn, caused additional construction costs the City
incurred during the Project ;
WHEREAS, the City issued its "Demand for Defense, Indemnification and Mediation,
dated September 27, 2024 and an attached report from the City's consultant, Seth Rosenman, AIA
with Rimkus ("Notice of Claim");
WHEREAS, in response to the Notice of Claim, 359 claimed the Subconsultants were
responsible for all or a portion of the costs claimed by the City in the Notice of Claim,
WHEREAS, Bluegreen claimed it was owed payment from 359 and the City for services
it performed on the Project. Bluegreen recorded a Statement of Lien, dated February 28, 2024, at
Reception No. 700824 ("Lien Claim"). 359 and the City denied Bluegreen's lien claim.
WHEREAS, 359 and the Subconsuitants each deny they are responsible for the additional
construction costs claimed by the City in the Notice of Claim;
WHEREAS, the Parties have undertaken investigation regarding the disputes amongst them,
and deem it to be in their best, respective interests to resolve all such claims and defenses among
themselves which were or could have been asserted by settling such Notice of Claim and Lien Claim,
and any and all claims that were or could have been asserted between them as of the Effective Date
of this Agreement;
WHEREAS, without determining any liability whatsoever, and in order to avoid
uncertainties, expense, and delay inherent in litigation, the Parties desire to enter into this Agreement
in order to obtain full settlement and discharge of the Notice of Claim, Lien Claim, and any and all
claims that were or could have been asserted between them as of the Effective Date of this Agreement
upon the terms and
T IS THE
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III. TERMS OF SETTLEMENT
1. Payment to the City by 359. 359 shall pay the City the total sum of THREE
HUNDRED THOUSAND NINETY THOUSAND DOLLARS AND NO/CENTS ("390,000.00)
to resolve the claims asserted by the City in the Notice of Claim, except for those being resolved
directly by Bluegreen under Paragraph 2 below. The foregoing payment shall be issued to the City
by check made payable to "City of Aspen" and delivered via FedEx to 427 Rio Grande Place,
Aspen, Colorado 81611. The foregoing payment shall be delivered in good funds to the receiving
Party within forty-five (45) days of full execution of this Agreement.
2. Payment to the City by Bluegreen. Bluegreen shall pay the City the sum of
TWENTY-FOUR THOUSAND DOLLARS AND NO/CENTS ("24,000.00) to resolve certain
claims asserted by the City in the Notice of Claim, and allocated to Bluegreen by 359. The
foregoing payment shall be issued to the City by check made payable to "City of Aspen" and
delivered via FedEx to 427 Rio Grande Place, Aspen, Colorado 81611.
3. Payment by the City to Bluegreen. The City shall pay Bluegreen the sum of
FIFTY-TWO THOUSAND DOLLARS AND NO/CENTS ("52,000.00") to resolve Bluegreen's
Lien Claim against the City and 359. The foregoing payment shall be issued to Bluegreen by
check made payable to "Bluegreen" and delivered to 300 South Spring Street, Suite 202, Aspen,
Colorado 81611.
4. Payment by Sopris to 359. Sopris shall pay 359 the sum of SIXTY THOUSAND
DOLLARS AND NO/CENTS ("60,000.00) to resolve 359s claims against it as allocated from
the Notice of Claim. The foregoing payment shall be issued to 359 by check made payable to "359
Design, LLC " and delivered to 359 Design, LLC, 6897 Paiute Ave, Box #2, Niwot, CO 80503.
5. Payment by BG Buildingworks to 359. BG Buildingworks shall pay 359 the sum
of TWENTY THOUSAND DOLLARS AND NO/CENTS ("20,000.00") to resolve 359s claims
against it as allocated from the Notice of Claim. The foregoing payment shall be issued to 359 by
check made payable to "359 Design, LLC " and delivered to 359 Design, LLC, 6897 Paiute Ave,
Box #2, Niwot, CO 80503
6. Payment by Ascent to 359. Ascent shall pay 359 the sum of TEN THOUSAND
DOLLARS AND NO/CENTS ("10,000.00) to resolve 359's claims against it as allocated from
the Notice of Claim. The foregoing payment shall be issued to 359 by check made payable to "359
Design, LLC " and delivered to 359 Design, LLC, 6897 Paiute Ave, Box #2, Niwot, CO 80503
7. The foregoing payments shall each be delivered in good funds to the receiving Party
within thirty (30) days of full execution of this Agreement, with the exception of payment to the
City by 359, as addressed in paragraph III(1), which shall be delivered within forty-five (45) days
of full execution of this agreement.
8. Releases for 359 Settlement Payment. Upon the City's receipt and clearing of the
settlement payment identified in Paragraph 1 above, the following releases apply:
3
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(a) The City, for itself and its officers, managers, employees, consultants, contractors,
and agents fully, finally, and forever releases 359 and the Subconsultants (except Bluegreen) and
their respective owners, members, managers, officers, directors, shareholders, parents,
subsidiaries, affiliates, employees, insurers, reinsurers, representatives, contractors, consultants,
and suppliers and assigns from and against any and all known claims, rights, and alleged damages,
whether sounding in law, equity, contract, warranty, tort, indemnity, contribution, recoupment, or
subrogation that the City claimed or could have claimed, as of the Effective Date of this
Agreement, against 359 and the Subconsultants (except Bluegreen) relating to the Project and
Notice of Claim.
(b) 359 and the Subconsultants (except Bluegreen) respectively for itself and their
respective owners, members, managers, officers, directors, shareholders, parents, subsidiaries,
affiliates, employees, insurers, reinsurers, representatives, contractors, consultants, and suppliers
and assigns fully, finally, and forever release the City and its officers, managers, employees,
consultants, contractors, and agents from and against any and all known claims, rights, and alleged
damages, whether sounding in law, equity, contract, warranty, tort, indemnity, contribution,
recoupment, or subrogation that the any of them claimed or could have claimed, as of the Effective
Date of this Agreement, against the City relating to the Project and Notice of Claim.
9. Releases for Bluegreen Settlement Payment. Upon the City's receipt and clearing
of the settlement payment identified in Paragraph 2 above, the following releases apply:
(a) The City, 359 and the Subconsultants for itself and their respective owners,
members, managers, officers, directors, shareholders, parents, subsidiaries, affiliates, employees,
insurers, reinsurers, representatives, contractors, consultants, and suppliers and assigns fully,
finally, and forever releases Bluegreen and its owners, members, managers, officers, directors,
shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers, representatives,
contractors, consultants, and suppliers and assigns from and against any and all known claims,
rights, and alleged damages, whether sounding in law, equity, contract, warranty, tort, indemnity,
contribution, recoupment, or subrogation that the City claimed or could have claimed, as of the
Effective Date of this Agreement, against Bluegreen relating to the Project and Notice of Claim.
(b) Bluegreen for itself and its their respective owners, members, managers, officers,
directors, shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers,
representatives, contractors, consultants, and suppliers and assigns fully, finally, and forever
release the City, 359 and the Subconsultants and their respective owners, members, managers,
officers, directors, shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers,
representatives, contractors, consultants, and suppliers and assigns from and against any and all
known claims, rights, and alleged damages, whether sounding in law, equity, contract, warranty,
tort, indemnity, contribution, recoupment, or subrogation that the any of them claimed or could
have claimed, as of the Effective Date of this Agreement, against the City, 359 or Subconsultants
relating to the Project and Notice of Claim.
10. Releases of the Subconsultant's Settlement Payments to 359. Upon 359's receipt
and clearing of the settlement payment identified in Paragraph 4, 5 and 6 above, the following
releases apply:
rd
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(a) 359 for itself and its owners, members, managers, officers, directors, shareholders,
parents, subsidiaries, affiliates, employees, insurers, reinsurers, representatives, contractors,
consultants, and suppliers and assigns fully, finally, and forever release the paying Subconsultant
and its officers, managers, employees, consultants, contractors, and agents from and against any
and all known claims, rights, and alleged damages, whether sounding in law, equity, contract,
warranty, tort, indemnity, contribution, recoupment, or subrogation that the any of them claimed
or could have claimed, as of the Effective Date of this Agreement, against such paying
Subconsultant relating to the Project and Notice of Claim.
11. Releases for City's Settlement Payment to Bluegreen. Upon Bluegreen's receipt
identified in Paragraph 3 above, the following releases
and clearing of the settlement payment
apply:
(a) The City and 359 for itself and their respective owners, members, managers,
officers, directors, shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers,
representatives, contractors, consultants, and suppliers and assigns fully, finally, and forever
releases Bluegreen and their respective owners, members, managers, officers, directors,
shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers, representatives,
contractors, consultants, and suppliers and assigns from and against any and all known claims,
rights, and alleged damages, whether sounding in law, equity, contract, warranty, tort, indemnity,
contribution, recoupment, or subrogation that the City or 359 claimed or could have claimed, as
of the Effective Date of this Agreement, against Bluegreen relating to the Lien Claim.
(b) Bluegreen for itself and its owners, members, managers, officers, directors,
shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers, representatives,
contractors, consultants, and suppliers and assigns fully, finally, and forever release the City and
359 and their respective owners, members, managers, officers, directors, shareholders, parents,
subsidiaries, affiliates, employees, insurers, reinsurers, representatives, contractors, consultants,
and suppliers and assigns from and against any and all known claims, rights, and alleged damages,
whether sounding in law, equity, contract, warranty, tort, indemnity, contribution, recoupment, or
subrogation that the any of them claimed or could have claimed, as of the Effective Date of this
Agreement, against the City or 359 relating to the Lien Claim.
(c) Within three (3) business days of receipt and clearing of the settlement payment in
Paragraph 3 above, Bluegreen shall also record a "Release of Mechanic's Lien" with the Pitkin
County Clerk and Recorder sufficient to release the Statement of Lien recorded by Bluegreen under
Reception No. 700824 and release such individually named "Properties" in the Statement of Lien.
Within two (2) business days of receipt of the recorded Release of Mechanic's Lien, Bluegreen's
counsel shall email a copy of the Release of Mechanic's Lien to The City of Aspen's counsel,
Matthew Ninneman at ninnemanm@hallevans.com and the City of Aspen, City Attorney, Kate
Johnson at katedohnson@aspen.gov. Bluegreen shall cooperate with the City in the event any
additional document(s) is required of Bluegreen for the purposes of release of the City's escrow
deposit by Land Title Guarantee Company.
12. The Parties expressly understand and agree that the foregoing releases do not
include or relate to any future claims, alleged damages, defenses, or other rights concerning: (a)
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any presently latent or unknown defects or deficiencies associated with J:)v s or the
Subconsultants' services on the Project or (b) the obligations specifically undertaken by any Party
in this Agreement.
13. Each of the Parties agrees that the consideration specified, described, and stated
herein is in complete compromise of the claims released in Paragraphs 8 through 11 above. Each
of the Parties understands and agrees that if the law or facts with respect to which this Agreement
is executed be found hereafter to be other than, or different from, the law and facts now believed
to be true, each of the Parties expressly accepts and assumes the risk of such possible difference
in law or facts and agrees that this Agreement shall be and remain effective notwithstanding any
such difference.
14. In executing and delivering this Agreement, each of the Parties relies wholly upon
its own judgment and knowledge.
15. The Parties understand and agree that this Agreement, and payment of the
settlement amounts identified in Paragraphs 1 through 6, do not comprise, and shall not be asserted
or deemed to comprise, an admission of liability or fault by any of them to one another or to any
third -party. On the contrary, the Parties expressly deny any fault and liability to one another and
all third -parties. The Settlement Amount is an accord and satisfaction of disputed claims, rights,
alleged damages, and defenses to avoid the expense, delay, risk, and uncertainty of pursuing the
above -released known claims, rights, alleged damages, and defenses in litigation, arbitration, or
another legal proceeding.
16. Each Party shall pay its own attorney fees and costs for the above -released known
claims, rights, defenses, and damages. In the event that any Party is engaged in suit to enforce the
terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys'
fees and costs.
IV. REPRESENTATIONS AND WA►�EtI2A1yTIE5
1. Independent Legal Advice. The Parties have received, or had the opportunity to
receive, independent legal advice from their respective attorneys with regard to the terms and
conditions of this Agreement, as well as the advisability of entering into and executing this
Agreement, and are fully informed as to its contents.
2. Understanding of the Agreement. The Parties have read this Agreement and
understand its contents. Each has read the Agreement and, if necessary, has had it explained, by
counsel. By voluntarily executing this Agreement, the Parties understand its contents and accept
its terms as resolving fully all differences, disputes, and claims that may exist within the scope of
this Agreement.
3. Authority to Execute. Each person executing this Agreement has full legal
competence and authority to execute, deliver, and perform this Agreement and to bind the person
and/or entity which he or she purports to represent.
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4. No Previous Assignment. Each party warrants and represents that it is the sole and
only real party in interest with respect to the claims asserted in this matter, and that they have not
previously assigned, transferred, subrogated, granted, or purported to assign, transfer, subrogate,
or grant any of the claims, demands, suits, controversies, liabilities, or obligations released by this
Agreement, or any of the benefits or payments to be made pursuant to this Agreement.
V. MISCELLANEOUS PROVISIONS
1. Entire Agreement. This Agreement constitutes the full and complete
understanding of the Parties with respect to the subject matter contained in the Agreement and
supersedes any and all prior agreements and understandings, whether written or oral, except as to
the reserved and remaining terms of this Agreement. No addition, deletion, or amendment shall
have any force or effect, except as mutually agreed to in writing signed by the Parties to this
Agreement. The Parties acknowledge that no promise, inducement, or agreement not expressed
herein has been made, and that the terms of this Agreement are contractual and not a mere recital.
2. No Construction Against Drafter. The Parties have cooperated in the drafting
and preparation of this Agreement. Hence, no construction of this Agreement shall be construed
against any party.
3. Binding Effect. For purposes of this Agreement, each Party shall be understood to
include and inure to the benefit of their respective parents, subsidiaries, affiliates, partners,
principals, officers, directors, members, managers, shareholders, employees (past and present),
agents, consultants, predecessors, successors, successors in interest, administrators, assigns,
insurers, sureties, and legal representatives of the Parties and each of them. This Agreement and
the payment obligations contained herein shall not be assigned to another person or entity without
the express written consent of the Parties.
4. Severability. If any portion or part of this Agreement is determined by a court or
tribunal of competent jurisdiction to be invalid or unenforceable for any reason, it is the intention
of Parties that the remainder of this Agreement shall remain in full force and effect.
5. Choice of Law. This Agreement shall be construed, interpreted, and enforced in
accordance with the laws of the State of Colorado. Exclusive venue for any action arising out of
or relating to this Agreement shall be in Pitkin County District Court, Colorado.
6. Counterparts. This Agreement may be executed in any number of counterparts,
each of which, when so executed, shall be deemed to be an original and all of which, taken together,
shall constitute one and the same agreement. Facsimile and electronic signatures shall carry the
same force and effect as an original signature.
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Executed this day of October 2025, by:
THE CITY OF ASPEN, BY AND THROUGH ITS 359 DESIGN, LLC
CITY,,.CgUN4JL AND CITY MANAGER.
By:
Its: City Manager
SOPRIS ENGINEERING, LLC
By:
Its:
BG BUILDINGWORKS, INC. K/N/A RTM
ENGINEERING CONSULTANTS, LLC
By:
Its:
0
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by:
Its: 359 Design, Its Manager
BLUEGREEN, INC. D/B/A BLUEGREEN
By:
Its:
ASCENT GROUP, INC.
By:
Its:
Docusign Envelope ID: AF8728A2-AOA7-4323-B8F2-17A8DA25B73F
Executed this day of October 2025, by:
THE CITY OF ASPEN, BY AND THROUGH ITS 359 DESIGN, LLC
CITY COUNCIL AND CITY MANAGER:
By:
Its
50PRIS ENGINEERING, LLC
4
By:
Its:
BG BUILDINGWORKS, INC. K/N/A RTM
ENGINEERING CONSULTANTS, LLC
By:
Its:
0
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By:
Its:
BLUEGREEN, INC. D/B/A BLiTEGREEN
By.
Its:
ASCENT GROUP, INC.
By:
Its:
Docusign Envelope ID: AF8728A2-AOA7-4323-B8F2-17A8DA25B73F
By:
Its
SOPRIS ENGINEERING, LLC
By:
Its:
BG BUILDINGWORKS, INC. K/N/A RTM
ENGINEERING CONSULTANTS, LLC
By:
Its:
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By:
Its:
BLUEGREEN, INC. D/B/A �LUEGREEN
By:
Its:
Owner
ASCENT GROUP, INC.
By:
Its:
Docusign Envelope ID: AF8728A2-AOA7-4323-B8F2-17A8DA25B73F
Executed this day of October 2025, by:
THE CITY OF ASPEN, BY AND THROUGH ITS 359 DESIGN, LLC
CITY COUNCIL AND CITY MANAGER:
By: By:
Its : Its:
SOPRIS ENGINEERING, LLC
By:
Its:
BG BUILDINGWORKS, INC. K/N/A RTM
ENGINEERING CONSULTANTS, LLC
By:
Its:
F�
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BLUEGREEN, INC. D/B/A BLUEGREEN
By:
Its
ASCENT GROUP, INC.
By:
Docusign Envelope ID: AF8728A2-AOA7-4323-B8F2-17A8DA25B73F
Its: Its:
SOPRIS ENGINEERING, LLC
By:
Its:
BG BUILDINGWORI{S, INC. I�/N/A RTM
ENGINEERING CONSULTANTS, LLC
Its:
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BLUEGREEN, INC. D/6/A BLUEGREEN
By:
Its:
ASCENT GROUP, I>�iC.
Its: Pq..k s % c> 1✓vT
Docusign Envelope ID: AF8728A2-AOA7-4323-B8F2-17A8DA25B73F
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Agreement") is entered into this 1st day of
October 2025 (the "Effective Date"), by and between: the City of Aspen, Colorado; 359 Design,
LLC; Sopris Engineering, LLC; Bluegreen, Inc. d/b/a Bluegreen; BG Buildingworks, Inc. k/n/a
RTM Engineering Consultants, LLC; and Ascent Group, Inc. as follows:
I�
D.
Bluegreen.
I. DEFINITIONS
As used herein, the term "City" shall mean and refer to the City of Aspen, Colorado.
As used herein, the term "359 Design" shall mean and refer to 359 Design, LLC.
As used herein, the term "Sopris" shall mean and refer to Sopris Engineering, LLC.
As used herein, the term "Bluegreen" shall mean and refer to Bluegreen, Inc. d/b/a
E. As used herein, "BG Buildingworks" shall mean and refer to BG Buildingworks,
Inc. k/n/a RTM Engineering Consultants, LLC.
F. As used herein, "Ascent" shall mean and refer to Ascent Group, Inc.
G. As used herein, "Subconsultants" shall refer collectively to Sopris, Bluegreen, BG
Buildingworks, and Ascent.
H. As used herein, the term "Parties" shall refer collectively to the foregoing, and
individually as "Party."
I. As used herein, the term "Project" shall mean and refer to Burlingame Ranch Phase
II. RECITALS
WHEREAS, the City was the Owner and declarant in control of the Project during its
construction;
WHEREAS, the City and 359 entered into anAL Document B 132 — 2009 Standard Form
of Agreement Between Owner and Architect, Construction Manager as Adviser Edition, dated June
24, 2019 under which 359 agreed to perform certain professional design services for the Project;
WHEREAS, 359 and Sopris entered into a Letter Agreement and series of Service Request
Agreements, pursuant to Sopris Proposals under which Sopris agreed to perform certain
professional civil engineering services on the Project as 359's subconsultants
WHEREAS, 359 and Bluegreen entered into a Letter Agreement pursuant to a Bluegreen
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Proposal and subsequent Amendments to the Proposal under which Bluegreen agreed to perform
certain professional landscape architecture services on the Project as 359s subconsultant;
WHEREAS, 359 and BG Buildingworka entered into a Letter Agreement with a series of
subsequent Scope Modification Letters, under which BG Buildingworks agreed to perform certain
professional mechanical, electrical and plumbing engineering services on the Project as 359's
subconsultant;
WHEREAS, 359 and Ascent entered into a Letter Agreement pursuant to an Ascent
Proposal, under which Ascent agreed to perform certain professional structural engineering
services on the Project as 359's subconsultant.
WHEREAS, during the course of construction of the Project, the City claims errors and
omissions in 359's design services, which in turn, caused additional construction costs the City
incurred during the Project ,
WHEREAS, the City issued its "Demand for Defense, Indemnification and Mediation,
dated September 27, 2024 and an attached report from the City's consultant, Seth Rosenman, AIA
with Rimkus ("Notice of Claim");
WHEREAS, in response to the Notice of Claim, 359 claimed the Subconsultants were
responsible for all or a portion of the costs claimed by the City in the Notice of Claim;
WHEREAS, Bluegreen claimed it was owed payment from 359 and the City for services
it performed on the Project. Bluegreen recorded a Statement of Lien, dated February 28, 2024, at
Reception No. 700824 ("Lien Claim"). 359 and the City denied Bluegreen's lien claim.
WHEREAS, 359 and the Subconsultants each deny they are responsible for the additional
construction costs claimed by the City in the Notice of Claim,
WHEREAS, the Parties have undertaken investigation regarding the disputes amongst them,
and deem it to be in their best, respective interests to resolve all such claims and defenses among
themselves which were or could have been asserted by settling such Notice of Claim and Lien Claim,
and any and all claims that were or could have been asserted between them as of the Effective Date
of this Agreement;
WHEREAS, without determining any liability whatsoever, and in order to avoid
uncertainties, expense, and delay inherent in litigation, the Parties desire to enter into this Agreement
in order to obtain full settlement and discharge of the Notice of Claim, Lien Claim, and any and all
claims that were or could have been asserted between them as of the Effective Date of this Agreement
upon the terms and conditions set forth below:
IT IS THEREFORE AGREED as follows:
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III. TERMS OF SETTLEMENT
1. Payment to the City by 359. 359 shall pay the City the total sum of THREE
HUNDRED THOUSAND NINETY THOUSAND DOLLARS AND NO/CENTS (64390,000,00)
to resolve the claims asserted by the City in the Notice of Claim, except for those being resolved
directly by Bluegreen under Paragraph 2 below. The foregoing payment shall be issued to the City
by check made payable to "City of Aspen" and delivered via FedEx to 427 Rio Grande Place,
Aspen, Colorado 81611. The foregoing payment shall be delivered in good funds to the receiving
Party within forty-five (45) days of full execution of this Agreement.
2. Payment to the City by Bluegreen. Bluegreen shall pay the City the sum of
TWENTY-FOUR THOUSAND DOLLARS AND NO/CENTS ("24,000.00) to resolve certain
claims asserted by the City in the Notice of Claim, and allocated to Bluegreen by 359. The
foregoing payment shall be issued to the City by check made payable to "City of Aspen" and
delivered via FedEx to 427 Rio Grande Place, Aspen, Colorado 81611.
3. Payment by the City to Bluegreen. The City shall pay Bluegreen the sum of
FIFTY-TWO THOUSAND DOLLARS AND NO/CENTS ("52,000.00") to resolve Bluegreen's
Lien Claim against the City and 359. The foregoing payment shall be issued to Bluegreen by
check made payable to "Bluegreen" and delivered to 300 South Spring Street, Suite 202, Aspen,
Colorado 81611.
4. Payment by Sopris to 359. Sopris shall pay 359 the sum of SIXTY THOUSAND
DOLLARS AND NO/CENTS ("60,000.00) to resolve 359s claims against it as allocated from
the Notice of Claim. The foregoing payment shall be issued to 359 by check made payable to "359
Design, LLC " and delivered to 359 Design, LLC, 6897 Paiute Ave, Box #2, Niwot, CO 80503.
5. Payment by BG Buildingworks to 359. BG Buildingworks shall pay 359 the sum
of TWENTY THOUSAND DOLLARS AND NO/CENTS ("20,000.00") to resolve 359s claims
against it as allocated from the Notice of Claim. The foregoing payment shall be issued to 359 by
check made payable to "359 Design, LLC " and delivered to 359 Design, LLC, 6897 Paiute Ave,
Box #2, Niwot, CO 80503
6. Payment by Ascent to 359. Ascent shall pay 359 the sum of TEN THOUSAND
DOLLARS AND NO/CENTS ("105000.00) to resolve 359's claims against it as allocated from
the Notice of Claim. The foregoing payment shall be issued to 359 by check made payable to "359
Design, LLC " and delivered to 359 Design, LLC, 6897 Paiute Ave, Box #2, Niwot, CO 80503
7. The foregoing payments shall each be delivered in good funds to the receiving Party
within thirty (30) days of full execution of this Agreement, with the exception of payment to the
City by 359, as addressed in paragraph III(1), which shall be delivered within forty-five (45) days
of full execution of this agreement.
8. Releases for 359 Settlement Payment. Upon the City's receipt and clearing of the
settlement payment identified in Paragraph 1 above, the following releases apply:
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(a) The City, for itself and its officers, managers, employees, consultants, contractors,
and agents fully, finally, and forever releases 359 and the Subconsultants (except Bluegreen) and
their respective owners, members, managers, officers, directors, shareholders, parents,
subsidiaries, affiliates, employees, insurers, reinsurers, representatives, contractors, consultants,
and suppliers and assigns from and against any and all known claims, rights, and alleged damages,
whether sounding in law, equity, contract, warranty, tort, indemnity, contribution, recoupment, or
subrogation that the City claimed or could have claimed, as of the Effective Date of this
Agreement, against 359 and the Subconsultants (except Bluegreen) relating to the Project and
Notice of Claim.
(b) 359 and the Subconsultants (except Bluegreen) respectively for itself and their
respective owners, members, managers, officers, directors, shareholders, parents, subsidiaries,
affiliates, employees, insurers, reinsurers, representatives, contractors, consultants, and suppliers
and assigns fully, finally, and forever release the City and its officers, managers, employees,
consultants, contractors, and agents from and against any and all known claims, rights, and alleged
damages, whether sounding in law, equity, contract, warranty, tort, indemnity, contribution,
recoupment, or subrogation that the any of them claimed or could have claimed, as of the Effective
Date of this Agreement, against the City relating to the Project and Notice of Claim.
9. Releases for Bluegreen Settlement Payment. Upon the City's receipt and clearing
of the settlement payment identified in Paragraph 2 above, the following releases apply:
(a) The City, 359 and the Subconsultants for itself and their respective owners,
members, managers, officers, directors, shareholders, parents, subsidiaries, affiliates, employees,
insurers, reinsurers, representatives, contractors, consultants, and suppliers and assigns fully,
finally, and forever releases Bluegreen and its owners, members, managers, officers, directors,
shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers, representatives,
contractors, consultants, and suppliers and assigns from and against any and all known claims,
rights, and alleged damages, whether sounding in law, equity, contract, warranty, tort, indemnity,
contribution, recoupment, or subrogation that the City claimed or could have claimed, as of the
Effective Date of this Agreement, against Bluegreen relating to the Project and Notice of Claim.
(b) Bluegreen for itself and its their respective owners, members, managers, officers,
directors, shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers,
representatives, contractors, consultants, and suppliers and assigns fully, finally, and forever
release the City, 359 and the Subconsultants and their respective owners, members, managers,
officers, directors, shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers,
representatives, contractors, consultants, and suppliers and assigns from and against any and all
known claims, rights, and alleged damages, whether sounding in law, equity, contract, warranty,
tort, indemnity, contribution, recoupment, or subrogation that the any of them claimed or could
have claimed, as of the Effective Date of this Agreement, against the City, 359 or Subconsultants
relating to the Project and Notice of Claim.
10. Releases of the Subconsultant's Settlement Payments to 359. Upon 359's receipt
and clearing of the settlement payment identified in Paragraph 4, 5 and 6 above, the following
releases apply:
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(a) 359 for itself and its owners, members, managers, officers, directors, shareholders,
parents, subsidiaries, affiliates, employees, insurers, reinsurers, representatives, contractors,
consultants, and suppliers and assigns fully, finally, and forever release the paying Subconsuitant
and its officers, managers, employees, consultants, contractors, and agents from and against any
and all known claims, rights, and alleged damages, whether sounding in law, equity, contract,
warranty, tort, indemnity, contribution, recoupment, or subrogation that the any of them claimed
or could have claimed, as of the Effective Date of this Agreement, against such paying
Subconsultant relating to the Project and Notice of Claim.
1 1. Releases for City's Settlement Payment to Bluegreen. Upon Bluegreen's receipt
and clearing of the settlement payment identified in Paragraph 3 above, the following releases
apply:
(a) The City and 359 for itself and their respective owners, members, managers,
officers, directors, shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers,
representatives, contractors, consultants, and suppliers and assigns fully, finally, and forever
releases Bluegreen and their respective owners, members, managers, officers, directors,
shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers, representatives,
contractors, consultants, and suppliers and assigns from and against any and all known claims,
rights, and alleged damages, whether sounding in law, equity, contract, warranty, tort, indemnity,
contribution, recoupment, or subrogation that the City or 359 claimed or could have claimed, as
of the Effective Date of this Agreement, against Bluegreen relating to the Lien Claim.
(b) Bluegreen for itself and its owners, members, managers, officers, directors,
shareholders, parents, subsidiaries, affiliates, employees, insurers, reinsurers, representatives,
contractors, consultants, and suppliers and assigns fully, finally, and forever release the City and
359 and their respective owners, members, managers, officers, directors, shareholders, parents,
subsidiaries, affiliates, employees, insurers, reinsurers, representatives, contractors, consultants,
and suppliers and assigns from and against any and all known claims, rights, and alleged damages,
whether sounding in law, equity, contract, warranty, tort, indemnity, contribution, recoupment, or
subrogation that the any of them claimed or could have claimed, as of the Effective Date of this
Agreement, against the City or 359 relating to the Lien Claim.
(c) Within three (3) business days of receipt and clearing of the settlement payment in
Paragraph 3 above, Bluegreen shall also record a "Release of Mechanic's Lien" with the Pitkin
County Clerk and Recorder sufficient to release the Statement of Lien recorded by Bluegreen under
Reception No. 700824 and release such individually named "Properties" in the Statement of Lien.
Within two (2) business days of receipt of the recorded Release of Mechanic's Lien, Bluegreen's
counsel shall email a copy of the Release of Mechanic's Lien to The City of Aspen's counsel,
Matthew Ninneman at ninnemanm@hallevans.com and the City of Aspen, City Attorney, Kate
Johnson at katejohnson@aspen.gov. Bluegreen shall cooperate with the City in the event any
additional document(s) is required of Bluegreen for the purposes of release of the City's escrow
deposit by Land Title Guarantee Company.
12. The Parties expressly understand and agree that the foregoing releases do not
include or relate to any future claims, alleged damages, defenses, or other rights concerning: (a)
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any presently latent or unknown defects or deficiencies associated with 359s or the
Subconsultants' services on the Project or (b) the obligations specifically undertaken by any Party
in this Agreement.
13. Each of the Parties agrees that the consideration specified, described, and stated
herein is in complete compromise of the claims released in Paragraphs 8 through 11 above. Each
of the Parties understands and agrees that if the law or facts with respect to which this Agreement
is executed be found hereafter to be other than, or different from, the law and facts now believed
to be true, each of the Parties expressly accepts and assumes the risk of such possible difference
in law or facts and agrees that this Agreement shall be and remain effective notwithstanding any
such difference.
14. In executing and delivering this Agreement, each of the Parties relies wholly upon
its own judgment and knowledge.
15. The Parties understand and agree that this Agreement, and payment of the
settlement amounts identified in Paragraphs 1 through 6, do not comprise, and shall not be asserted
or deemed to comprise, an admission of liability or fault by any of them to one another or to any
third -party. On the contrary, the Parties expressly deny any fault and liability to one another and
all third -parties. The Settlement Amount is an accord and satisfaction of disputed claims, rights,
alleged damages, and defenses to avoid the expense, delay, risk, and uncertainty of pursuing the
above -released known claims, rights, alleged damages, and defenses in litigation, arbitration, or
another legal proceeding.
16. Each Party shall pay its own attorney fees and costs for the above -released known
claims, rights, defenses, and damages. In the event that any Party is engaged in suit to enforce the
terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys'
fees and costs.
IV. REPRESENTATIONS AND WAItRANTIES
l . Independent Legal Advice. The Parties have received, or had the opportunity to
receive, independent legal advice from their respective attorneys with regard to the terms and
conditions of this Agreement, as well as the advisability of entering into and executing this
Agreement, and are fully informed as to its contents.
2. Understanding of the Agreement. The Parties have read this Agreement and
understand its contents. Each has read the Agreement and, if necessary, has had it explained, by
counsel. By voluntarily executing this Agreement, the Parties understand its contents and accept
its terms as resolving fully all differences, disputes, and claims that may exist within the scope of
this Agreement.
3. Authority to Execute. Each person executing this Agreement has full legal
competence and authority to execute, deliver, and perform this Agreement and to bind the person
and/or entity which he or she purports to represent.
C•�
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4. No Previous Assignment. Each party warrants and represents that it is the sole and
only real party in interest with respect to the claims asserted in this matter, and that they have not
previously assigned, transferred, subrogated, granted, or purported to assign, transfer, subrogate,
or grant any of the claims, demands, suits, controversies, liabilities, or obligations released by this
Agreement, or any of the benefits or payments to be made pursuant to this Agreement.
V. MISCELLANEOUS PROVISIONS
1. Entire Agreement. This Agreement constitutes the full and complete
understanding of the Parties with respect to the subject matter contained in the Agreement and
supersedes any and all prior agreements and understandings, whether written or oral, except as to
the reserved and remaining terms of this Agreement. No addition, deletion, or amendment shall
have any force or effect, except as mutually agreed to in writing signed by the Parties to this
Agreement. The Parties acknowledge that no promise, inducement, or agreement not expressed
herein has been made, and that the terms of this Agreement are contractual and not a mere recital.
2. No Construction Against Drafter. The Parties have cooperated in the drafting
and preparation of this Agreement. Hence, no construction of this Agreement shall be construed
against any party.
3. Binding Effect. For purposes of this Agreement, each Party shall be understood to
include and inure to the benefit of their respective parents, subsidiaries, affiliates, partners,
principals, officers, directors, members, managers, shareholders, employees (past and present),
agents, consultants, predecessors, successors, successors in interest, administrators, assigns,
insurers, sureties, and legal representatives of the Parties and each of them. This Agreement and
the payment obligations contained herein shall not be assigned to another person or entity without
the express written consent of the Parties.
4. Severability. If any portion or part of this Agreement is determined by a court or
tribunal of competent jurisdiction to be invalid or unenforceable for any reason, it is the intention
of Parties that the remainder of this Agreement shall remain in full force and effect.
5. Choice of Law. This Agreement shall be construed, interpreted, and enforced in
accordance with the laws of the State of Colorado. Exclusive venue for any action arising out of
or relating to this Agreement shall be in Pitkin County District Court, Colorado.
6. Counterparts. This Agreement may be executed in any number of counterparts,
each of which, when so executed, shall be deemed to be an original and all of which, taken together,
shall constitute one and the same agreement. Facsimile and electronic signatures shall carry the
same force and effect as an original signature.
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Executed this day of October 2025, by:
THE CITY OF ASPEN, BY AND THROUGH ITS 359 DESIGN, LLC
CITY
By:
AND CITY MANAGER:
�- S{v�,c��r
Its: City Manager
SOPRIS ENGINEERING, LLC
By:
Its:
BG BUILDINGWORKS, INC. K/N/A RTM
ENGINEERING CONSULTANTS, LLC
By:
Its
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Its: 359 Design, Its Manager
BLUEGREEN, INC. D/B/A BLUEGREEN
By:
Its:
ASCENT GROUP, INC.
By:
Its:
Docusign Envelope ID: AF8728A2-AOA7-4323-B8F2-17A8DA25B73F
Executed this day of October 2025, by:
THE CITY OF ASPEN, BY AND THROUGH ITS
CITY COUNCIL AND CITY MANAGER:
By:
Its:
SOPRIS ENGINEERING, LLC
By:
BG BUILDINGWORKS, INC. K/N/A RTM
ENGINEERING CONSULTANTS, LLC
By:
Its;
322714867v.1
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359 DESIGN, LLC
By:
Its:
BLUEGREEN, INC. DIB/A BLUEGREEN
By:
Its:
ASCENT GROUP, INC.
By:
Its:
Docusign Envelope ID: AF8728A2-AOA7-4323-B8F2-17A8DA25B73F
By: By:
Its: Its:
SOPRIS ENGINEERING, LLC
By:
Its:
BG BUILDINGWORKS, INC. K/N/A RTM
ENGINEERING CONSULTANTS, LLC
By:
Its:
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BLUEGREEN, INC. D/B/A BLUEGREEN
By:
Its:
ASCENT GROUP, INC.
By:
Its:
Docusign Envelope ID: AF8728A2-AOA7-4323-B8F2-17A8DA25B73F
Executed this day of October 2025, by:
THE CITY OF ASPEN, BY AND THROUGH ITS 359 DESIGN, LLC
CITY COUNCIL AND CITY MANAGER:
By: By:
Its: Its:
SOPRIS ENGINEERING, LLC
BLUEGREEN, INC. D/B/A BLUEGREEN
By: By:
Its: Its:
BG BUILDINGWORKS, INC. K/N/A RTM
ENGINEERING CONSULTANTS, LLC
By:
Its:
322714867v. l
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ASCENT GROUP, INC.
By:
Docusign Envelope ID: AF8728A2-AOA7-4323-B8F2-17A8DA25B73F
13y:
Its:
SOPRiS ENGINEERING, LLC
By:
Its:
BG BUILDINGWORhS, INC. I�/N/A RTM
ENGINEERING CONSULTANTS, LLC
Its:
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By:
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