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RESOLUTION NO. ~q
Series of 1995
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A STIPULATION AND SETTLEMENT AGREEMENT IN THE MATTER OF
ABRAHAMS V THE CITY OF ASPEN, CIVIL ACTION NO. 94 CV 119-3, IN THE
DISTRICT COURT OF PITKIN COUNTY, COLORADO, AND AUTHORIZING THE
MAYOR TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a Stipulation of Settlement in
the matter of Abrahams v City of Aspen, Civil Action No. 94 CV 119-3, District Court for
Pitkin County, Colorado, a true and accurate copy of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BElT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN,
COLORADO:
That the City Council of the City of Aspen hereby approves that Stipulation of
Settlement, and does hereby authorize the Mayor of the City of Aspen to execute said agreement
on behalf of the City of Aspen.
. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
the ,3{o day of ~~ ,1995.
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John S. Bennett, Mayor
I, Kathryn S. Koch, 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 day hereinabove stated.
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MEMORANDUM
*
TO:
Mayor and Members of Council
John P. Worcester ~
June 20, 1995
THE CITY OF ASPEN
CITY ATTORNEY'S OFFICE
FROM:
DATE:
HE:
Abrahams v City of Aspen - Settlement
Attached for your consideration and review, is a resolution which, if approved, would authorize
the Mayor to execute, on behalf of the City, a Stipulation of Settlement in the above referenced
matter. Please note that I have provided Council with a seperate confidential memorandum
detailing the background of this case and my reasons for recommending approval of the
stipulation. Should Council desire to discuss this matter, any member can ask that it be removed
from the Consent Agenda. In addition, Council can go into executive session at the end of the
regular meeting to discuss this matter in private.
BACKGROUND:
In June, 1990, a suit was fIled against the City and Sister City Housing, Inc. challenging various
aspects of the City's approval of the rezoning/PUD for the 831 Ute Ave. Subdivision. After
successfully defending the quasi-judicial aspects of the case, the entire case was settled in April,
1992. The terms of the settlement included establishing certain yard setbacks, height restrictions,
color selections to be used on the affordable housing units, a survey to establish the location of
a boundary fence, an $8,000 landscaping plan that the parties agreed to split, and an agreement
that certain large cottonwood trees would not be removed during the construction of the project.
(It is my understanding that all of the terms of the settlement agreement included things that
would not affect the design of the project or were things that the developer was planning to do
in any event.)
In September, 1993, the construction activity around the cottonwood trees severely damaged
their roots. This condition was so bad that George Robinson instructed the developer to remove
the large cottonwood trees before they fell over. A tree removal permit was issued by the Parks
Department and the trees were removed.
Several owners of condo units at the Black Swan who were plaintiffs in the original complaint
were obviously upset. Through their attorney, Rick Neilley, they demanded $50,000 in damages
for the removal of the cottonwood trees. They also complained about a deck that was built in
the setback, the failure to construct a boundary fence, and some furnace venting equipment
installed on the outside of the project which allegedly encroaches into the setback. Negotiations
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between Sister City, Inc., the developer, and the Black Swan owners progressed very slOwly.
A law suit was eventually fIled claiming that the settlement agreement had been breached, that
the City improperly granted the project an amendment to their PUD to allow the reduction of
eight parking spaces to seven and the construction of seven garage spaces.
The attached Stipulation of Settlement incorporates the terms of an agreement which the parties
believe would compensate the Black Swan owners for the lost cottonwood trees and resolves all
outstanding issues. The basic terms of the agreement are as follows:
*
The defendants, Sister City Housing and Epoch Properties, will
pay $16,607.76 for the landscaping plan. This landscaping plan
incorporates much of the landscaping work which was planned for
the proj ect all along.
*
The $4,000 contribution referenced in the original settlement
agreement is included in the above referenced landscaping plan. It
is not in addition to the $16,000 plan.
*
The defendants will pay $15,000.00 to Black Swan. This amount
is, in essence, to cover the plaintiff's damages suffered as a result
of the lost cottonwood trees and to reimburse them for their
attorneys fees to enforce the terms of the original settlement. (If
this latest complaint went to trial and the plaintiffs won, the terms
of the original settlement agreement entitled the plaintiffs to
recover their attorneys fees necessary to enforce the agreement.)
*
The agreement recognizes that a deck is constructed in the set-back
and "legitimizes" it, provided no expansion to the deck is
permitted in the future.
*
Some furnace venting equipment, allegedly constructed in the set-
back, is recognized and "legitimized", provided that if they create
a noise nuisance, the developer will mitigate the problem.
*
The plaintiffs continue to have some control over the color used to
paint the exterior wall of the Billings Place Condominium.
The entire cost of this settlement will be shared between Sister City Housing and the developer.
The last report submitted to City Council by Sister City Housing included a slightly higher cost
for this settlement. No cash outlay will be required by the City at this time. When Sister City
Housing turns over all remaining funds to the City as part of their [mal accounting, this amount
will, of course, be deducted.
If you have any questions, please let me know.
xc:
City Manager
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DISTRICT COURT, PITKIN COUNTY, COLORADO
Civil Action No. 94 CV 119-3
STIPULATION OF SETTLEMENT
HOWARD ABRAHAMS; MEYER'S BAKERIES, INC.; IRWIN WINKLER; and MARGO
A. WINKLER;
Plaintiffs,
vs.
THE CITY OF ASPEN, COLORADO HOME RULE CITY; THE CITY COUNCIL OF THE
CITY OF ASPEN; JOHN S. BENNETT, AUGUST RENO, GEORGEANN WAGGAMAN,
TERRY PENDLETON and RACHEL RICHARDS, as mayor and members of the
Aspen City Council; SISTER CITY HOUSING, INC.; EPOCH PROPERTIES,
INC.; and JAMES H. PUGH, JR.;
Defendants.
The parties hereby stipulate to the complete resolution
of all claims and causes of action in the above-captioned action as
follows:
RECITATIONS
1. The parties previously entered into a Stipulation of
Settlement (hereinafter referred to as the "Original Stipulation")
in Pitkin County District Court Civil Action No. 90CV121, entitled
Abrahams, et al. v. Citv of Aspen, et al. Except as specifically
modified herein, all of the terms and conditions of said Original
Stipulation shall remain in full force and effect. The parties
acknowledge that upon execution of this Stipulation and performance
of the terms and conditions hereof the Defendants' obligations
under the Original Stipulation shall be deemed satisfied.
2. Plaintiffs commenced this action seeking enforcement
and specific performance of the Original Stipulation entered in
Civil Action No. 90CV121 as well as damages and additional relief.
By execution below, all of the claims and causes of action set
forth in this action or which could have been set forth herein
shall be fully settled, released and discharged, all subject to the
terms and conditions hereinafter set forth.
3.
certain real
improvements
This Stipulation of Settlement affects and involves
property located in the City of Aspen, including all
located thereon as more fully described as follows:
Parcel A: All of Lot 14, Ute Addition to the Townsite of
Aspen, except mineral interest
Parcel B: All of Lot 15A, Ute Addition to the Townsite
of Aspen, except mineral interest
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Parcel C: A tract of land being parts of Lots 33 and 38,
Section 18, Township 10 South, Range 84 West
of the 6th Principal Meridian, lying north-
easterly of an existing roadway, which roadway
abuts the southwesterly boundary of the said
tract more particularly described as follows:
Beginning at the most southerly corner of Lot
14, Ute Addition to the City and Townsite of
Aspen; thence S. 45042'00" W. 81.71 feet;
thence N. 27009'00" W. 34.27 feet; thence N.
13051'00" W. 47.51 feet; thence N. 28034'00"
E. 57.60 feet; thence southeasterly along Line
1-9 of the former boundary of the City of
Aspen to the point of beginning,
County of Pitkin,
State of Colorado,
with a street address of 831 Ute Avenue, Aspen, Colorado. Said
real property is hereinafter referred to as t.he "Development
Property. "
STIPULATIONS
1. Plaintiffs have previously presented to Defendants
and landscape plan for incorporation of certain landscape improve-
ments into Plaintiffs' property immediately adjacent to the
Development Property, a copy of which is attached hereto as Exhibit
"A. " The cost for installation of such landscape improvements
based upon the bid from Mountain West Trees is $16,607.76. Upon
full execution of this Stipulation, Defendants shall pay to
Plaintiffs the sum of $16,607.76, payable to the Neiley & Alder
Attorneys Trust Account, which amount shall be disbursed from that
account for landscaping between the properties in accordance with
the plans. All parties hereto shall be entitled to all warranties
in connection with the installation of the landscaping.
2. Under the Original Stipulation at paragraph d,
Plaintiffs and Defendants each agreed to contribute $4,000.00
toward landscaping improvements. Plaintiffs shall not be obligated
to contribute said $4,000.00 amount but may expand the landscaping
plan described in paragraph I above at their own cost and in their
own discretion. Defendants shall not be obligated to escrow or
otherwise contribute the $4,000.00 to fund landscaping as called
for in the Original Stipulation, that obligation being incorporated
into the payment for landscaping improvements as described in
paragraph 1 above.
I 3. Upon full execution of this Stipulation of Settle-
ment, Defendants shall pay to Plaintiffs the settlement sum of
$15,000.00.
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4. In accordance with the Original Stipulation, no
height, set-back or other variances shall be permitted on the
Development Property, except those previously approved. The deck
located at the ground level on the south side of Unit J of Billings
Place Condominiums shall not be expanded into the set-back, except
as currently constructed, shall be fully enclosed by a railing and
shall not be provided with stairs providing access off of the deck
or to the property to the south of the Development Property.
5. The furnace venting equipment located on the east
side of the Billings Place Condominium building located adjacent to
Plaintiffs' property shall remain in place despite Plaintiffs'
prior objections thereto. In the event that equipment generates
noise detectable on Plaintiffs' property which exceeds permissible
noise limitations as defined in the Municipal Code of the City of
Aspen or which exceeds levels generated through use of such
equipment in the winter and spring of 1995, Defendants shall
construct at their expense a noise deflection screen which reduces
the noise to the greatest extent possible.
6. The wall of the Billings Place Condominium building
adjacent to Plaintiffs' property shall be maintained in its present
color without any requirement to change such color despite
Plaintiffs' previous objection. All future maintenance and
painting of such wall shall be at the sole of cost of Defendants or
their successors and assigns. Provided, however, the color of the
wall shall be maintained as a neutral/natural color.
7. The parking structures located and constructed on the
Development Property shall remain in place without substantial
modification, and Plaintiffs shall be deemed to halve withdrawn any
and all objections made in connection therewith.
8. Upon full execution of this Stipulation of Settlement
and payment of the settlement amount, all of the claims and causes
of action set forth herein, or which could have been set forth
herein and specifically including claims related to removal of the
cottonwood trees on the Development Property, shall be deemed fully
compromised settled and discharged, the parties reserving only
those rights which by the express language of the Original
Stipulation or this Stipulation of Settlement shall continue in
full force and effect.
9. All of the parties shall be responsible for the
payment of his, hers or its own costs and attorneys' fees incurred
in connection with this action.
10. In the event of a violation of any of the terms or
conditions of this Stipulation of Settlement, the party complaining
thereof shall be entitled to seek enforcement of this Stipulation,
as well as the Original Stipulation by any appropriate judicial
means, including injunctive relief. In the event such enforcement
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action becomes necessary, the party prevailing therein shall be
entitled to recover reasonable costs and attorneys' fees incurred
in connection therewith. This Stipulation of Settlement is
intended to constitute a complete and comprehensive resolution of
all claims, counterclaims, causes of action, damages, losses and
liabilities of whatever type or nature which were set forth in this
action or which could have been set forth heI:ein and whether
related directly or indirectly to the subject. matter of this
action. This Stipulation of Settlement is contractual in nature,
is supported by good and valuable consideration, constitutes an
accord and satisfaction of disputed claims, and is intended to be
binding upon and enforceable at law or in equity by the parties
hereto and their respective representatives, successors and
assigns.
II. This Stipulation of Settlement may be executed in
counterparts which taken together shall constitute one and the Same
agreement. This Stipulation of Settlement shall be interpreted and
construed in accordance with the laws of the State of Colorado.
12. Upon execution of this Stipulation, the parties will
submit to the Court a notice of settlement and motion for dismissal
with prejudice pursuant to C.R.C.P. 41.
Plaintiffs:
Defendants:
THE CITY OF ASPEN
~~
HOWARD ABRAHAMS
By
John S. Bennett, Mayor
MEYER'S BAKERIES, INC.
QO--Q ~~ -c .(( ,0 ~ISTER
CITY HOUSING, INC.
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By
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EPOCH PROPERTIES, INC.
By
WINKLER
JAMES H. PUGH, JR.
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action becomes necessary, the party prevailing therein shall be
entitled to recover reasonable costs and attorneys' fees incurred
in connection therewith. This Stipulation of Settlement is
intended to constitute a complete and comprehensive resolution of
all claims, counterclaims, causes of action, damages, losses and
liabilities of whatever type or nature which were set forth in this
action or which could have been set forth herein and whether
related directly or indirectly to the subject matter of this
action. This Stipulation of Settlement is contractual in natura,
is supported by good and valuable consideration, constitutes an
accord and satisfaction of disputed claims, and is intended to be
binding upon and enforceable at law or in equity by the partias
hereto and their respective representatives, successors and
assigns.
11. This Stipulation of Settlement may be executed in
counterparts which taken together shall constitute one and the same
agreement. This Stipulation of Settlement shall be interpreted and
construed in accordance with the laws of the State of Colorado.
12. Upon execution of this Stipulation, the parties will
submit to the Court a notice of settlement and motion for dismissal
with prejudice pursuant to C.R.C.P. 41.
Plaintiffs:
Defendants:
THE CITY OF ASPEN
BYJO~ :~nn~~~
:SdU
EPOCH PROPERTIES, INC.
HOWARD ABRAHAMS
MEYER'S BAKERIES, INC.
By
IRWIN WINKLER
By
MARGO A. WINKLER
JAMES H. PUGH, JR.
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Approved as to form:
By i
Richl4trd Y. Neiley, .Jr., #9878
201 ~orth Mill St., Suite 102
Aspen, Colorado 81611
(970) 925-9393
Attorneys for Plaintiffs
Approved as to form:
CITY ATTORNEY, CITY OF ASPEN
By
John Worcester, #20610
130 South Galena St.
Aspen, Colorado 81611
(970) 920-5055
Attorney for City Defendants
MYLER, STULLER & SCHWARTZ
By
David J. Myler, #6746
106 South Mill St., Suite 202
Aspen, Colorado 81611
(970) 920-1018
Attorneys for Sister City
Housing, Inc.
OATES, HUGHES & KNEZEVICH
By
Robert W. Hughes, #7317
533 East Hopkins Ave.
Aspen, Colorado 81611
(970) 920-1700
Attorneys for Epoch
Properties, Inc. and James H.
Pugh, Jr.
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Approved as to form:
NEILEY & ALDER
By
Richard Y. Neiley, Jr., #9878
201 North Mill St., Suite 102
Aspen, Colorado 81611
(970) 925-9393
Attorneys for Plaintiffs
Approved as to form:
CITY ATTORNEY, CITY OF ASPEN
BYJohfr~ff~1~~10 (,/~h-c
130 South Galena St.
Aspen, Colorado 81611
(970) 920-5055
Attorney for City Defendants
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By
avid J. Myler, /trno-
106 South Mill Sf., Suite 202
Aspen, Colorado 81611
(970) 920-1018
Attorneys for Sister City
Housing, Inc.
OATES, HUGHES & KNEZEVICH
By
Robert W. Hughes, #7317
533 East Hopkins Ave.
Aspen, Colorado 81611
(970) 920-1700
Attorneys for Epoch
Properties, Inc. and James H.
Pugh, Jr.
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P,O, Box 568
Snowmass, Colorado 81654
(303) 927-9341 . (303) 927-4066
FAX (303) 927-9378
EXH;I.BIT nAil
November 10, 94
CHUCK HYERS
UTE AVE, RESIDENCE
CIO RICK NEILEY
201 N. Mill St.
Aspen, CO 81611
Dear Sirs,
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Please find below a revised planting list of trees
for the screening of Chuck Myers Residence and
new apartments, The suggested trees are priced
to include a one year warranty, We have used
Engleman Spruce because of their narrow growth
patter. They will maintain a narrow growth
8specially in a low sunlight environment. He have
rough sketched the plantings on Design Workshop's
existing plan.
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Tree A.
1 - 20' Engleman Spruce
Tree B.
1 - 22' Engleman Spruce
Trees C, 4 - 5' to 6' Lilacs
@ 8240.00 ea $
Tree D.
1 - 6' cal. Narrowleaf Cottonwood
Trees E & F. 2 - 24' Very
to be placed in front of
2 trees
Narrow Engleman
Myers Residence
@ $2,200.00 ea
Tree G,
1 - 6" cal, Narrowleaf Cottonwood
Trees H, 3 - 3" cal, Aspen @ 8350,00 ea
Tre8 I,
1 - 12' Co I orado Spruce
I
Tr8es J, 3 - Additional 4' to 6' Lilacs
@ S240.00 ea
e Item K.
~"" Item L.
Re-seeding, topsoi], straw
Craning of trees. removal of excess
dil~t by crane.
8 2,000.00
$ 2,200.00
960,00
s
700.00
Spruce,
windows.
$ 4,400.00
S 700,00
8 1,050,00
S 525.00
S 720,00
S 550,00
S 1 ,eoo, 00
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P.O. Box 568
Snowmass, Colorado 81654
(303) 927-9341 . (303)927-4066
FAX (303) 927-9378
Item M. Repair of Irrigation System
Sincerely,
~~~
Ed Booher
Mountain West Trees
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Sub Total & Services
6.5% Sales Tax
TOTAL
$
480.00
$16,085.00
$ 522.76
$16,607.76
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