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HomeMy WebLinkAboutresolution.council.108-04RESOLUTION NO. l©g Series of 2004 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN THE CITY OF ASPEN, COLORADO, DALE HOWER, AND CHERIE AND LENNIE OATES TO RESOLVE LITIGATION IN PITKIN COUNTY DISTRCIT COURT BETWEEN DALE HOWER AND THE CITY OF ASPEN. WHEREAS, there has been submitted to the City Council a Settlement Agreement and Mutual Release between the City of Aspen, Dale Hower, and Cherie and Lennie Oates, a copy of which Agreement is annexed hereto and made a part thereof. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section One That the City Council of the City of Aspen hereby approves a Settlement Agreement and Mutual Waiver between the City of Aspen, Dale Hower and Cherie and Lennie Oates, a copy of which Agreement is annexed hereto, and does hereby authorize the City Manager or Mayor of the City of Aspen to execute said Agreement on behalf of the City of Aspen in substantially the form as appended hereto. Dated: He Mayor Colorado, af ~i meeting held a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is SETTLEMENT AGREEMENT AND MUTUAL RELE4SE THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (the "Release") is entered into this day of May, 2004, by and among Cherie G. Oates Leonard M. Oates, Dale Hower, and the City of Aspen' and the City Council of the City of Aspen '("City"). Each of the individuals and entities listed in the preceding sentence is a "Party" and collectively they are the "Parties." Whereas, D ale H ower ("Hower") owns improved real property within t he City with a legal description of Lots 6, 7 and 8, Block 24, Riverside Addition and an adjacent parcel described by metes and bounds as follows: , with a street address of 1201 Riverside Drive ("Hower Lot") and Hower has sought approval from the City to construct a new duplex type residential structure and an accessory dwelling unit as hereinafter defined on the Hower Lot; and in accord with the codes in effect on September 1,2000; Whereas, Cherie G. Oates ("Oates" in the singular or collectively with Leonard M. Oates where the context requires) owns adjoining improved real property to Hower's property within the City with a legal description of Lot 11, Riverside Subdivision and an adjacent parcel described by metes and bounds as follows: , and a street address of 1205 Riverside Drive (the Oates' Lot); Whereas, the driveway and access to the Hower Lot crosses the Oates Lot, pursuant to an easement (the "Present Access Easement") and the Oates use the Present Access Easement over the Oates Lot as well to access their home and detached garage; Whereas, Oates and Hower have a dispute over the scope of the Present Access Easement and Hower's ability to utilize the Present Access Easement for access to a duplex structure; Whereas, Hower and the City have disputed the proper zoning of the Hower Lot and Hower has brought suit against the City in Case Number 02 CV 138 in the District Court for Pitkin County (the "Action") as a result of this dispute; Whereas, Cherie G. Oates has intervened in the Action: Whereas, Oates is desirous of relocating her detached garage, and relocating the Present Access Easement; Whereas, the parties desire to resolve the Action and their disputes over zoning, the access to the Hower Lot and Oates' garage relocation; NOW THEREFORE, in consideration of the covenants contained herein, and other good and valuable consideration, the Parties agree to the following: 1. Release. The Parties hereby voluntarily and knOwingly forever mutually release, discharge and relinquish any and all rights, claims, demands and causes of action, whether in law or in equity, which they, their officers, directors, employees, employers, partners, principals, agents, shareholders, trustees, heirs, personal representatives, successors, subrogees, subsidiaries, affiliates, related corporations, guardians, conservators, attorneys, insurance carriers, and assigns ever had, now have, or may claim to have, against any other Party, or that Party's past and present officers, directors, employees, employers, parmers, principals, agents, shareholders, trustees, heirs, personal representatives, successors, subrogees, subsidiaries, affiliates, related corporations, guardians, conservators, attorneys, insurance carriers, and assigns, related to the facts alleged in the Action, including but not limited to any claims for promissory estoppel, promissory estoppel, common law vesting, state or federal constitutional violations whether asserted under 42 U.S,C, § 1983 or under any other fight and claims for attorneys fees under 42 U.S.C. § 1988 or any other law or statute. 2. Warranty of Capacity to Execute Agreement. The parties represent and warrant that no other person or entity has or has had any interest to the claims, demands, obligations or causes of action referred to in this Release, and that the parties have the sole rights and exclusive authority to execute this Release, and that they are not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Release. In the event a third party seeks to assert claims under a transferred or subrogated interest, the transferring or subrogated party will defend and hold harmless the other for any such claims. 3. Mistake. The parties expressly assume all risks that this Release was a result of any mistake of any kind, waiving all claims or defenses based upon the doctrine of mistake. This Release shall act as an accord and satisfaction with respect to the parties and all claims designated herein. The Parties further agree that no fact, event, evidence, circumstance or transaction relating directly or indirectly to the disputes between and among the Parties, or which may hereafter be discovered, shall affect in any manner the final and unconditional nature of this Release. 4. Dismissal of the Action. Upon execution of the Release and obtaining rezoning approval as described below, the parties agree to execute a stipulation to dismiss the Action with prejudice, with each party to pay its own fees and costs. 5. Interpretation. This Release shall be interpreted and construed in accordance with the laws of the State of Colorado. Any dispute arising out of this Release shall be brought in Pitkin County, Colorado. It is intended that this Release be construed in the broadest possible manner in accordance with the Parties' express intention that all disputes between and among them hereby b e forever resolved. In any case o r controversy arising o ut o f t his Release, t he prevailing party in such dispute shall be awarded its reasonable attorney fees and costs. 6. Consultation with Counsel. The Parties hereby represent to each of the other Parties that they have determined that the settlement of the above-referenced dispute between and among the Parties is fair and reasonable under the circumstances and that this determination has been based solely upon their independent judgment after consulting with counsel and further that, in making this determination, they have had an adequate opportunity to discuss and assess the merits of their claims, potential claims and defenses with legal counsel. 7. 7. Rezoning from R-15 to R-6, Applicability of Aspen City Code in effect in 2000, and Accessory Dwelling Units. The Parties agree that as a condition precedent to all of the obligations and requirements of this Release, Hower must obtain rezoning approval from the City to change the current zoning of the property from R-15 to R-6. The parties acknowledge that the decision to rezone is purely discretionary with the City and that the City makes no representations as to the outcome of the rezoning process, yet this is a condition precedent to this release and any full and final settlement of the Action. Hower agrees to submit a rezoning application to the City. The City agrees that its staff will assist Hower in preparing this application and will Waive all application fees associated with a rezoning application. In addition, the City agrees to put the rezoning request on its priority calendar to expedite a rezoning decision. Oates agrees that they will not object to the rezoning request in any fashion, nor will Oates or anyone acting in concert with or in participation with Oates object to Hower's rezoning request in any fashion. And further provided, the City agrees and acknowledges that Hower is entitled.to have the benefit of the City of Aspen Land Use Code (including the building and housing code) provisions as they existed on September 1, 2000 applied to the rezoning application and/or building permit applications. This includes, but is not limited to, Hower's right to construct an Accessory Dwelling Unit below grade and attached to the primary residence and an exemption from the floor area ratio ("FAR") calculations for the Accessory Dwelling Unit. 8. Access Easement, Driveway, and Garage Relocation. As consideration for the Release contained herein, the Parties agree to the following with respect to the common driveway, Present Access Easement and garage relocation: A. Hower will relocate the common driveway across the Oates' property with a driveway running generally parallel and adjacent to the Oates' eastern boundary (i.e: common with the Lacet boundary) (the "New Shared Driveway"). The New Shared Driveway will be used solely for the purposes of ingress, egress, and underground water, gas, telephone/telecom, CATV and electrical utility service to the Hower and Oates properties. No parking, standing or stopping of vehicles or storage of personal property shall be permitted on the New Shared Driveway. B. The proposed location of the New Shared Driveway will be staked for the parties' review and agreement, based on the conceptual drawing attached hereto as Exhibit A. The New Shared Driveway and access to the Oates' relocated garage will be surfaced by Hower, at her sole expense, with a standard chipsea! compound, but no further improvement to its character, such as berming or curbs, will be installed unless eaCh party consents. The foregoing shall not prevent either party from replacing ,the chipseal surfaCe with asphalt or concrete or the installation of snowmelt. Hower will relOcate underground utilities, such as water, cable, electrical lines, as applicable within the New Shared Driveway boundary. Oates shall be entitled to access to and use of such lines. C. The as-built location of the New Shared Driveway will be surveyed and incorporated into a recorded non-exclusive easement agreement. The easement agreement will also include the maintenance responsibilities of Hower and Oates with respect to the New Shared Driveway. Maintenance expenses shall be divided on a 40% to Oates~.and 60% to Hower basis. The easement will be a perpetual, non-exclusive easement twelve feet in width limited for use by the Hower Property to two (2) single family dwellings plus one (1) ADU (as defined in City's Land Use Code as in effect on September 1, 2000) on the Hower Lot. Hower shall have no right to use the access spur off of the New Shared Driveway to the Oates relocated garage for any purpose whatsoever. The easement will constitute a burden upon the Oates Lot and a benefit to the Hower Lot and will constitute a covenant running with the land. Oates shall have no right to access Hower driveway. The form of easement to be recorded is attached hereto as Exhibit B. The Oates Lot shall be entitled to all benefits o f the area burdened by the New Shared Driveway not precluded thereby and which do not interfere therewith. D. Once the location and contractors are selected, the parties agree not to interfere with the progress of the work. All work shall, however, be performed in a good and workmanlike manner in compliance with building code requirements to the Oates' reasonable satisfaction, the intention being that the Oates' relocated garage and open access thereto and New Shared Driveway be turnkey, except for landscaping. Subject to aVailability at the time of construction, the parties have agreed on the following contractors: Stutsman-Gerbaz, Bailey House Moving and K&W Concrete; however, nothing contained herein shall prevent the parties from mutually agreeing on other contractors in writing. Hower assumes all risks associated with the relocation of the garage. E. Contemporaneously with the granting of the new easement for the New Shared Driveway, all existing easements, rights-of-way and common driveways for access across the Oates' Lot to the Hower Lot, whether of record or not and/or whether written or oral, will be vacated and all agreements relating thereto terminated. F. No structures will be placed on the New Shared Driveway easement, no lighting will be placed on the common driveway easement by Hower and the easement will not be lit by Hower from outside the easement. G. Oates will be physically and fiscally responsible for revegetating the Present Access Easement. H. Hower will permit and relocate the Oates existing detached garage such that the garage door entrance faces generally south and the new access spur thereto from the shared driveway, and assume all risks associated therewith. Hower will pay for the moving and temporary on-site storage of personal property within the garage during this construction. Hower will require that the moving and storage contractor maintain adequate liability insurance for Oates garage contents and shall arrange that Hower and Oates be named insureds thereon. Hower will not object to the creation of an apartment above the Oates' relocated garage so long as it is deed restricted. The relocation of the Oates' Garage and construction of the New Shared Driveway shall occur no later than 3 years after approval, January 2008,unless the parties otherwise agree to cooperate in coordinating the construction activities and the timing thereof. ] I. Hower will be responsible for all costs of relocating the driveway and moving the garage, such that upon relocation the same shall be ready for use by the Oates, including, but not limited to, excavation, rough and finish grading, removal of vegetation, relocation of electric service to the relocated garage and relocation of fences; however, the City will contribute one-half of these costs, up to a maximum of Twenty-Five Thousand Dollars ($25,000.00) to Hower. J. Oates will not object to Hower's applying for approval to build two homes and ADU assuming the rezoning of the Hower Lot occurs. However, the foregoing shall not be construed to mean any variance Hower may seek. K. Oates will pay Hower Five Thousand Dollars ($5,000.00) at such time as the Oates garage shall be relocated m~d all work in connection therewith completed in exchange for obtaining a right of first refusal to purchase the Hower Lot. Hower and Oates will execute a Right of First Refusal Agreement in the form attached hereto as Exhibit C. L. The City will credit any building permit fees previously paid by Hower towards the construction on the Hower Lot. M. The area of the driveway easement does not apply for purposes of the City's calculations for floor area ratios ("FAR") on the Oates Lot. To the extent that the Driveway Easement increases the dimensions of the existing easement, the increased area shall also not apply for purposes of the City's FAR calculations on the Oates Lot. 9. Entire Agreement and Successors in Interest. This Release contains the entire agreement between the parties, and the terms of this Release are contractual and not a mere recital. This Release shall be binding upon and more to the benefit of executors, administrators, personal representatives, devisees, agents, employees, officers, directors, trustees, conservators, guardians, beneficiaries, heirs, successors in interest and assigns of each party. 10. Execution. This Release m ay b e executed i n o ne o r m ore counterparts, a 11 o f which together shall be one instrument, and all of which shall be considered duplicate originals. 11. Approval by City. The parties acknowledge that the City's approval of this Agreement by the City can only occur through a Resolution of the City of Aspen City Council during a public meeting. Approval of this agreement does not bind the City Council to approve the contemplated rezoning discussed in paragraph 7 above, nor does a rezoning approval bind the City Council to approve this Agreement. 12. 13. Savings Clause. The Parties hereby agree that if any portion of this Release is found to be void or unenforceable, that they intend the remaining portions of the Release to be valid and enforceable to the maximum extent permitted by law. In the event of a breech of agreement, the prevailing party will be entitled to recover his/hers responsible attorny's fees or costs. AGREED: Cherie G. Oates Dated: COUNTY OF STATE OF COLORADO The foregoing instrument was acknowledged before me this ., 2004, by Cherie G. Oates. day Witness my hand and official seal. Notary Public My commission expires: Approved as to form: Ted D. Gardenswartz, Esq., Attorney for Oates of Dated: Leonard M. oates ' COUNTY OF STATE OF COLORADO The foregoing instrument was acknowledged ,2004, by Leonard M. Oates. Witness my hand and official. seal. before me this day of Notary Public My commission expires: Approved as to fonu: Ted D. Gardenswartz, Esq., Attorney for Oates Dale Hower COUNTY OF STATE OF COLORADO The foregoing instrument was acknowledged ., 2004, by Dale Hower. Witness my hand and official seal. Dated: before me this day of Notary Public My commission expires: CITY OF ASPEN: By: Aspen City Council Dated: COUNTY OF STATE OF COLORADO The foregoing instrument , 2004, by City of Aspen, Colorado. was acknowledged before me this as day of of the Wimess my hand and official seal. Notary Public My commission expires: Approved as to form: CITY OF ASPEN: By: Aspen City Council Dated: COUNTY OF STATE OF COLORADO The foregoing instrument was acknowledged before me this day of , 2004, by as of the City of Asperi, Colorado. Witness my hand and official seal. Notary Public My commission expires: Approved as to form: JPW- saved: 10/19/2004-2752-G:\john\word\agr\CORRECTED SETTLEMENT AGREEMENT AND MUTUAL RELEASE1.-10-19-04doc.doc EASEMENT AGREEMENT This Easements Agreement made and entered into this day of by and between Cherie G. Oates ("Oates") and Dale Hower ("Hower"). ,2004, WITNESS: WHEREAS, Oates is the owner of the real property described in Exhibit "A" attached hereto (the "Oates Property"); and WHEREAS, Hower is the record owner of the real property described in Exhibit "B" attached hereto (the "Hower Property"); and WHEREAS, Oates desires to grant to Hower and Hower desires to obtain from Oates a non-exclusive easement for access on a shared driveway and underground utilities over and across a portion of the Oates Property to the Hower Property, NOW, THEREFORE, for a good and valuable consideration in hand paid by Hower to Oates, the receipt and sufficiency o f which is hereby acknowledged, it is agreed between the parties as follows: 1. Oates hereby grants and conveys to Hower for the benefit of the Hower Property, a permanent non-exclusive Easement (the "Easement") for access to the Hower Property over and across the portion of the Oates Property described in Exhibit "C", said Easement being twelve feet (12') in width, for the purpose of providing access to the Hower Property and the right to install underground utilities therein for the purpose of providing utilities service to the Hower Property. 2. The Easement granted herein shall be limited to use for the construction, maintenance, repair and occupancy and use of one (1) duplex family dwelling (and one Accessory Dwelling Unit as defined in the City of Aspen Land Use Code as presently in effect) on the Hower Property. 3. The cost of maintenance of the easement herein granted shall be borne 40% by the owner of the Oates Property and 60% by the owner of the Hower Property for the portion thereof used in common by Oates Property and Hower Property to the point where the access shall spur there from to accommodate and serve the garage on the Oates Property. From and after that point, the cost of improvement and maintenance and repair shall be borne solely by the owner of the Hower Property. 4. The level of maintenance of the portion of the Easement shared by Oates Property and the Hower Property shall be the maintenance repair and replacement (when needed) of a chipsealed surface. The foregoing shall not be construed to prohibit the asphalt pavement of the Easement by one or the other of the parties, 11. but any cost associated with pavement thereof shall be borne by the party desiring to pave the same, unless the parties shall otherwise mutually agree. Snowplowing shall be paid for on the same basis on that part of the Easement used by both of the parties and otherwise solely by the party benefitting from the same. 5. No driveway marker lighting shall be permitted to be made by Hower, the owner of the Hower Property on the Easement herein granted or any extension thereof on the Hower Property without the consent of the owner of the Oates Property. 6. The Easement shall be used in a careful, safe manner with each party being respectful of the others quiet enjoyment of their respective Property. 7. It is mutually understood and agreed that no portion or portions of the Easement hereby granted shall ever be used for the purpose of parking, stopping or standing vehicles thereon, whether permanently or temporarily. 8. It is hereby expressly acknowledged as between the parties that this constitutes the entire agreement between them relating to access or utilities across the Oates Property for access to the Hower Property and any and all prior easements and agreements as to the same, whether on record or not are hereby terminated, vacated and o £ no further force and effect. 9. The Easement herein granted shall run with the title to and constitute a burden upon the Oates Property for the benefit of Hower Property. 10. This Agreement shall be binding upon and enure to the benefit to the parties hereto, their respective heirs and personal representatives, grantees, successors and assigns. Unless otherwise provided herein, in the event that either party hereto breaches any provision contained herein (the "Defaulting Party"), the other party (the "Nondefaulting Party") shall be entitled to give written notice of default to the Defaulting Party and shall provide a fifteen (15) day opportunity to cure the specified default. In the event that the default is not cured~i.thin such period of time, the Nondefaulting Party shall have the right, at its option, to cure such default and shall have the right to be reimbursed by the Defaulting Party for any reasonable costs it incurs in curing such default. Any reimbursement payments not paid within thirty (30) days after the Defaulting Party has received an itemized statement of such costs from the Nondefaulting Party, shall bear interest at an annual rate of eighteen percent (18%). In addition, the Nondefaulting Party shall have the right to place a lien on the property owned by the Defaulting Party for any amounts due under this Agreement that remain unpaid for a period of more than thirty (30) days after the Defaulting Party has received an itemized statement of such costs. IN WITNESS WHEREOF, the parties have hereunto set their hands and sea.!s the day and year above first written. Josh Marks STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing was acknowledged to before me this __ 2004, by Cherie G. Oates. day of Witness my hand and official seal. My commission expires Notary Public STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing was acknowledged to before me this __ 2004, by Dale Hower. day of Witness my hand and official seal. Notary Public My commission expires EXHIBIT "A" [Attach Legal Description of Oates Property] EXHIBIT "B" [Attach Legal Description of Hower Property] EXHIBIT "C" [Attach As-Built Legal Description of Easement] 4 FIRST RIGHT OF REFUSAL IN CONSIDERATION OF the payment of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt, sufficiency and adequacy of which hereby is acknowledged, _DALE HOWER, ("Hower"), the owner of Lots 6, 7, and 8, Block 24, Riverside Addition, and property lying adjacent thereto described with a street address of 1201 Riverside Drive, City of Aspen, Pitkin County, Colorado, (the "Property"), hereby grants unto CHERIE G. OATES ("Oates"), a right of first refusal to purchase the Property ("Right of First Refusal") upon the following terms and conditions: After receiving a bona fide written offer to purchase the Property acceptable to Hower ("Sales Contract"), Hower shall give written notice to Oates providing a copy of the Sales Contract for the sale of the Property ("Notice of Intent to Sell") by placing such notice, together with a copy of the Sales Contract in the United States Mail, postage prepaid, addressed to Oates at 1205 Riverside Drive, Aspen, Colorado 81611, with a copy to Leonard M. Oates, Esq., Oates, Knezevich & Gardenswartz, P.C., 533 East Hopkins Avenue, Aspen, Colorado 81611. Oates shall have fifteen (15) days from the date of mailing of the Notice of Intent to Sell to give written notice to Hower, at Aspen, Colorado 81611, of her intention to purchase the Property ("Notice of Intent to Purchase"), and to match the offer including all dates of contract in the Sales Contract. Oates's Notice of Intent to Purchase shall be accompanied by an earnest money deposit in the same amount.as contained in the Sales Contract. In Oates's Notice of Intent to Purchase, O ates shall agree to close upon the same terms and conditions as those contained in the Sales Contract. o If Oates shah not provide Hower with a Notice of Intent to Purchase, then Hower may sell the Properly under the Sales Contract free of the terms of this right of first refusal and Oates shall provide Hower with such written waivers as Shall be reasonably required to remove this right of first refusal as an affectation of Hower's title to the 'Property. Upon sale of the Property under the Sales Contract, this right of first refusal shall be of no further force and effect. This right of first refusal shall be recorded in the real property records of Pitkin County, Colorado. This Right of First Refusal Agreement shall be binding upon the parties hereto, their respective heirs, grantees and assigns. IN WITNESS WHEREOF, the foregoing Right of First Refusal has been executed this day of ,2004. Josh Marks ACKNOWLEDGMENTS ON FOLLOWING PAGE STATE OF COLORADO ) )SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this __ 2004, by Dale Hower. WITNESS my hand and official seal. My commission expires: (SEAL) day of NOtary Public STATE OF COLORADO ) )SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 2004, by Cherie G. Oates. WITNESS my hand and official seal. My commission expires' (SEAL) day of Notary Public