Loading...
HomeMy WebLinkAboutcoa.en.Molterer Sports.1974 1976 Reg^rded 3:23 PM September 3, 1 976 Reception No. Julie Hane Recorder 186772 BOOK 316 PACE 259 CERTIFICATE The undersigned, City Clerk of the City of Aspen, Colorado, does hereby certify that the attached is a true and accurate copy of an agreement between the City of Aspen and Kathryn B. Clark, representing Molterer Sports, Inc., granting a revocable license to encroach upon public right -of -way; which license was granted for the benefit of of improvements located on Lots 0, and Q of Block 95, City and Townsite of Aspen, Colorado. Dated: ( :Guieca-A ,51 / Y4' yy Kathryn S Hauter City Clerk 800K3i6 eac 251) CITY ' "'t;(':- PEN aspen ,e , - A. �` ` ` ') `- box v ., aye a.. July 29, 1975 John A. F. Wendt, Esq. Attorney -at -Law P. 0. Box 8429 Aspen, Colorado 81611 Re: Permission for Encroachment - Molterer Sports Dear John: Pursuant to City Council action taken at the meeting held July 28, 1975, the following letter agreement is sub- mitted for acceptance by your client, Molterer Sports, Inc. The terms and conditions itemized, and their acceptance by the corporation, are a prerequisite to the exercise of any right to encroach. It is understood that Molterer Sports, Inc., ( "Molterer ") will withdraw the canopy structure from the public right -of -way (or or before September 1, 1975), and place all structural elements of the canopy on private property, except that an over- hang of the canopy, not to exceed two (2') feet in length and not less than eight (8') feet in height, shall be permitted to encroach on the Cooper Street sidewalk right -of -way. Molterer agrees that: 1. The license to encroach is given solely at the discretion of the City Council, and permission to encroach may be withdrawn whenever the City Council shall determine it necessary or desirable for the public health, safety, welfare or convenience. Molterer agrees that it will, on receiving such request, remove the overhang from the City right -of -way, and all costs of demolition or removal will be assumed by it. 2. Molterer agrees that it will be responsible for any maintenance and repairs of the right -of -way encroach- ment necessary to keep the same, and the right -of -way, in a clean and safe condition as determined by the City of Aspen. 3. Finally, Molterer agrees to indemnify and hold the City harmless from any and all damages or liability •- BOOK 316 PAGE261 John A. F. Wendt, Esq. July 29, 1975 -2- by reason of death, injury or property loss suffered by any person as a result of the placement of the improvements over the right -of -way. In addition, if the City Council shall ever so require, you agree to obtain comprehensive public liability insurance cover- ing property loss and bodily injury or death in an amount at least equal to the comprehensive liability insurance maintained by the City at the time. The City Council has agreed that, on acceptance of the terms of this agreement and compliance with the requirement that the structures (with the exception of the overhang) be removed from the right -of -way on or before September 1st of this year, it will dismiss both its District Court Action No. 5482, and the criminal law citations pending before the Municipal Court. This grant of permission does not supersede any building, zoning or other local regulations, full compliance with which is required and this grant of right to encroach shall not be con- strued to exonerate Molterer from full compliance with the same. Please have a representative of Molterer Sports indicate acceptance of these conditions by signature below and return this original to us. A copy is enclosed for your file. Thanking you for your cooperation to date, I am, Very truly yours, Sandra M. Stuller City Attorney The undersigned, on behalf of Molterer Sports, Inc., a Colorado corporation, accepts the above conditions for the grant of permission to encroach and assumes the responsibilities enumerated. MOLTERER SPORTS, INC., a Colorado Corporation � Date:/. 7/ B y ° � ;4L CI 7k-71 ( tle) Ji!7�1 ,12r i 4 CITY C-J ASPEN aspen ,COL cira o thG`Il 110X. V MEMORANDUM DATE: July 25, 1975 TO: Members of City Council 1 FROM-X- M. Stuller RE: Molterer Sports Canopy The City has pending two legal actions against Molterer in an attempt to have the red canopy removed from the public right of way. The first is a civil action initiated in the District Court on February 5th of this year in which the cause of action alleged is one for trespass on public property with a request to the Court to enjoin further occupancy of the right of way. The legal premises on which we rely are the basic common law principles that (1) an owner of land abutting a public right of way may assert a right to only egress, ingress, air, light, view and lateral support, but in no event may he assert a right to make a private business use of a street unless specifically authorized by the City, (2) authorization must be given for every encroachment on the public right of way even if the structure is in fact neither dangerous nor annoying to pedestrians, (3) unauthorized encroach- ments are a nuisance per se,and (4) any authorization to encroach is a license only and is revocable at will of the City. This civil action has not progressed rapidly because of the scheduling problems with the District Court. We have instituted a parallel criminal action in our . Municipal Court under Section 19 -5 of the street code (not yet codified) which prohibits construction and occupancy of structures in a public right of way without prior Council approval. Trial on this criminal citation was scheduled for yesterday (July 24th) but prior to the setting we began discussing ways to resolve the matter without further proceedings. Specifically, it was suggested that Molterer Sports may be able t� achieve their purposes (and not interfere with the mutual right of the Magic Pan to public view of their premises), if the canopy structure is cut back to the property line, but the canopy is permitted f Members of City Council July 25, 1975 -2- to overhang the sidewalk for not more than two feet. Represent- atives from Molterer will appear Monday and Stacy will, under councilmanic comments, request your consideration of this alternative approach. The rationale in .support of this approach is that (1) the canopy is indeed attractive, (2) others have been allowed to use canopies absent objection from abutting owners, and (3) the City Zoning Code, in any event, permits projecting signs to hang four feet over a pedestrian walkway provided the sign is eight feet above grade. There remains only the question of whether such a restricted canopy would still interfere with the Magic Pan signing and by delivery of a copy of this memo to the acting manager of the Pan, we are noticing them of the meeting Monday and of their opportunity to object. For the benefit of the new members of the Council I am attaching a copy of my memo of January 21st which should summarize the past actions of Council in this matter. The memo was mailed in anticipation of a special meeting called by Pete for January 22nd, at which time the Council affirmed its earlier decision to deny encroachment approval absent the consent of the Magic Pan. SS /pk Attachment cc: M. Mahoney D. Ellis K. Hauter F. Mostrom, Acting Manager The Magic Pan 4, • CITY OF ASPEN • aspen ,cor, G ci CIO, SIGH box v MEMORANDUM DATE: January 21, 1975 TO: Members of the City Council FROM: Sandra M. Stuller RE: Molterer Sports Canopy For your special meeting noticed for Wednesday, let me recite the record history of the matter to date. cannot locate the minutes covering the original presentation of this matter to council but, as I recall, John Wendt appeared before Council and requested the encroachment in the Summer of 1973. The Council gave tentative approval conditioned on the proposed structure being acceptable to the Magic Pan. The issue was next raised at the meeting of September 24, 1973, which meeting minutes read: "i".olterer Sports - Attorney John Wendt reported the applicant has worked out an arrangement with the Magic Pan to change their sign that is agreeable to both parties. Councilman Behrendt moved to grant the request as submitted. Seconded by Councilwoman Pedersen City Engineer Ellis requested the agreement for the encroachment include the conditions that the City will be held harmless, agree at some future date to provide City with a liability policy, applicant maintain the structure and the City can require its removal if they so desire at some future date. Councilman Behrendt moved to amend his motion to include the conditions outlined by the City Engineer. Seconded by Councilwoman Pedersen. All in favor the motion carried." Inasmuch as Mr. Wendt represents both the Magic Pan and Molterer, I relied on his statement and submitted the usual encroachment agreement to him, and the same was returned signed by Androl. The matter next appeared before Council on November 24, 1974, the minutes reading as follows: "Bob Rosener, representing the Magic Pan, appeared before Council to state their objections to the Molterer Sports canopy which hid the Magic Pan's sign from public view east on Cooper Street. Rosener stated that 13 months ago Attorney John Wendt had appeared before Council asking that an encroachment be given for an awning from the building on East Cooper Street out past the sidewalk. Rosener said that he objected at that time because it would obstruct his sign but agreed that an awning could be put up out to the brick wall. Rosener said he had heard nothing else until the awning went up ten days ago. Attorney Wendt said he had talked with Mrs. Kay Cheek and Chuck of the Magic Pan in Denver and then had made application for a building permit. The permit was issued and the awning went up according to the build- • ing permit. Wendt had checked with the Building Inspector who had no complaint with regard to the canopy. • Bob Rosener submitted photos to demonstrate that the canopy did in fact obstruct the Magic Pan sign from 'the corner of Galena and Cooper. Councilman Behrendt asked if the sign could be lowered or raised so people from a reasonable distance away could see it. Rosener said at least ten feet. Androl Molterer said the canopy was to attract people to the off - street entrance of his store. Councilman Breasted said he liked the canopy and felt it was a good addition to the building. Rosener said it would hurt the Magic Pan's business. Councilman Breasted suggested the Magic Pan could cooperate with Molterer and make their sign part of the canopy. i.iayor Standley read from the minutes of the September 24, 1973 Council Meeting at which the endorsement for the canopy was granted. According to the minutes the encroachment had to be agreed upon by both parties. -2- Mayor Standley suggested both parties get verific- ation of the agreement in writing. The Council will • not make a decision until they see this agreement in writing. This item will be on the agenda at the next meeting unless all parties can come to an outside agreement." Again, the December 9, 1974, minutes read: "Bob Rosener of the Magic Pan was before Council to give them the sworn affidavits requested from the • previous meeting reference the remedy of the Molterer Sports Canopy. All three affidavits stated there was no agreement between Magic Pan and Molterer Sports on the extention of the canopy. °osener said he and Andrel Molterer had met after last Council meeting and the only agreeable solution was to raise the canopy 4 feet up and 6 feet out, which would make it very awkard. Molterer said he felt the sign only had to be raised 2 1/4 feet up. Councilwoman Markalunas told the parties involved that the solution should become rather obvious to them and the Council was acting only as a third party. Councilwoman Markalunas moved that the Council stand on their original agreement, that an agreement amenable to both parties had to be worked out in ten days or the canopy would come down; seconded by Councilwoman Pedersen. All in favor, motion carried." After this meeting Mrs. Cheek came to see me and requested an extension of time to cut back the canopy inasmuch as the company agent would not be able to come to Aspen until about mid - January to work on it. I discussed this request with Council at the noon luncheon before the last Council meeting in December and the members then approved the arrangement. You all are cognizant of Mrs. Cheek's appeal to you on January llth. his was precipitated • by my January 5th notice to Androl that he would be held to the January 15th date earlier agreed upon (copy attached). The notice was given when it became apparent to me (by my receipt -of correspondence dated December 28 and January 2 between Mrs. Cheek and the Magic Pan) that Mrs. Cheek never did intend to cut back the canopy as earlier promised. _doscitation has been issued against Androl pending the out- come of your special meeting on the 22nd. FS /pk Attachments MEMORANDUM TO: City Council DATE: December 4, 1974 FROM: Sandra M. Stuller RE: Molterer Sports Canopy Attached are the requested affidavits submitted by The Magic Pan in support of their contention that no consent was ever given by their representatives for the canopy to extend beyond the sidewalk. . • SS /pk cc: Mick Mahoney irlicv.0%;:".,:.------ 2 / ; -_ ii hd. &ht. .19,, a4/igat-S47(62S- /V id U i j 970L Lift:1{- Heft& 1015 /0(-,470 0.07&-e--,(1 l q , t . ° 541 � � ! o2 & , szA47 i Uf/r�i`���/`" '" . � � •� � �/f /� f% /L� G� S'r / �`�C` �`�r'G(Gv�" aa m 4 , 7 7,,,:d if E ., „„X 7 t ry,fis--c w I 4 VI le/r ,/a 0 77. V .1 • . i 0 ar 6M- w al sc i e ll- fi thSapt, e yx, Rot i 4(7-41 i Yi r .1 itt o . ,:; 091r AO( gal ft JO tc, v%� , c , . ( ;. f ' "` "C. - 2' Subscribed and sworned to before me on this date November 27 , 1974 • ezaL s �y r A. .1 -Ps Nbtary Public Pty commission expires . 77E 2-1 / /L= ) --74J / /i . S/ ),(W /7L /G; _ / 7 /4L /k //l /SS // (/ 7 ./ //l= zL - 74� "7 e j 7L7, /.i 77/z--7,C? i-J "G)2 / /A /! r S //kt- 7L- /).0 / ,L A /z77-A / TS v2 i j 1s71f/� • Subscribed and sworned to before me on this date November 27 , 1974. , 4 � ) My commission exprires Notary Public I I t • • GHIRARDELLI SQUARE 900 NORTH POINT SAN FRANCISCO. CALIFORNIA 94109 (415) 474 -5771 November 27, 1974 • • Mr. John A. F. Wendt Wendt & Kistler P. 0. Box 12 Aspen, uoioiaao blot' Dear John: I understand from Bob Rosener that there is a problem regarding the awning which has been installed by the ski shop upstairs, and which obscures the Magic Pan sign. In answer to the question of whether this awning was ever approved by anyone at Magic Pan, it wasn't. • I understand the ski shop is also one of your clients, and so with the interest of both clients at heart, I wonder if you could bring this matter to some agreement, which there isn't right now. Bob Rosener is suggesting having the awning stop at the sidewalk, • which sounds like a reasonable and wise solution. What's the matter with that? Thanks for your help in this matter and here's hoping some answer . can be found that is satisfactory to Bob and the ski shop. Sincerely, F. D. Montgomery General Manager FDM:jkl cc: Bob Rosener v' Roger Ashton • 1 CITY OF PEN aspen ,colorad box v October 11, 1973 John A. F. Wendt, Esq. P. 0. Box 12 Aspen, Colorado Re: Permission for Encroachment on City Right of Way - Molterer Sports Dear John: You will recall that when the City Council at its September 24, 1973, meeting gave permission to your client, Molterer Sports, to Construct a canopy on the city right of way, that it was sub- ject to acceptance of three conditions. They are as follows: 1. That Molterer Sports agrees that the license is solely at the discretion of the City Council and permission may be withdrawn for any reason at any time. Molterer Sports agrees that it will, on such request, remove the structure from any city right of way, and all costs of removal and /or demolition shall be assumed by Molterer Sports. 2. Molterer Sports agrees that is shall be responsible for any maintenance and repair of the canopy or right of way encroached necessary to keep the same in a clean, safe and attractive condition as determined by the City of Aspen. 3. Finally, Molterer Sports agrees to indemnify and hold the City of Aspen harmless from any and all damages or liability by reason of death, injury or property damage suffered by any person as a result of the placement of the canopy on the city property. In addition, if the City shall so require, Molterer Sports agrees to obtain comprehensive public liability insurance covering bodily injury or death in the amount of at least $300,000 for each person in any one accident, $300,000 for each accident, and property damage in the amount of $100,000 for each occurrence. John A. F. Wendt, Esq. October 11, 1973 Page 2 Please have a representative of Molterer Sports indicate acceptance of these conditions by signature below, and return the original to us. Very truly yours, Sandra M. Stuller City Attorney SMS:mw The undersigned, on behalf of Molterer Sports, accepts the above conditions for the grant of permission to encroach and assumes the responsibilities enumerated. C) 4 r(-\ \ Molterer Sports Date ' 1 / Title