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Home My WebLink Aboutresolution.council.013-09RESOLUTION NO. 13 (Series of 2009) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, GRANTING A SECOND AMENDMENT TO THE SUBDIVSION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION, 300 S. SPRING STREET AND 707 E. HYMAN AVENUE, CITY OF ASPEN, COLORADO Parcel ID: 273718227101 and 273718227102 WHEREAS, pursuant to the Subdivision Agreement for the Hannah Dustin Subdivision, successors and assigns of the agreement may "on its owm initiative petition the City Council for an amendment to the final plat or....subdivision agreement;" and, WHEREAS, the Applicant requests approval to a second amendment to the Subdivision Agreement for the Hannah Dustin Subdivision to allow for the issuance of Certificates of Occupancies for portions of the completed project; and, WHEREAS, Community Development Department reviewed the request and suggested changes to the draft agreement that were incorporated into the draft; and, WHEREAS, City Council has reviewed and considered the subdivision agreement amendment request and has reviewed and considered the recommendation of the Community Development Director; and, WHEREAS, the City Council finds that this Resolution allowing for approval of the proposed amendments furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN, COLORADO,THAT: Section 1: In accordance with the provisions of Article 7.4 of the Subdivision Agreement for the Hannah Dustin Subdivision, the City Council of the City of Aspen, Colorado, does hereby grant the Second Amendment to the Subdivision Agreement for the Hannah Dustin Subdivision conditioned on amendments to the agreement being incorporated by the City attorney with regazd to amending the timing of the release of the deposit, developing a final sunset date for feature of the deposit, addressing how any interest from the deposit is distributed, and not guaranteeing a credit for future mitigation requirements for the Commercial Phase. RECEPTION#: 556911, 03105/2009 at 02:40:57 PM, 1 OF 5, R $26.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO Resolution No. 13, Series of 2009 Page 2 Section 2: This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 3: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED, February 23, 2009, at ~ public meeting before the City Council of the City of Aspen, Colorado.~l _. .3 yI~ ~~~p4 C I eland, ay o n o ester, tty Attorney ATTEST: ! J~/ ~~ Kathryn S. Ko ,City Clerk Exhibit A Second Amendment to the Subdivision Agreement for the Hannah Dustin Subdivision SECOND AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION This Second Amendment to Subdivision Agreement for the Hannah Dustin Subdivision (the "Second Amendment") is made this ~~ day of~~c~ 2009, by and among the CITYOF ASPEN, a municipal corporation (the "City"), the S ASS CORPORATION, a Colorado corporation ("Snowmass"), and HYMAN STREET BROWNSTONES, LLC, a Colorado limited liability company ("Brownstones"). RECITALS: A. The City entered into a Subdivision Agreement for the Hannah Dustin Subdivision with Hyman Avenue Holdings, LLC, the predecessor in interest to Snowmass and Brownstones, on September 25, 2006 (the "Subdivision Agreement"). B. The Subdivision Agreement was amended by a document entitled "Amendment to Subdivision for the Hannah Dustin Subdivision" on November 7, 2006 (the "First Amendment"). C. The City, Snowmass and Brownstones desire to further amend the Subdivision Agreement and the First Amendment as set forth in this Second Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Waiver of Completion Requirement. Upon satisfaction of the requirements of Section 2, below, the provisions of Section 8.1(iii) of the First Amendment, which require the Commercial Phase to be 50% complete in order for the Residential Phase to obtain a Certificate of Occupancy shall be waived. Deposit. As consideration for the waiver described in Section 1, above, Snowmass shall deposit the sum of $500,807.25 with the City, either in cash or in the form of an irrevocable letter of credit prior to the issuance of a Certificate of Occupancy for the Residential Phase. The deposit is intended to provide a reasonable financial assurance that Snowmass will undertake construction of the Commercial Phase and, in particular, the affordable housing unit which is required as a condition of Commercial Phase approval. To that end, the deposit shall be forfeited and may be retained and utilized by the City for affordable housing purposes if a building permit for the Commercial Phase has been approved but not issued by July 31, 2009, which is the date on which vested property rights are due to expire (the "Commencement Deadline"). If the vested property rights period is extended, the Commencement Deadline shall automatically be extended to the new date on which the vested property rights for the Commercial Phase are to expire. If a building permit for the Commercial Phase is issued by the Commencement Deadline, Snowmass may request and the City shall refund the deposit based upon the following schedule. Twenty-five percent (25%) of the deposit shall be refunded after the framing inspection approval has been attained. The remainder of the deposit shall be refunded after issuance of a Certificate of .Occupancy for the Commercial Phase. If a Certificate of Occupancy for the Commercial Phase has not been issued within twenty-four months after a building permit is obtained, the City shall have no obligation to refund the balance of the deposit then held by the City. Any interest accrued by the deposit of the sum of $500,807.25 with the City shall be retained by the City. 3. Completion of Residential Phase. The parties acknowledge and agree that the Residential Phase is, on the date hereof, more than 50% complete. 4. Assurance of Financine. In satisfaction of the requirements of Section 8.1(iii) of the First Amendment, Snowmass shall provide the City with a written confirmation of its construction loan from Bank of America, to be delivered to the City along with the Deposit. 5. Housine Mitigation Credit. If construction of the Commercial Phase has not begun prior to the Commencement Deadline referred to Section 2, above, and as a result the Deposit is forfeited, Snowmass may, nevertheless, be entitled to a credit, up to $500,807.25, to be applied against affordable housing mitigation requirements associated with development of the Commercial Phase if any, which are in addition to the requirement for construction of atwo-bedroom Category II housing unit within the Commercial Phase. The credit shall only be available, however, if such unit is actually constructed within the Commercial Phase and if, as a result of expired vested property rights, additional affordable housing mitigation is required; however, the City is under no obligation to issue any credit. athryn S. Koch ty C erk CITY OF ASPEN, COLORADO, a Colorado muni i co rati By: 2 -Z - Zoa~ Michael .Ireland, Ma or SNOWMASS CORPORATION, a Colorado James W. HYMAN STREET BROWNSTONES, LLC, STATE OF COLORADO ) ss. COUNTY OF ~Pi+kin ) The foregoing instrument was acknowledged before me this Z~' day of 2009, by Michael C. Ireland, Mayor, and Kathryn S. Koch, City Clerk, of the City of Asp , Colorado, a Colorado municipal corporation. ~ Witness my hand and official al. My commission expires: STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ~~ day of .~ 2009, by Andrew W. Light, as Attorney-in-Fact for James W. Light, as President oPSnowmass Comoration, a Colorado corporation. Witness my hand and official seal. My commission expires: 1~~Z5~rA1 STATE OF COLORADO ) ss. COUNTY OF~_ ~(~ __ ) ~~poOND lffl''~o ~N q ~ __ PJOfq~, -,T ~~_ Notary Public y '. Abe ~ uc 0 ~~'~~'00LO~PO \~: ~~lllfnnnl 111va`'P The foregoing instrument was acknowledged before me this ~~ day of 1~~ , 2009, by Robert D. Bowden, as Manager of Hyman Street Brownstones, LLC, a Colorado limited liability company. I Witness my hand and official seal. My commission expires: o ZS 1 vov~I nN fglri o SON A FF.~ ~'. ~~ ~~ ~ s ~pPARy `. Notary Public puBt~G , O 1j~lfUlllll111\\P~~~ Q\CIimIVSnowmus CaryWanneh DusYn\SecoM Amendmem to Subdivision Agreemem for Ne FlannN DmYn Subdisisim 1225 W FRJAL.doc My Commission F.xptrea 0912512000