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Home My WebLink Aboutordinance.council.002-09ORDINANCE N0. o~i (SERIES OF 2009) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL RELEASING OBLIGATION TO ENTER A DEED RESTRICTION REGARDING FLOOR AREA RATIO RESTRICTIONS ON THE EASTERLY 9.27 FEET OF LOT Q, ALL OF LOTS R & S, BLOCK 105 CITY AND TOWNSITE OF ASPEN, PITHIN COUNTY, COLORADO WHEREAS, pursuant to Ordinance 27 (Series of 1983), the Aspen City Council approved an application to rezone the following described property from "O" (Office) to "CL" (Commercial Lodge): THE EASTERLY 9.27 FEET OF LOT Q, ALL OF LOTS R & S, BLOCK 105 CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO and, WHEREAS, the owner of the property above-described, as an inducement to the City Council to grant his rezoning application voluntarily agreed to maintain a 1 to 1 external floor area ratio on the site and also agreed to certain parking requirements; and, WHEREAS, as a condition of the approval the owner of the property was to prepare and record a deed restriction approved by the City Attorney; and, WHEREAS, the owner never recorded such deed restriction; and, WHEREAS, the "O" (Office) zone is now known as Mixed Use; and WHEREAS, the CL zone district in its present status is an appropriate zone designation for this property; and, WHEREAS, the circumstances which led to the requirement of the deed restriction are no longer applicable; and, WHEREAS, the City Council finds that the proposed release of the obligation of the owner to provide a deed restriction is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfaze. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1: The Aspen City Council hereby adopts the terms of the of the Covenant Agreement in Association With Aspen City Council Ordinance No. 2 (Series Of 2009), attached hereto as Exhibit 1 and directs the Mayor and staff to execute such agreement. RECEPTION#: 558000, 0411412009 at 01:28:49 PM, 1 OF 2, R $11.00 Doc Code ORDINANCE Janice K. Vos Caudill, Pitkin County, CO Page 1 Section 2: Pursuant to its terms, upon the full execution and recordation of such agreement, the obligation of the Owner to prepare and record a deed restriction on the property regarding the external floor azea ratio and parking requirements shall be released. Section 3• All material representations and commitments made by the Applicant pursuant to the approvals as herein awarded, whether in public hearing or documentation presented before the City Council, aze hereby incorporated in such approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 4: This ordinance 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 conducted and concluded under such prior ordinances. Section 5: If any section, subsection, sentence, clause, phrase, or portion of this ordinance 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. Section 6. A public hearing on this Ordinance will be held on the 9`" day of March 2009 in the City Council Chambers, 130 South Galena Street, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 23`d day of February 2009. A athryn S. Ko ,City Clerk Michael C. r -and, Mayo FINALLY, adopted, passed and approved this 9`h day of March, 2009. ,~LG - (~ Kathryn S. K~ ,City Clerk APPROVED AS TO FORM: 7io~~~~_ John. 'o tester, City Attorney -z - (-ZOo~ Michael reland, M or Page 2 COVENANT AGREEMENT IN ASSOCIATION-WITH ASPEN CITY COUNCIL ORDINANCE N0.2 (SERIES OF 2009) THIS COVENANT AGREEMENT IN ASSOCIATION WITH ASPEN CITY (A C UNCIL ORDINANCE NO. 2 (SERIES OF 2009) (this "Agreement") is made as of V 1 ~1~ ~ 1 ~ , 2009, by THE SIMON P. KELLY TRUST dated Januazy 4, 1993 and THE NORA D. KELLY TRUST dated Januazy 4, 1993 (together, the "Owner"), THE BUCKHORN ARMS, LLC, a Colorado limited liability company (the "Ground Lessee"), and the CITY OF ASPEN, a Colorado homerule municipality (the "City"). RECITALS: WHEREAS, the Owner owns that certain land legally described as the Easterly 9.27 feet of Lot Q, and all of Lots R and S, Block 105, City and Townsite of Aspen, Pitkin County, Colorado (the "Property"); and WHEREAS, the Owner has leased the Property to the Ground Lessee pursuant to the terms of that certain Net Ground Lease dated as of March 13, 2000 (the "Ground Lease"), a short form of which was recorded on March 13, 2000 at Reception No. 441336 in the real property records maintained by the Clerk and Recorder of Pitkin County, Colorado (the "Records"); and by virtue of such Net Ground Lease and a General Warranty Deed recorded in the Records on March 13, 2000 at Reception No. 441334, the Ground Lessee is also the owner of the building and other improvement located on the Property; and WHEREAS, the Property was rezoned from Office ("O") to Commercial Lodge ("CL") with the City's adoption of Ordinance No. 27 (Series of 1983) on condition that the Owner restrict the external floor area ratio for development on [he Property to a maximum of 1:1 and retain the present number of legal parking spaces, which restriction was to be evidenced by a deed restriction approved as to form by the City Attorney and recorded by Owner (collectively, the "Existing Condition"); and WHEREAS, pursuant to City Council Ordinance No. 2 (Series of 2009) (the "Ordinance"), the City has agreed to release the Existing Condition on the condition that the Owner and the Ground Lessee voluntarily agree to replace the Existing Condition by executing this Agreement and delivering it to the City for recording in the Records. NOW, THEREFORE, in consideration of the terms, provisions, covenants and agreements contained herein, the parties agree as follows: 1. Release of E~dsting Condition. The City agrees that the Existing Condition is released and shall no longer have any application to the Property. 2. New Covenant and Restriction. From the date of this Agreement forwazd, the Property shall be subject to the City of Aspen planned unit development regulations codified in Section 26.445 of the Aspen Municipal Code, as they may be amended from time to time (the "PUD Regulations"). Pursuant to Section 26.445.100.0 of the PUD Regulations, an accurate improvements survey of the existing conditions of the Property shall be deemed a PUD Plan for RECEPTION#: 558001, 0 411 412 0 0 9 at 01:31:39 PM, 1 OF s, R $31.00 Doc Code AGREEMENT 8884'16.2 Janice K. Vos Caudill, Pitkin County, CO the Property for purposes of evaluating whether any proposed changes to the Property constitute an insubstantial or other amendment under the terms of the PUD Regulations. At such fime as the Owner and/or Ground Lessee apply for a substantial PUD amendment ("Final PUD Plan") and such is approved for the Property: 1) the Final PUD Plan shall be recorded in the Records pursuant to and in accordance with the provisions of Section 26.445.070 of the PUD Regulations; 2) Owner and Ground Lessee shall file in the Records a Notice of PUD Designation pursuant to Section 26.445.080 of the PUD Regulations; 3) the Community Development Director of the City shall, per Section 26.445.090 of the PUD Regulations, amend the City's Official Zone District Map to show a Planned Unit Development (PUD) designation on the Property; and 4) this covenant contained in this Section 2 shall no longer be necessary and shall be released by the City. Aclmowledging that Ground Lessee has the right to improve, develop and alter the Property and the improvements thereon pursuant to and after satisfaction of any conditions contained in the Ground Lease, Owner hereby agrees that Ground Lessee has Owner's consent to process any land use applications regazding the Property (including without limitation those under the PUD Regulations), and Owner agrees to join in any such applications as may be necessary. 3. Recording. This Agreement shall be recorded in the Records. The Ground Lessee shall pay the required recording fees, but the City will execute the recordation. 4. Binding Effect. This Agreement shall run with the Property and shall be binding on and inure to the benefit of the Owner, the Ground Lessee, the City, and their respective successors and assigns. If the Ground Lessee purchases the Owner's interest in the Property, then the rights and obligations of the Owner under this Agreement shall merge into those of the Ground Lessee and the Ground Lessee shall be the successor to the Owner for all purposes under this Agreement. 5. Amendment. This Agreement be amended only by written instrument executed by the Owner, the Ground Lessee and the City, or their respective successors or assigns. 6. Severability. If any provision of this Agreement is determined to be invalid, it shall not affect the remaining provisions hereof. 7. Enforcement. The pazties hereby agree that in any adjudicated controversy concerning this Agreement, the prevailing pazty shall be entitled to its costs and reasonable attorneys' fees. Failure to enforce this Agreement does not constitute a waiver of any rights to commence enforcement. EXECUTED AND AGREED TO by the parties as of the date first given above. [remainder of page intentionally blank; signature pages follow] 888906.1 2 CITY: CITY OF ASPEN, a Colorado homerule municipalit By: ~`~~ y-~y-S~ Michael C. Ireland, Mayor Kathryn Kogh~City Clerk APPROVED AS TO FORM: dx"lv~- ¢~g/o9 ohn orcester, City Attorney 8884]6.2 OWNER: THE SIMON P. KELLY TRUST dated January 4, 1993 Simon P. Kelly, Trustee THE NORA D. KELLY TRUST dated January 4, 1993 Nora D. Kelly, Trustee STATE OF rizu~G ) )ss. COUNTY OF Mai+cc~ ) The foregoing instrwnent was acknowledged before me this S day of M~ , 2009, by Simon P. Kelly as Tnistee of The Simon P. Kelly Trust dated January 4, 1993. Witness my hand and official seal. My commission expires: Christopher Romero NOTARY PUBLIC --ARIZONA MARICOPA COUNTY My Commission Expires December 28, 2011 STATE OF /70~, ) )ss. COUNTY OF Marri~ ) ry uuu~ The foregoing instrument was acknowledged before me this -S day of ~, 2009, by Nora D. Kelly as Trustee of The Nora D. Kelly Trust dated January 4, 1993. Witness my hand and official seal. My commission expires: Christopher Romero NOTARY PUBLIC --ARIZONA MARICOPA COUNTY My Commission Expires December 28, 2017 i Otaiy 1C 888,16.2 GROUND LESSEE: THE BUCKHORN ARMS, LLC, a Colorado limited liability company B : 61~w. S . v~noJt,,. I~P o Hoffman III, Manager ~ ~/`. Terrance uire, Manager s. ~~~~~ By: ~-' Mark Campisy Manag STATE OF COUNTY OF ~5 I~a~ The fq reggyn ~~1strument was acknowledged before me this ~ day of / ~ / o-4c. {L 2009, by~~hn tlo~~-Mk~~ as Manager of The Buckhorn Arms, LLC, a Colorado limited liability company. GAGiK i(ARAGE2 Commission * 171 Witness my hand and official seal. _ : Notory Public - Co My commission expires:~c?~ ~j v~~-O/9- ~ Los Angeles Corrrn. n GAWK RAKAVCUNrv ` STATE OF ~~~) ~~ commission +~ 1788163 L ` r Notary Public - Calllornlc ~ )ss. ~ Loa Angeles County COUNTY OF ~~) ~°"""' .lon3o,2otz Thyforegoing instru ent was acknowledged before me this day of _-- 2009, by as Manager of The Buckhorn Arms, LLC, a Colorado limited liability co lpany. Witness my hand ..~A My~comm~ io xpl~e~s' ` ~i ~~ ~~ uS•.,~-UtBiQLhG 888906.1 ~ Cammissgn Espxes Mercll 10 2012 ~r Notary Public STATE OF __Ld~v ) )ss. COUNTY OF ~) The foregoin ins ment was acknowledged before me this ~~day of , 2009, by ~ as Manager of The Buckhorn Arms, LLC, a Colorado limited liability company. Witness my hand and otFcial seal. My commission expires: ~~ ~~~ Notary Public NOTARY .PUBLIC , My Canmissan Exgres Minch 10 2012 4N 316, or ~ nt ~ 12 888906.1