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HomeMy WebLinkAboutresolution.council.036-09RESOLUTION N0.36, (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING A VARIANCE FOR A FOURTEEN FOOT FENCE MADE OF GOLF NETTING FOR THE PROPERTY LOCATED AT 1495 HOMESTAKE DRIVE CITY OF ASPEN, PITHIN COUNTY, COLORADO AND AUTHORIZING A LICENSE AGREEMENT FOR A PORTION OF THE FENCE TO ENCROACH ON CITY PROPERTY. ParcellD: 2735-024-030-03 WHEREAS, the Community Development Department received an application from Philip Pine, represented by Matthew Ferguson and Ryan Pardue of Gazfield & Hecht P.C, requesting approval of a variance to allow a fourteen foot fence made of golf netting; and, WHEREAS, pursuant to Section 26.314, the City Council may approve a Variance, during a duly noticed public heazing after considering a recommendation from the Community Development Director, and recommendations from relevant referral agencies; and, WHEREAS, upon review of the application and the applicable code standards, the Community Development Department recommended approval of the requested variance with conditions; and, WHEREAS, during a duly noticed public hearing on June 8, 2009 and continued to June 22, 2009, the City Council approved Resolution No. 36, Series of 2009, by a four to zero (4 - 0) vote, approving a Variance; and, WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing; and, WHEREAS, the City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Resolution No 36, Series 2009 Page 1 of 3 Section 1: Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City Council hereby approves a vaziance to permit a fourteen foot high fence made of golf netting be constructed on the property. The fence shall only be erected when the Aspen Municipal Golf Course is running golf operations. Section 2: Fence Location & Material The fence shall be located at the base of an existing berm that is located partially on the Golf Course property and on the Applicant's property until it reaches the existing wood fence, at which point the golf netting fence will enter the Applicant's property and be woven through the existing stand of trees, see Exhibit A to this Resolution. The fence poles shall be painted a dark color to better blend in with the existing vegetation. Section 3: Parks Department The Applicant is required to acquire an approved work under the drip line permit (tree removal permit) prior to installation of the fence. Any trimming of tree branches must be kept to a minimum and all tree work should be accomplished by a professional tree care company. All work on trees must comply with city tree code #13.20. The Parks Department shall verify compliance with this requirement. ~ccuvu ~. ~ ..............., ~- ---°------ City Council hereby authorizes the City Manager to enter into a license agreement between the Applicant (and any future owners of 1495 Homestake) and the City of Aspen that would permit a portion of the fence to encroach onto a portion of Golf Course property, as illustrated in Exhibit A to this Resolution. The encroachment license shall be automatically renewed on a yeazly basis, but may be reviewed for compliance by City Council and/or City Staff at the year intervals. The City may revoke the encroachment license at any time if the terms are violated. Section 5: Golf Course PUD City Council hereby directs the Community Development Department to approve an Administrative PUD Amendment for the Golf Course PUD to allow the golf netting fence to be construction on a portion of Golf Course (city) property. Section 6: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awazded, whether in public hearing or documentation presented before City Council, aze hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 7: 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 resolutions or ordinances Resolution No 36, Series 2009 Page 2 of 3 repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions or ordinances. Section 8: 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 sepazate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, adopted, passed and appryved this 22nd day of June, 2009. ~ ~ i; _~ Michael C. Ir and, Mayor/ ATTEST: /~~~~ Kathryn S. Ko ity Clerk APPROVED AS TO FORM: ~~d~~ John )~~'Vor ster, City Attorney Resolution No 36, Series 2009 Page 3 of 3 +.~~ ~: ~` ~ _ ~.~-~ , .' w ^'i ~ , >~ f It . ~~ _, tip ~~t ~ ~ [~t ~ ^rl ~ i "„~d~`^? ~ "~ ~ ` f i, ~~~, N _;, ~ ~ t ~ ~ ~~ S. 1 ` ~L~i ~ ~ 'i ~. ~ ~ ~.* ~.y ~ i1 ~ { s k,. i ~ 't , .V Yb ~ '- ~ y ~> Y ' t F vt.,~ tt ~, ~ ~1r^ r !r ,, ti ~` ~ ~~ ~ lr a.~7£ ~"~ ~~~J r , ~. j r .,_.~~ ~$ ~~~ i~' f ~ ~ ~~-, `,yam ~.~ti~k~~ ''~r~a ~. ~ ~~~ ;:n- ~~- r_;~_ ~_- r: . _r` ~{ M ~ ~ i,~'~ ~r~ _ ¢ .. -.-w ~ ~.. It t'~i"~-? Iy w .. _..~ ,: wt; ., ~_.-~_. r . y-t ._ ~~ L1 .Y ~~,, ~~ ,~. _, ti '~~` E ~-w~~ ~ i ~ '~ ~ ~~r~~~'~ ;_~. ~ ~. -_7~ti ~, GOLF BALL SAFETY NET LICENSE Page 1 of 6 GOLF BALL SAFETY NET LICENSE This License ("License") is made and entered into this ~~day of July, 2009, by and between PHILIP A. PINE ("Pine") on the one side and the CITY OF ASPEN ("CITY") on the other side. Each party hereto is hereinafter collectively referred to individually as a "Party" and collectively as the "Parties." RECTI'ALS A. Pine is the owner of Unit 2 of the Homestake Condominiums, commonly known as 1495 Homestake Dr., #2, Aspen, Colorado, and legally described as Unit 2, HOMESTAKE CONDOMINIUMS, according to the Condominium Plat thereof recorded April ] 8, 2000, in Plat Book 53 at Page 4 as Reception No. 442468 and as defined and described in the Condominium Declaration for Homestake Condominiums recorded April 19, 2000, at Reception No. 442476 ("Pine Property"). Unit 2 is improved with an approximately 4,410 squaze foot residential structure ("Pine Residence"). B. The City of Aspen is the owner of the Aspen Golf & Tennis Club, 1000 Truscott Place, Aspen, Colorado 81611 ("City Land"). C. The Pine Residence is situated along the second fairway of the Aspen Golf & Tennis Club. D. By Resolution #36, Series 2009, Aspen City Council approved a variance for a fourteen foot fence made of golf netting ("golf ball safety net") and authorized a license agreement allowing for a portion of the golf ball safety net to encroach on City property E. The golf ball safety net will be located in the area of the Pine Property's western property line at the base of an existing berm, located partially on City Land and partially on Pine Property. Starting from the front-most fagade of the Pine Residence, the golf ball safety net will run south approximately forty (40) feet on City Land until it reaches the Pine Property (see aa~osza GOLF BALL SAFETY NET LICENSE Page 2 of 6 Exhibit "A"), at which point the remaining portion of the golf ball safety net will be installed on Pine Property in accordance with variance approval. F. The golf ball safety net will not encroach onto City Land beyond the eastern base of the existing berm, as depicted in Exhibit "A." G. Pine will paint the posts of the golf ball safety net to blend in with existing vegetation. H. Pine will remove the posts and netting portions of the golf ball safety net during the winter months, from approximately November to April, when the Aspen Golf & Tennis Club is closed for golfing operations. For good and valuable consideration of the terms, conditions, and promises contained in this License, the sufficiency ofwhich is hereby acknowledged, the Parties agree as follows: ..- 1. Grant of License. The License shall become effective upon signature of the last Party to the License. For the purposes set forth herein, if all requirements aze met, but a PUD amendment should require time to complete, the City hereby assigns, transfers and grants Pine the right to use the portion of City land described above so that the golf ball safety net can be installed when the license becomes effective and when other installation requirements aze met. 2. Maintenance. The golf ball safety net will be installed and maintained by Pine. 3. Liability and Indemnity. In the event that any of the parties might otherwise be liable under applicable state statutes, Pine hereby agrees, to the extent permitted by law, to indemnify and hold the City harmless from and against claims or awards for loss, damage or any liability including reasonable attorneys' fees and costs, which may result from Pine's acts or omissions covering and including installation, maintenance, repair, replacement, and public use of the golf ball safety net. 447082-1 GOLF BALL SAFETY NET LICENSE Page 3 of 6 4. Assignment of Rights. Each Party to this License represents and warrants that it or he/she has not sold, assigned, conveyed, or otherwise transferred, prior to the final execution ofthis License, any interest in the City Land. 5. Voluntary Agreement. The Parties agree and understand that this License has been freely and voluntarily entered into and that no representations or promises of any kind other than those contained in this License have been made by any Party to induce any other Party to enter into this License. The Parties have read and understand this License in its entirety. The Parties acknowledge that each of them has been, or has had the opportunity to be, represented by counsel in connection with the negotiation, drafting, and execution ofthis License. 6. Authority to Enter Agreement. Each person and entity executing this License warrants that he/she/it is the duly authorized representative of the person of entity for which he/she/it acts and is fully and legally empowered to execute and deliver this License. !'^ 7. Interpretation of License. Each Party acknowledges and agrees that this License i shall not be deemed prepared or drafted by any one Party. In the event of ariy dispute between the Parties concerning this License, the Parties agree that any rule of construction, to the effect that any ambiguity in the language of the License is to be resolved against the drafting Party, shall not apply. 8. Governing Law, Jurisdiction aad Venue. This License shall be governed and construed in accordance with the laws of the State of Colorado. Jurisdiction and venue for any action arising out of this License shall rest exclusively with the County Court or District Court for Pitkin County, Colorado, as may be appropriate, except that the Parties may agree to mediate or arbitrate any disputes that may arise in the event of any action for breach of, to enforce the provisions of, or otherwise involving, this License. 447082-1 GOLF BALL SAFETY NET LICENSE Page 4 of 6 9. Parties to Bear Own Attorneys' Fees and Costs. Except may otherwise provided, each Party shall bear his/her/its own attorneys' fees and costs incurred in connection with this License. 10. Modification of Agreement. No provision or term of this License may be amended, modified, revoked, supplemented, waived, or otherwise changed except by written instrument duly executed by all of the Parties hereto. 11. Counterparts/Facsimile. This License may be executed in counterparts, each of which shall be an original, and all of which together shall constitute the License. Facsimile signatures shall be binding. 12. Binding Effect. The terms and conditions contained in this License shall inure to the benefit of, and be binding upon, the respective representatives, successors, heirs and assigns ofthe Parties. The License shall automatically renew on a yearly basis, but may be reviewed for compliance by City Council and/or City Staff at yearly intervals. The City may revoke the encroachment license at any time upon thirty (30) days written notice given by the City to Pine. 13. Entire License. The Parties agree that this License constitutes ;the final and entire agreement among the Parties and thereby supersedes and voids any and all prior agreements, letters, or understandings, whether written or oral, which may have existed regazding the subject matter of this License. 14. Effective Date of this License. The Effective Date of this License shall be the date upon which the last Party signs the License. 15. Headings and Captions. All headings and captions used in this License are for convenience only, and shall not be construed to either limit or broaden the language of this License or any particular section. ,N,,. \: 447082-I GOLF BALL SAFETY NET LICENSE Page 5 of 6 4'"" \. /'. DATED this ~ day of July, 2009 CITY OF~jASPE~N,~COLORAD;O~~~,~~ Title: STATE OF COLORADO ss. COi)NTY OF PITKIN ) The foregoing GOLF BALL SAFETY NET LICENSE was aclmowledggd before me this ~(~ day ofJuly, 2009, by S'f~ph~Vl FI ('Y~t~uti cK WITNESS my hand and off~ci yak ~4~ i ~ ~~Oll My commission expires;' ~'~~ ' ' I ~° i!I~~ _ _ ~ ~ otary Public ~. 1."',': ~.G~~' 447082-1 GOLF BALL SAFETY NET LICENSE Page 6 of 6 DATED this ~ day of July, 20 PHILIP A. PINE .// By: r~©21DA STATE OFFAL9R,4B9 ) COUNTY OF PI~IId [~fCOCJfl 2~j ) ss. The foregoing GOLF BALL SAFETY NET LI~NSE was acknowledged before me this ~' day of July, 2009, by PN I (- I p ,~iN D/CEw P'I NE WITNESS my hand and official seal My commission expires•~.s1J . Z~ at71 0 /1 _ _ O ~ ~~ A w Notary Public GSLYN TAYLOR 3~ °Oe~ Notary Public, State of Florida F ~ Commissionp DD611170 lay eumm. expires Nov. 02, 2010 aa7oaz_t