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HomeMy WebLinkAboutresolution.council.072-10RESOLUTION NO. (Series of 2010) q[7A(to A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF ASPEN AND THE REGENTS OF THE UNIVERSITY OF COLORADO REGARDING THE GIVEN INSTITUTE. WHEREAS, the City Council did approve a Memorandum of Understanding ( "MOU") between the City of Aspen and the Regents of the University of Colorado relating to the Given Institute with the adoption of Resolution No. _, Series of 2010; and WHEREAS, the Regents of the University of Colorado have asked that the original MOU be modified before they can agree to its terms; and WHEREAS, there has been submitted to the City Council an MOU that has been amended from the original MOU at the request of the Regents of the University of Colorado, appended hereto as Exhibit A; and WHERAS, the City Council desires to approve the MOU as modified. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: The City Council of the City of Aspen hereby approves the Memorandum of Understanding between the City of Aspen and the Regents of the University of Colorado, a copy of which is annexed hereto and incorporated herein, and does hereby authorized the City Manager to execute said Memorandum of Understanding on behalf of the City of Aspen in substantially the form as appended hereto as Exhibit A. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the day of 2010. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. Kathryn S. Koch, City Clerk CU MOU Amend MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF ASPEN AND THE REGENTS OF THE UNIVERSITY OF COLORADO THIS DOCUMENT CONSTITUTES, IN PART, A SITE SPECIFIC DEVELOPMENT PLAN PURSUANT TO C.R.S. § 24- 68- 102(4)(a) AND A DEVELOPMENT AGREEMENT PURSUANT TO C.RS. § 24-68- 104(2) This Memorandum of Understanding is entered into this _ day of , 2010 by and between the Regents of the University of Colorado, a body corporate (the "University") and the City of Aspen, a home rule municipal corporation of the State of Colorado (the "City "). RECITALS A. The University is the owner of the Given Institute, consisting of approximately 2.256 acres of land located within the municipal boundaries of the City, and more particularly described on the attached Exhibit A (the "Given Institute Property"). B. On the Given Institute Property are located several existing structures (the "Institute Buildings "). C. The University is processing an application pursuant to the requirements of Section 26.415.025 of the Aspen Municipal Code ( "Ordinance 48 ") of the City to obtain a demolition permit for the Institute Buildings. On May 26, 2010 the City aclmowledged that based upon the May 25, 2010 letter from the University, the 90 day negotiation period outlined in Ordinance 48 commenced on May 25, 2010. D. Upon demolition of the Institute Buildings, the University desires to sell the Given Institute Property to a private purchaser for the purpose of residential development in conformance with the current zoning for the Given Institute Property. E. The current zoning of the City for the Given Institute Property is R -6, Medium - Density Residential. F. The University is willing to sell the Given Institute Property for $15,000,000. G. The City, pursuant to Resolution No. 51, Series of 2010, has stated its desire to preserve the Institute Buildings while supporting the University goal of sale of the Given Institute Property. H. The City desires that the University delay the demolition of the Institute Buildings and sale of the Given Institute Property until after the November 2, 2010 general election, at which election the City will place a question on the municipal ballot with regard to the purchase by the City of the Given Institute Property in accordance with this Memorandum of Understanding. {A000162414 ) I. In return for the promises of the City set forth in this Memorandum of Understanding, the University is willing to delay the demolition of the Institute Buildings and sale of the Given Institute Property until after the November 2, 2010 election. Based on the promises and covenants set forth herein, the parties hereby agree as follows: AGREEMENT 1. Placement on Ballot The City agrees to place a ballot question (the "Ballot Question ") on the November 2, 2010 general election ballot of the City. The Ballot Question, if approved, shall authorize the City to pay the University $15,000,000 at a closing for the Given Institute Property, and shall identify the funds or source of funds for the City to pay the University, all in a manner where the City could purchase the Given Institute Property for $15,000,000 no later than March 31, 2011. A. If the Ballot question is approved, the City shall purchase the Given Institute Property from the University at a closing date mutually agreed to by the parties, but not later than March 31, 2011. B. The City agrees that if the Ballot Question is not approved by the voters of the City at the November 2, 2010 general election, the City will not take any action for a period of ten (10) years following said election by ordinance, resolution, initiated measure or otherwise to designate the Institute Buildings for historic designation, adopt new historic building procedures that would apply to the Given Institute Property or prevent the demolition of the Institute Buildings in accordance with the City's current regulations. In addition, if the Ballot Question is not approved by the voters of the City at the November 2, 2010 general election, the City will not take any action for a period of three (3) years following said election by ordinance, resolution, initiated measure or otherwise which would directly or indirectly alter, impair, prevent, diminish, impose a moratorium or otherwise delay the development or use of the Given Institute Property for residential purposes in accordance with the standards and requirements of the R -6 zone district and the other applicable provisions of the City of Aspen Land Use Code as it exists as of the date of this Memorandum of Understanding. The actions not to be taken by the City shall include, but not be limited to, rezoning the Given Institute Property from its current designation of R -6 or substantially modifying the provisions of the R -6 zoning district as they apply to the Given Institute Property. It is the intent of this subsection B that if the voters of the City do not approve the Ballot Question, the University, and its successors and assigns, shall have a vested property right pursuant to C.R.S. §§ 24 -68 -101 through 106 (the "Vested Property Rights Act ") to demolish the Institute Buildings and develop the Given Institute Property in accordance with the R -6 zoning and other applicable provisions of the City of Aspen Land Use Code currently in place (subject to the time periods described above). This Memorandum of Understanding constitutes a site specific development plan and a development agreement pursuant to the Vested Property Rights Act and shall be enforceable by the University and its successors and assigns pursuant to the terms of the Vested Property Rights Act. The City shall cause a notice of this Memorandum of Understanding satisfying the requirements of Section 24- 68- 103(1)(c) of the Vested Property {A0001624 / 4 } Rights Act to be published not later fourteen days following the approval of this Memorandum of Understanding by the City. 2. Actions by the City. In consideration for the representations set forth in this agreement„ and except for placing the Ballot Question on the November 2, 2010 ballot, the City agrees that it will take no direct or indirect actions to prevent the sale of the Given Institute Property or the demolition of the Institute Buildings before the November 2, 2010 vote or thereafter if the voters should not approve the Ballot Question to purchase the Given Institute Property from the University for $15,000,000. The City agrees to process all applications or permit requests submitted by the University with regard to the Given Institute Property or the Institute Buildings with the express agreement by the University that it will not act on those approved applications or permits should the Ballot Question be approved by the voters. Furthermore, within five (5) business days of the signing of this Agreement the City shall withdraw and or cease any such actions that may directly or indirectly prevent the sale of the Given Institute Property or the demolition of the Institute Buildings, including but not limited to the pending application for local historical designation of any of the Institute Buildings or any applications or actions that may assist or persuade the historic designation of the Institute Buildings by the State of Colorado or any department of the federal government. 3. Limitation on Police Power of the City The City acknowledges that the promises made herein are a limitation of the police power of the City. The City agrees that the limitations set forth herein are a reasonable limitation on the police power of the City made in exchange for the promises of the University set forth herein. 4. Ballot Question The City agrees that the Ballot Question shall satisfy all requirements of the Colorado Constitution, including but not limited to Article X Section 20, all requirements of Colorado law, and all requirements of the Charter and Ordinances of the City of Aspen as are necessary to have the election be a permanent and enforceable commitment of the City to pay the University $15,000,000 for the Given Institute Property within the time frame set for closing in Paragraph 1(A), and that no other voter approval is required. The City represents that it has the funds for closing or that the Ballot Question will authorize the issuing of bonds, certificates of participation or other financial instruments to generate sufficient funds for the purchase price by the closing date. 5. Title. The University shall deliver a title commitment to the City not later than ten (10) days following approval of this Memorandum of Understanding. The University agrees that prior to the November 2, 2010 election not to cause or willingly permit any additional exceptions to title without the written approval of the City. 6. Ordinance 48 Approval The City agrees to issue a demolition permit to the University for the Institute Buildings in accordance with the procedures set forth in Ordinance 48. The City acknowledges that the procedures of Ordinance 48 will allow the issuance of the demolition permit prior to the November 2, 2010 general election. 7. Specific Performance The City agrees that the promises made in paragraph 1(B) may be specifically enforced and that damages may be inadequate if the University or any of its (A0001 624 i4 ) successors or assigns is unable to enforce these promises. Accordingly, the University any of its successors or assigns shall have the ability to waive its right to receive compensation, and the University any of its successors or assigns shall have the right to enforce the provisions of paragraph 1(B) above by obtaining relief in the form of specific performance, injunction, or other appropriate declaratory or equitable relief. This right of the University shall be deemed assigned by the University to any purchaser of the Given Institute Property. 8. Exercise of Demolition Permit Notwithstanding that the University has or will have received from the City a demolition permit for the Institute Buildings, the University agrees that it shall not exercise the right to demolish the Institute Buildings prior to or on November 2, 2010. If the voters of the City of Aspen approve the Ballot Question, and the Ballot Question satisfies the requirements of this Memorandum of Understanding, then the University agrees not to carry out the demolition of the Institute Buildings prior to the sale of the Given Institute Property to the City of Aspen. 9. Failure to Close If the voters approve the Ballot Question, but the City does not close on the purchase of the Given Institute Property by the date set forth in paragraph 1(A), then the University may demolish the Institute Buildings in accordance with the approved demolition permit and proceed with the sale of the Given Institute Property. 10. Given Institute Property Purchase Price The City and the University agree that the purchase price for the Given Institute Property is $15,000,000.00, subject to normal closing adjustments. The University represents that should the voters not approve the Ballot Question, the University has a private buyer prepared to purchase the Given Institute Property for $15,000,000.00, without any conditions other than the demolition of the Given Institute Structures. The University shall provide a letter to the City Attorney's Office verifying the contents of the offer as represented in this paragraph. (This letter may be made available for public disclosure.) The University shall disclose to the City Attorney's Office, on or before September 15, 2010, documentation of the actual offer from the private buyer evidencing that the offer to purchase the subject property is, in fact, for $15,000,000.00, as described in this paragraph. (This documentation shall be held confidential by the City Attorney until, and unless, the voters of Aspen approve the purchase ballot question at the November 2, 2010, special election.) 11. Open House. The University agrees that between the date of the execution of this agreement and the November 2, 2010 election it will make the Given Institute Property available for members of the public to view on three (3) separate occasions, the date and time of which will be set by the University so as not to interfere with the operations of the Given Institute 12. Failure to Place on Ballot If the City does not place the Ballot Question on the November 2, 2010 election ballot, then this Memorandum of Understanding shall terminate; provided, however, that the City shall still be obligated to issue the demolition permit in accordance with paragraph 6 above, and the provisions of paragraph 1(B) shall be enforceable against the City. {A0001624 / 4 } 4 13. Jurisdiction The City and the University acknowledgement that this Memorandum of Understanding is not an agreement by the University that the City's ordinances apply to the University. Neither is this acknowledgement an agreement by the City that its ordinances do not apply to the University. Except as is specifically agreed to in this Memorandum of Agreement, neither party shall be precluded from asserting its legal position as to the question of whether the University is subject to the ordinances of the City. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] (A0001624 /4 ) EXECUTED this day of 2010. CITY OF ASPEN, a home rule municipal UNIVERSITY OF COLORADO, acting by corporation of the State of Colorado and through the Board of Regents, a body corporate M Michael C. Ireland, Mayor By: Name: ATTEST: By: Kathryn S. Koch, City Clerk APPROVALS: STATE OF COLORADO DEPARTMENT OF LAW L-fi Attorney General APPROVED AS TO FORM: By: John Worcester, City Attorney {A0001624 / 4 } 6 EXHIBIT A (A0001624 / 4 ) 7