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HomeMy WebLinkAboutresolution.council.109-04 RESOLUTION NO. ©g Series of 2004 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A FOURTH AMENDED AND RESTATED PRE-ANNEXATION AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND THE BAR/X RANCH LLC, AND AUTHORIZING THE CITY MANAGER OR MAYOR TO EXECUTE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Fourth Amended and Restated Pre-Annexation Agreement between the City of Aspen, Colorado and the Bar/X Ranch LLC, a copy of which Fourth Amended and Restated Agreement is annexed hereto and made a part thereof. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section One That the City Council of the City of Aspen hereby approves a Fourth Amended and Restated Pre-Annexation Agreement between the City of Aspen, Colorado and Bar/X Ranch LLC, in substantially the form as appended hereto, and does hereby authorize the City Manager or Mayor of the City of Aspen to execute said documents on behalf of the City of Aspen. Dated: CQ��/�R p�� o� , 2004. ele h Kl de d, 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 , 2004. Kathryn S. Koc City erk JPW- saved: 10/18/2004-231-G:\John\word\resos\zoline-4th-pre-annex-agr.doc FOURTH AMENDED AND RESTATED PRE-ANNEXATION AGREEMENT BAR/X RANCH THIS FOURTH AMENDED AND RESTATED PRE-ANNEXATION AGREEMENT ("Agreement") is entered into and made on Co , 2004, by and between the City of Aspen, a Colorado home rule municipal corporation, whose address is 130 South Galena Street, Aspen, Colorado 81611, hereinafter referred to as the "City"; and Bar\X Ranch LLC, a Colorado limited liability company, whose address is c/o Herbert S. Klein, Esq., 201 N. Mill St. #203, Aspen, CO. 81611, hereinafter referred to as "Landowner". This Agreement shall become effective following execution by the Landowner and upon approval by the City Council of the City of Aspen evidenced by a duly approved resolution and by the execution of the Agreement by either the City Manager, Mayor, or Mayor Pro-Tem. RECITALS AND REPRESENTATIONS WHEREAS, the Landowner and City have previously entered into a Pre-Annexation Agreement, executed by City on May 21, 2001 for the Landowner's property known as the Bar/X Ranch; and a First Amendment to Pre-Annexation Agreement dated December 17, 2001; a Second Amendment to Pre-Annexation Agreement executed by the City on February 19, 2003; and, a Restated and Amended Pre-annexation Agreement dated January 16, 2004 (collectively, the "Prior Agreements"); and WHEREAS, City and Landowner desire to make further amendments to the Prior Agreements, all to be incorporated herein and referred to herein as the "Agreement" for the convenience of the parties which shall supersede the Prior Agreements in their entirety; and WHEREAS, the Landowner represents that it comprises 100% of all owners of a parcel of land commonly known as the Zoline Ranch, being more particularly described in Exhibit A appended hereto and incorporated herein by this reference ("Property Proposed to be Annexed" or "-/X Ranch"); and WHEREAS, the Property Proposed to be Annexed is more than 1/6 contiguous with the existing City boundaries and is otherwise eligible to be annexed into the municipal boundaries of the City in accordance with the Colorado Municipal Annexation Act of 1965, as amended, C.R.S. Sections 31-12-101, et seq.; and WHEREAS, the City and Landowner believe that it is in the best interests of the citizens of the City of Aspen and Landowner that the development of portions of the City Page 1 owned Burlingame Ranch and the Property Proposed to be Annexed be cooperatively planned by the parties; and WHEREAS, the Development Plan described in this Agreement and the rights granted to the Landowner hereby will assist in the creation of affordable housing, open space and a reduction in free market residential density below that which would otherwise be likely to be developed on the -/X Ranch, thus fulfilling high priority goals of the City; and WHEREAS, Landowner and City desire to annex the Property Proposed to be Annexed into the municipal boundaries of the City of Aspen on condition that all of the terms and conditions of this Agreement are met; and WHEREAS, the parties hereto desire to submit a joint development proposal and application to the City's Community Development Department for processing pursuant to the City's Land Use Code; and WHEREAS, the parties hereto desire to condition the annexation proposed herein and the execution of the Development Plan as described herein on the granting of all requisite land use approvals, following public input and comment, consistent with the City's Land Use Code; and WHEREAS, the City is a home rule municipality of the State of Colorado and is authorized to enter into this Agreement pursuant to C.R.S. Section 31-12-121; and WHEREAS, the Landowner is, in accordance with C.R.S. Section 31-12-102, legally capable of submitting a Petition to Annex in a form substantially the same as Exhibit C appended hereto. NOW, THEREFORE, in consideration of the mutual covenants contained herein, IT IS AGREED AS FOLLOWS: 1. THE DEVELOPMENT PLAN. The parties agree that the following description of the proposed land use for portions of the Landowner owned -/X Ranch and City owned Burlingame Ranch ("The Development Plan") constitutes the desired result of this Agreement as it sets forth the best land use for the Property Proposed to be Annexed and in the best interest of the City of Aspen. The parties believe that the Development Plan as set forth herein is consistent with the City of Aspen Land Use Code and the Aspen Area Community Plan. In the event Landowner has obtained Final Plat approval for the Free Market Component (defined below) prior to the time City has obtained Final Plat Approval for the Affordable Housing Component (defined below), then, the references in paragraphs 2 e, f and g and paragraph 19 of this Agreement which refer to the Development Plan shall mean the Free Market Component of the Development Plan. Page 2 A. DEVELOPMENT PARCEL. The parcel of land to be developed is depicted graphically in Exhibit B appended hereto and shall consist of the -/X Ranch plus a portion of the Burlingame Ranch lying East of Highway 82, less the areas of Burlingame Ranch known as Parcel B (MAA Housing) and Parcels C, and D, the exact size to be determined during final planning and design phases. A parcel from the -/X Ranch consisting of approximately 21.5 acres ("20 Acre Parcel"), the exact size and location to be determined during final planning and design, but substantially in the location as shown on Exhibit B, shall be conveyed by warranty deed by Landowner to City following the recording of a subdivision plat for the Free Market Component (defined below) consistent with the Development Plan as it pertains to the Free Market Component and upon expiration of the Appeal Period as defined at Paragraph 20 of this Agreement. City has inspected the acres to be conveyed to the City and deems them suitable for construction of affordable housing as contemplated herein. Notwithstanding the foregoing, a small portion of the 20 Acre Parcel which was acquired by Landowner in a quiet title action and which is described on Exhibit T-A, attached hereto and incorporated herein by this reference, shall be conveyed without warranty. 1. Boundary Line Adjustments. The parties agree that they will cooperate with each other and quit claim small strips of land as necessary to establish the boundary between the Ranch and the Burlingame Ranch as the existing fence line. 2. Lease of 20 Acre Parcel. Subsequent to the conveyance to City of the 20 Acre Parcel and prior to commencement of development activities on it for the Affordable Housing Component (defined below), Landowner shall have the right to lease the 20 Acre Parcel from the City for agricultural purposes. The rental amount shall be at prevailing rates for grazing and crop production land. Any such lease shall terminate at such time as City commences development of the Affordable Housing Component on the 20 Acre Parcel. During the term of such lease Landowner shall be entitled to use the water rights appurtenant to the 20 Acre Parcel to maintain its historic irrigation. B. ZONING OF PROPERTY PROPOSED FOR ANNEXATION. Subject to all applicable processes and approvals, the parcel of land proposed for development shall be zoned as follows: Affordable Housing/Planned Unit Development (AH/PUD) pursuant to Section 26.710.110 of the Aspen Land Use Code, as amended from time to time, for most of the land within the Free Market Lots; zoning for (P) Public zone district uses (with a PUD designation) and a Specially Planned Area overlay to permit the City Council to consider cultural and academic activities within the Fathering Parcel (the "Cultural Use Area"); and (C) Conservation zone district (with a PUD designation) for most of the remaining land within the Fathering Parcel. A proposed zone district map of the Free Market Component is attached hereto as Exhibit H - Proposed Zone Districts. The detailed description of the Cultural Use Area uses and any restrictions or conditions concerning them shall be determined in the Final Plat Page 3 land use review process and any subsequent amendments thereto, in the sole discretion of the City. It is understood that no high intensity agricultural uses such as hog farms, feed lots or large-scale animal or food processing operations will be permitted. The parties acknowledge that the AH/PUD zone district is an incentive zone district to provide for the use of land for the production of category affordable housing and resident occupied lots and units (as defined by the Aspen/Pitkin County Housing Authority Guidelines). The parties further acknowledge that the zone district requires that affordable housing and resident occupied units must comprise at least seventy (70%) percent of the total bedroom mix in the development (hereinafter the "Affordable Housing Component"). In addition, only thirty (30%) percent of the development's bedrooms may be located within the free market units (hereinafter the "Free Market Component"). C. DEVELOPMENT RIGHTS. The Development Plan anticipates and it is of the essence of this Agreement that the development rights and restrictions set forth below shall be applied for by the parties herein to the City's Community Development Department pursuant to and consistent with the standards and procedures set forth in the City's Land Use Code. In the event that by December 31, 2005, or such later date as may be mutually agreed upon by the parties hereto, the Aspen City Council does not approve the requisite land use applications with terms and conditions consistent with this agreement and other conditions reasonably acceptable to Landowner, this Pre- annexation Agreement shall be deemed null and void. 1. Free Market Lots. Landowner shall have the right to develop a total of 12 free market lots, plus one ranch compound known as Lot F, the Fathering Parcel, and one cabin by Maroon Creek. The locations of the free market lots, the Fathering Parcel, and cabin site are shown on Exhibit B appended hereto. The right to build a cabin shall be subject, however, to Landowner being able to satisfy reasonable requirements for the provision of fire and emergency services; provided, however that due to the desire to avoid direct, year round, road access to the cabin, alternative access such as via a stairway or funicular will be permitted and in such case the cabin shall be sprinklered, a fire hydrant, hoses and other non-vehicular fire fighting equipment shall be placed at or near the cabin and the Landowner shall execute a waiver and release of claims in favor of the City and all emergency service providers for any injuries, death, or property damage which may occur due to the absence of a year round road to the cabin. 2. Free Market Lots - FAR. The allowable floor area of houses, exclusive of accessory buildings, on each of the 12 lots shall be 7,500 square feet. The allowable floor area of each house may be increased to 10,000 square feet with the purchase and extinguishment of one Transferable Page 4 Development Right ("TDR") as such TDR's are established under the Pitkin County Land Use Code, from sending sites located within the Metro Area of Pitkin County ( lands that drain through the Roaring Fork River at Gerbazdale) and said TDR shall allow for 2500 square feet of additional allowable floor area; provided, however, that the City Council approves the specific TDR to be used for this purpose by making a finding that the proposed TDR comes from lands that drain through the Roaring Fork River at Gerbazdale. The floor area shall be measured by using the City floor area regulations for square footage inclusions and exclusions as calculated under the City code provisions in existence on June 1, 2000. A copy of such regulations is attached hereto at Exhibit I - Floor Area Calculations. In lieu of providing the TDR, a payment in the amount of$240,000.00 plus an annualized increase in said amount of 3% computed beginning on the first anniversary of the date of recording the Plat, may be made to the City's Housing or Open Space Fund at the sole discretion of the City in order to increase the allowable sizes of the houses up to the maximum stated herein. 3. Free Market Lots - sizes, landscaping, etc. The lot sizes within the Free Market Component shall be as shown on Exhibit B. Building envelopes and areas of potential disturbance during construction activity for each parcel shall be determined during the land use approval process contemplated herein. All urban landscaping within the building envelopes shall be limited to within 100 feet of building exteriors. Landscaping, ponds, fences, and ranch, farming, equestrian and recreational uses and accessory structures associated with equestrian activities shall be allowed outside of building envelopes on all lots. The remainder of the land within specific Lots, but outside of building envelops shall be subject to protective covenants that limit its use to agricultural, equestrian, recreation, or open space uses or otherwise incorporated into ranch use. All lands that are subject to the protective covenants shall be limited to the above uses or shall be required to remain in their natural vegetative state. The term "natural vegetative state" may include the introduction of indigenous plant and tree species. 4. Free Market Lots - Accessory Dwelling Units. Each house within the Free Market Component, other than the Fathering Parcel, shall include an Accessory Dwelling Unit (ADU) with a minimum of 600 square feet and a maximum of 1,000 square feet. Each ADU required to be constructed shall be constructed at the same time as the construction of the house of the Free Market Component to which it is attributable. The ADU's shall be subject to the occupancy requirements and allowances of the City's ADU regulations in effect on June 1, 2000. A copy of such Page 5 regulations is attached hereto at Exhibit J - ADU Regulations. The square footage of the ADU's shall not be included in the calculation of square footage for the free market units. The ADU's may be either attached to the main residence or may be detached. The requirement to build an ADU may be exempted with the purchase and extinguishment of a Transferable Development Right (TDR) from Pitkin County or by a payment-lieu thereof in the same manner as for Free Market Units as set forth in Section 1.C.2 above. (Each purchase and extinguishment of a TDR shall be designated for use as either an exemption of the requirement to build an ADU or to increase FAR.) 5. Free Market Lots. Maroon Creek Viewplane. Construction on the free market lots shall not impact the "Maroon Creek Viewplane" as depicted on Exhibit B. The purpose of the Maroon Creek Viewplane is to ensure that no rooms, decks, or lighting create an adverse visual impact as viewed from the floor of the Maroon Creek Canyon in the area below each home site. The General Declaration of Covenants, Conditions and Restrictions to be imposed upon the free market lots shall include a covenant restriction requiring, prior to construction on any such lot, a site specific analysis by a certified surveyor or engineer demonstrating that the proposed construction does not impact the Maroon Creek Viewplane. The City of Aspen shall be a beneficiary of this covenant. 6. The Fathering Parcel. The Fathering Parcel shall be permitted to have one main residence, up to three (3) additional residences and one cabin. The final PUD Agreement shall contain a provision that prohibits any further subdivision of the Fathering Parcel, except that the subdivision and separate parceling of the Cultural Use Area (referred to in paragraph LB above) and a separate parcel for the Ranch Manager's RO Lot (referred to in paragraph 1.C.12 below) are permitted. The allowable floor area for the residences on the Fathering Parcel shall be a total of 15,000 square feet for a main residence and up to three (3) other residences. The total FAR of 15,000 square feet may be increased to a total of 18,000 square feet with the purchase and extinguishment of two (2) TDR's from Pitkin County which for purposes of this paragraph shall each allow 1500 square feet of additional allowable floor area, or at the option of the lot owner, a payment-in-lieu for each TDR as provided for in Section 1.C.2 above in order to increase the allowable sizes of the houses up to the maximum stated herein. The total FAR may be divided among the four houses at the option of Landowner. The Cabin located at the Cabin site as shown on Exhibit B, shall have an allowable floor area of 1,500 square feet. Floor Page 6 areas shall be measured by using the City floor area regulations for square footage inclusions and exclusions as of June 1, 2000. See Exhibit I, attached hereto for Floor Area regulations. All non-residential ranch buildings shall be excluded in the calculation of permitted floor area. City acknowledges and agrees that the rights granted hereby for development on the Fathering Parcel are exempt from the City's GMQS due to the extent of the lawful pre-existing development and residential uses on the -/X Ranch, which has "grandfathered" legal status under current Pitkin County Zoning and pursuant to the provisions of the AH/PUD Zone. Notwithstanding the above, if any existing residential unit on the Fathering Parcel is replaced with a new unit that exceeds 4,000 square feet in area, then, as described in Section 4 above, an ADU shall be either constructed or be exempted by the purchase and extinguishment of a TDR from Pitkin County or by the cash in lieu payment as provided in Section 1.C.2 above in the same manner as for other Free Market Units. 7. Fencing. All fencing in or surrounding the free market lots shall be of a design, type and material that is approved by the Colorado Division of Wildlife as consistent with ranch operations and which does not unreasonably impede the movement of wildlife, except that fencing along Old Stage Road and fencing between the Free Market Component and the 20 Acre Parcel may be installed which protects agricultural operations, including, without limitation, the grazing of cattle and horses, and other land uses, from interference by trespassers. 8. The Cabin. The site of the cabin shall be as shown on Exhibit B, which site shall be subject to Sec. 26.435.040 of the City of Aspen Land Use Code or any other provisions of said Code related to aesthetics, wildlife migration corridors, trail development, river impacts and other similar matters. Any change in the location of the cabin site may require, if applicable, its development to be reviewed and approved by the Planning & Zoning Commission pursuant to the standards of review set forth at Section 26.435.040 of the City of Aspen Land Use Code or any other applicable provisions of said Code related to aesthetics, wildlife migration corridors, river impacts and other similar matters in effect on the date of this Agreement. Landowner understands that construction of the cabin may cause unreasonable disturbance to wildlife during certain times of the year. Accordingly, Landlord agrees to limit the construction of the cabin to those periods of time determined to be reasonable by the City during the land use approval process. Following the construction of the cabin, Landowner shall be responsible for the complete restoration of any construction access roads or utility access easements required during Page 7 construction. The lot containing the cabin shall be burdened with restrictive covenants that (i) if approved by the Fire Marshall pursuant to paragraph 1 C.1 above, prohibit the construction of a future access road to the cabin site; (ii) limit lighting of the cabin to periods of time when it is occupied; (iii) prohibit dogs on the cabin site at all times; and (iv) limit exterior construction to the months of July through September of each year. 9. Vested Rights. The land use approvals and GMQS allotments received by Landowner shall vest for a period of twenty-five (25) years or such longer time as may be allowed under any applicable law, regulation or court decision. The vested rights shall last for a period of 25 years after the date the final PUD and subdivision plat is recorded. Such vesting shall apply to all the rights and entitlements set forth in this Agreement and the final development order for the Free Market Component. As a condition of the annexation of the -/X Ranch, the parties shall enter into a development agreement that sets forth the requisite findings to support this extension of vested rights in accordance with CRS 24-68-104(2). 10. Further Subdivision. Except as permitted by paragraph 1.C.6 above, the Free Market Component, including the Fathering Parcel, shall be deed restricted in perpetuity against any further subdivision, except that this restriction shall not limit an amendment to the development plan which results in residential density that is equal to or less than the density approved under this Agreement and the final development plan for the - /X Ranch. 11. Vacation of Stage Road. Stage Road may be a Pitkin County Road. The City, following annexation of the Bar/X Ranch shall vacate Stage Road east of the eastern boundary of the Soldner property beyond any area required for the construction of the access road referenced at Section 1.A.1.b. above; provided, however, that adequate provisions are made to ensure that other properties served by Stage Road (Caudill and Harvey properties) are not financially harmed by any new arrangements for access to their properties and that maintenance of the road will be undertaken without additional cost to the Caudill and Harvey properties at their densities as they existed on May 21, 2001. Following the vacation of said portion of Stage Road, non-exclusive easements shall be granted for access and underground utilities to the Harvey and Caudill properties. The portion of Stage Road sought to be vacated and the location of the easements to be granted are illustrated on Exhibit B appended hereto. Page 8 12. Ranch Manager's RO Lot. City shall approve one residential lot, zoned AH/PUD, contiguous to Burlingame Village on land owned by Landowner for a single Resident Occupied Unit, as shown on Exhibit B ("Ranch Manager's House"). This lot shall remain the property of Landowner, except if sold to the Ranch Manager, and shall have the right to connect to (1) the Burlingame Village public road system, and (2) adjoining Burlingame Village utilities. Landowner shall have the right to use this lot in any manner allowed by the City of Aspen Municipal Code and the Aspen/Pitkin County Affordable Housing Guidelines, including retaining or disposing of title provided that the lot is occupied by an employee engaged for employment on the -/X Ranch. Before the recordation of the final Plat, Landowner shall prepare for the City Attorney's review, a deed restriction consistent with this paragraph to be recorded for this RO unit. Said RO unit shall not be counted towards the 330 units proposed as part of the Affordable Housing Component of the project. The cost of building the RO unit shall be borne entirely by Landowner, including the cost of any utility lines such as water, electric, cable, etc. 13. Water Rights. The Free Market Component, including the Fathering Parcel and Resident Owned Ranch Manager lot, and the Cabin, shall receive City water in accordance with the Water Service Agreement appended hereto as Exhibit F. Among other things, the Water Service Agreement provides that Landowner shall convey to the City (in a form acceptable to the City Attorney) certain water rights described on Addendum 1 (the "Dedicated Water Rights" and the "Dedicated Raw Water Rights.") Such conveyance shall be a prerequisite to provision of water service pursuant to the Water Service Agreement. The City and Landowner agree that said water rights are believed to be sufficient in quantity and quality to allow the City to divert a quantity of water which is necessary, without administrative curtailment, to meet the amount of water required for treated water needs of the Free Market Component, including the Fathering Parcel, Resident Owned Ranch Manager lot, the Cabin and the raw water requirements for irrigation of the open space associated with the Affordable Housing Component, as conditioned and described in further detail in the Water service Agreement attached hereto. Notwithstanding the foregoing, the cabin shall have the right to be served by an individual well and if such well is provided, the water rights otherwise attributable to the Cabin need not be conveyed to the City, or if they have been conveyed prior to the time said well is put to beneficial use, then such rights shall be reconveyed by City to landowner. There shall be no material enlargement of historic water use on the Property to be Annexed. The parties acknowledge that there may Page 9 be reconfiguration of areas irrigated, means of irrigation, and water uses. Landowner shall be solely responsible for obtaining any water rights, changes of water rights, and augmentation plans necessary to permit storage of water for any requirements or needs of the Free Market area. In connection with its conveyance of water rights to the City, Landowner shall contemporaneously convey to the City (in form mutually acceptable to the City Attorney and Landowner) a proportionate interest in any ditches, flumes, headgates or other structures and easements, or rights therein, necessary to utilize such water rights. Such conveyance shall be a prerequisite to provision of water service to the Subject Property. Landowner will also contemporaneously provide to the City all information in its possession, or available to it, regarding the historic use of said water rights, including well pumping records, diversion records, irrigation records, aerial photographs, affidavits, and all other available information concerning the use of said water rights. City shall, through the Willow and Herrick Creek Ditch Company or by other means agreeable to both parties, pay its fair share of operating, maintenance, management, professional and legal costs associated with the provision of surface irrigation water to the 20 Acre Parcel through the Willow Creek Ditch and other distribution ditches. 14. Transportation Demand Management. The parties hereto understand that it is the intention of each to develop a project that reduces the use of the automobile. Accordingly, it is the intention of the parties hereto to consider during the land use approval process, certain automobile disincentives programs commonly referred to as Transportation Demand Management systems (TDM's). 15. Green Construction. The construction of residences within the Free Market Component shall comply with or exceed the provisions of any ordinances adopted by City requiring environmentally appropriate construction (also known as "green" construction) techniques, materials and design, which are generally applicable throughout the City to all residential construction, as the same may exist from time to time. D. AFFORDABLE HOUSING DEVELOPMENT OBLIGATIONS. The City shall assume all obligations and associated costs to develop the Affordable Housing Component of the AH/PUD zone district. The Affordable Housing Component shall Page 10 be built within the parcel to be conveyed by the Landowner to the City and within an adjacent area of the Burlingame Ranch. The affordable housing to be constructed shall be located in the general area within the acreage as illustrated in Exhibit "B"; the exact location to be determined during final planning and design. The City agrees that the conveyance of the acreage by the Landowner to the City and the City's obligation to improve such land and plat it into lots, fully satisfies all obligations of the Landowner to provide the affordable housing necessary to support its Free Market Component development and that such conveyance and method of satisfying such obligations fully complies with all applicable City housing and land use regulations and Aspen/Pitkin County Housing Authority regulations. The Affordable Housing Component shall be developed at a density of no greater than 330 units. The parties agree that the City is responsible for constructing the minimum number of affordable housing bedrooms necessary to comply with the requirements of the AH/PUD zone district, based upon the 70/30 bedroom ratio. The City retains the right, in its sole discretion to develop additional units up to the maximum of 330 units, including the required affordable units referred to above. The City's obligation to develop affordable housing units shall include a good faith effort to develop such units on a schedule commensurate with the development of free market units by the Landowner. The City shall receive a Certificate of Occupancy for three (3) affordable housing units at or before the time each free market lot development receives final building inspections, until such time as the City has developed the minimum number of affordable housing required by the AH/PUD zone district. The development of the free market residential lots shall not be delayed or hindered in any way in the event the City fails to develop the affordable housing units in accordance with this Agreement. E. CONSERVATION EASEMENTS ON BURLINGAME RANCH. 1. City shall place conservation easements to the benefit of the City and the Aspen Valley Land Trust or other similar organization that prohibit further residential development on all of the Burlingame Ranch east of State Highway 82, except the Development Parcel, Parcel B (the MAA housing project), Parcels C and D (US West and Ventnor Avenue Housing projects) and a 150 foot wide strip or to the toe of the slope (whichever is wider) of the Burlingame Ranch which adjoins highway 82. The conservation easement shall protect open space values and its terms shall be determined during the land use approval process for the Affordable Housing Component. 2. Conservation Easements - Additional Beneficiary. The consent of the owner of the Fathering Parcel shall be required for any amendment to the conservation easements placed on the Burlingame Ranch by the City as contemplated by paragraph 1 E.1 above, which changes the allowed use of the Page I areas as permitted in the conservation easements. Landowner shall be named as a beneficiary of these conservation easements in order to exercise such rights. F. DOGS. In order to protect wildlife, ranch cattle, horses and other livestock from harassment, the General Declarations of Covenants, Conditions and Restrictions to be imposed on both the Free Market and Affordable Housing Components shall include provisions and penalties that prohibit dog ownership (other than farm dogs belonging to owners or employees of the Fathering Parcel and specially trained service dogs for use by visually impaired persons or persons with other medical needs.) The respective homeowners associations shall be required through appropriate covenants to vigorously enforce these restrictions. No dogs shall be allowed on the cabin site, including dogs belonging to the owners of the Fathering Parcel. G. PARKS AND PLAY FIELDS. City may construct play fields, including without limitation, baseball or soccer fields, within the land conveyed by Landowner to City. The City shall neither include any such fields as part of the City's recreation program nor shall the City schedule any organized activities of the City on these fields. Members of the homeowners association shall convey title to any such fields to the homeowners association of the Affordable Housing Component with appropriate covenants ensuring maintenance and enforcement of regulations for their use. H. JOINT PLANNING OF THE PROPERTY PROPOSED TO BE ANNEXED. The parties recognize that, notwithstanding their understanding regarding the development proposal and potential affordable housing obligations set forth above, additional planning and design will be required before final land use applications can be submitted to the City's Community Development Department. The parties hereto agree to cooperatively and jointly plan and design the development of the Affordable Housing and Free Market Components of the Property Proposed to be Annexed in a manner consistent with this Agreement and the exhibits appended hereto. The parties further agree that they will perform their obligations under this agreement in a timely fashion. a. Ci 's Costs. The City shall be responsible for the cost of filing fees and preparing all documents and applications for the following: i. Pre-annexation Agreement ii. Annexation Petition and Plat. iii. Rezoning Application for initial AH/PUD designations and zoning code amendments. b. Joint Costs. The City and Landowner shall be jointly responsible for the cost of obtaining any site-specific development plan approvals. The City shall be responsible for those costs directly attributable to the Affordable Housing Component, and Landowner shall be responsible for those costs directly Page 12 attributable to the Free Market Component, including the Fathering Parcel. Where costs are incurred for items that are attributable to both components and cannot be directly apportioned to one or the other, the costs shall be apportioned on an equal (50150) basis. b.1. Notwithstanding the foregoing, Landowner shall have the right to process its development applications (including all related annexation, rezoning and land use applications) for the Free Market Component, separately from and before the City processes its development applications for the Affordable Housing Component. Provided Landowner satisfies its obligations under the Agreement and this Amendment, City shall promptly complete the land use approval, annexation and rezoning processes and execute and record all approvals and related documents therefore for the Free Market Component in accordance with the Agreement and this Amendment and City shall construct roads and utilities as required by the Agreement, regardless of whether or not the City has completed its development processes for the Affordable Housing Component. Landowner shall not be required to provide detailed engineering design of either potable water (as already agreed in the Water Service Agreement attached hereto at Exhibit F) or sanitary sewer, in its final plat submission, and all final approvals, annexation and establishment of vested rights shall not be delayed as a consequence of this. Sewer service engineered plans shall be prepared in the same manner and according to the same timetable as the potable water service plans described in the Water Service Agreement. The Final Plat shall show areas reserved for future easements to be granted to City for the placement of said utilities. Once the precise, as built, location of said utilities is known, easements shall be granted, twenty-feet in width for deep utilities and ten feet in width for shallow utilities, along their as built location and as specified in the Water Service Agreement (attached as Exhibit F hereto). Areas reserved on the Final Plat for these easements which are larger than these widths shall be vacated. Notwithstanding the separate processing of the Free Market Component from the Affordable Housing Component, Landowner remains interested and affected by the development plan for the Affordable Housing Component. Therefore, Landowner shall be given notice of all meetings, public hearings and work sessions concerning the development plan for the Affordable Housing Component and an opportunity to provide comment on such development plan. b.2. City agrees that it shall schedule and process any necessary hearings, meetings or work sessions to consider and take formal action upon Landowner's applications for all land use approvals necessary to achieve annexation, rezoning and Final Plat approval for the Free Market Component, in a timely and diligent manner. City agrees to schedule a work session during the month of January 2002 and shall thereafter continue to process said application in a prompt Page 13 manner with a priority for its placement on City council agendas. Landowner agrees to prepare and submit for processing such application in a timely and diligent manner. C. Conservation Easements. Areas within the Property Proposed for Annexation and Burlingame Ranch that shall be reserved for conservation easements, including easements on irrigated lands, the Maroon Creek corridor, and portions of Burlingame Ranch are identified on Exhibit B. Once the annexation has taken place and the Appeal Period, as defined at Section 20, below has expired, or any other matter which affects the development, having been challenged, the parties agree to execute all requisite easement documents containing terms and conditions which are established during the land use review process for the final development approvals for the Free Market Component. City's consent shall be required for any amendment to these conservation easements, which changes the allowed use of the areas as permitted in the conservation easements. City shall be named as a beneficiary to these conservation easements in order to exercise such rights. d. Public Trails. The parties agree that no public trails shall be required to be dedicated or created within the Property Proposed to be annexed, except that trails shall be located within the right-of-way of the entry road to the Burlingame Ranch from Stage Road to the Affordable Housing Component. Exhibit B and Exhibit L, appended hereto illustrate the location of all proposed trails. To the extent that Exhibit "L" conflicts with the trail locations depicted on Exhibit "B, the trail alignments shown on Exhibit "L" shall control. Said trails shall be designed and built in conformance with trail standards established by City's Parks Department for various trail types based on proposed usage, terrain and costs and shall be maintained at City's sole cost and expense. City shall undertake reasonable efforts to create a trail through property previously owned by the Aspen Valley Land Trust, connecting the Burlingame Ranch to the Aspen Airport Business Center. The parties agree that the parties shall adopt a Trail Management Plan for all trails within the Affordable Housing Component as part of the land review process for the project. e. Cost of roads, utilities and trails. City, at its sole expense, shall construct and install such roads, utilities and trails as are required for the construction of the Affordable Housing Component. Where such utilities shall also serve the Free Market Component they shall be sized to accommodate both. Not later than thirty (30) months (which may be extended by mutual agreement of the parties) after the recording of the final plat map for the Free Market Component, City, at its sole expense, shall have extended roads and utilities to the locations shown on Exhibit D. City shall be reimbursed by Page 14 Landowner for one-third of Landowner's share of the total installation cost of the particular utilities provided at the time of issuance of a building permit for the first of the 12 free market lots which applies for a building permit. Landowner shall reimburse City an additional one-third of Landowner's share of the total installation cost of the particular utilities so requested and provided at the time of issuance of a building permit for the second of the 12 free market lots which applies for a building permit. City shall be reimbursed the remaining amount of Landowner's share of the total installation cost of the particular utilities so provided at the time of issuance of a building permit for the third of the 12 free market lots. Said reimbursement shall be made together with interest at the rate of 8% per annum computed from the date said funds were advanced by City to the date of reimbursement. In addition, at the same time as reimbursements are required as set forth above (i.e., one-third each at the first, second and third building permits), Landowner shall reimburse for Landowner's share of the cost of installation of utilities provided to the Property to be Annexed which are to be shared by the Affordable Housing Component and the Free Market Component, including the Fathering Parcel, including, without limitation, any redundant looped segments which are constructed for the primary benefit of the Free Market Component and the Affordable Housing Component, based on the ratio of ECUs in the Free Market Component, including the Fathering Parcel, to the ECUs in the Affordable Housing Component. The Water Service Agreement, (Exhibit F), contains estimates of the number of ECU's in the Free Market and Affordable Housing Components. In the event the Cultural Use Area is approved for development, the ECU calculations, any necessary water conveyance from Landowner, and any other water related charges or calculations specified in the Water Service Agreement (Exhibit F) shall be adjusted to account for this additional usage. Adjustments to the initial charge for the Free Market Component shall be made upon final construction of all residences in the Free Market Component. An "ECU" as defined in the Aspen Municipal Code, is a "unit reflecting that part of the capacity of the [City] water system necessary to serve a standard water customer, with multiples or fractions of the unit including a maximum number and type of water fixtures, a maximum irrigated area, certain cooking facilities, or other water demand factors." Aspen Municipal Code § 25.08.060(e). Shared utility segments are shown on Exhibit D. Notwithstanding the foregoing, City and Landowner agree that unless sooner paid according to the terms set forth above, Landowner shall reimburse City for its share of the costs of the particular utilities provided and the costs of the utilities to be shared with the Affordable Housing Component and the Free Market Component as described above, not later than the fifth anniversary of the completion and activation of said utilities, subject to any subsequent adjustments as provided above. Page 15 f. Access and Utility Easements. The access to the Affordable Housing Component of the Development Plan shall be substantially as shown on Exhibit "L" on an alignment westerly of the Soldner property. The road shall be built in accordance with any requirements imposed by the Fire Marshall. The access road shall also entitle the City to use it to serve property owned by the City adjacent to the 20 Acre Parcel and a connection from Stage Road to the Aspen Airport Business Center. Notwithstanding the foregoing, City shall have the right to establish a pedestrian trail to serve the Affordable Housing Component that is along an alignment extending to the Aspen Airport Business Center that may be used in the future for electric vehicles (including golf cart type vehicles), provided that motorized vehicles are prohibited access to the public streets within the Aspen Airport Business Center. Notwithstanding the access road shown on Exhibit L to this Agreement, said Exhibit is not intended to specify the location of internal roads within the 20 acre parcel necessary to serve the Affordable Housing Component or limit City's ability to extend the roads through the 20 acre parcel to serve lands adjacent thereto presently owned by the City. 2. SCHEDULE FOR ANNEXATION a Upon execution by the parties of this Agreement, City shall, at its cost, prepare an annexation map of the Property Proposed to be Annexed. b. Upon completion of the annexation map, Landowner shall execute the Petition to Annex appended hereto as Exhibit C. Said petition shall be conditional upon the terms and conditions of this Agreement. C. City shall prepare, at its cost, all requisite documents and applications necessary to annex the Property Proposed to be Annexed, and a rezoning application to re-zone the Property Proposed to be Annexed to the AH/PUD zone district and the amendments thereto referred to in paragraph 1B above (conditional upon annexation). d. City shall initiate, at its cost, annexation and the re-zoning application in accordance with the City's Land Use Code. e. Upon conditional approval of the re-zoning application the City and Landowner shall cooperatively and jointly prepare, at their joint expense, as provided for in this Agreement, an application for a Development Order for both the Affordable Housing and Free Market Components of the Development Plan meeting all the requirements of the City's Land Use Code. The application for a Development Order shall specifically state that all land use approvals shall be conditional upon annexation of the Property Proposed to be Annexed. Page 16 f. Upon the granting of all requisite land use approvals by the Aspen City Council, evidenced by the adoption of an appropriate Ordinance (conditional upon annexation of the Property Proposed for Annexation) that is consistent with the Development Plan, City shall annex the Property Proposed to be Annexed into the municipal boundaries of the City. g. Landowner and City shall execute at the conclusion of the Appeal Period (as defined at Section 20, below) following the date of annexation, a Subdivision and Planned Unit Development Agreement which incorporates the terms and conditions of the Development Plan as finally approved by the issuance of a Development Order. The Subdivision and Planned Unit Development Agreement shall include standard City Terms and Conditions relating to plats, wastewater and surface drainage, utility connections, trash and recycling removal, snow removal, fire sprinklers, sidewalk and trail construction and maintenance, driveway, curb and gutter improvements, street lighting, excavation plans, parking and staging areas, street construction, and maintenance, stream bank disturbance mitigation, dust control measures, setbacks, as- built drawings, fireplaces and woodstoves, residential design standards, survey monumentation and restrictions, exterior lighting, school land dedication fees, park dedication fees, landscaping improvements, financial security for public improvements and landscaping, and other similar matters normally and routinely included in such agreement, except as such matters are specifically addressed otherwise in this Agreement, the Development Order or the zoning for the annexed areas. City also agrees that, because of its rural character and location outside of the City's street grid system, the Residential Design Standards of Chapter 26.410 of the Aspen Land Use Code, and the requirements for street paving, sidewalks, curbs and gutters, shall not be applied to the Free Market Component, including the Fathering Parcel. Landowner, as part of the land use approval process shall propose and agree to adopt design standards that are appropriate for the Free Market Component. The homeowners' association for the Free Market Component shall be responsible through covenants running with the land to enforce the adopted design standards. 3. LANDOWNER'S OBLIGATION. a. Landowner hereby agrees to annex the Property Proposed to be Annexed into the municipal boundaries of the City of Aspen upon the terms and conditions set forth in this Agreement. Landowner hereby agrees not to withdraw its consent to annex or to thereafter petition to de-annex provided all of the terms and conditions of this Agreement are met. Landowner shall grant all easements to the City necessary for access or utilities as shown on Exhibit B and Exhibit L. Pap 17 b. To compensate for the additional engineering and staff costs associated with the redesign of the access road to the Affordable Housing Component, Landowner shall make, from the closing on the initial sale of each of the 12 free market lots of the Free Market Component, a payment of$25,000.00 to the City for a total of$300,000.00. C. To compensate for the loss of sage brush to accommodate the westerly alignment of the access road to the Affordable Housing Component, and to compensate for the impacts to the Soldner Property, Landowner shall make from the closing on the initial sale of each of the 12 free market lots of the Free Market Component a payment of$16,666.67 to the City to be used by the City, in its sole discretion, for open space or sage brush preservation and shall make from the closing on the initial sale of each of the 12 free market lots of the Free Market Component a payment of $8,333.33 to a non-profit entity of Soldner's choice charged with the maintenance and operation of the Soldner Property as a cultural center, towards an endowment for the maintenance and operation of the Soldner Property as such cultural center. In addition, Landowner shall require its successors in interest in each free market lot of the Free Market Component, for a period of 50 years, to make from any subsequent sale of a free market lot in the Free Market Component a payment of$6,666.67 to the City to be used by the City, in its sole discretion, for open space or sage brush preservation, and a payment of $3,333.33 to the non-profit entity of Soldner's choice charged with the maintenance and operation of the Soldner Property described above, towards the referenced endowment. d. The payments required under subparagraphs (b) and (c) above shall not be payable upon any bulk sale of the 12 free market lots. Bulk sale as used herein shall mean the sale of all 12 free market lots in one transaction. Landowner shall incorporate the commitments set forth at subsections (b) and (c), above, in covenants burdening the titles of successors in interest of any free market lots sold in the Free Market Component. e. Landowner may construct at its cost a temporary ditch to the east of the existing ditch along the Soldner boundary in order that the area in which utilities and temporary access road are to be installed is not irrigated prior to their construction. After the City has re-vegetated and re-planted the Utility Easement, the Licensed Area and the Additional Licensed Area (as such terms are defined in that certain agreement between Landowner, City and Soldner, dated May 13, 2004), Landowner shall relocate its irrigation ditch to its current and historic location, on and adjacent to the Soldner Property for purposes of transporting the Water Rights and otherwise irrigating the Bar/X Ranch. In addition, in the event the Soldner wells stop producing water of a quantity and quality necessary for the Soldners' domestic and irrigation water needs during the period of construction; the City will fill the Soldners' water cistern on an as needed basis, at no cost to the Soldners. Page 18 4. CITY'S OBLIGATION. a. City's Obligation with Respect to Annexation. City agrees to annex the Property Proposed to be annexed provided all of the terms and conditions of this Agreement are met. The parties acknowledge that annexation and zoning are subject to the plenary legislative discretion of the City Council of the City and the rights of referendum and initiative reserved unto its citizens. Notwithstanding any language to the contrary contained in this Agreement, no assurances of annexation or zoning have been made or relied upon by Landowner. b. Ci 's Obligation with Respect to Access. City shall provide sufficient legal and physical vehicular and pedestrian access to the Burlingame Ranch and the -/X Ranch so that the development of the Affordable Housing and requisite Free Market Components contemplated by this Agreement can be undertaken. If necessary, City shall utilize its condemnation powers to obtain such access at its sole cost and expense. City shall not enter into any agreement nor permit any action to occur by it or third parties which will, or may, diminish or alter the existing access rights and conditions pertaining to the Land to be Annexed, without obtaining the prior written consent of Landowner. Prior to the conveyance of the 20 Acre Parcel to City, City shall provide to Landowner evidence of such access, and if necessary written conveyances, agreements and/or confirmations of such access rights from owners of land or easement rights over which such access runs, which shall, in Landowner's reasonable judgment, demonstrate that Landowner has a present, enforceable right to such access. In the event City fails to provide such access, Landowner may, at its option, nevertheless, convey the acreage to City and if such conveyance is made, Landowner shall have the right to process and obtain approval for the Free Market Component of the development and City shall be responsible for providing the minimum number of affordable housing units necessary for the free market development to comply with the requirements of the AH/PUD zone district. 5. LANDOWNER'S REMEDY FOR DEFAULT BY CITY. a. In the event that, any action herein contemplated is not taken by the City, then Landowner's remedies for the breach hereof may include the withdrawal of the annexation petition by Landowner, the right to reimbursement for Landowner's costs and fees, including reasonable attorney fees, incurred in the negotiation, drafting and/or Landowner's performance of this Agreement or in Landowner's performance of any acts required of City hereunder and all the costs incurred as a result of City's breach, including, without limitation, the preparation and processing of the development plan, and any attorney fees incurred to perform defense obligations of City. In such event, all conditional land use approvals that may have been granted by City and this Agreement shall become null and void. Page 19 b. To the extent available at law or in equity, in the event of a default in this Agreement by City, including, without limitation, any default in its obligations after annexation occurs, Landowner shall have the right to either terminate this agreement and obtain its damages, or pursue specific performance of City's obligations hereunder. Landowners "damages" shall include, without limitation, recovery of the costs and fees referred to in subparagraph 5a above. In the event the breach by City is its failure to extend utility service and facilities to the Free Market Component as and when required by this Agreement or the Water Service Agreement, Landowner's remedies shall include the right to obtain a Court order requiring that City convey to Landowner, easements over, under and across City's property and/or along its existing utility facilities where such easements are necessary for Landowner to construct and maintain the utilities that City failed to provide. Landowner shall have the right to construct such utility facilities reasonably necessary to serve the Free Market Component in the event City does not fulfill its obligations under the Agreement or this Amendment. The foregoing remedy is in addition to all other remedies Landowner may have at law or equity, including the right to damages and the remedies provided for in the Agreement. c. In the event of a breach by City under either subparagraph 5a or 5b above, where the acreage has been conveyed to City, and Landowner does not obtain specific performance of this Agreement, Landowner shall, in addition to the foregoing remedies, be entitled to have the acreage re-conveyed by the City to the Landowner. 6. CITY'S REMEDY FOR DEFAULT BY LANDOWNER. In the event that Landowner defaults in any of its duties as set forth herein, City shall have the right of enforcement by an action for specific performance filed in the Pitkin County District Court. In such event, the prevailing party in any such action, shall be entitled to recover all of its costs for enforcement, including reasonable attorney fees. 7. WAIVER. A waiver by any party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party. 8. BINDING EFFECT. The parties hereto agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal representatives, and assigns thereof and shall constitute covenants running with the Property Proposed to be Annexed. In the event that all or part of the Property Proposed to be Annexed is sold, transferred, or otherwise conveyed to additional or multiple parties, all owners shall be jointly and severally responsible for all terms, conditions, and obligations set forth in this Agreement. 9. NO THIRD PARTY BENEFICIARIES. It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the City and Landowner and nothing contained Page 20 in this Agreement shall give or allow any such claim or right of action by any other third person on such Agreement. It is the express intention of the City and Landowner that any person other than the City, or Landowner receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. 10. GOVERNING LAW AND ENFORCEMENT. This Agreement shall be governed by the laws of the State of Colorado. The parties agree and acknowledge that this Agreement may be enforced at law or in equity as a contractual obligation consistent with annexation agreements. Thus, this Agreement is intended to provide a contractual relationship between the City and the Landowner to ensure compliance with all rights and requirements contained herein. In addition to any other available remedies, it is understood and agreed that the City may withhold or revoke any permits or certificates, including but not limited to building permits and certificates of occupancy, for any lot within the Property Proposed to be Annexed in the event of a breach of this Agreement by the Landowner. The prevailing party in any litigation between Landowner and City concerning this Agreement shall be entitled to an award of its attorney fees and costs. 11. ADDITIONAL DOCUMENTS OR ACTION. The parties agree to execute any additional documents or take any additional action that is necessary to carry out this Agreement. 12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same instrument. 13. PARAGRAPH CAPTIONS. The captions of the paragraphs are set forth only for the convenience and reference of the parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. 14. INTEGRATION AND AMENDMENT. This Agreement represents the entire agreement between the parties and there are no oral or collateral agreements or understandings. Only an instrument in writing signed by the parties may amend this Agreement. 15. ASSIGNMENT. All or part of the rights, obligations or responsibilities set forth in this Agreement may be assigned by the Landowner to an entity in which the Landowner or its affiliates have an interest, without requiring the consent of the City. 16. SEVERABILITY. Invalidation of any of the provisions of this Agreement or any paragraph sentence, clause, phrase, or word herein or the application thereof in any given circumstance shall not affect the validity of any other provision of this Agreement, except that if such invalidation diminishes the rights of Landowner, Landowner may elect to terminate this Agreement and render it null and void. Page 21 17. RECORDATION OF AGREEMENT _ TERMS RUN WITH THE LAND. The City shall record this Agreement with the Clerk and Recorder's Office of Pitkin County. The City shall pay the reasonable cost of recordation of this Agreement. The terms, conditions, rights and benefits of this agreement shall run with the lands to be annexed hereunder. 18. INCORPORATION OF EXHIBITS. Unless otherwise stated in this Agreement, exhibits referenced in this Agreement shall be incorporated into this Agreement for all purposes. 19. ACTIONS AGAINST ANNEXATION AND DEVELOPMENT. In the event that any person, corporation, special district, municipal or county government, or any other entity or person asserts any claim against the City, its officials, or employees pursuant to the provisions of the Colorado Municipal Annexation Act, C.R.S. § 31-12-101 et sec., or asserts any other claim, based on any theory of law whatsoever, challenging the rezoning and development of the -/X Ranch, or the approval of the Development Plan as contemplated by this Agreement, City shall vigorously defend against such an action and may consent to and permit the entry by the court of an order voiding the annexation or reach another means of settlement of claims, provided that no consent to an order voiding the annexation or settlement which adversely affects the Landowner's rights hereunder or under any development approvals contemplated hereby, shall be entered into without Landowner's written consent. City's defense of any such action(s), shall also include the vigorous defense, at its sole cost, of the interests of the Landowner. If by reason of such suit this Agreement is found to be void or unenforceable, then as between City and Landowner, this Agreement shall become null and void, and if at such time the annexation of the -/X Ranch has already occurred, City shall, upon a petition for de-annexation submitted by Landowner, approve the de-annexation of the -/X Ranch and, if the acreage conveyed by Landowner has been conveyed to the City then City shall re-convey the acreage to the Landowner. 20. APPEAL PERIOD. Any time period established by this Agreement upon one or the other party to take any action shall be suspended until the expiration of any jurisdictional appeal time for the initiation of a judicial challenge to any action taken by the City or the time permitted for the initiation of an initiative or referendum challenge. If the annexation of the Property Proposed to be Annexed, any requisite land use approval, or any action required by the City is challenged by a referendum or initiative, or is subjected to a judicial court proceeding, all provisions of this Agreement, together with the duties and obligations of each party, shall be suspended pending the outcome of the election or court proceeding (including any appeals). If the referendum, initiative, or court challenge results in disconnection of the Property Proposed to be Annexed from the City, then this Agreement shall be null and void and of no further effect. If the referendum, initiative, or court challenge fails, then the parties shall continue to be bound by all of the terms and provisions of this Agreement and any other agreements made in connection therewith. Page 22 21. TITLE. Whenever there appears a requirement to dedicate or convey land to the City, Landowner shall provide a title policy that shall indicate that the property is free and clear of all encumbrances whatsoever which would impair the use of the property as proposed in this Agreement or in any further document. Further, said title policy shall show that the property to be dedicated or conveyed to the City is free and clear of all encumbrances which would make said dedications or conveyances unacceptable to the City as the City, in its sole discretion, determines. Should such title policy reflect encumbrances that may impair the use of the property as proposed or which would make the dedications or conveyances unacceptable, the City may take whatever action or seek whatever remedies it deems advisable, including without limitation disconnection from the City of the Property Proposed to be Annexed, if already annexed into the City, withholding of any development reviews, or declaring this Agreement null and void however City shall not have any right to seek damages against Landowner. 22. PROPERTY TAX VALUATION. Any owner of a lot within the Free Market Component, other than lots within the Fathering Parcel, who improves a lot or lots with residential improvements which result in a new property tax classification for such lot or lots based on a change of use from agricultural to residential shall be forever barred from subsequently applying for reclassification of such lot or lots to anything other than a "residential real property" category for property tax valuation and assessment purposes, as such term is defined and applied in Section 39-1-102, et seq., C.R.S. CITY OF ASPEN, a municipal corporation ATTEST: APPROVED AS TO FORM:t4aA, City Clerk ity Attorney STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) Acknowledged before me this T � day of 2004, by n in Page 23 his/her capacity as H t —— — — — of N¢ ary i My commission expires: �ZG1C1 �r `f P U8� ZF �P P 0 qTE OF CO Page 24 LANDOWNER Bar/X LLC, a Colorado Limited Liability Company J�, By: Gary Pinkel, Trustee of the Survivors Trust Under the Zoline Family 1982 Trust. STATE OF CDfl ) (2,cl(� n i ``- )ss. COUNTY OFI� ) Acknowledged before me this day of e U �Q r 2004, by � ,"1 Pink-c- in his/ham- capacity as 'Tw�f e of Notary My commission expires: ��' y 7 2- 669 ANA IU M 0, 1my Commkaion#E 1500103 WON Punic-COMOM1a Los Angsbs Counts Comm.Expka Jul 17.2m* Page 25 LIST OF EXHIBITS A - Legal description of -/X Ranch proposed to be annexed B - Map of area including Back Bowl and Zoline -/X Ranch C - Petition to Annex - (Standard City of Aspen petition for annexation) D - Utility Location Map E - Intentionally Left Blank F. - Water Service Agreement G. - Intentionally Left Blank H - Proposed Zone Districts I - Floor Area Calculations J - ADU Regulations K - Consumer Price Index Calculation Method L - Western Access Road alignment and location of associated trail locations T-A Land Acquired by Quiet Title Action JPW-saved:1 0/2 6/2 0 04-1 05 0 8-N:\ZOLINE\zoline-preannex-4thAmd-12-06-04-clean.wpd Page 26