Loading...
HomeMy WebLinkAboutresolution.council.147-19 RESOLUTION NO. 147 Series of 2019 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN ESCROW AGREEMENT BY AND BETWEEN LIFT ONE LODGE ASPEN LLC, A DELAWARE LIMITED LIABILITY COMPANY ("LOL ASPEN"), THE CITY OF ASPEN, COLORADO ("CITY"), AND AN ESCROW AGENT TO BE SELECTED BY THE PARTIES. WHEREAS, there has been submitted to the City Council a proposed Escrow Agreement by and between Lift One Lodge Aspen LLC, a Delaware limited liability company("LOL Aspen"),the City of Aspen, Colorado ("City"), and an Escrow Agent to be selected by the LOL Aspen and the City, as required pursuant to Ordinance 38, Series of 2018, a copy of which proposed Escrow Agreement is attached hereto. NOW, WHEREFORE, 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 entry into a proposed Escrow Agreement by and between Lift One Lodge Aspen LLC,a Delaware limited liability company("LOL Aspen"),the City of Aspen,Colorado("City"),and an Escrow Agent to be selected by the LOL Aspen and the City,as required pursuant to Ordinance 38, Series of 2018,a copy of which proposed Escrow Agreement is attached hereto,and does hereby authorize the City Manager or the Finance Director of the City of Aspen to execute a final Escrow Agreement on behalf of the City of Aspen in substantially the form attached hereto, subject to the approval of the City Manager, the Finance Director and the City Attorney. The City Manager and Finance Director are also authorized to select an Escrow Agent pursuant to the terms of Ordinance 38, Series of 2018. Dated P* ' , 2019. AnK _ ===-- Torre, Mayor I, Linda Manning, 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 December 17, 2019. lk Linda Manning, City Clerk ESCROW AGREEMENT THIS ESCROW AGREEMENT("Agreement") is made and entered into this_ day of 2019, by and between Lift One Lodge Aspen LLC, a Delaware limited liability company ("LOL Aspen"), the City of Aspen, Colorado ("City"), and ("Escrow Agent"), sometimes referred to individually as a "Party" and collectively as the "Parties." WITNESSETH: WHEREAS, the City of Aspen Community Development Department received an application for the Lift One Lodge Subdivision and Planned Unit Development(the Application) from LOL Aspen, represented by Stan Clauson Associates, Inc. for the following land use review approvals for the property legally described as: Lots 1, 2, 3 and 4, Lift One Lodge Subdivision/PUD, according to the Plat thereof recorded March 5, 2013, at Book 102, Page 1, Reception No. 597438, County of Pitkin, State of Colorado (the "Subject Property"): • Planned Development Major Amendment, Project Review - pursuant to Land Use Code Chapter(26.445); and, • Subdivision (including vacation of public right of way and a land exchange between the Applicant and the City) - pursuant to Land Use Code Chapter (26.480); and, • Amendment to the Zone District Map - pursuant to Land Use Code Chapter (26.310); and, • Growth Management Quota System - pursuant to Land Use Code Chapter(26.470); and, • Commercial Design - pursuant to Land Use Code Chapter(26.412); and, • Timeshare Development - pursuant to Land Use Code Chapter(26.590); and, • Transportation and ManagementParking_ - pursuant to Land Use Code Chapter (26.515); and, • Special Review - pursuant to Land Use Code Chapter(26.430); and, • ESA - Mountain View Plane - pursuant to Land Use Code Chapter(26.435); and, • Certificate of Appropriateness for major development Conceptual Review— pursuant to Land Use Code Chapter(26.415); and • Vested Property Rights - pursuant to Land Use Code Chapter(26.308); and, WHEREAS, the Subject Property is zoned Lodge (L) and Park (P) with a Planned Development (PD) Overlay; and, WHEREAS,the original approval of the Lift One Lodge Subdivision/PUD was granted through Ordinance No. 28, Series of 2011; an Amendment to the Planned Development was approved by Planning and Zoning Commission in Resolution No. 2, Series of 2016; and, City Council, in Resolution No. 41, Series of 2015,Resolution No. 90, Series of 2017,and Resolution No. 71, Series of 2018 has approved extensions of vested rights; so that the original Lift One Lodge Project has existing vested rights through November 28, 2021; and, 1 WHEREAS,for the purpose of Ordinance No. 38, Series of 2018(approved as described below), the following definitions apply: Lift 1 Corridor—This includes the property covered by this ordinance and the property related to the Gorsuch Haus project described in approved Ordinance No. 39, Series of 2016. While not subject to this Ordinance, the adjacent future park lands will eventually become a necessary part of the ski way and ski operations. Current Lift IA — This term is used to describe the existing and functioning Lift I terminal and related skier services and ski patrol facilities. Future Lift Terminal —This term is used to describe the new lift terminal that will be located in Willoughby Park. Historic Lift 1 —This term includes the historic gantry, bull wheel and three remaining towers of the original Lift 1; and, WHEREAS, LOL Aspen submitted proposed changes to the original approval of the Lift One Lodge Subdivision/PD in response to a completed study of the Lift l Corridor, the proposed relocation of a future lift terminal to Willoughby Park, and direction from Aspen City Council to pursue changes to development to accommodate the proposed Lift 1 Corridor; and, WHEREAS,the Application for an Amendment to Lift One Lodge Subdivision/ PUD approved by Ordinance #38, Series of 2018, proposed: Re-subdivision and reconfiguration of the Subject Property (i.e., existing Lots 1, 2, 3, and 4 of the Lift One Lodge Subdivision/PUD) as new Lots 1, 2, and 3 of the Lift One Lodge Subdivision/PD On Lots I and 2—Lift One Lodge • 34 Timeshare bodge Units, with 104 total Timeshare Lodge Keys • Six (6) free-market residential units • One (1), one-bedroom employee housing unit • 16,125 square feet of commercial, net leasable area • Relocated and restored Skiers' Chalet Steakhouse, to include a restaurant/bar use • Parking spaces in a sub-grade garage • Cul-de-sac creating a terminus of Gilbert Street On Lot 3— Willoughby and Lift One Parks • New, Aspen Skiing Company ski lift and snowmaking infrastructure • Ski corridor and ski operations facilities • Relocated and restored, Skiers' Chalet Lodge and historic Lift One bull wheel and towers • Use of Skiers' Chalet Lodge as ski museum and associated uses, skier services, ticketing, mountain operations functions and ski patrol • Access to sub-grade parking garage 2 • 50 public parking spaces • Dean Street Improvements WHEREAS, the approved Application and the Lift 1 Corridor Study and preferred site plan contemplated and required a functional ski and lift operations, skiing across, as well as snow making onto and snow grooming throughout the Lift l Corridor. WHEREAS, pursuant to Section 5.5 of the Home Rule Charter of the City, the City Council, on its own motion, has the power to submit at a general or special election any proposed ordinance or question to a vote of the people; and, WHEREAS, pursuant to Section 13.4 of the Home Rule Charter of the City, the City Council shall not sell,exchange or dispose of public building, utilities or real property in use for public purposes, including real property acquired for open space purposes, without first obtaining the approval of a majority of the electors voting thereon. Additionally, the City Council shall not cause or permit the change in use of the real property acquired for open space purposes, other than for recreational, agricultural or under-ground easement purposes, without first obtaining the approval of a majority of the electors voting thereon. Further, under such Section 13.4 of the Home Rule Charter, no real property acquired for open space purposes shall be sold, exchanged, disposed of, or converted to other uses other than for recreational, agricultural or underground easement purposes, unless such open space is replaced with other open space property of equivalent or greater value as of the date of sale or conversion as determined by the City Council by resolution following a public hearing taking into consideration monetary, environmental, and aesthetic values; and, WHEREAS, at a continued public hearing on January 7, 2019, the City Council, by a three to two (3 —2) vote, adopted Resolution No. 2, Series of 2019 pursuant to Sections 5.5 and 13.4 of the Home Rule Charter of the City, to refer Ordinance No. 38, Series of 2018 (and Ordinance No. 39, Series of 2016 for the approval of the Gorsuch Haus Project) to a vote of the electors of the City to make the findings stated herein and grant approval with conditions for a Major Amendment to a Planned Development, Project Review, .and related reviews for Subdivision, Exchange of City Land, Rezoning, Growth Management Quota System, Commercial Design, Timeshare Development, Transportation and Parking Management, Special Review, ESA — Mountain View Plane, and Vested Rights, subject to the conditions of Ordinance No. 38, Series of 2018; and, WHEREAS,City Council referred the project to the Aspen voters for consideration and in the General Election held on March 5, 2019, by which Ordinance No. 38, Series of 2018 and Ordinance No. 39, Series 2016 were approved by a majority of the voting public; and WHEREAS, pursuant to Section 32 of Ordinance No. 38, Series of 2018, and Section 27 of Ordinance No. 39, Series 2016,the City agreed to contribute a fixed amount of$4,360,000 to LOL Aspen or its designee in support of the public facing elements of the Project. Such funds are to be held in an interest—bearing escrow account (the "Escrow Account") in all future fiscal years for the benefit of LOL Aspen until either(a) release of these funds to Lift One Lodge upon completion of the new ski lift by Aspen Skiing Company ("ASC"), such that the new ski lift is in working condition,or(b)expiration of the City's cost-sharing obligation pursuant to the terms 3 of Ordinance No. 38, Series of 2018, by virtue of the Development Order expiring without the Project having proceeded; and WHEREAS, the Parties desire to enter into this Agreement pursuant to Section 32 of Ordinance No. 38, Series of 2018, in order to set forth the obligations of the Parties concerning the Escrow Funds. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Recitals. The foregoing recitals are incorporated into the terms of this Agreement as affirmative representations and acknowledgments of the Parties. 2. Escrow Agent. As required by Ordinance No. 38, Series of 2018, the Escrow Agent is a bank with an office in the City or another financial institution reasonably acceptable to the City and the Applicant. The Escrow Agent agrees to perform certain duties as specifically described herein. Escrow Agent's rights, duties, and responsibilities shall be defined solely by reference to this Agreement, applicable provisions of Colorado law, and no other documents. 3. Escrow Funds. On or before the 31 st of December 2019, the City shall deposit with Escrow Agent an amount of Four Million Three Hundred Sixty Thousand Dollars ($4,360,000.00) ("Escrow Funds") toward future payment of the cost sharing obligation in support of the public facing elements of the Project, including without limitation improvements to Dean Street and the relocation and rehabilitation of the Skier's Chalet Lodge. LOL Aspen and the City may by joint written notice direct the Escrow Agent to disburse any or all of the Escrow Funds. Otherwise, the Escrow Funds shall be administered and disbursed according to the following terms of this Agreement. Any interest earned on the Escrow Funds while in the Escrow Account shall be remitted to the City on an annual basis. 4. Term. The Escrow Funds shall be held in the Escrow Account in all future fiscal years until either (a) completion of the new ski lift by ASC, such that the new ski lift is in working condition, or (b) expiration of the City's cost-sharing obligation by virtue of the Development Order issued to LOL Aspen pursuant to Ordinance No. 38, Series of 2018, expiring without the Project having proceeded or other termination of the approvals granted pursuant to Ordinance No. 38, Series of 2018, as set forth in paragraph 6, below. 5. Release to LOL Aspen. Upon completion of the new ski lift by ASC, such that the new ski lift is in working condition, LOL Aspen shall provide written notice to the Escrow Agent of such completion and request release of the Escrow Funds to LOL Aspen or its designee. The notice shall be accompanied by documentary verification that the new ski lift is approved for operation by having passed the "Acceptance Test" required pursuant to Section 21.2 of the rules and regulations the Colorado Passenger Tramway Safety Board (3 CCR 781-1), and (if applicable to the construction of ski lifts pursuant to the City's ordinances and regulations) a certification of Substantial Completion issued by the City of Aspen. Within fourteen (14) days of the submission of the written notice to the Escrow Agent, the principal amount of Four 4 Million Three Hundred Sixty Thousand Dollars($4,360,000.00)shall be released to LOL Aspen or its designee. At such time the principal sum is released, the balance of any accrued interest shall be paid to the City. 6. Release to the City. The City's cost-sharing obligation shall terminate, and the Escrow Funds and all accrued interest shall be released by the Escrow Agent to the City, upon the occurrence of one of the following events: (a) the Development Order issued pursuant to Ordinance No. 38, Series of 2018, expires without the Project having proceeded; (b)the express and formal written withdrawal by LOL Aspen of its right to proceed with the approvals granted pursuant to Ordinance No. 38, Series of 2018; (c) the submission to the City by LOL Aspen of an application for a building permit to construct the project approved pursuant to Ordinance No. 28, Series of 2011,and its amendments; or(d)the incurable termination of the approvals granted by Ordinance No. 38, Series of 2018, pursuant to any other provision of the City of Aspen Land Use Code. Upon such event of termination of the City's cost-sharing obligation, the City shall provide written notice to the Escrow Agent and to LOL Aspen of such termination and request release of the Escrow Funds to Aspen. If LOL Aspen provides a written objection to the release of the Escrow Funds within fourteen (14)days of the notice provided pursuant to this paragraph 6, the conflict shall be resolved pursuant to Paragraph 7 below. If LOL Aspen does not provide a written objection to the release within such fourteen (14)days, then the Escrow Funds and the accrued interest shall thereafter be disbursed by the Escrow Agent to the City. 7. Dispute Resolution. If the LOL Aspen provides timely written notice of objection to the release of the Escrow Funds to the City, then the City and LOL Aspen shall have 14 days after the date of the notice of objection to reach written resolution regarding the release of the Escrow Funds. If LOL Aspen and the City are not able to reach resolution within such 14-day period, then the City and LOL Aspen agree to submit the dispute to the Pitkin County District Court for resolution. If the Court finds in favor of the City, the Escrow Agent shall release all Escrow Funds, including accrued interest, to the City. If the Court finds in favor of LOL Aspen, then the Escrow Funds shall remain with the Escrow Agent until a subsequent action is requested by a Party pursuant to this Agreement. 8. Escrow Fee. LOL Aspen shall pay to Escrow Agent any reasonable initial escrow fee charged by the Escrow Agent to open the Escrow Account for holding the Escrow Funds and any reasonable periodic escrow fee charged thereafter to maintain the Escrow Account until such time as the Escrow Funds are fully disbursed pursuant to this Agreement. 9. Entire Agreement. This is the entire Agreement of the parties with respect to the subject matter herein. This Agreement may be supplemented, amended, or revoked by writing only, signed by all of the parties hereto, and approved by Escrow Agents, upon payment of all fees, costs and expenses incident thereto. This Agreement does not, however, constitute an amendment to Ordinance No. 38, Series of 2018. 5 10. Assignment. No party shall assign, transfer or convey the rights and obligations outlined in this Agreement without the written consent of the other party. Notwithstanding the foregoing, LOL Aspen (and any permitted assignee of LOL Aspen) may, without the consent of the City, assign this Agreement and its right to the Escrow Funds hereunder to any party who purchases LOL Aspen's interest in the Subject Property and agrees to be bound by the terms of this Agreement and Ordinance No. 38, Series of 2018. In addition, LOL Aspen, without the City's consent,may make a collateral assignment of its rights under this Agreement to any lender who is also the beneficiary of a deed of trust encumbering LOL Aspen's interest in the Subject Property. H. Notice. All written notices required to be given shall be deemed given upon hand delivery or email to the person or entity to whom directed at its address shown herein, or at such other address as shall be given by notice pursuant to this paragraph. Copies of such notices shall be directed to the following addresses: LOL Aspen: Lift One Lodge Aspen LLC Attn: Michael Brown 605 W. Main St., Ste. 2 Aspen, CO 81611 Email: michael@haymax.com With a copy to: Bart Johnson Waas Campbell Rivera Johnson & Velasquez LLP 420 East Main Street, Suite 210 Aspen Colorado 81611 Phone: (970) 544-7006 Email: johnson@wcrlegal.com City: City of Aspen City Manager's Office 130 S. Galena, 3rd Floor Aspen, CO 81611 Email: sara.ott@cityofaspen.com With a copy to: City of Aspen City Attorney 130 S. Galena, 2nd Floor Aspen, CO 81611 Email:jim.true@cityofaspen.com Escrow Agent: Email: 6 Any party may change the address for notice by the same means as providing notice of any matter under this Paragraph. 12. No Liability. Neither Escrow Agent nor any of its officers, directors, agents, or employees shall be personally liable for any act it may do or admit to do hereunder as such agent, while acting in good faith and in the exercise of its own judgment under the terms and conditions of this Agreement. The parties agree, jointly and severally, for themselves, their heirs, legal representatives, successors and assigns, to hold Escrow Agent harmless as to any liability incurred by carrying out any of the terms hereof. 13. Disputes/Interpleader. In the event the Escrow Agent determines that a dispute exists concerning the validity or meaning of this Agreement, or any other fact or matter relating thereto, Escrow Agent shall have the right to deposit the Escrow Funds or so much thereof as remains in its hands with the Clerk of the District Court of Pitkin County, Colorado. Upon so depositing such Escrow Funds and filing its complaint in interpleader, Escrow Agent shall be relieved of all liability under the terms hereof as to the Escrow Funds so deposited, and further, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court. 14. Governing Law. This Agreement shall be construed under the laws of the State of Colorado. In the event that any portion of this Agreement may be determined to be invalid, then the remaining provisions of this Agreement shall be in full force and effect and shall be construed as nearly as possible to give effect to the intentions of the parties based upon the entire Agreement, including the invalid provision. 15. Appropriation. No provision of this Agreement shall be construed or interpreted: i)to directly or indirectly obligate the City to make any payment in any year in excess of amounts appropriated for such year; ii) as creating a debt or multiple fiscal year direct or indirect debt or other financial obligation whatsoever within the meaning of Article X, Section 6 or Article X, Section 20 of the Colorado Constitution or any other constitutional or statutory limitation or provision;or iii)as a donation or grant by City to or in aid of any person,company or corporation within the meaning of Article X1, Section 2 of the Colorado Constitution. 16. Attorneys' Fees. In the event any litigation arises from this Agreement, in addition to any other damages or relief awarded, the prevailing Party in such action shall be entitled to an award of its reasonable attorneys' fees and any court costs, if applicable, incurred in such action. 17. Counterparts. This Agreement may be executed in any number of counterparts, and signature to any one counterpart shall be deemed signature to all counterparts, which, when taken together, shall constitute one contract. [remainder of page intentionally blank] 7 WHEREFORE, the parties have set forth their signatures below effective as of the date first written above. LOL ASPEN: CITY: LIFT ONE LODGE ASPEN LLC CITY OF ASPEN, COLORADO By: By: Authorized Representative ESCROW AGENT: By: STATE OF COLORADO ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2019, by as of Lift One Lodge Aspen LLC. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of 12019, by as of the City of Aspen. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of 12019, by as of Witness my hand and official seal. My commission expires: Notary Public 8