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HomeMy WebLinkAbout0029.2017.ASLU 0029.2017.ASLU/PD Agreement 3-15-17.docx AMENDED/RESTATED DEVELOPMENT AGREEMENT FOR SMUGGLER PARK SUBDIVISION THIS DEVELOPMENT AGREEMENT (hereinafter the “Development Agreement”) is made and entered into this _____ day of _____________, 2017, by and between THE CITY OF ASPEN, COLORADO, a municipal corporation (hereinafter referred to as “City”), and THE SMUGGLER PARK HOMEOWNERS ASSOCIATION (herein after referred to as “SPHOA”). W I T N E S S E T H: WHEREAS, SPHOA submitted to the City for approval an application to amend the Planned Development and Subdivision land use allowances and limitations applicable to all Residential Lot within the Smuggler Park Subdivision. The application gained approval for the following adjustments: An amendment to the applicability and specific requirements of the City’s Residential Design Standards for development within the subdivision. A change to the parking requirement for development within the subdivision. An ability to combine lightwells and stairwells with adjacent excavated areas. Clarity on the technique for measuring height of structures within the subdivision. Clarity on the ability to develop Accessory Dwelling Units within the subdivision. In addition, SPHOA is seeking certain existing requirements from past approvals to be clarified and restated, including: The dimensional allowance and limitations for development within the subdivision. Use and occupancy limitations for the residences within the subdivision. Assessment of water tap fees Collectively, the foregoing is referred to as the “Amendment” ; and, WHEREAS, the Final Subdivision Plat of Smuggler Mobile Home Park and Grant of Easements was approved and accepted by the City of Aspen City Council on April 7, 1982 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 13, Page 25 & 26; and, WHEREAS, the First Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen City Council on May 6, 1987 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 19, Page 61; and, WHEREAS, the second Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen City Council on ?? and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 30, Page 20; and, WHEREAS, the third Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 54, Page 71, as reception number 448308; and, WHEREAS, on July 11, 2016, the City of Aspen City Council reviewed and approved Ordinance 12, Series 2016, granting Minor Planned Development Amendment approval; and, WHEREAS, the SPHOA submitted to the City for execution and recordation, the this Development Agreement (“Agreement”) in compliance with the form, content, and timing requirements of Chapter 26.490; and, WHEREAS, City has fully considered the Agreement, the other terms and conditions included in Ordinance 12 and the effects of the proposed Amendment on adjoining and neighboring properties and property owners; and, WHEREAS, City has imposed certain conditions and requirements in connection with its approval of the Amendment and the execution and recordation of the Agreement, such matters being necessary to protect, promote and enhance the public welfare; and WHEREAS, SPHOA is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by the City of Aspen in approving the Amendment; and, WHEREAS, the Agreement meets the requirements of Aspen Municipal Code Chapter 26.490 ensuring each item and condition of approval is documented to the satisfaction of the Community Development Director, the City Attorney, and the Mayor. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution and acceptance of the Agreement for recordation by City, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: PURPOSE AND EFFECT OF DEVELOPMENT AGREEMENT Purpose. < The purpose of this Development Agreement is to set forth the complete and comprehensive understanding and agreement of the parties with the respect to the allowances and limitations of development within the Smuggler Park Subdivision and to enumerate all terms and conditions under which such development of Residential Lots within the subdivision may occur. Effect. < It is the intent of the parties that, upon recording, this Development Agreement shall effectively supersede and replace in their entirety the following documents, as they apply to the Smuggler Park Subdivision, and all previously recorded and unrecorded land use approvals applicable to the entire Smuggler Park Subdivision. In the event of any inconsistencies between the provisions of Ordinance 12 and this Development Agreement, the provisions of Ordinance 12 shall control. ARTICLE II ZONING, REGULATORY APPROVALS, DEVELOPMENT AND USE REQUIREMENTS AND RESTRICTIONS 87 Lot Subdivision The Smuggler Park Subdivision is comprised of 86 Residential Lots and One Non-Residential Lot housing the common building with a meeting room and trash/recycling. The subdivision also includes roadways, common areas, common parking, and common trash/recycling facilities. Each Residential Lot is Allowed One Single-Family Home < Each Residential Lot within the may be developed with one Single-Family residence, as such term is defined by the City of Aspen. Each residence may be developed by use of the full range of construction techniques allowed for development within the City of Aspen, including but not limited to, modular construction, manufactured home, mobile home, “stick-built,” and other construction techniques as permitted by the City of Aspen from time to time. Allowable Floor Area Each Residential Lot may have up to a maximum of 2,000 square feet of floor area. The following method shall be used to measure allowable floor area: Type of Space: How it counts towards floor area: Above Grade Space Area counts 100% towards maximum allowable, with no exemptions Below Grade Space Area counts 50% towards maximum allowable, with no exemptions Garage and Shed Space First 500 square feet is exempt. Area above 500 s.f. counts 100% towards maximum allowable, with no exemptions Setbacks < The minimum setbacks are as follows: Setback: Minimum Dimension: Front Minimum of 0 feet. Sides Minimum of 10 feet on one side and a minimum of 0 feet on the other side. Placement of development on each Lot is subject to approval by the Smuggler Park Architectural Control Committee. Rear Minimum of 5 feet. Allowable Height and Measurement Method Each Lot is allowed a height of 15 feet. Height shall be measured according to the City of Aspen Land Use Code, as may be amended from time to time. Height shall be measured from the midpoint of the lot’s average slope. In cases where the lot’s slope has been modified, the average elevation of the lot’s corners shall be used to determine the lot’s average slope. The exceptions and exemptions to height limits, as prescribed in the City of Aspen land Use Code, as amended from time to time, shall apply. Accessory Dwelling Units Allowed Each Residential Lot may develop one Accessory Dwelling Unit in conformance with the City of Aspen Land Use Code, as may be amended from time to time, including procedures to apply for and gain approval for variations to the City’s requirements. Minimum Required Parking Each Lot shall be required to supply the minimum number of off-street parking spaces required by the City of Aspen Land Use Code, as may be amended from time to time. The required spaces may be within the Lot or within the area of the roadway easement adjacent to the Lot between the curb line and the property. This common area was developed to be used as off-street parking by each homeowner. The required parking may be provided through a combination of these methods. Residential Design Standards and Variations: Each Residential Lot shall be required to comply with the City of Aspen Residential Design Standards, as may be amended from time to time, with the following approved variations: Porch Size. The required porch size is reduced to a minimum of 25 square feet with a minimum depth of 4 feet. Porch Location. The required porch may be development on the front of the house (facing the street) or along the side of the house (facing the side yard).< Principal Window. The minimum required principal window size is reduced to 2 feet by 4 feet. < Garage Width. Garages may be up to 50% of the total width of the front façade of the house. <Clarify that total width of house plus garage. Garage Location. Garages are not required to be set-back from the front façade of the house.< The approved variations listed above do not require additional City review. Each Lot remains eligible to apply for and gain additional variations to the City of Aspen Residential Design Standards as may be allowed in the City of Aspen Land Use Code. Architectural Control Committee Review The Smuggler Park HOA utilizes an Architectural Control Committee to review placement and design of development on each Lot. The SPHOA maintains its own standards and procedures for this review and is separate and apart from the City of Aspen. Combining Certain Features in the Side Yard Setback. Certain features can be combined in the side yard setback. This is limited to light wells and stairwells as required by adopted Building or Fire Codes and landscape walls, berms, retaining walls and similar structures which do not exceed thirty (30) inches above or below grade, pursuant to the allowances in the City of Aspen Land Use Code, as may be amended. Sale and Occupancy Limitations. The Residential Lots are subject to sale and occupancy limitations as follows: Primary Residence. Any individual or individuals who own a Lot must personally occupy the Lot as their primary residence during the period of ownership. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. Qualified Purchasers. The following restrictions shall apply in determining whether a purchaser is qualified to purchase a Lot: The Lot shall be offered for sale to persons employed within the City of Aspen or Pitkin County jurisdictions, or other individuals deemed qualified by the Aspen/Pitkin County Housing Authority, including but not limited to, qualified retirees and pensioners. Should there be no qualified purchasers as stated in a. above after a period of four (4) months from the date the Lot is first listed for sale; the Property may then be offered for sale to any resident of Pitkin County. The purchaser or purchasers must agree as a condition of sale and, in fact, must personally occupy such Property as a primary place of residence during the period of ownership, and their occupancy must be approved by Smuggler Homeowners' Association. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. ARTICLE III NONCOMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS In the event that the City has reason to believe that the SPHOA is not acting in substantial compliance with the terms of this Agreement, the City shall send the SPHOA a notice of non-compliance, specifying the alleged noncompliance. After such notice is given, the SPHOA and the City shall make good faith efforts to resolve the alleged lack of compliance. If the SPHOA and the City are not able to reach a mutually acceptable solution within thirty (30) days of the City’s notice of non-compliance, the matter shall be submitted to the City Hearing Officer for a determination. The SPHOA shall have the right to file a petition appealing the City Hearing Officer’s determination to City Council, which review by City Council shall appeal in accordance to the Aspen Municipal Code, as amended. Upon the receipt of such petition, the City Council shall promptly schedule a hearing to consider the matters set forth in the Hearing Officer’s determination of noncompliance and in the petition. The hearing shall be convened and conducted pursuant to the procedures normally established by the City Council for other appeals. If the City Council determines by that the record supports the finding that a noncompliance exists which has not been remedied, it may issue such orders as may be appropriate, including an order to remedy the non-compliance within such reasonable time as the City Council may determine, but not less than thirty (30) days. Notwithstanding the foregoing, no order terminating any approval previously granted by the City Council, Planning and Zoning Commission or Historic Preservation Commission shall be issued without a finding of the City Council that the record on appeal warrants such action and affording the owner a reasonable time to remedy such noncompliance. A final determination of noncompliance which has not been remedied or for which no variance has been granted may, at the option of City Council, and upon written notice to the owner, terminate any of such approvals which are reasonably related to the requirement(s) with which the owner has failed to comply. Alternatively, the City Council may grant such variances, extensions of time or amendments to this Agreement as it may deem appropriate under the circumstances. Within twenty (20) days of the receipt of an order from the City Council determining non-compliance, the SPHOA may file with the City Council either a notice advising the City Council that it is in compliance or a written petition requesting a hearing to determine any one or both of the following matters: Whether the alleged noncompliance still exists, or Whether a variance, extension of time or amendment to this Agreement should be granted with respect to any such noncompliance that is determined to exist. In addition to the foregoing, SPHOA may, on its own initiative, at any time, petition the City Council for a variance, an amendment to this Agreement. The City Council may grant such variances, amendments to this Agreement, or extensions of time as it may deem appropriate under the circumstances. The parties expressly acknowledge and agree that the City Council shall not unreasonably refuse to extend the time periods for performance if the owner demonstrates by a preponderance of the evidence that the reasons for the delay(s) which necessitate said extension(s) are beyond the control of the owner, despite good faith efforts on its part to perform in a timely manner. ARTICLE IV GENERAL PROVISIONS The provisions hereof shall be binding upon and inure to the benefit of SPHOA and the City and their respective successors and assigns. This PD Development Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. If any of the provisions of this PD Development Agreement or any paragraph, sentence, clause, phrase, word, or section or the application thereof in any circumstance is invalidated, such invalidity shall not affect the validity of the remainder of this PD Development Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstances shall not be affected thereby. In the event of any conflict between Ordinance 12 and this Agreement, the terms and provisions of Ordinance 12, as may be duly modified, shall govern and control. This PD Development Agreement contains the entire understanding between the parties hereto with respect to the transactions contemplated herein, and except as otherwise specifically provided herein, may be altered or amended from time to time only by written instruments executed by all parties hereto that are affected by the proposed amendment. Numerical and title headings contained in this PD Development Agreement are for convenience only, and shall not be deemed determinative of the substance contained herein. As used herein, where the context requires, the use of the singular shall include the plural and the use of any gender shall include all genders. Notices to be given to the parties to this PD Development Agreement shall be considered to be given if hand-delivered or if deposited in the United States Mail to the parties by registered or certified mail at the addresses indicated below, or such other addresses as may be substituted upon written notice by the parties or their successors or assigns: City of Aspen City Manager and City Attorney 130 South Galena Street Aspen, CO 81611 Smuggler Park Home Owners Association 301 Oak Lane Aspen, CO 81611 With copies to: Scott Harper Scott Harper, P.C.206 Cody Lane, Suite CBasalt, CO 81621 This PD Development Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument, which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart. Facsimile or electronic signatures shall be treated as original signatures hereon. The terms, conditions, provisions and obligations herein contained shall be deemed covenants that run with and burden the real property more particularly described herein and any and all owners thereof or interests therein, their respective successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their respective successors, grantees or assigns. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY:City of Aspen, Colorado, a municipal corporation By:_____________________________________ Steven Skadron, Mayor Attest:__________________________ Linda Manning, City Clerk APPROVED AS TO FORM: __________________________ James R. True, City Attorney SPHOA: Smuggler Park Home Owners Association By: _______________________________ Troy Miller, President [Remainder of this page intentionally left blank; notary blocks on following page] STATE OF COLORADO) ) ss. COUNTY OF PITKIN) The foregoing instrument was acknowledged before me this ____ day of ____________, 2017, by Steven Skadron as Mayor and Linda Manning as City Clerk of the City of Aspen, Colorado, a municipal corporation. 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 ____________, 2017, by Troy Miller as President of the Smuggler Park Home Owners Association. Witness my hand and official seal. My commission expires: ________ ______________________________ Notary Public Smuggler Park Development Agreement Page 1 0029.2017.ASLU/System Volume Information/IndexerVolumeGuid 0029.2017.ASLU/System Volume Information/WPSettings.dat