HomeMy WebLinkAboutresolution.council.056-26RESOLUTION 4056
(Series of 2026)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A PROPOSED MEMORANDUM OF
AGREEMENT BETWEEN THE CITY OF ASPEN AND TS BAR X, LLC AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID
l��MORANDUM OF AGREEMENT ON BEHALF OF THE CITY OF ASPEN,
COLORADO
`'UHEREAS, there has been submitted to the City Council a proposed
Memorandum of Agreement by and between the City of Aspen and TS Bar X,
LLC , a true and accurate of copy of which is attached hereto as Exhibit "A
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves the
Memorandum of Agreement by and between the City of Aspen and TS Bar X,
LLC, and hereby authorizes the City Manager to execute such Memorandum of
Agreement, a copy of which is attached hereto as Exhibit "A", on behalf of the
City of Aspen.
RESOLVED, APPROVED, AND ADOPTED FINALLY. by the City
Council of the City of Aspen on the 14"' day of April, 2026.
1 Richards,
or
I, Nicole Henning, 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, April 14, 2026.
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4/16/2026 (6:26:10 AM f���6
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement ("MOA") is entered into this day
of 20255 by and between the City of Aspen, Colorado (the "City"), whose address
is 427 Rio Grande Place, Aspen, CO 81611-1975 and TS Bar X, LLC, a Colorado limited liability
company ("Owner"), whose address is c/o Garfield & Hecht, P.C. 625 E. Hyman Ave., Ste. 201,
Aspen, CO 81611. The City and Owner may be collectively referred to as the "Parties", and each
individually or separately as a "Party".
RECITALS
A. Owner is the owner of certain property in Pitkin County, Colorado located at 850 Stage
Road, Aspen, CO 81611 ("the Property"), which is legally described as:
HOMESTEAD 1,
BAR X RANCH F1 CONDOMINIUMS, ACCORDING TO THE CONDOMINIUM
MAP THEREOF RECORDED JUNE 21, 2023 IN PLAT BOOK 136 AT PAGE 83
AND RE -RECORDED AUGUST 4, 2023 IN PLAT BOOK 137 AT PAGE 7, AND THE
CONDOMINIUM DECLARATION RECORDED JUNE 22, 2023 AT RECEPTION
NO. 695626 AND RE -RECORDED AUGUST 4, 2023 AT RECEPTION NO. 6964904
B. In 2009, Owner acquired certain property in Pitkin County, Colorado legally described
as: Lot F1, Stage Road Planned Unit Development/Subdivision, according to the Plat thereof
recorded October 7, 2005 in Plat Book 75 at Page 32 as Reception No. 515869 and the First
Supplement to the Final Plat recorded October 15, 2009 in Plat Book 92 at Page 1 as Reception
No. 563657 ("Lot F 1 ").
C. In 2023, Owner condominiumized Lot Fl, and created the Bar X Ranch F1
Condominiums by recording the Condominium Map thereof on June 215 2023 in Plat Book 136
at Page 83 and re -recorded August 4, 2023 in Plat Book 137 at Page 7, ("Condominium Map")
and the Condominium Declaration recorded June 22, 2023 at Reception No. 695626 and re-
recorded August 4, 2023 at Reception No. 696490 ("Condominium Declaration").
D. Bar X Ranch F1 Condominiums consists of three condominium parcels: Homestead 1,
Homestead 2 and Ag Parcel. The Condominium Declaration set forth the distribution of units
and residential square footage of Homestead 1 and Homestead 2 and the Ag Parcel.
E. As noted above, the Property is "Homestead 1" of the Bar X Ranch F 1 Condominiums.
The Property currently contains two existing residences, the Farmhouse and the premises known
as 850 Stage Road. Homestead 2 is currently unimproved but is allocated, pursuant to the
Condominium Declaration, one unit and 4903 square feet (or 6,403 square feet using one TDR or
7,903 square feet using two TDR's) of residential floor area.
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F. There are certain structures on the Property that existed prior to the date Owner acquired
Lot F 1 and prior to the creation of the Stage Road PUD that include: (i) a farmhouse (the
"Farmhouse"); (ii) a barn (the "Barn"); and (iii) a garage associated with the Farmhouse (the
"Garage"). Collectively, the Garage, Farmhouse and Barn are referred to as the "Contributing
Resources". The location and immediate area surrounding the Contributing Resources, together
with the Contributing Resources, are referred to herein as the "Designated Site".
G. The location of the Contributing Resources on the Property is depicted on Exhibit "A"
attached hereto.
H. Owner desired to demolish the Contributing Resources and advised the City of its
intentions during a pre -application conference to seek a demolition permit with the City's
Community Development Director.
I. Upon the review of the request to demolish these units, the following history was
revealed:
1) Within City files was a 1999 survey report from the State of Colorado Historic
Preservation Office identifying the Designated Site as having significant historic and
architectural value, specifically noting the Designated Site's historic significance given its
association with the history of settlement and ranching in Pitkin County and the Designated
Site's architectural significance by being representative of the types of buildings and
materials used on ranches in the late nineteenth and early twentieth centuries in Pitkin
County,
2) On February 14, 2005, City Council considered and adopted on second reading
Ordinance #6, Series of 2005 ("Ordinance #6) and Ordinance #39, Series of 2004
("Ordinance #39).
3) Ordinance #6 approved a final Planned Unit Development, Subdivision, GMQS
Exemption, Specially Planned Area, and Amendments to the Official Zoning Map and
Vested Rights for the Stage Road Subdivision/PUD. The approvals set forth in Ordinance #6,
were conditioned upon the annexation of the property. The annexation was also approved on
February 14, 2005 pursuant to Ordinance #39.
4) Pursuant to the minutes from the public hearing held before City Council on February 14,
2005, for second reading of Ordinance #6 and Ordinance #39, the applicant represented that,
"The AACP also states to preserve and enhance historic resources and the preservation of the
intact ranch has been central to the plan from the beginning." The applicant further states,
"The ranch is a piece of active agriculture and is also the last working cattle ranch at this end
of the valley... the main buildings of the ranch go back to the late 1800's." The applicant
concludes its presentation of evidence with the following statement, "The applicants get the
ability to get value out of the land without destroying the ranch". Based upon these
representations, the City approved Ordinance#6 and Ordinance #39, completing the
annexation.
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5) Ordinance #6, contains the following language:
Section 24,
All material representations and commitments made by the Applicant pursuant to the
development .proposal approvals as herein awarded, whether in public hearing, in the
application or documentation presented before the Community Development Department or
the Aspen City Council, are hereby incorporated in such plan development approvals and the
same shall be complied with as if fully set forth herein, unless amended by other specific
conditions.
J. In addition to Ordinances #39 and #6, the parties entered into the PUD Control
Document, Development and Vested Rights Agreement: Stage Road Planned Unit
Development/Subdivision
Don recorded October 7, 2005 at Reception No. 515890 (the "PUD
Agreement"), to provide the right to construct up to four residences on Lot F 1 (now known as the
Bar X Ranch F1 Condominiums).
K. For purposes of this Agreement, Ordinance #6, and the PUD Agreement shall be known
as the "Approval Documents".
L. Neither Ordinance #6, nor Ordinance #39, specifically designated any of the Contributing
Resources as historic. However, based on the language of Ordinance #6 and the representations
made at the time of approval, it is the position of the City that preservation of the Designated
Site, including through designation, was contemplated and intended by the Council and Owner.
M. Pursuant to Chapter 415 of Title 26 of the Colorado Municipal Code, the Community
Development Director may seek designation of a historic building, site, or a collection of
buildings that demonstrate a quality of significance.
N. In response to Owner's conferral with the City concerning demolition of the Contributing
Resources, the Community Development Director advised Owner of his intent to pursue an
application for designation of the Designated Site including the Contributing Resources to be
included on the Aspen Inventory of Historic Landmark Designated Sites and Structures as an
example of Aspen Victorian.
O. Although contrary to the report referenced above, Owner disputes the City's
characterization that the F 1 Lot contains historically significant resources and notes that, as
mentioned in Recital L above, neither the above -referenced Ordinance #6, nor the above -
referenced Ordinance #39 designated any of the Contributing Resources as historic.
Consequently, Owner believes that Owner's vested rights associated with the Property include
the right to demolish the Contributing Resources without approval from the City's Historical
Preservation Commission ("HPC"), and that some prior communications between Owner and the
City include the City's recognition and acknowledgement of Owner's vested rights to demolish
the Contributing Resources.
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P. In response to the City's notice that it intended to pursue involuntary designation of the
Contributing Resources , Owner advised the City that it would object at every step and consider
litigation, if the designation step was pursued by the City.
Q. Following extensive negotiations following the notice of the City regarding designation,
the Parties have reached an agreement to settle their disputes and desire to reduce the terms and
conditions of their agreement to writing for consideration by City Council,
R. The intent of this Agreement is to amicably and finally resolve all claims the Parties may
have against each other in accordance with the terms of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of these premises and mutual promises set forth herein,
the Parties agree as follows:
1. The Development Plan. The Parties agree that the following description of
proposed land use for portions of the Property (the "Development Plan") constitutes the desired
result of this Agreement as it sets forth the proposed land use applications and requests for the
Property that serves both parties' interests and is in the best interest of the City. The Parties further
acknowledge that approval of the Development Plan is conditioned upon the granting of all
requisite land use approvals, consistent with the procedures outlined in the City of Aspen Land
Use Code (the "LUC").
A. Preservation of Designated Site. Owner agrees to prepare and submit to the
City an application seeking to designate the Contributing Resources and add
the Designated Site to the City's Inventory of Historic Landmark Sites and
Structures pursuant to Section 26.415.030 of the LUC. As part of the
voluntary designation application, Owner will identify the Designated Site
as an area within which no new above -ground improvements, landscaping
or berms will be permitted without HPC's prior written approval granted in
accordance with the City's processes and procedures governing historic
sites as amended from time to time. The boundaries of the Designated Site
must be mutually agreeable to Owner and the City. The general location of
the proposed Designated Site is identified on Exhibit "A" and is labeled
"HPC Jurisdiction Area". During the time period between approval of this
MOA and final consideration of the Development Plan, Owner agrees to
maintain the Contributing Resources in their existing locations and general
conditions and may continue to perform routine maintenance of the
Contributing Resources, as Owner determines necessary, as long as such
work effort is consistent with the principles found in Section 26.415.070 of
the LUC and does not destroy or harm the Contributing Resources, as
determined by the City Historic Preservation Officer, and all necessary
building permits are obtained. The City acknowledges that the Contributing
Resources are and will remain in active use and their continued functionality
is important to Owner.
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i. During the time period between approval of this MOA and final
consideration of the Development Plan, Owner agrees to maintain the
Contributing Resources in their existing locations and general
conditions and may continue to perform routine maintenance of the
Contributing Resources, as Owner determines necessary, as long as
such work effort is consistent with the principles found in Section
26.415.070 of the LUC and does not destroy or harm the Contributing
Resources, as determined by the City Historic Preservation Officer, and
all necessary building permits are obtained. The City acknowledges that
the Contributing Resources are and will remain in active use and their
continued functionality is important to Owner.
11. Within the Designated Site, Owner will have the right to improve, as
needed, the existing driveway, vehicle and equipment maneuvering
area, and parking areas within the Designated Site as shown on Exhibit
"A which may include regrading or resurfacing with gravel or asphalt;
extend or develop new subsurface utilities or irrigation lines which may
include above -surface connections or junction boxes; and, may maintain
the landscaping including removal or replacement of dead or dying
vegetation without approval from or notice to HPC or the City.
111. Realignment and expansion of the existing driveway, vehicle and
equipment maneuvering area, and parking areas within the Designated
Site shall comply with Section 26.215.070 of the LUC.
Notwithstanding section (c), any work requiring a building permit shall
be subject to review under the then existing LUC.
v. With respect to the larger, non -historic garage closest to Stage Road that
is shown on Exhibit "A" and labeled "South garage to be demolished"
(the "South Garage"), Owner asserts and the City acknowledges that the
South Garage is not part of the Contributing Resources and has no
historic preservation value. The South Garage may be demolished so
long as the necessary building permits are obtained.
vi. Any other modification of the Contributing Resource and the
Designated Site shall comply with the provisions of the LUC in effect
at the time.
B. Request to Remove Non -Historic Elements. With respect to the Farmhouse,
Owner asserts that additions were made to the Farmhouse that are historic. The The City acknowledges that there may be non -historic elements of
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the Farmhouse but has not substantiated what elements (if any) are non -
historic. The elements that Owner believes are non -historic are shaded in
red on the photos attached as Exhibit `B" (the elements shaded in red shall
be referred to as the "Possible Non -Historic Elements"), and include
additions to the Farmhouse such as a basement area and an at -grade area to
the north, east, and/or south of the existing Farmhouse. If Owner desires to
remove any Possible Non -Historic Elements, Owner will prepare and
submit to HPC a request to remove any Possible Non -Historic Elements
along with technical reports, analyses, and responses to review criteria set
forth in Chapter 26.415 of the LUC. Owner and the City acknowledge that
"HPC determines that some or all of the Possible Non -Historic Elements
are not historically significant and may be removed ("HPC Approved Non -
Historic Elements"), any approval to remove any HPC Approved Non -
Historic Elements may be conditioned upon a subsequent future approval
of a restoration and expansion plan for the Farmhouse, and if Owner seeks
to relocate the Farmhouse, HPC approval of the relocation plan will also be
required. Owner acknowledges that the City and/or HPC may request
additional investigation and probative tests to determine whether any
Proposed Non -Historic Elements of the Farmhouse contain historic
materials prior to determining if such Proposed Non -Historic Elements are
not historic for purposes of review. Owner agrees to accommodate such
requests considering ongoing occupancy and use of the Contributing
Resources. Nothing herein shall be deemed a waiver of any applicable
provision of the LUC. The provisions of this section are not intended to
bind, commit, or otherwise restrict the Aspen City Council or any City
board, commission, or authority exercising quasi judicial or discretionary
decision -making authority over matters related to the Contributing
Resources, including the Farmhouse. All such bodies expressly retain their
full authority and discretion to approve, deny, modify, or condition
modifications to the Contributing Resources as provided by LUC.
C. Amendments to A
ved P
:Jnit Development.
i. Reduction of Agricultural Floor Area. The Approval Documents
granted the Property a floor area allowance of 40,000 square feet for
non-residential agricultural buildings, approximately 2,000 square feet
of which is currently in use and attributed to the area of the Barn leaving
approximately 38,000 sf of additional non-residential agricultural floor
area available to be used on the Property. The Owner agrees to prepare
and submit to the City a request to amend the approved floor area for
Lot F 1 by reducing the allowance for non-agricultural buildings by
10,000 sf — resulting in an allowance of 30,000 square feet of non-
residential agricultural floor area allowed on the Property with the floor
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area of the Barn continuing to count towards this allowance. The City
agrees to consider and staff agrees to support this request to lower this
floor area allowance in conjunction with review of the Development
Plan.
Additional Residence on Property. In consideration for voluntarily
designating the Designated Site and maintenance of a residence within
the Contributing Resources that would otherwise be demolished, Owner
agrees to prepare and submit to the City a request to amend the
Approval Documents to provide the right to construct up to five (5)
residences on Lot F 1 (now known as the Bar X Ranch F 1
Condominiums), increasing the right from four residences to five
residences. The Farmhouse, 850 Stage Road, and the allocation of a
development allotment on the premises known as Homestead 2 will be
included within the five (5) residences allowed on Lot F 1 and all will be
bound by the same dimensional allowances and restrictions as any other
residence on Lot Fl, including but not limited to various floor area
exemptions for basement, garage, and Accessory Dwelling Units as
currently provided in the Approval Documents. The City agrees to
consider and staff agrees to support this request to increase the
residential rights from four to five in conjunction with review of the
Development Plan.
iii. Grant of Additional Residential Floor Area. Pursuant to the Approval
Documents, the allowable residential floor area for the four (4)
residences was 15,000 square feet to be divided among the four
residences at the option of the owner of Lot Ft. The Approval
Documents further recognized the ability to increase the allowable
residential floor area to a total of 18,000 square feet with the purchase
and extinguishment of TDRs from Pitkin County subject to certain
limitations and restrictions. In consideration of the effects of historic
designation and maintenance of structures that would otherwise be
demolished, Owner agrees to prepare and submit to the City, and the
City staff agrees to support, a request to increase the allowable
residential floor area on Lot F 1 by an additional 10,000 square feet (for
a total aggregate allowance of 25,000 square feet without TDRs and
28,000 square feet with TDRs) to accommodate the additional residence
and account for the limitations on the remaining development rights due
to the designation of the Designated Site.
For purposes of calculating residential floor area, the parties shall be
bound by the LUC, unless amended by the Approval Documents.
Residential floor area calculation shall include floor area attributed to
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the Garage and the Farmhouse, as it may be modified to remove non -
historic elements or expanded with new additions, and the amount of
the residential floor area of other existing and future residential
buildings as measured and calculated according the Stage Road
Subdivision and PUD Control Document, including all allowances and
exceptions, including but not limited to floor area exemptions for
subgrade area, garage area, and area within Accessory Dwelling Units.
Owner agrees to prepare and submit to the City a summary of existing
and anticipated floor area allocations within the Property. Such
summary shall be for the City's record keeping and zoning compliance
purposes and not for discretionary review of the Owner's allocation
choices. The City agrees to consider and staff agrees to support this
request to increase the residential floor area allowance in conjunction
with review of the Development Plan.
iv. Enlargement of Development Envelope. To accommodate the
additional residence and designated areas with limited development
potential, amendments to the development envelope are necessary.
Owner agrees to prepare and submit to the City a request to amend the
Plat and the Agricultural Conservation Easement to adjust the
boundaries of the areas within the Property that define where residential
structures may be constructed, and allow for new residential structures
and residential development to occur in the area shown on Exhibit "A"
that is bordered in yellow and labeled "Area added to development
envelope." The City agrees to consider and staff agrees to support this
request to enlarge the development envelope in conjunction with review
of the Development Plan.
v. Establishment of Transferable Development Rights. As part of this
Development Plan, Owner seeks the ability to sever up to 1,500 square
feet of allowable residential floor area in the form of transferable
development rights (TDRs) in accordance with the procedures set forth
in Chapter 26.535 of the LUC. Owner agrees to prepare and submit to
the City a request for 1,500 square feet of floor area to be converted into
a total of six (6) TDRs, created in increments of 250 square feet each.
Owner may exercise its right to sever one or more of the six allotted
TDRs at its convenience so long as sufficient residential floor area
remains on the Property, and upon exercising its right to sever a TDR,
Owner shall be required to record a deed restriction reducing the
remaining allowable developable residential floor area on the Property
by the amount that corresponds the residential floor area associated with
each severed TDR. The City acknowledges that the Owner's right to
create TDRs shall not be considered an obligation upon the Owner to
create TDRs. The City agrees to consider and staff agrees to support
this request to create six TDRs in conjunction with review of the
Development Plan.
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vi. Vested Rights. According to the Approval Documents, the vested rights
for the Stage Road PUD Development Plan (as defined in the PUD
Agreement) will expire on October 7, 2030, (which is 25 years from the
date of recording of the Plat) or such longer time as may be allowed
under any applicable law, regulation or court decision. In consideration
of invested time and the effects of the new development limitations
considered in this MOA, Owner will prepare a request to increase the
period of vested rights for Lot F 1 (now known as the Bar X Ranch F 1
Condominiums), including the rights granted pursuant to this MOA, for
10 additional years to October 7, 2040, or such longer time as may be
allowed under any applicable law, regulation, or court decision. The
City agrees to consider and staff agrees to support this request to extend
the period of vested rights in conjunction with review of the
Development Plan.
D. Easements.
i. Amendment of A
idential Develo
icultural Easement B
and
T to Accommodate
Devel
Envelope.
Pursuant to the Approval Documents and the Final Plat recorded at
Reception No. 515869 in the real property records of the Pitkin County
Clerk and Recorder (the "Final Plat"), there are two easements located on
the F 1 Lot depicted and described in the Final Plat as "Agricultural
Conservation Easement" and "Fathering Parcel Agricultural Easement".
Amendments to the existing Agricultural Easement held by the Stage Road
PUD homeowners' association (the "HOA") and City are needed to
accommodate the placement of five (5) residences on the Property as a
result of the voluntary designation of the Designated Site and an increase in
the number of residences allowed on the F 1 Lot. Owner agrees to prepare
and submit to the City a request to modify the Easements as depicted in
Exhibit A to allow for a larger development envelope to accommodate the
additional residence. The City agrees to consider and staff agrees to
support this request to modify the agricultural easement boundary in
conjunction with review of the Development Plan.
11. Wildlife Corridor Protection Area. In consideration of an enlarged
development envelope and City's expressed desire to establish a protected
wildlife corridor, Owner agrees to prepare and submit to the City a request
to establish a wildlife corridor protection area at the northern end of the
Property (the "Wildlife Area"), which Wildlife Area is depicted in green on
Exhibit "A" and labeled "Area of heightened wildlife protection". The
Parties agree that within the Wildlife Area, Owner and the HOA may
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continue to conduct and maintain haying operations, irrigation
infrastructure, water rights and other similar activities. Prohibited within the
Wildlife Area shall be any expansion of haying operations, development of
agricultural buildings, cattle operations, or excavation/land tiling or
removal of sagebrush unless necessary for drainage or other land
management best practices. Not prohibited within the Wildlife Area shall
be the continued use of accessways by haying equipment or other vehicles
in connection with haying operations or routine land management and the
use of various existing trails within the Wildlife Area by Owner and
Owner's guests for pedestrian or equestrian use. Owner and the City will
also agree to mutually amend the Agricultural Easement or alternatively
record an additional Easement that encumbers the Property to implement
this wildlife protection. The City agrees to consider and staff agrees to
support this request in conjunction with review of the Development Plan.
2. City Review Procedure Schedule
The land use application procedure set forth in Part 300 of the LUC shall apply to
this Development Plan approval. For purposes of the land use process the
application shall be deemed a Consolidated Application consistent with Section
26.304.030. The primary land use reviews shall be related to the designation of the
historic resources and an amendment to the Planned Development to include all
necessary elements of this agreement. The City agrees to expedite its review of the
Development Plan and to prioritize scheduling and hearing dates with review
bodies. The general order of procedure shall be as follows:
i. Upon execution by the Parties of this Agreement, Owner, shall at its
own cost, prepare a land use application to seek the approvals required
for the Development Plan. Owner shall also pay all application fees due
at submittal.
ii. The application shall include authorization from the HOA to pursue the
land use application.
iii. Upon receipt of Owner's land use application, the City's Community
Development Department shall review the land use application for
compliance with the LUC. If the City's Community Development
Department identifies any defects in the application, the application will
not be processed until such defects are cured.
iv. After the land use application is deemed complete by the Community
Development Director, the City shall cause the application to be
processed in accordance with the LUC, including ensuring all noticing
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requirements are met. The following hearings shall be required before
an Ordinance is presented for approval by City Council at a public
hearing:
1. A public hearing before the HPC for purposes of receiving
recommendations and approvals as follows:
a. The HPC shall be a recommending body for purposes of the
voluntary designation application and the amendments to the
PUD.
b. The HPC shall evaluate the application and may recommend
approval, disapproval or continuance of the application to
request additional information necessary to make a decision.
HPC's recommendations shall be forwarded to City Council
but shall not be binding upon the Council.
v. A hearing shall be set for first reading of the Ordinance approving the
Development Plan before City Council after the hearing before HPC.
vi. A public hearing shall be scheduled before City Council for the
following approvals. Designation of Historic Properties (26.415.030),
Planned Development, Major Amendment (26.445.110.f); and related
reviews. The final decision -making body shall be City Council pursuant
to Sections 26.445.040.
vii. The LUC shall govern the process, including noticing, standards of
review, and form of decision.
Vlll. Upon the granting of all requisite land use approval by City Council,
evidenced by the adoption of an appropriate ordinance that is consistent
with the Development Plan, the City shall work with Owner to record
all necessary documents required for the easements and to make any
necessary amendments to the PUD Agreement to reflect aspects of this
agreement and the Land Use approvals.
3. Contingencies and Required Approvals. Notwithstanding the approval of this
Agreement by City Council evidenced by a Resolution authorizing the City
Manager to execute this Agreement, nothing herein shall be deemed a waiver of the
applicable provisions of the LUC or limit the decision -making body's jurisdiction.
The decision -making body, in its sole discretion, has the authority to approve,
disapprove, approve with conditions, or continue any hearing at which the
Development Plan is considered. City Council shall be the decision -making body
pursuant to Sections 26.415.030 (Designation of Historic Structures), 26.445.040
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(Amendment to PUD), and 26.535.070 (Establishing of TDRs). Nothing herein
shall limit the authority of the City of Aspen Historic Preservation Commissions
authority over the treatment of the Designated Site or Contributing Resource.In
addition, Council has the sole discretion to accept the easements contemplated by
the Development Plan. No assurances by the City or its staff have been made that
City Council must or will approve of any matter set forth herein.
4. Owner's Obligations. Owner agrees to promptly prepare and submit the land use
application described in Section 1 above (the "Required Application") and work in
good faith with the City in pursuit of approval of the Development Plan,
5. Termination. In the event Owner is unable, after good faith efforts, to obtain the
approvals described herein, this Agreement and all terms and conditions set forth
herein shall be deemed void ab initio.
If Owner has not submitted the Required Application within 1 year from the date
of this Agreement, the City shall have the right to terminate this Agreement by
delivering written notice to Owner, which termination shall be effective thirty (30)
days' after the City's notice to Owner unless Owner submits the Required
Application prior to expiration of such 30-day period. If the Required Application
is approved, Owner must work in good faith to facilitate any remaining procedural
requirements to effectuate the terms of the Development Plan. If the City terminates
this Agreement pursuant to this Section, neither party shall have any further rights
or obligations pursuant to this Agreement.
Owner may terminate this Agreement by withdrawing the Required Application
prior to approval by the City Council. If Owner terminates this Agreement pursuant
to this Section, neither party shall have any further rights or obligations pursuant to
this Agreement.
6. Reservation of Rights. Nothing in this Agreement shall be deemed to waive any
rights or claim the Parties may have against each other relating to the Property or
the improvements thereon, all of which are reserved by the Parties.
7. No Third -Party Beneficiaries. It is expressly understood and agreed that the
enforcement of the terms and conditions of this Agreement, and all rights of action
relating to enforcement, shall be strictly reserved to the City and Owner and nothing
contained in this Agreement shall give or allow any such claim or right of action
any third person on such Agreement.
8. 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
Docusign Envelope ID: 197B7176-2F7E-83BF-82E6-1 F2B7E311 D53
9. Governmental Immunity. The Parties hereto understand and agree that the City
is relying on, and does not waive, or intend to waive by any provision of this MOA
any rights, immunities, and protections provided by law, including but not limited
to, the Colorado Governmental Immunity Act, Sections 24-10-101, et seq., C.R.S.,
as from time to time amended, or otherwise available to the City, its officers, or its
employees.
10. Coordination Between the Parties. Each Party names the following individuals)
as the Party's representative(s) for purposes of communications related to the
transactions contemplated by this MOA:
The City's Representative(s):
Owner's Representative(s):
Thomas Slatkin
Email: tslatkinkedwardthomasco.com
11766 Wilshire Blvd., 9th Floor
Los Angeles CA 90025
(310) 859-9366 xl 19
Chris Bendon
Email: chrism, endonadams.com
B endonAdams
300 S. Spring St., #202
Aspen, CO 816l l
(970) 925-2855
Chris Bryan
Email: cb.1 a K� 6u.L i%Wh %cht.com
Chris LaCroix
Email: clacroixn,Lyarfieldhecht.com
Garfield &Hecht, P.C.
625 E. Hyman Ave., Ste. 201
Aspen, CO 81611
(970) 9254936
11. Notices. Any notice, request, or other communication (collectively, a "Notice")
required or permitted under this MOA must be in writing and either delivered
personally or sent by certified mail, Return Receipt Requested, postage prepaid, or
a next day delivery service to the above addresses specified in Section 10 to each
party's designated Representative(s). A notice delivered personally will be deemed
given only when acknowledged in writing by the person to whom it is delivered. A
notice that is sent by mail will be deemed given three (3) business days after it is
13
Docusign Envelope ID: 197B717&2F7E-83BF-82E&1 F2B7E311 D53
mailed. A notice by email will be deemed delivered when sent so long as not
returned undeliverable.
12. Authority. The Parties represent and warrant that they possess the sole and full
authority to enter into this MOA. Owner warrants that it has taken all actions
required by its procedures, governing documents, and/or applicable law to exercise
that authority and to lawfully authorize its undersigned signatory to execute this
MOA and to bind Owner to its terms. Likewise, the City warrants that it has taken
all actions required by its procedures, and/or applicable law to exercise that
authority and to lawfully authorize its undersigned signatory to execute this MOA
and bind the City to its terms.
13. Amendment. This MOA constitutes the complete and exclusive statement of the
agreements among the Parties. It supersedes all prior written and oral statements,
agreements or understandings including any prior representation, statement,
condition, or warranty. Except as expressly provided otherwise herein, this MOA
may not be amended without the written consent of the City and Owner.
14. Seyerability. Each provision of this MOA shall be considered separable; and if, for
any reason, any provision or provisions herein are determined to be invalid and
contrary to any existing or future law, such invalidity shall not impair the operation
of or affect those portions of this MOA which are valid.
15. Binding Agreement; Runs with Land. Subject to the limitations contained
herein, this MOA is binding upon, and inures to the benefit of, the parties hereto
and their respective successors and assigns. The provisions of this MOA that pertain
to the Property are appurtenant to the Property and run with the land.
16. No Waiver. Failure of a Party hereto to exercise any right hereunder shall not be
deemed to be a waiver of such right and shall not affect the right of such Party to
exercise at some future time said right or any other right it may have.
17. Governing Law, Venue, Attorney Fees. This MOA and the rights and obligations
of the Parties hereunder shall be governed by and construed in accordance with the
laws of the State of Colorado. Any suit involving any dispute or matter arising
under this MOA may only be brought in Pitkin County, Colorado District Court.
The parties hereby consent to the exercise of jurisdiction by such court with respect
to any such proceeding. In any dispute the substantially prevailing party will be
entitled to an award of attorney's fees and costs including expert fees and costs.
18. Counterparts. This MOA may be executed simultaneously in two counterparts
each of which shall be deemed an original, and both of which, when taken together,
constitute one and the same document. The signature of any party to any
counterpart shall be deemed a signature to, and may be appended to, any other
counterpart. All photocopy, facsimile and electronic signatures will be binding and
deemed as effective and binding as original signatures.
Mom!
Docusign Envelope ID: 19713717&2HE-836F-82E&l F2137E311 D53
Executed the date first written above, by:
OWNER:
TS Bar X, LLC, a Colorado limited liability company
By: WJJ!Z!' Vo".
Thomas Slatkin, Manager
THE CITY:
City of Aspen, Colorado
Signed by:
By: puv
a oaae...
Print Name: Pete Strecker
Title: City Manager
Attachments:
Exhibit A - Illustrative maps and photos. This exhibit shows areas of various
designations which are for illustrative purposes and are conceptual in nature.
Final boundaries of these areas will be finalized during the land use review
process.
15
Docusign Envelope ID: 19713717&2HE-83BF-82E6-1 F2137E311 D53
Exhibit "A"
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