HomeMy WebLinkAbout29_PREANNEXATION_AGREEMENT29.1Preannexation Agreement
preannexation agreement:
City of Aspen and Bar/X Ranch LLC
(restated version incorporating first through third amendments)
section
29
29.2 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
Index Section Page Section Page
City of Aspen Resolution 103/2003 29.3 Execution Page: City 29.27
Amended & Restated Preannexation Agreement 29.5 Execution Page: Landowner 29.28
Recitals & Representations 29.5 Exhibit A: Legal Description of Property to be Annexed 29.29
The Development Plan 1 29.6 Exhibit B: Plansheet: Development Plan 29.33
Boundary Line Adjustments 1.A.1 29.7 Exhibit C: Petition for Annexation 29.35
Lease of 20 Acre Parcel 1.A.2 29.7 Exhibit D: Utility Location Map 29.39
Zoning of Property proposed for Annexation 1.B 29.8 Exhibit E: Intentionally Left Blank 29.41
Development Rights 1.C 29.8 Exhibit F: Water Service Agreement 29.42
Free Market Lots 1.C.1 29.8 Treated Water Service to Project 1 29.43
Free Market Lots - FAR 1.C.2 29.9 City Water Policies 2 29.44
Free Market Lots - sizes, landscaping, etc. 1.C.3 29.9 Limitation of Time to Provide Service 3 29.45
Free Market Lots - Accessory Dwelling Units 1.C.4 29.10 Design of Mains, Lines and Facilities 4 29.45
Free Market Lots - Maroon Creek Viewplane 1.C.5 29.10 Cost Allocation and Design Dispute Resolution 5 29.45
The Fathering Parcel 1.C.6 29.10 Construction 6 29.46
Fencing 1.C.7 29.11 Pretapping 7 29.47
The Cabin 1.C.8 29.11 Conveyance of Water Rights and Structures 8 29.47
Vested Rights 1.C.9 29.12 Easements 9 29.48
Further Subdivision 1.C.10 29.12 Water Balance for Private Project Component 10 29.48
Vacation of Stage Road 1.C.11 29.12 Reimbursement by Landowner 11 29.49
Ranch Manager's RO Lot 1.C.12 29.13 Treated Water Service 12 29.50
Water Rights 1.C.13 29.13 Tap Fees and System Development Charges 13 29.50
Transportation Demand Management 1.C.14 29.14 Service Lines and Meters 14 29.51
Green Construction 1.C.15 29.14 Limitations on Provision of Water Service 15 29.51
Affordable Housing Development Obligations 1.D 29.14 Service Subject to City Charter, Codes, Regulations 16 29.51
Conservation Easements on Burlingame Ranch 1.E 29.15 Rules Regarding Water Use 17 29.51
Dogs 1.F 29.15 Source of Water Supply 18 29.52
Parks and Play Fields 1.G 29.16 No Guaranty of Water Quality, Quantity or Pressure 19 29.52
Joint Planning of the Property to be Annexed 1.H 29.16 Property Rights in Water 20 29.52
City's Costs 1.H.a 29.16 Raw Water Use 21 29.52
Joint Costs 1.H.b 29.16 Compatibility of Raw and Treated Irrigation Systems 22 29.53
Conservation Easements 1.H.c 29.18 Enforcement by the City 23 29.53
Public Trails 1.H.d 29.18 Termination by Agreement 24 29.54
Cost of Roads, Utilities, and Trails 1.H.e 29.18 Termination if Illegal 25 29.54
Access and Utility Easements 1.H.f 29.19 No Regulated Public Utility Status 26 29.54
Schedule for Annexation 2 29.20 No Waiver 27 29.54
Landowner's Obligation 3 29.21 Notices 28 29.54
City's Obligation 4 29.22 Force Majeure 29 29.55
City's Obligation with respect to Annexation 4.a 29.22 Severability 30 29.55
City's Obligation with respect to Access 4.b 29.22 Remedies 31 29.55
Landowner's Remedy for Default by City 5 29.22 Amendment; Assignment 32 29.55
City's Remedy for Default by Landowner 6 29.23 Entire Agreement 33 29.55
Waiver 7 29.23 Interpretation 34 29.55
Binding Effect 8 29.23 Time of Essence 35 29.56
No Third Party Beneficiaries 9 29.24 Binding Agreement - Recording 36 29.56
Governing Law and Enforcement 10 29.24 Governing Law; Venue; Attorneys' Fees 37 29.56
Additional Documents or Action 11 29.24 Authorization of Signatures 38 29.56
Execution in Counterparts 12 29.24 Counterparts 39 29.56
Paragraph Captions 13 29.24 Addendum 1A: Plansheet of Water Distribution 29.59
Integration and Amendment 14 29.24 Addendum 1B: Plansheet of Water Distribution 29.61
Assignment 15 29.24 Addendum 2: Water Rights 29.63
Severability 16 29.24 Exhibit G: Intentionally Left Blank 29.65
Recordation of Agreement:Terms Run With Land 17 29.25 Exhibit H: Proposed Zone Districts 29.67
Incorporation of Exhibits 18 29.25 Exhibit I: Floor Area Calculations 29.69
Actions against Annexation and Development 19 29.25 Exhibit J: ADU Regulations 29.73
Appeal Period 20 29.25 Exhibit K: Consumer Price Index Calculation Method 29.77
Title 21 29.26 Exhibit T-A: Land Acquired by Quiet Title Action 29.78
Property Tax Valuation 22 29.26
29.3Preannexation Agreement
29.4 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.5Preannexation Agreement
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AMENDED AND RESTATED PRE-ANNEXATION AGREEMENT
BAR/X RANCH
THIS AMENDED AND RESTATED PRE-ANNEXATION AGREEMENT (“Agreement”) is
entered into and made on January 16, 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 (the “Prior Agreement”) for the
Landowner’s property known as the Bar/X Ranch; and a First Amendment to Pre-
Annexation Agreement dated December 17, 2001 (the “First Amendment”) and a
Second Amendment to Pre-Annexation Agreement executed by the City on February 19,
2003 (the “Second Amendment”); and
WHEREAS, City and Landowner desire to combine the Agreement and its First
Amendment and Second Amendment (collectively, the “Prior Agreements”) into this
one complete agreement and 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 supercede 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 owned
Burlingame Ranch and the Property Proposed to be Annexed be cooperatively planned
by the parties; and
Note: Due to the combination of alphabetic and numerical identifying of sections, and inconsistencies in the left
indenting, the original document was hard to refer to. Pages 29.5 through 29.26 have been reformatted here to
include complete section numbering and consistent indents. The content is identical to the executed agreement.
29.6 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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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.
1.A Development Plan
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
29.7Preannexation Agreement
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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.A.1 Boundary Line Adjustments
1.A.1.a City – Ranch
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.
1.A.1.b Soldner – Ranch
The neighboring Soldner family has questioned the location of the
common boundary of the Ranch and the Soldner property. If, at the time
of Final Plat recording, the boundary has not been established, by either
the mutual agreement of the Soldners and Landowner or by a court
decree, the Final Plat shall identify the area in dispute and except it from
any warranty of title in the certification of ownership. If the 60 foot right of
way easement which may be required to be conveyed to City pursuant to
paragraph 1.H.f. below, will encroach into the area in dispute, the Final
Plat shall dedicate said right of way outside of the area in dispute,
provided that Landowner shall have the right to relocate the right of way
along the finally determined boundary line, revise its dedication and
amend the Final Plat accordingly. In such event, City agrees to vacate
any portion of the right of way previously dedicated so that it runs along
the finally determined common boundary line. Notwithstanding the
foregoing, if City has made improvements to the right of way prior to the
final determination of the common boundary line and if Landowner
desires to relocate the right of way, Landowner shall be responsible for all
costs of relocation of such improvements. If Landowner does not elect to
relocate the right of way and improvements made therein by City, the
right of way shall remain as shown on the Final Plat.
1.A.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
29.8 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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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.
1.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 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”).
1.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, 2004, 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.C.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
29.9Preannexation Agreement
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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.
1.C.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 a Transferable Development Right (TDR) from
Pitkin County that may be, on the effective date of this Agreement, used
in the Metro Area of Pitkin County (lands that drain through the Roaring
Fork River at Gerbazedale); provided, however, that the City Council
approves the specific TDR’s to be used for this purpose. 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 the event that
TDR’s are not available for purchase after a reasonable effort is made to
do so, or the City Council rejects a specific TDR proposed for use by the
land owner, a payment-in-lieu, in the amount of $200,000.00 plus an
amount equivalent to any increase in the Consumer Price Index
(hereinafter “CPI”) as calculated by the method suggested by Exhibit K
appended hereto, shall be made to the City’s Open Space Fund in order
to increase the allowable sizes of the houses up to the maximum stated
herein.
1.C.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
envelopes 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
29.10 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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state” may include the introduction of indigenous plant and tree species.
1.C.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 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 that may be, on the effective date of this Agreement, used in the
Metro Area of Pitkin County (lands that drain through the Roaring Fork
River at Gerbazedale), and which are acceptable by the City Council. In
the event that TDR’s are not available for purchase after a reasonable
effort is made to do so, or the City Council rejects a specific TDR
proposed for use by the land owner, a payment-in-lieu, in the amount of
$200,000.00 plus an amount equivalent to any increase in the CPI, shall
be made to the City’s Housing Fund. (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.)
1.C.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.
1.C.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 1.B 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
29.11Preannexation Agreement
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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, or at the option of the lot owner, a payment-in-lieu, in the amount
of $200,000.00 for each TDR plus an amount equivalent to any increase
in the CPI per TDR, may be made to the City’s Housing Fund or Open
Space Fund (at the discretion of City Council) 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 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 of $200,000.00 plus an amount equivalent to any
increase in the CPI, in the same manner as for other Free Market Units.
1.C.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.
1.C.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,
29.12 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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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
construction. The lot containing the cabin shall be burdened with
restrictive covenants that (1) if approved by the Fire Marshall pursuant to
paragraph 1C.1 above, prohibit the construction of a future access road to
the cabin site; (2) limit lighting of the cabin to periods of time when it is
occupied; (3) prohibit dogs on the cabin site at all times; and (4) limit
exterior construction to the months of July through September of each
year.
1.C.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).
1.C.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.
1.C.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
29.13Preannexation Agreement
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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.
1.C.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.
1.C.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 be reconfiguration of areas irrigated, means
29.14 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
10
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.
1.C.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).
1.C.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, that are generally
applicable throughout the City to all residential construction, as the same
may exist from time to time.
1.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 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
29.15Preannexation Agreement
11
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.
1.E Conservation Easements on Burlingame Ranch
1.E.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. Exhibit B to this Agreement is hereby
amended by the exclusion of the Back Bowl from the “New Conservation
Area” shown thereon.
1.E.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 areas as permitted in the conservation
easements. Landowner shall be named as a beneficiary of these
conservation easements in order to exercise such rights.
1.F Dogs
In order to protect wildlife, ranch cattle, horses and other livestock from
29.16 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
12
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.
1.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.
1.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.
1.H.a City’s Costs
The City shall be responsible for the cost of filing fees and preparing all
documents and applications for the following:
1 Pre-annexation Agreement
2 Annexation Petition and Plat
3 Rezoning Application for initial AH/PUD designations and
zoning code amendments
1.H.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
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 (50/50) basis.
29.17Preannexation Agreement
13
1.H.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 therefor
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.
1.H.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 manner with a priority for its
placement on City council agendas. Landowner agrees to prepare
29.18 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
14
and submit for processing such application in a timely and diligent
manner.
1.H.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.
1.H.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”,appended hereto illustrates the location of all proposed trails.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.
1.H.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 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
29.19Preannexation Agreement
15
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.
1.H.f Access and Utility Easements
The access to the Affordable Housing Component of the Development
Plan shall be either across Landowners property as shown on Exhibit B
or through a different road alignment westerly of the Soldner property, as
shall be determined through the land use review process for the
Affordable Housing Component. If the alignment is determined through
29.20 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
16
said process to be as shown on Exhibit B, Landowner shall convey the
access road right-of-way easement shown on Exhibit B and an
underground utility easement to the City. The right-of-way easement shall
be a maximum of sixty (60) feet wide which shall accommodate a road,
parallel trail, and a berm with a height of five feet above the adjacent
finished grade of the road along the boundary of the Free Market
Component, or some other landscape solution mutually acceptable to City
and Landowner that is designed through natural landscape design that
considers protection of the adjacent agricultural use from traffic impacts.
The parties shall endeavor on a best efforts basis during the land use
review process to minimize the width of the right-of-way to accommodate
the uses proposed in the previous sentence. The final design of the
access road and its related components and landscaping shall be
developed through the land use approval process. The road shall be built
in accordance with any requirements imposed by the Fire Marshal. The
easement shall also entitle City to use it to serve property owned by 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 from the end of any such trail where the same
abuts the Airport Business Center. Notwithstanding the access road
shown on Exhibit B to this Agreement, said Exhibit B is not intended to
specify the location of internal roads within the 20 Acre parcel necessary
to serve the Affordable Housing Component nor to limit City’s ability to
extend the roads through the 20 Acre Parcel to serve lands adjacent
thereto presently owned by City.
2 Schedule for Annexation
2.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.
2.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.
2.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).
2.d City shall initiate, at its cost, annexation and the re-zoning application in
29.21Preannexation Agreement
17
accordance with the City’s Land Use Code.
2.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.
2.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.
2.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
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
29.22 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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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.
4 City’s Obligation
4.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.
4.b City’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
5.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
29.23Preannexation Agreement
19
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.
5.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.
5.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.
29.24 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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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 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
29.25Preannexation Agreement
21
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.
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 seq., 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.
29.26 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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.
21 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.
List of Exhibits
Exhibit A Legal description of -/X Ranch proposed to be annexed
Exhibit B Map of area including Back Bowl and Zoline -/X Ranch
Exhibit C Petition to Annex - (Standard City of Aspen petition for annexation)
Exhibit D Utility Location Map
Exhibit E Intentionally Left Blank
Exhibit F Water Service Agreement
Exhibit G Intentionally Left Blank
Exhibit H Proposed Zone Districts
Exhibit I Floor Area Calculations
Exhibit J ADU Regulations
Exhibit K Consumer Price Index Calculation Method
Exhibit T-A Land Acquired by Quiet Title Action
29.27Preannexation Agreement
29.28 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.29Preannexation Agreement
Bar Slash X Ranch and Stage Road PUD/Subdivision Property Description
A parcel of land situated in Sections 2 & 11, Township 10 South, Range 85 West of the 6th
Principal Meridian, County of Pitkin, State of Colorado. Said parcel of land being more
particularly described as follows:
Beginning at a point on the northeasterly Right-of-Way line of Colorado State Highway No. 82
(Project Number : 0821-051 Unit 1) said point being the northeasterly corner of parcel number
120, Project Code 12269 of the Colorado Department of Transportation, whence the 1/4 corner
common to said Sections 2 & 11 bears N. 10°21'54" E., 708.68 feet being a found 1954 B.L.M.
Brass Cap in place; thence along said northeasterly Highway Right-of-Way line N.60°10'52"W., a
distance of 178.00 feet to a point on the boundary line of Golf Course Parcel A, as shown on the
Final Plat and P.U.D. for Maroon Creek Club, recorded on Plat Book 33, Pages 4 through 15 of
the Pitkin County Records; thence leaving said northeasterly right-of-way line along the
boundary line of said Golf Course Parcel A the following nine (9) courses:
1) N.01°48'31"E., a distance of 915.83 feet; 2) N.35°31'27"W., a distance of 725.00 feet;
3) N.08°06'25"E., a distance of 762.37 feet; 4) S.88°59'33"W., a distance of 228.21 feet;
5) S.89°08'18"W., a distance of 156.94 feet; 6) S.88°56'55"W., a distance of 144.94 feet;
7) S.88°41'56"W., a distance of 136.14 feet; 8) S.89°42'25"W., a distance of 189.99 feet;
9) N.87°18'47"W., a distance of 5.97 feet to an existing fence line and fence line extended;
thence following said fence line and fence line extended the following five (5) courses:
1) N.01°01'58"E., a distance of 203.59 feet; 2) N.02°02'27"E., a distance of 109.93 feet;
3) N.00°19'27"E., a distance of 298.14 feet; 4) N.00°41'53"W., a distance of 62.14 feet;
5) N.02°29'43"E., a distance of 13.40 feet, to a point on the northerly boundary of that property
described in book 181 at page 320 of the Pitkin County records;
thence leaving said fence line and fence line extended N.86°29'41"W., along said northerly
boundary 6.05 feet; to the easterly boundary of Lot 1, Burlingame Ranch Subdivision recorded in
Plat Book 50 at page 89 of the Pitkin County records; thence along said northerly boundary
along the easterly boundary of said Lot 1, Burlingame Ranch the following seven (7) courses:
1) N.02°52'36"E., a distance of 165.48 feet; 2) N.00°30'26"W., a distance of 243.17 feet;
3) N.18°16'57"W., a distance of 80.12 feet; 4) N.22°43'41"W., a distance of 384.52 feet;
5) N.00°34'07"E., a distance of 57.52 feet; 6) N.03°02'50"E., a distance of 688.34 feet;
7) N.12°39'27"E., a distance of 105.85 feet, to a point on the Southerly boundary of parcel 2
Park Trust Exemption Map as recorded on plat book 10, page 5A of the Pitkin County Records;
thence S.88°15'47"E., along the southerly boundary of said Parcel 2 a distance of 6.86 feet to a
point on the boundary of that property described in the quick claim deed recorded as Reception
No. 466499 of the Pitkin County records;
thence along the boundary of said quick claim deed the following fifteen (15) courses:
1) N.13°50'57"E., a distance of 114.73 feet; 2) N.12°44'56"E., a distance of 284.79 feet;
3) N.12°34'48"E., a distance of 263.95 feet; 4) S.59°34'09"E., a distance of 69.27 feet;
5) 179.45 feet along the arc of a non-tangent curve to the right, having a radius of 1,000.00 feet,
a central angle of 10°16'53", (chord bears S.27°38'40"E. a distance of 179.21 feet;
6) S.07°11'09"E., a distance of 50.03 feet; 7) S.21°18'17"E., a distance of 44.53 feet;
8) S.05°31'10"W., a distance of 32.00 feet; 9) S.10°32'00"E., a distance of 45.00 feet;
Exhibit A: Legal Description of Bar/X Ranch proposed to be Annexed
29.30 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
10) 76.23 feet along the arc of a curve to the left having a radius of 40.00 feet, a central angle of
109°11'30", (chord bears S.65°07'45"E. a distance of 65.21 feet);
11) S.25°20'41"E., a distance of 42.24 feet; 12) S.35°09'29"E., a distance of 43.07 feet;
13) S.20°30'32"E., a distance of 50.20 feet; 14) S.27°41'19"E., a distance of 17.40 feet;
15) S.04°08'52"W., a distance of 135.85 feet to a point on the northerly line of Government Lot 7,
of said Section 2;
thence S.88°15'48"E., along the northerly line of said Government lot 7 a distance of 1033.90
feet to a point on the West Bank of Maroon Creek as referenced in deed recorded in Book 166 at
Page 481 of the Pitkin County Records, thence along said deed described above and being
25.00 feet westerly of and parallel to said West Bank of Maroon Creek the following sixty-one
(61) courses:
1) S.47°16'56"E., a distance of 93.51 feet; 2) S.40°44'00"E., a distance of 99.92 feet;
3) S.43°12'00"E., a distance of 75.48 feet; 4) S.26°40'59"E., a distance of 51.42 feet;
5) S.29°29'19"E., a distance of 82.66 feet; 6) S.44°11'50"E., a distance of 78.16 feet;
7) S.70°00'04"E., a distance of 104.72 feet; 8) S.50°38'15"E., a distance of 27.37 feet;
9) S.01°16'48"E., a distance of 56.82 feet; 10) S.29°58'10"W., a distance of 34.56 feet;
11) S.76°08'32"W., a distance of 43.65 feet; 12) S.00°46'52"W., a distance of 118.50 feet;
13) S.24°51'14"E., a distance of 92.53 feet; 14) S.07°32'08"E., a distance of 36.99 feet;
15) S.52°15'52"E., a distance of 34.18 feet; 16) S.11°19'08"E., a distance of 79.45 feet;
17) S.40°07'51"E., a distance of 160.49 feet; 18) N.82°30'12"E., a distance of 92.23 feet;
19) N.66°41'51"E., a distance of 24.39 feet; 20) S.12°48'00"E., a distance of 170.52 feet;
21) S.06°11'13"W., a distance of 83.10 feet; 22) S.07°05'08"E., a distance of 34.83 feet;
23) S.00°01'32"W., a distance of 45.24 feet; 24) S.18°54'49"E., a distance of 72.69 feet;
25) S.10°58'43"E., a distance of 75.11 feet; 26) S.13°40'31"W., a distance of 47.18 feet;
27) S.04°17'31"E., a distance of 66.15 feet; 28) S.08°20'24"E., a distance of 136.42 feet;
29) S.04°29'56"W., a distance of 65.63 feet; 30) S.05°54'39"E., a distance of 34.46 feet;
31) S.20°50'18"W., a distance of 88.41 feet; 32) S.02°09'35"W., a distance of 28.08 feet;
33) S.53°23'59"W., a distance of 34.41 feet; 34) S.12°35'25"W., a distance of 60.60 feet;
35) S.15°11'24"W., a distance of 30.24 feet; 36) S.14°51'24"E., a distance of 30.10 feet;
37) S.30°36'56"E., a distance of 49.45 feet; 38) S.33°44'33"E., a distance of 31.40 feet;
39) S.25°57'56"E., a distance of 65.95 feet; 40) S.15°52'18"E., a distance of 72.55 feet;
41) S.07°20'49"W., a distance of 27.44 feet; 42) S.45°10'43"W., a distance of 20.69 feet;
43) S.32°45'51"W., a distance of 51.58 feet; 44) S.02°19'30"E., a distance of 36.47 feet;
45) S.08°50'53"W., a distance of 19.54 feet; 46) S.08°15'44"E., a distance of 25.11 feet;
47) S.13°20'02"E., a distance of 27.03 feet; 48) S.31°23'52"E., a distance of 113.34 feet;
49) S.00°17'56"E., a distance of 19.09 feet; 50) S.14°06'53"W., a distance of 60.96 feet;
51) S.11°55'16"E., a distance of 57.16 feet; 52) S.08°07'37"W., a distance of 5.56 feet;
53) N.39°20'13"W., a distance of 21.47 feet; 54) N.86°08'02"W., a distance of 47.08 feet;
55) S.53°19'46"W., a distance of 28.16 feet; 56) S.76°07'57"W., a distance of 36.92 feet;
57) S.12°43'14"W., a distance of 40.76 feet; 58) S.32°41'52"W., a distance of 99.52 feet;
59) S.01°29'59"E., a distance of 44.65 feet; 60) 233.57 feet along the arc of a non-tangent
curve to the left, having a radius of 400.00 feet, a central angle of 33°27'25", (chord bears
S.03°31'23"E. a distance of 230.27 feet;
61) S.20°15'05"E., a distance of 63.49 feet to a point on the northerly line a parcel of land
recorded in Book 228 at Page 590 of the Pitkin County records;
thence N.89°07'44"W., along said northerly line a distance of 156.24 feet; thence leaving said
northerly line along the perimeter of a strip of land, described in Book 166 at Page 481 the
following nine (9) courses:
1) N.05°18'15"E., a distance of 234.07 feet; 2) N.06°23'45"W., a distance of 252.08 feet;
29.31Preannexation Agreement
3) N.07°28'45"W., a distance of 150.60 feet; 4) N.01°14'15"E., a distance of 175.63 feet;
5) S.89°09'40"W., a distance of 30.02 feet; 6) S.01°14'15"W., a distance of 176.82 feet;
7) S.07°28'45"E., a distance of 152.60 feet; 8) S.06°23'45"E., a distance of 248.72 feet;
9) S.05°18'15"W., a distance of 233.33 feet to a point on the northerly line of said parcel of land
recorded in Book 228 at Page 590;
thence along the northerly and westerly lines of said parcel the following five (5) courses:
1) N.89°07'44"W., a distance of 143.39 feet; 2) S.06°13'16"W., a distance of 267.36 feet;
3) S.14°07'16"W., a distance of 112.67 feet; 4) S.11°25'16"W., a distance of 77.29 feet;
5) S.27°06'16"W., a distance of 125.08 feet to a point on the boundary of the 4th amended
aspen golf course subdivision recorded on plat book 63 at pages 62 through 65 of the Pitkin
County records;
thence along the boundary of said 4th amended aspen golf course subdivision the following six
(6) courses:
1) N.89°20'26"W., a distance of 3.41 feet; 2) S.21°09'56"W., a distance of 624.39 feet;
3) S.00°24'34"W., a distance of 158.79 feet; 4) S.00°59'34"W., a distance of 84.56 feet;
5) S.06°32'41"W., a distance of 164.07 feet; 6) S.25°03'34"W., a distance of 7.70 feet to the
point of beginning;
Said parcel of land containing 146.005 acres, more or less.
County of Pitkin
State of Colorado
29.32 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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29.35Preannexation Agreement
Exhibit C: Petition for Annexation
29.36 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.37Preannexation Agreement
29.38 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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29.41Preannexation Agreement
Exhibit E: Intentionally Left Blank
29.42 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
Exhibit F: Water Service Agreement
29.43Preannexation Agreement
29.44 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.45Preannexation Agreement
29.46 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.47Preannexation Agreement
29.48 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.49Preannexation Agreement
29.50 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.51Preannexation Agreement
29.52 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.53Preannexation Agreement
29.54 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.55Preannexation Agreement
29.56 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.57Preannexation Agreement
29.58 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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29.63Preannexation Agreement
29.64 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.65Preannexation Agreement
Exhibit G: Intentionally Left Blank
29.66 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
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29.69Preannexation Agreement
Exhibit I: Floor Area Calculations
29.70 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.71Preannexation Agreement
29.72 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.73Preannexation Agreement
Exhibit J: ADU Regulations
29.74 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.75Preannexation Agreement
29.76 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
29.77Preannexation Agreement
Exhibit K: Consumer Price Index Calculation Method
29.78 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission
Exhibit T-A: Land acquired by Quiet Title Action