Loading...
HomeMy WebLinkAboutordinance.council.057-94 e" ";1.... %\', Ii.'..... \;t 'it '1.~ \*_. '.'.".'.... \~.. ORDINANCE NO, 5-=J-. Series of 1994 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THE ACQUISITION BY THE CITY OF ASPEN FOR PUBLIC OPEN SPACE, RECREATION, AND AFFORDABLE HOUSING PURPOSES, OF CERTAIN REAL PROPERTY COMMONLY KNOWN AS THE "COZY POINT RANCH", AS MORE FULLY DESCRIBED IN THAT CERTAIN "FARM AND RANCH CONTRACT TO BUY AND SELL REAL ESTATE", APPENDED HERETO AS EXHIBIT "1", BY PURCHASING AN ASSIGNMENT FROM ROARING FORK COMMUNITY PARTNERS, L.L.C., UPON TERMS AND CONDITIONS GOVERNING THE ACQUISITION, MANAGEMENT AND DEVELOPMENT OF "COZY POINT RANCH" AS SET FORTH IN THAT CERTAIN "ASSIGNMENT AND PARTICIPATION AGREEMENT", APPENDED HERETO AS EXHIBIT "2", BETWEEN THE CITY OF ASPEN AND ROARING FORK COMMUNITY. PARTNERS, L.L.c.; AUTHORIZING THE CITY MANAGER TO EXECUTE ON BEHALF OF THE CITY OF ASPEN SAID ASSIGNMENT AND PARTICIPATION AGREEMENT AND SUCH OTHER DOCUMENTS AS MAY BE NECESSARY TO CONSUMMATE THE LAND ACQUISITION; AND, DECLARING AN EMERGENCY IN ACCORDANCE WITH SECTION 4.11 OF THE ASPEN CITY CHARTER. This ordinance has been adopted as an emere:ency ordinance in accordance with Section 4.11 of the City of Aspen Charter. The facts showing such urgency and need are set forth below. WHEREAS, it has been brought to the attention of the City Council that real estate property, commonly referred to as the "Cozy Point Ranch", consisting of approximately 205 acres located outside the City limits but in a strategic location for City open space, recreation and affordable housing purposes within Pitkin County, Colorado, is under contract to Roaring Fork Community Partners, L.L. c., a Colorado limited liability company, under terms and conditions set forth in a "Farm and Ranch Contract to Buy and Sell Real Estate", (the "Contract"), annexed hereto and incorporated herein as Exhibit "1"; and WHEREAS, Roaring Fork Partners has asked the City of Aspen to participate in the purchase of the property upon the terms and conditions set forth in that "Assignment and Participation Agreement for the Purchase and Preservation of Cozy Point Ranch", (the [,~1.' IX h , " ila. IIIII' Assignment and Participation Agreement"), annexed hereto and incorporated herein as Exhibit "2"; and WHEREAS, the principals of Roaring Fork Community Partners, L.L.C., include Frederic Benedict, Connie Harvey, Martha Pickett and Tim McFlynn, whose interests in developing the property coincides with the interests of the City, and the pursuit of such interests are deemed by the City Council to be in furtherance of important public purposes; and WHEREAS, the City Council has determined that the acquisition of the Cozy Point Ranch would further the goals of the "Open Space/Recreation and Environment Action Plan" of the Aspen Area Community Plan, adopted on February 2, 1993, by Resolution No.6, Series of 1993, by providing an opportunity to: (a) "integrate the development of affordable housing and maintenance of open space", (b) preserve "key open space parcels which help to establish the character of the Aspen Area", and (c) design and develop the property for multiple uses that "require conservation and energy and water efficiency"; and WHEREAS, the City Council has further determined that the acquisition of the Cozy Point Ranch would further the goals of the "Housing Action Plan" of the aforementioned Aspen Area Community Plan, in that the Plan identifies the Cozy Point Ranch to be considered for affordable housing; and WHEREAS, the private development of the Cozy Point Ranch for single family residences and/or a private equestrian facility would not assure the development of much needed affordable housing, public equestrian and recreational facilities, strategically located open space, and other essential public facilities for residents of the Aspen area; and WHEREAS, the City Council has determined that the uncontrolled private development of the Cozy Point Ranch and the resulting loss of open space and recreational facilities along the entrances to both the City of Aspen and the Town of Snowmass Village imperils the continued 2 ii_ "',I', '1;, ;1Y . " .' p jp;., r 1~;~ ,.. l. vitality and growth of the tourist economy of the Aspen area and the unique scenic values which now exist; and WHEREAS, immediate acquisition of the Cozy Point Ranch by the City of Aspen, followed by the opportunity for joint acquisition, management and development of this Property with Roaring Fork Community Partners, L.L.C., is hereby determined by the City Council to be necessary for the preservation of the public health, peace, safety and welfare of the City of Aspen, its citizens and visitors, and the City Council desires to approve and authorize acquisition of said property in accordance with the terms and conditions of the Assignment and Participation Agreement and the Contract; and WHEREAS, under the terms of the Contract the due diligence period expires at 5:00 p.m, on September 27, 1994, and the closing date for the consummation of the transaction is established no later than October 6, 1994; and WHEREAS, the City Council deems it necessary to approve, as an emergency ordinance for the reasons hereinabove stated, the acquisition of the Property pursuant to the terms of the Contract and the Assignment and Participation Agreement, and the authorization for the City Manager to execute on behalf of the City of Aspen said agreement, as well as such other documents as may be necessary to consummate the acquisition; and WHEREAS, the City Council has determined that it is financially prudent to irrevocably pledge from present cash reserves in the City's General Fund, Housing and Day Care Fund, and the Parks and Open Space Fund, sufficient monies for payment in future years of the financial obligations imposed by the Assignment and Participation Agreement and the Contract. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: 3 tie.. VI '\,. iU_;,.. \~; '~ e' "',, ~" "", Section 1 . That the City Council does hereby declare an emergency pursuant to Section 4 .11 of the Aspen City Charter for the preservation of public property, health, peace, and safety of the City of Aspen, its citizens and visitors, inasmuch as an opportunity for the City of Aspen to participate in the acquisition and future development of the Cozy Point Ranch will be lost if the City Council does not act with urgency. Section 2, That the City Council does hereby approve the acquisition of the" Cozy Point Ranch" and authorizes the City Manager to execute on behalf of the City of Aspen said Assignment and Participation Agreement and such other documents as may be necessary. Section 3. That the City Council does hereby irrevocably pledge $500,000,00 from present cash reserves in the General Fund, $1,700,000.00 in the Parks and Open Space Fund, and $500,000.00 from the Housing and Day Care Fund for the payment in future fiscal years of all financial obligations imposed by the execution of the Assignment and Participation Agreement and the Contract and the City Finance Director is instructed to take all appropriate accounting measures to implement this pledge. Section 4. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 5, If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any 4 a_ 1'0,"." . \;\ \\~ ~"..,.'..," . ,v y \\" e reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions hereof. Second reading of this emergency ordinance shall be held on the 27th day of September, 1994, at 3:00 p.m" in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED AND READ as provided by law by the City Council of the City of Aspen on the 26th day of September, 1994. (j4 7', I~ - John S. Bennett, Mayor ATTEST: ~d&L Kathryn S. Koch, City Clerk 5 '.!~..._.'. ~t '"".~ 1'_' ~% . !~\ '<., ,.It @'.. h., \;!; "<~ FINALLY adopted, passed and approved this .:? =t- day of .~) ,1994. - - rp- ~. /5~- John S. Bennett, Mayor ATTEST: ~Jxf.& Katfi-Iyir S, Koch, City Clerk cozypt.ord 6 il!,_... li\ ':L 'c ie' 15. ~ ~- ".. ( ( ADDENDUM Addendum to that certain Vacant Land Cont Estate, dated August 30, 1994, between1P er") and Roaring Fork Partners ("Buyer"). Sell Real to. ("Sell- 1. ADDENDUM TO CONTROL: To the extent the provisions contained in this Addendum conflict with provisions contained in the Contract to which the Addendum is attached, the provisions in the Addendum shall control. 2. FACSIMILE: The parties hereby agree that this Contract may be offered and/or accepted by facsimile communication and that delivery of facsimile signatures shall be deemed the same as delivery of original signatures. 3. INTERNAL REVENUE CODE: Seller warrants that he is not subject to withholding as defined under Internal Revenue Code section 897 (Foreign Person Transferor) and will execute an Affidavit so stating at closing. 4. DUE DILIGENCE CONTINGENCY: Seller shall deliver to Buyer within three (3) days of full execution hereof all records and data in Seller's possession relating to the Property and to Seller's investigation of any of the issues set forth below ("Property Records"). In the event this transaction is not consummated, all such Property Records shall be returned forthwith to Seller. In addition to the inspection contingency in Paragraph 10, Buyer shall have twenty (20) days from the date of full execution hereof or the date of Seller's delivery of all Property Records to Buyer, whichever is later ("Due Diligence Period") to determine, in its sole and absolute discretion, that the Property is satisfactory for Buyer's purposes, including but not limited to issues related to access, zoning, land use regulations and constraints, soils conditions, radon, hazardous waste, mineral rights and reservations, water quality and quantity, utilities, Highway 82 condemnation corridor, etc. If Buyer is dissatisfied for any reason with the results of its investigation regarding the foregoing-issues or water or ditch rights pursuant to Paragraph 2 (d), it shall have the right to give Seller written notice of its dissatisfaction within the Due Diligence Period. Then, in the event Buyer and Seller are unable to resolve the unsatisfactory issues in writing, on mutually acceptable terms , within seven (7) days after Seller's receipt of Buyer's notice, then this Contract shall terminate and Buyer shall be relieved of any further performance under the terms of this Contract. All earnest monies plus accrued interest shall be immediately returned to Buyer. If no such notice of unsatisfactory conditions is ~ e-r ,-. ~- ii._:, l\l \\\< &. ., ( ( delivered, this Due Diligence contingency shall be deemed waived. 5. EARNEST MONEY: All earnest money shall be deposited in an interest bearing account for the benefit of Buyer and Buyer's Social Security No. for this purpose will be furnished upon full execution of this Contract. 6. COLORADO WITHHOLDING TAX: Seller and Buyer agree and acknowledge that Colorado Revised Statute Section 39-22- 604.5 provides that in case of any conveyance ofa Colorado real property interest, the person or party providing closing and settlement services shall be required to withhold an amount equal to 2% of the sales price or the net proceeds resulting from such conveyance, whichever is less, when the transferor is a non-resident of the state of Colorado. Seller shall be obligated to either comply with the withholding requirements of C.R.S. Section 39-22-604.5 or provide an affidavit in form and content satisfactory to the title company which certifies that Seller is not subject to the withholding require- ments. 7. SPECIAL DISTRICTS. The Buyer acknowledges that the Property may lie within a special district which may be subject to general obligation indebtedness that is paid by revenues produced from annual tax levies within such district. 8. SELLER DISCLOSURE AND WARRANTY. Seller has no knowledge that there has .been any production, storage or disposal on the property of any hazardous waste or toxic substances, with the exception of the existing above- ground storage tanks. In addition, Seller shall not oppose or interfere with Buyer's rezoning, subdivision or other land use development applications or approvals so long as the same do not materially affect the value of the Property and occur during the time period that Seller. is financing the purchase of the Property, thereby materially reducing the value of Seller's security for~~ the note. L'(JPIG:S OF /1'-'- SIlOf APP/...ICIi770JJ5 S'1t1'lJ.f:. 13& SV81f1T/?0 Mr- 7CJ 56?Lai!._ SURVEY: within fifteen (15) days of full exeqution of .this Contract, Seller, at its expense, shall cause an updated improvement survey of the Property prepared by a registered land surveyor licensed in Colorado to be furnished to Buyer. The survey shall be currently dated, show the location on the Property of all improvements, fences, easements, roads, ditches, rights of way and any' encroachments. The survey shall also convey a lel;Jal description of the property by metes and bounds or other appropriate legal description. Buyer shall have the 9. -2- 7' ..9- .. r---I-~ er !;,-..,.. \:{II' lie'. \Q\,- -. I~. c ( right to review and approve in its sole and absolute discretion the survey. If Buyer is dissatisfied for any reason with the survey, it shall have the right to give Seller written notice of its dissatisfaction within the Due Diligence Period. Then, in the event Buyer and Seller are unable to resolve the unsatisfactory aspect of the survey in writing, on mutually acceptable terms, within seven (7) days after Seller's receipt of Buyer'S notice, then this Contract shall terminate and Buyer shall be relieved of any further performance under the terms of' this Contract. All earnest monies plus accrued interest shall be immediately returned to Buyer. If no such notice of unsatisfactory aspects of the survey is delivered, this Due Diligence contingency shall be deemed waived. 10. ADDITIONAL TITLE INSURANCE: Seller agrees, at no cost to Buyer, to cause pre-printed exceptions 1 through 5 to be deleted from the title commitment and the title insurance pOlicy, and to execute all documents necessary to cause these exceptions to be deleted. 11. SELLER FINANCING: Seller shall finance $2,700,000 of the Purchase Price. Buyer shall execute a promissory note in the form attached as Exhibit "B", at an interest rate of 9% per annum, payable in monthly installments of principal and interest amortized over a ten (10) year period with the entire unpaid balance of principal and interest due and payable five (5) years from the date of closing. There shall be no penalty for prepayment. Seller shall provide the form of Deed of Trust to be utilized which will provide that any net condemnation proceeds to Buyer from the four-laning or widening of Highway 82 will be used to reduce the remaining principal due Seller on the note. - 12. SURVIVAL OF CONTRACT. All representations and warranties made in this Contract shall survive closing, shall not be merged into any document of conveyance and'shall be fully enforceable following closing. BUYER: SELLER: ROARING FORK PARTNERS Dltt.. 'I COIJ~TR[:CTlOIJ I /I'IC BY:~~ Connie Harvey harvey\addendum.vac eQ~I'~~~ -/ ~ ~ -3- ~ o ,~~- .~. .~l "~' " i' ; ~ i{ :f "!f: " 1 ( C:-x f\ \ e, \ '\ 'I A " c ,-=: , '-, , I I , , I I j , i j I I , I I !~/ , C-tt--- ;:.'~;-'E.11.'jG .\ -......-..--.,;,. -.._,_......~.... ?MICEL \ ~\ ~\ "i ~\ " ).l!O'c.~~;;~ :.~, u'r,; "'l~_'"'!~r""" ... '.-'---- ;;~~::;:.. ... ... 'c. ;\ '0 :..;:~. 'i~\ :trfr~- :r~~ ,.. .~t / ~:~~'.. ~~.: ~ "r'-'-'~ --...?' .":" - .'i~ ! r,: '.. ?<",:::.;:...~ \ \ \ " ....- " , " , : -.. " , , : 'u ". ,- - - - , -' " ......... ....... ."..... ! ill t ~C.lL~ .. - - - I I I I i I i I I I I " 'Y' -,' .-:;':,,,:,,; ,/" :r~... .. -fr-" ,', <' ""= ! \; " ~\. \ .-. .-.. .....,-.....,..;.. \ \ -- I I I ~! ~!....,. ;:1 ,>,'~C;;!.. :', jl .;~:':::. f 1 !I! I I ; \: II / 'f l:"'-'-: SEE \\5..e:=--:-1 \'\ . Ii \ \ \ ,\ '\ \ \ \ \ \ \ \ ~..;tr..-.:-_~ :. \. \ , \ \ \ \ L.. ~.."....... i \ ~::C~,:lO!'.G CE.H!;;.:..:.:S ---._....._._~.- .....-. :: ::::::....::..-:-;;-..7;.:::::.::.""_ _._-.:.~ :E'C1i~rICN ~~,\. - -i''irJl,/.\S O.li.':'_ CO~':' 3or~r ~~~CH ~~~CEL F': 7<. ,'/ '::l..~,j'r. C':L~.1.'':;a As!'r.'! :n:"v!:T E.'1C/.VE!:.U. f.'fC , J::!. v~ ~\ 'J'\ <;\ ; \ ~~..~~-;... -r;T .\ ;,\ " i -.. , " -~---------- ----~-._------ ::-':=.-:=::.::..=..:.:::...- -.._-.. -"."--- ... ... ,j :\ <" i.l~ '. : ',~;/~. I ~.~.,..~,"\.:\_;.~~.5~ : -~.-'.I(~-,r :/.U,l.. /. S....::::i ,'''<, .--~ i ;: ;-'.' Q1\ '\~ '. If' . ~~ <-'" "It m \~~.,. ",.. '''':'';' I --.. ......--...., ::J/a "!:I/JJN/:Jl'iJ ..I3AlIM tGin .........-..-----,.. ..... -.-.. -- =.:""':.::.. -: :-:',";..";:'::.:: .........- -,,':;":"'::...0;-"''''. ""-:':::..-:. :::..::::~1:.l"~:;:'; ............--- -....,.. c ...'-...,..-- ...-....- '-'- : --....--=:-.::.:::::..=:::: : f:2,,:ol\: ? or"S'!)::, ---......... .,..............-., -~~ :"'~.:; ~ ~ ::~~7h:!:~ '..,..,.,...... "'" "'--.:..~ f:"~"i...""i." ...~:::.:-':~:.~~.::"= . .. .. .",:'r: ::~:~ ....~;:~~.~::-; .:',: :':'~~'E'::::: .....;:~..~~~: r....~.,. ~:'7.?::F.'::;::: '~n .,."........<,..""..,~.,...........n.:""""'..,."""-~ .....,."......""'.......- . :;:..-;:: ~ ::;~-::~.;..,~~;j;~~:!f1rr:~E-. -.:':i~~....~~~~~:~~ -... .., -:,,~..,: ::i'~ ~.::~::;:~~~:= a......~:?<. ~ .......~~:7.-r:r;r:E '-",,, ........... ""'-.<.......&cl..'....-..~~~~~ ... '. --" ,""'-- - ~= fJf: Tf:f]g:ff ,-,....".." ";..., "&....,,, .....,,,....... '''',';~: ;;~~~ ,,~,EiJ1tff:B "'< .~:: ~~..~ .:;:-:~ .-:,';.;..:~,:*:.:;tt~,_.._ .. .:;,.....i~~.::;~;1~ii;~ ~':::.:::~;S::.,:~ .-". '--' .:,:...... ';':;'~.':~.:-::~-.. .,=-=..~~::;~E~= '-..-... -,"""'" -'-,- ~...~ ~~..~1i::.::-r:2 ~'~~'r:..~":-' ":Jlld il'JS3'2 lVD31 e'.\' i33l-fS \ \ \ \ \ \ \ \ \ i. \ ~ \ \ 3XI1 H.:>........ Z ;:I:) Z J3:!HS \ ,I I ( \, \, /) ---.. -." --, ~ \:.'J ",:' .....a~ (.0. :::....::.==-..::;..::::::::- -::':'-:: -~~ -......-... l I I i , ; ; I I I I I I I I _....~...= .:.:..: ".=-=,:," =:;.:.. ~:..:, .......- ..... ...-.. - .."...,....- - '-.... ~ -.......- .......- ....__.... A.._......_ ....----...............- '--'--...~ -..-.-...........-.- -............ ""-'" -::::-:. ~..:":: :;.:::-:.:'.:::- ~::.::-:.:::::: _. -- -- .- ... -.--.-- -"- ........- '-"" - -.--. --.. .- - - '-.- ... ''1,... _ ._...._ _..... --.....-,..,,-.... .-............-. -. - .- \ ,,' " r-= \ \ \ \ -=~ ~Ol~n':~a.:;-:) '\ ..:1Y',;,..; - -. \ \ \. " \, -..........".....\ ............._\ ..-.--.....-... \ \ \ t- \.; '( \......... \~ "" \, \ \ \ ""'" ~'... lN3>:3SV33.:lVC/S N3"'0 CiS~~',j/C;311 "\.. " ---\ '\ ....-. -,. ':'"........ . ,,-(- , '\ '\ I. I l' '. \ '''-.... ~i ,,"p. .~;".. ... " .......'_JI',"<>, I I .....;;...\ ...... "';'''''..;1''"\ r~'<f. '<, , ". \ '''''''r \'\" '~.....~ "'\ . "'\ ....,. ~ '\ ~"'..... '\ . \ '. ' , \, '~ ' "" ',"I' "\ '\j'. " I I r--+-=;/ I rVt- ----- .....-. , I I I I ?-'~jS I W " ,a.,..,.". v~. f..., '\" .&e,.. I('t' \~ ".~ ~ ( c EXHIBIT "B" PROMISSORY NOTE $2,700,000.00 Aspen, Colorado October , 1994 FOR VALUE RECEIVED, Roaring Fork Partners, 320 W. Main street, Aspen, CO 81611 ("Maker"), promise(s) to pay to the order of whose address is ("Holder") principal sum of TWO MILLION SEVEN HUNDRED THOUSAND AND NO/OOTHS Dollars ($2,700,000.00) , together with interest at the rate of NINE percent (9%) per annum, amortized over a TEN (10) year period, payable at , or such other place as the Holder may designate. Principal and interest shall be paid in the following manner: Monthly payments of principal and interest due and payable on the first day of each month commencing the month following Maker's closing on the purchase of the Property described on Exhibit "A" hereto and upon. which a first deed of trust shall recorded as security for repayment. The entire unpaid balance of principal and interest shall be due and payable September __, 1999. Makers shall pay to the Holder a late charge of four percent (4%) of any payment not received by the Holder within fifteen (15) days after the payment is due. Any payments received for application to this Note shall be applied first to the payment of late charges, if any, second to the payment of default interest at the rate specified below, and the balance applied in reduction of the principal amount hereof. If payment hereunder is not made when due as set-forth above, the remaining unpaid principal shall, at the option of Holder, immediately become due and payable in full. From and after the date of such default the principal sum shall bear interest at the rate of fifteen percent (15%) per annum. Maker shall have the option to prepay any or all of the principal amount due hereunder without penalty at any time. Any partial prepayment shall be applied against the principal amount outstanding and shall not postpone the due date of any subsequent payments. The Maker of this Note hereby waives notice of demand, presentment of paymj-nt, notice of nonpayment and. protest, and any and all notice of whatever kind or nature, the exhaustion of legal remedies herein, all exemptions and any homestead rights. The terms, conditions and obligations under this Note cannot be changed, modified or terminated except by a writing signed by ~ CH- "'..',- ~. z\< ,#1,0.'._. \% '\" .~,! #: .(7 -- .... ~\,' r c ( the Makers arid Holder hereunder. This Note shall be construed according to the laws of the state of Colorado. Any notice to Maker relating to this Note shall be in writing and shall be given and be effective upon (1) delivery personally to Maker or (2) mailing such notice by certified Mail, Return Receipt Requested, addressed to Maker at his address stated below or to such other address as Maker may designate by notice to Holder. Any notice to Holder shall be in writing and shall be given and be effective upon (1) delivery personally to Holder or (2) by mailing the notice by certified Mail, Return Receipt Requested, to Holder at the address stated in the first paragraph of this Note or to such other address as Holder may designate by notice to Maker. This is a non-recourse Note which is secured by a first Deed of Trust on the property described on Exhibit "A" hereto. If Maker defaults in its obligations hereunder, Holder's only recourse is to exercise its rights under the First Deed of Trust. IN WITNESS WHEREOF, this Promissory Note is executed and delivered the day and year first above written. ROARING FORK PARTNERS By: Connie Harvey Address of Maker: 320 W. Main Street Aspen, CO 81611 rfp\promnote.frm -2- ~ Cu--- .