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HomeMy WebLinkAboutordinance.council.048-92 ORDINANCE NO. ~ (Series of 1992) AN ORDINANCE RATIFYING AND APPROVING A SECTION M AMENDMENT TOiTHE FIRST AMENDED AND RESTATED PLANNED UNIT DEVELOPMENT/SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAIN SUBDIVISION. WHEREAS, on May 21, 1992, Savanah Limited Partnership ("Savanah") submitted a written petition to the City Council pursuant to Section M of the First Amended and Restated Planned Unit Development/Subdivision Agreement ("PUD Agreement") for the Aspen Mountain Subdivision seeking an extension in the construc- tion schedule governing construction and development of the previously mandated community ice rink/park on Lot 6 of the Aspen Mountain Subdivision; and WHEREAS, a hearing was conducted before city Council on July $, 1992, during which Savanah successfully demonstrated that the reasons necessitating extension in the subject construction schedule were beyond its control; and WHEREAS, Section M of the PUD agreement authorizes amend- ments to construction schedule deadlines under circumstances as demonstrated by Savanah. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1 The following amendment to the First Amended and Restated~ Planned Unit Development/Subdivision Agreement for the Aspen Mountain Subdivision, as amended, is hereby ratified and ap- proved: Savanah's construction schedule deadlines as set forth in Section A2 of the PUD agreement, and as previously amended by those Section M amendments executed on June 11, 1990 (recordedlin Book 627 at Page 457 in the records of the Pitkin County Record- er) and June 10, 1991 (recorded in Book 654 at Page 418 in the records of the Pitkin County Recorder) are amended to provide as follows: From To Certificate of Occupancy Ice Rink/Park 10/1/92 10/1/93 Section 2 The amendment as provided for herein is subject to all the terms and conditions as set forth in that written decision issued by City Council pursuant to Savanah's petition dated May 21, 1992, requesting the extension in the above-described construc- tion schedule deadline, a copy of which is attached hereto as Exhibit 1. Section 3 The amendment as provided for herein is to be reflected in a written amendment document attached hereto as Exhibit 2 which shall be executed and filed in the records of the Pitkin County Clerk and Recorder's office. Section 4 This ordinance shall not have any effect on existing litiga- tion and shall not operate as an abatement of any action or 2 proceeding now pending under or by virtue of the ordinances repealed or 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 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 thereof. Section 6 A public hearing on the ordinance shall be held on the day of ~ , 1992, in the city Council Chambers, Aspe~City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law,by the City Council of the city of Aspen on the /~-~--~ day of  , 1992. :~ : : i:i John ~. Bennett, Mayor ATTEST: Kathryn ~/ Koch, /O~W-/ day of  LY adopted, passed and approved this , 1992. John ~. Bennett, Mayor ATTEST: ~ · S Koch, Cl~k Kathryn City jc62.2 BEFORE CITY OOUNO,L Or COPY CITY OF ASPEN, COLORADO IN RE THE MATTER OF SAVANAH LIMITED PARTNERSHIP'S REQUEST FOR Ai SECTION M AMENDMENT TO THE FIRST AMENDED AND RESTATED PLANNED UNIT DEVELOPMENT/SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAIN SUBDIVISION This matter is before the city Council upon the petition oil Savanah Limited Partnership ("Savanah") pursuant to Section M o!f the First Amended and Restated Planned Unit Development/Sub- division Agreement for the Aspen Mountain Subdivision ("PUD Agreement"), seeking a certain extension in the construction scheduling for subdivision development. Pursuant to Savanah's petition, a public hearing was convened in accordance with Section M of the PUD Agreement and conducted pursuant to ciky Council's hearing procedures. Savanah appeared, with legal counsel, and produced testimony and other evidence in support of its petition. Having heard all of the offered testimony and argument and having reviewed the documentary evidence as submit- ted and made part of the record herein, the City Council finds as follows: 1. On May 21, 1992, Savanah submitted a written petition to the city pursuant to Section M of the PUD Agreement seeking~an extension in the present construction schedule deadline governing construction and development of Lot 6, the proposed Ice Rink and Park, within the Aspen Mountain Subdivision. 2. Section M of the PUD Agreement provides as follows in its relevant part as pertinent hereto: "... the Owner or its successors or assigns may, on its own initiative, petition the City Council for a vari- ance, an amendment to this Agreement, or an extension of one or more of the time periods required for perfor- mance under the Construction Schedules or otherwise. The City Council may grant such variances, amendments to this.Agreement, or extensions of time as it may deem appropriate under the circumstances. The parties ex- pressly acknowledge and agree that the City Council shall not unreasonably refuse to extend the time peri- ods for performance indicated in one or more of the Construction Schedules if Owner demonstrates by a preponderance of the evidence that the reasons for the delay(s) which necessitate such extension(s) are beyond Exhibit 1 -- C0 ¥ the control of Owner, despite good faith efforts on its part to perform in a timely manner." 3. Savanah seeks extensions in the current construction! schedule deadlines as follows: From T__qo Certificate of Occupancy Ice Rink/Park 10/1/92 10/1/93 4. Savanah has alleged that the following facts and/or circumstances have caused delays in the progress of the constrUc- tion of the Ice Rink/Park component and that such facts and circumstances were beyond its control: i. The David Koch Foundation of Wichita, Kansas, bY and through its authorized representatives, has offered to build an ice rink on or near Wagner Park in the City of Aspen. A Schematic Design Package for the proposed Wagner Park Ice Rink! presented to city Council on May 11, 1992, describes an ice rink capable of being used primarily for recreational skating with potential for ice shows, limited hockey use and skating instruC- tion. ii. The City Council, Savanah and the David Koch Foundation require additional time to evaluate the Wagner Park Ice Rink proposals and designs in conjunction with the Ice Rink/Park component of the Aspen Mountain Subdivision PUD Agree- ment to determine which ice rink and location would be in the best interest of the City of Aspen. iii. Because of delays in the planning and review process of Savanah's ice rink/park proposal precipitated by the Koch Proposal, should city Council determine that it is in the~ City's best interests to proceed with the ice rink/park proposal of Savanah on Lot 6 of the Aspen Mountain Subdivision, Savanahi will be unable to complete the ice rink/park by October 1, 1992, the date therefor established .in the Amendment to the PUD Agree- ment dated June 10, 1991. While delays in the planning process occasioned by the intervention of the Koch Proposal may have only been a few months, construction constraints, particularly the pouring of a large slab of concrete for the ice rink, necessitate a full one-year extension of the deadline. 5. City Council finds that Savanah has been able to demonstrate by a preponderance of the testimony and evidence as established in the record that the time required by City Council, Savanah and the David Koch Foundation to evaluate the best site 2 C0 ¥ proposal for an ice rink has caused unavoidable delays in the progress of construction for Lot 6 of the Aspen Mountain SubdiVi- sion that are beyond the control of Savanah despite its good faith efforts to perform. NOW, THEREFORE, BASED UPON THE ABOVE AND FOREGOING, City Council does hereby grant to Savanah Limited Partnership the following extension to the construction schedule deadlines for the Aspen Mountain Subdivision, which extension shall be incorpo- rated into a written amendment to the PUD Agreement pursuant t© Sections M and 0(6), subject to those terms and conditions as Set forth below: EXTENSION From T_9o 1. Certificate of Occupancy Ice Rink/Park 10/1/92 10/1/93 ~ONDITIONS 1. Prior to issuance of a Certificate of Occupancy for Hotel Phase I, and as a condition precedent thereto, Savanah shall deposit $700,000.00 in an escrow fund for the benefit and in the name of the city of Aspen to secure Savanah's performance in regard to the following: (1) The establishment of a permanent fund to defray operation and maintenance costs for the Wagner Park Ice Rink in the event the City should deter- mine to authorize such ice rink; or (2) Construction by Savanah of an ice rink/park as approved by the Aspen City Council and as required by the PUD Agreement on Lot 6 of the Aspen Moun+ tain Subdivision. In such event, Savanah may be permitted to periodically draw down or reduce the escrow amount upon the authorization of the Direc- tor of Public Works and Planning Director corre- sponding with the progress toward the successful completion of the ice rink/park. All documents establishing the escrow and the escrow instructions shall be in a form satisfactory to the City Attor+ ney. 2. Prior to issuance of a Certificate of Occupancy for the Hotel Phase I, and as a condition precedent thereto, Savanah · shall clean and improve Lot 6 by removing all construction 3 materials, equipment, debris and fencing therefrom, regrade the lot as necessary to allow pedestrian traffic, and aestheticallyi improve the site as reasonably required by the Public Works Director~and Planning Director. 3. In the event that City Council grants development approval to the David Koch Foundation for development of the Wagner Park Ice Rink, Savanah shall thereafter seek all requisite amendments to the PUD Agreement, final PUD development plan, and other applicable development approvals within a reasonable time! period in order to construct and maintain a' municipal park on Lot 6 of the Aspen Mountain Subdivision. 4. The effectiveness of the extension as granted herein shall be contingent upon Savanah's compliance, as determined by the City staff, with all of those conditions as set forth above~o In the event that any condition as set forth above is not sub- stantially complied with, then the extension granted herein shall automatically be rendered invalid and such failure(s) to comply shall constitute non-compliance with the First Amended and Restated PUD/Subdivision Agreement. Savanah shall thereafter be entitled to a hearing before city Council to determine sanction!s or penalties for its non-compliance, which may include the revocation or termination of any or all approvals contained in the PUD Agreement. Done this day of , 1992. CITY COUNCIL OF THE CITY OF ASPEN, COLORADO By: John S. Bennett, Mayor ATTEST: City Clerk jc62.3 SECTION M AMENDMENT TO THE FIRST AMENDED AND RESTATED PLANNED UNIT DEVELOPMENT/SUBDIVISION AGREEMENT .FOR THE ASPEN MOUNTAIN SUBDIVISION THIS AMENDMENT to the First Amended and Restated Planned Unit Development/Subdivision Agreement for the Aspen Mountain Subdivision ("PUD Agreement"), being entered into between the City of Aspen, Colorado ("city") and Savanah Limited Partnership ("Savanah" or "Owner") on this day of , 1992, provides as follows: RECITALS WHEREAS, on May 21 1992, Savanah submitted a written peti- tion to the City pursuant to Section M of the PUD Agreement seeking an extension in the construction schedule deadline governing construction and development of Lot 6, the proposed Ice Rink and Park, within the Aspen Mountain Subdivision; and WHEREAS, a hearing was conducted before the city Council on July 13, 1992, in accordance with Section M of the PUD Agreement relating to requests for extension of one or more time periods required for performance, during which Savanah successfully demonstrated that the reasons necessitating the extension in the existing construction schedule deadline were beyond its controli; and WHEREAS, Section M of the PUD Agreement authorizes exten- sions of the time periods for construction schedules upon a proper showing; and WHEREAS, Section 0(6) of the PUD agreement authorizes amendments to the Agreement by written instrument executed by %he parties thereto. NOW, THEREFORE, in consideration of the mutual covenants ~nd conditions as contained herein, it.is agreed that the provisions hereinbelow shall amend the PUD Agreement as follows: 1. Savan~h's construction schedule deadlines as set forth in Section A2 of the PUD Agreement, and as previously amended by those Section M amendments executed on June 11, 1990, (recorded in Book 627 at Page 457 in the records of the Pitkin County Recorder), and on June 10, 1991, (recorded in Book 654 at Page 418 in the records of the Pitkin County Recorder), are amended to provide as follows: From T_9o Certificate of Occupancy Ice Rink/Park 10/1/92 10/1/93 -- Exhibit 2 2. The amended construction schedule deadline as provided for in paragraph 1 above shall be and remain in force and effect only insofar as Savanah complies with all of those terms and conditions as set forth in that written decision of the City Council of the City of Aspen attached hereto as Exhibit "1" an~ incorporated herein that was issued upon and in response to Savanah's petition of May 20, 1992, seeking a Section M amend- ment. 3.. All other terms and conditions of the PUD Agreement and the previous Section M amendments dated June 11, 1990, and June 10, 1991, not inconsistent with or superseded by this amendment, shall remain in full force and effect. 4. This amendment document shall be promptly recorded in the records of the Pitkin County Clerk and Recorder's office. IN WITNESS WHEREOF, the parties have hereunto set their signatures on the day and year as first written above. THE CITY OF ASPEN By: John S. Bennett, Mayor ATTEST: Kathryn S. Koch, city Clerk STATE OF COLORADO ) ss. County of Pitkin ) The foregoing instrument was acknowledged before me this day of , 1992, by John S. Bennett as Mayor and Kathryn S. Koch as city Clerk of the city of Aspen, Colorado. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Notary Public 2 Address SAVANAH LIMITED PARTNERSHIP By: ASPEN ENTERPRISES INTERNATIONAL, INC., General Partner By: APPROVED AS TO FORM: Attorney of Savanah Limited Partnership STATE OF ) ) SS. County of ) The foregoing instrument was acknowledged before me this day of , 1992, by WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Notary Public Address