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HomeMy WebLinkAboutresolution.council.002-03RESOLUTION NO. Series of 2003 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A RIGHT-OF-WAY IMPROVEMENTS AGREEMENT WITH COAST PACIFIC ASSET MANAGEMENT, INC. AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE SAME. WHEREAS, Coast Pacific Asset Management, Inc. has presented the City a Right-of-Way Improvements Agreement relating to certain improvements proposed to be made to Dale Avenue; and WHEREAS, the City Engineer has determined that it is in the best interests of the City to enter into said Agreement; and WHEREAS, the City Council has determined that it is in the best interests of the City to execute said Agreement. NOW, THEREFORE BE IT RESOLVED that the City. Council hereby approves the Right-of-Way Improvements Agreement in substantially the form as appended hereto as Exhibit A and hereby authorizes the City manager to execute the same on behalf of the CitY of Aspen. FINALLY, adopted, passed and approved this l0th day of March, 2003. ATTEST: JPW-5/12/2004 -G:\j ohn\word'a'esos\dale-ave.doc RIGHT-OF-WAY IMPROVEMENTS AGREEMENT THIS RIGHT-OF-WAY IMPROVEMENTS AGREEMENT ("Agreement") is made and entered into this 12th day of May, 2003, by and between COAST PACIFIC ASSET MANAGEMENT, INC., a California corporation ("Coast Pacific") and 72-IE CITY OF ASPEN, COLORADO, a Colorado municipal corporation and home rule city (the "Cit .... Y), WITNESSETH: WHEREAS, Coast Pacific is currently under contract to purchase that property located within the City of Aspen, Colorado known as Lot 4A and Lot 5A, Independence #2 Subdivision (the "Property") from the current owner, The Crystal Palace Corporation ("CPC"); and WHEREAS, as part of its due diligence under the contract to purchase the Property, Coast Pacific has discovered that physical road improvements associated with that public right- of-way known as Dale Avenue (hereinafter "Existing Improvements") currently encroach upon a substantial portion of the Property; and WHEREAS, the encroachment of the Existing Improvements onto the Property precludes the full use and enjoyment of the Property and limits the potential development related thereto; and and WHEREAS, Dale Avenue is a public right-of-way controlled and operated by the City; WHEREAS, the City has agreed to allow Coast Pacific, as the contract purchaser of the Property, to remove the Existing Improvements located upon the Property in consideration for adding similar road improvements within a portion of the Dale Avenue right-of-way located directly south of the Property (hereinafter the "New Improvements"), subject to plans and specifications approved by the City; and WHEREAS, the parties desire to enter into this Agreement in order to set forth their respective rights, obligations and liabilities in regard to such removal and construction of the Existing Improvements and New Improvements, respectively. NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as fo] lows: 1. Removal ofExistlng Improve.ment~_ The City hereby authorizes Coast Pacific to remove the Existing Improvements from the Property that currently encroach onto and encumber the Property. The area of the Property on which the Existing Improvements are Located is shown 09/25/2003 01:321= $ILVIR DI4VI$ PITKIN COUNTY CO R 31.~ D ~.0~ ~ 26 ee D eee in detail on that Right-of-Way Survey created by Aspen Survey Engineers, Inc. dated March 12, 2003, Job No. 32270C, a copy of which is attached hereto as Exhibit A and incorporated herein by reference. The Existing Improvements consist of all physical improvements related to the existing roadway located upon the Property, which improvements may include without limitation asphalt, asphalt fabric, concrete, gravel and other road base materials. The cost of removing the Existing Improvements, including any planning, surveying, design, construction and testing costs related thereto, shall be borne solely by Coast Pacific. Coast Pacific shall abide by all pertinent provisions contained within Chapter 21 of the City's Municipal Code in regard to such removal actions, including without limitation requirements for obtaining any and all permits and approvals necessary for work within a City public right-of-way. 2. Construction of New Improvements. Coast Pacific shall, subsequent to or simultaneously with the removal of the Existing Improvements from the Property as set forth in Paragraph I above, construct and install the New Improvements within the Dale Avenue right-of- way located to the south of the Property in that area shown in detail on Exhibit A. The New Improvements to be constructed and installed by Coast Pacific within the Dale Avenue right-of- way may include without limitation necessary road materials such as asphalt, concrete, gravel and other road base materials, the installation of which shall conform with mad follow all pertinent provisions contained within Chapter 21 of the City's Municipal Code and the latest City Engineering Department Practice Standards on file with the City in regard to construction within public rights-of-way. The cost to construct the New Improvements within the Dale Avenue right-of-way shall be borne solely by Coast Pacific. 3, Closing Contingency. The parties hereby agree and acknowledge that Coast Pacific's obligations to perform any of the improvements work herein described shall be contingent upon the successful closing on the Property by Coast Pacific and CPC. To the extent that Coast Pacific does not close on the Property under the existing contract, Coast Pacific shall not be obligated to perform any of the work contemplated herein. 4. Damage to Adjacent Property. Coast Pacific shall promptly repair, in a good and workmanlike manner, any damage to any property located adjacent to either that portion of the Dale Avenue fight-of-way removed or that portion to be constructed as a result of any construction activities undertaken in connection therewith by Coast Pacific or its agents. 5. ~. Coast Pacific shall indemnify, assume the defense of and hold free and harmless the City from any and all obligations, liabilities, claims, demands, loss, damage, injury, suit, cost or causes of action whatsoever (including reasonable attorneys' fees) in any way due to bodily injury (including death) and/or property damage or loss of use arising out of the activities of Coast Pacific and its agents undertaken pursuant to this Agreement. Coast Pacific covenants and agrees not to suffer or permit any lien o f mechanics or materialm en or others to be placed against any City-owned or controlled right-of-way with respect to work or services claimed to have been performed for, or materials claimed to have been t~nished to, Coast Pacific or its agents in connection with those activities contemplated herein or otherwise. 2 Page: 2 of 0B/25/20~3 01:32P SlLVI~ I~VIS P~TKZN COUNTY CO R 31 S[LVlR DAVIS PITKIN COUNTY 6. Public Right*of-Way Setback,q. The parties hereby agree that notwithstanding the historical location of Dale Avenue right-of-way improvements on the Property, or the grant of any easement by Coast Pacific to the City for a sidewalk or similar improvements on the Property, if any, the City shall grant to Coast Pacific as part of any subdivision approval related to the Property any and all public right-of-way setback variances necessary to allow the maximum allowed development of the Property and that no public right-of-way setbacks shall in any way deduct from or otherwise diminish the Property's development potential or reduce or otherwise adversely affect all owable floor area, allowable density, or any other applicable dimensional requirements related to the Property, as such may be amended from time to time. 7. Miscell~eous. a. Recording. This Agreement shall be recorded in the real property records of Pitkin County, Colorado. b. Modifications. This Agreement may not be modified or amended except by written agreement of the parties. c. Assi~mment; Termination. To the extent that Coast Pacific does not close under the existing contract to purchase the Property, the rights and obligations of Coast Pacific hereunder may be assigned to CPC' without the consent of the City but may not be assigned to any other third party without the prior written consent of the City. To the extent Coast Pacific does not close under the contract to purchase the Property and this Agreement is not assigned to CPC or another third party, this Agreement shall automatically terminate and be of no further force or effect. d. Governing Law; Atto..meys' Fee~, This Agreement shall be governed by the laws of the State of Colorado and either party may enforce this Agreement by appropriate action and the substantially prevailing party shall be awarded their reaso*nable costs and attomeys' fees incurred in such enforcement from the other party. e. Runs with the Land. Subject to those termination provisions set forth above, the rights; benefits and b~dens of this Agreement shall inure to and be binding upon the parties and their respective successors and assigns and shall be appurtenant to and shall run with the title to the Property. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. 3 By: Page: 4 of" 5 e?/21/28e3 ~. :sip SiLVtl~ DRVI$ PITt(IN ¢O'dNTY CO R 26.e'~) D, ~.1~8 COAST PACIFIC ASSET MANAGEMENT, INC. ' ~.m~ o e~ing~.e.~si. 4ent ...................... By: THE CITY OF ASPEN, COLORADO Nick Adeh, City Engineer APPROVED BY: John.Worcester, City Attomey APPROVED AND ACKNOWLEDGED BY: THE CRYSTAL PALACE CORPORATION, a Colorad° corporation and current owner of and holder of title in and to the Property F~.~ead Metcalf, President / 4 III/ IIII ~712112~03 $;LVI[R DRV~S P[TKIN COUNTY CO R 26.'ee STATE OF ~-_.I~. {-o~ o~ ) ) COUNTY OF ~ ~O~le.'~ ) SS. The foregoing instrument was acknowledged before me this I ~ day of May, 2003, by William Boehringer as n,~:~ .... .................................... ~-,-,,,~-,, ~,,,.,.,-a C,~li~%m/a Witness my hand and official seal. ............. · ..,,7 My commission expires: Notary~Jblic COUNTY ) ) ) SS. The foregoing instrument was acknowledged before me this day of May, 2003, by F. Mead Metcalf as President of The Crystal Palace Corporation, a Co"'~orado corporation. Witness my haad and official seal. . .' .;,,¢. ,.~ My commission expires: ,~ i ~ , ~ o o ~ / ~/:.,. 3015288_6.DOC lPW-04/30/2003-G:\john\word~agr\DaleAve. Boehr. ROW Agr.doc ~/25/2~3 $1:32P SILVER D~VIS PITKIN COUNTY CO / / / / /- / / / Page: 6 o~ 6 09/25/2~e3 01:32P SZLVI~ D~V~S PITt(IN COUNTY CO R 31 ,eO D e',00 EXHIBIT "A" /! /! // / l / / / 1 I ! i Memorandum Ihe Dirt ol~llsl]en Cil'i' II~rne't"s TO: Mayor and Members of Council FROM: John P. Worcester DATE: March 10, 2003 Dale Avenue Right-of-Way Improvements Agreement Attached for your consideration and review is a Resolution that, if approved, would authorize the City Manager to execute on behalf of the City a Right-of-Way Improvements Agreement. The Agreement was proposed to the City by the owner of a property on Dale Avenue. This entity, Coast Pacific Asset Management, Inc. is in the process of purchasing [he property in question and has determined that Dale Avenue was actually built on their property. Please see the attached map which shows the area in question. Dale Avenue was constructed so that the "edge of pavement" is on Lot 5-A. The Agreement proposes that Dale Avenue be reconstructed so that it is in the actual right of way. To accomplish this, the agreement proposes that Coast Pacific Asset Management, Inc. pay for the reconstruction of Dale Avenue by moving it to the south of its current location and off of Lot 5-A. Please note that properties south of the existing Dale Avenue contains several encroachments onto the Dale Avenue Right-of-Way. Those owners have been made aware of the situation and several meetings have been held with them on site with the City Engineer. One owner has agreed to the relocation and proposal, one is opposed, and one has indicated some reluctance to the agreement. The City Engineer is of the opinion that the proposed agreement is in the best interests of the City. The owner of Lot 5-A will, at his expense, move the actual pavement off of Lot 5-A and locate it within the ri,~ht-of-way. The owner has also agreed to construct concrete curb and gutter and a sidewalk along~he northern edge of the right-of-way. Requested Action: Resolution authorizing the City manager to execute the Agreement. CITY MANAGER'S COMMENTS' ff"~.,r.~. .... 0 .e, ,- ,-~,~ ' ..r~Z'( /~ ..,.~ .,_ ,./ .. " '--' "-"T'-''~''''~ ~,,~,.,97,. ~' , c,'ct cc: City Engineer HOLLAND & HART LLP ATTORNEYS AT LAW DENVER · ASPEN BOULDER · COLORADO SPRINGS DENVER TECH CENTER BILLINGS · BOISE · CASPER CHEYENNE · JACKSON HOLE SALT LAKE CITY · SANTA FE WASHINGTON D.C 600 EAST MAIN STREET SUITE 104 ASPEN, COLORADO 81614 TELEPHONE (970) 925-3476 FACSIMILE (970) 925-9367 Shane J, Harvey sharvey@ hollandhart.com HAND DELIVERED John Worcester, Esq. City of Aspen 130 S. Galena Aspen, CO 81611 March 4, 2003 RE: COAST PACIFIC ASSET MANAGEMENT, INC. - DALE AVENUE RIGHT-OF-WAY AND PROPOSED IMPROVEMENTS AGREEMENT Dear John: We represent Coast Pacific Asset Management, [nc., the contract purchaser of that property located in Aspen, Colorado known as Lot 4A and Lot 5A, Independence No. 2 Subdivision (the "Property"). As you know, as part of the due diligence undertaken by Coast Pacific under the Contract, it was discovered that a portion of the existing Dale Avenue road improvements are located outside the Dale Avenue right-of-way and actually encroach upon the south-easterly portion of the Property. In December of 2002, I prepared a draft Right-of-Way Improvements Agreement ("ROW Agreement") whereby Coast Pacific agreed, to the extent it closed on the Property, to remove the existing pavement and related improvements located on the Property and install a similar amount of pavement and related improvements within the Dale Avenue right-of-way in order to move the road off of the Property and wholly into the adjacent existing right-of- way owned and controlled by the City. Upon the parties arriving at a mutually acceptable version of the agreement, the agreement was scheduled to be presented and, hopefully, approved at a City Council meeting. However, before this could occur, several neighbors of the Property apparently voiced concern that they had not been notified or consulted about the proposed agreement. As a result of the various neighbors' comments and concerns, you asked that my client take the lead in consulting with the neighbors about the proposed re-alignment of Dale Avenue and attempt to reach a mutually agreeable resolution in regard thereto. In the last two months, we have convened three meetings on-site with the various neighbors and/or their representatives. Present at each meeting was the City Engineer, Mr. Nick Adeh. Furthermore, HOLLAND &: HART LLP ATTORNEYS ATLAW March 4, 2003 Page 2 my client has expended substantial time and money in order to reach a resolution with the neighbors as you previously requested. To date, no mutual resolution has been agreed upon by all parties. The most recent proposal for the roadway alignment as discussed between all parties at the last meeting is currently staked along both sides of Dale Avenue. This alignment consists of a twenty-three foot (23') wide roadway, commencing at the boundary of the Property and extending 23' to the south into the right-of-way. This alignment of the roadway has been approved by Nick Adeh and is shown on that survey enclosed herein for your review. Mr. Adeh has reiterated numerous times to Coast Pacific and the neighbors that this is the narrowest possible roadway that can be constructed within the right- of-way due to public health, safety and welfare concerns. Apparently, any narrower access will not allow adequate emergency vehicle access to residences located along Dale Avenue. I would encourage you to speak directly with Mr. Adeh about his analysis of the proposed realignment of Dale Avenue and the options open and acceptable to the City in his opinion. Based on Mr. Adeh's input and suggestions, Coast Pacific has agreed to the installation of roadway in this proposed location and is prepared to pay for the installation of pavement in this alignment. The proposed roadway alignment and 23' width does not result in the loss of any improvements that have been placed in the right-of-way by any of the neighbors, including any vegetation, walkways or mailboxes, and only adds approximately two more feet of pavement in front of the house directly across the street from the Property (where two of the three neighbors live). Despite this fact, only one of the three neighbors who have spoken out against the Dale Avenue realignment has signed off on the proposed location, AccordinglY, CoaSt Pacific has not been able to execute any type of agreement with the neighbors in regard to the proposed roadway realignment. I would also encourage you to speak to Mr. Adeh about my client's numerous efforts to convene meetings among the neighbors, make concessions to such parties, and reach a mutual resolution of this issue. In addition to attempting t° resolve the various right-of-way issues with the neighbors, Coast Pacific has agreed to pay for and install curb and gutter along the boundary of the Property and the Dale Avenue right-of-way, as well as granting an easement to the City for a five-foot sidewalk directly on the Property. This agreement by Coast Pacific has been made notwithstanding the fact that the City arguably should require these improvements to be placed in their proper location: that unused 17' feet of ample City right-of-way existing on the south side of Dale Avenue. This concession has been directly made by HOLLAND & HART LLP ATTORNEYS AT LAW March 4, 2003 Page 3 Coast Pacific on behalf of the neighbors to the south of Dale Avenue. Coast Pacific also understands that such improvements not only directly benefit the Property, but all users of Dale Avenue in regard to public health and safety concerns. Coast Pacific believes that, based on the numerous options considered to date and Mr. Adeh's input in regard to this issue, the currently proposed alignment presents the most sensible solution to the present issue and results in the least impact on the neighbors. Clearly it is within the City's right to utilize much more of the existing 40' right-of-way than 23' if it chose to do so or was otherwise required to do so for public health and safety considerations. The resolution of this issue should not be ultimately left up to two property owners whose improvements currently encroach into the City's right-of-way and who are arguably not adversely affected by the realignment. The current proposal results in an insubstantial decrease in the existing "parking area" located in front of the neighboring lots and a de minimus impact on the adjacent neighbors. Again, no existing encroachments of the neighbors would be required to be removed as a result of the currently proposed roadway alignment. In an attempt to keep this matter moving forward, I have revised the draft ROW Agreement between the City and Coast Pacific that I last sent to you in December in connection with this issue. Again, this agreement clearly sets forth the obligations of my client to remove the existing roadway located upon the subject property and to bear all costs related to installation of new roadway in that alignment ultimately approved by the City. Based on the recent attempts to work with the neighbors in regard to the right-of-way issues to no avail, the revisions I have made to the agreement delete the previous provisions obligating Coast Pacific to attempt to reach a mutual resolution with all of the neighbors in regard to the ultimate alignment of the roadway. All other provisions have remained the same. My client requests to have the issue of the ROW Agreement added to the agenda for next Monday's City Council meeting. Coast Pacific wants the ability to address this issue with the City Council (if necessary) and (if necessary) defend the merits of the currently proposed alignment. The forum will also allow Mr. Adeh to speak to the current proposal and public health and safety concerns from the City's perspective in regard thereto. This is the last opportunity my client will have to address this issue with the City Council prior to expiration of the due diligence deadline under the contract for purchase of the Property (which deadline has already been extended twice in order for Coast Pacific to try and resolve matters with the neighbors). HOLLAND & HART LLP ATTORNEYS AT LAW March 4, 2003 Page 4 Please call me as soon as possible after reviewing this letter to discuss any questions or concerns that you may have in regard to the issues discussed in this letter and to confirm that this issue can in fact be added to next week's agenda. SJH:om 6r Holl'anyart LLP cc: Coast Pacific Asset Management, Inc.