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HomeMy WebLinkAboutresolution.council.078-00 RESOLUTION NO. 78 (SERIES OF 2000) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN AGREEMENT BETWEEN THE CITY OF ASPEN AND WESTVIEW HOLDINGS, L.L.C., AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN WHEREAS, there has been submitted to the City Council an agreement between the City of Aspen, and Westview Holdings, L.L.C., regarding certain land use dedication fees for Lot 6 of the Aspen Meadows Final SPA, a copy of which agreement is annexed hereto and part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO. Section One That the City Council of the City of Aspen hereby approves that certain agreement between the City of Aspen and Westview holdings? L.L.C, a copy of which agreement is annexed hereto and part thereof, and does hereby authorize the City Manager to execute said amendment on behalf of the City of Aspen. Dated: ~ t~ , 2000. I, Kathryn Koch, duly appointed and acting City Clerk do certify that the foregoing is a tree and accurate copy of that reso~ii'~on adopted by the City Council of the City of Aspen, Colorado, at a meeting held ~ ~ ,2000. · -:~' Kathryn S. K~h, C~ty-Clerk ' JPW-06/21/2000-G: \john\wont\resos\meadows-lotg.doc AGREEMENT THIS AGREEMENT is made and entered into this __, day of 2000, by and between the City of Aspen, a Colorado municipal corporation (hereinafter "City") and Westview Holdings, L.L.C., a Colorado Limited Liability Company (hereinafter "Westview"). RECITALS Westview is the owner of the following described Real Property situated in the City of Aspen, Pitldn County, Colorado: LEGAL DESCRIPTION: Lot 6, Aspen Meadows final S.P.A. development Plan and final subdivision Plat A, Subdivision located in the North ½ Section 12, and the South ½ Section 1, Township 10, South, Range 85 West of the 6t~ P.M. Pitkin County, State of Colorado recorded in Book 28 at Page Five (hereinafter "Lot 6"). The above described property was improved with six (6) partially completed Townhomes (hereinafter "The Promontory"), that have been removed by Westview. Westview or its predecessors in interest as owners of Lot 6 have paid to the City of Aspen and/or its agencies various fees for Park Dedication and Employee Housing Mitigation as set forth below. The parties desire to provide for the disposition of these funds and other matters as set forth herein. NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows: I. Deconstmction of Improvements. The City acknowledges that Westview has completed the process of demolition and deco.nstruction of the to ~w3~home un~s situated on Lot 6 pursuant to Demolition Permits #s ~)f~ 7 ~/9~:~d ~,~.$t~P~ly issued by the Building Department of the City of Aspen and that such demolition and deconstmction was performed in compliance with all applicable City ordinances and requirements. 2. Re-vegetation & Restoration. Within sixty (60) days of the date of this agreement, Westview agrees to submit to the City's Parks Departments for approval of a re-vegetation and landscaping plan for Lot 6. The City agrees not to unreasonably withhold or delay its approval of such plan so long as it is consistent with the landscaping on other undeveloped lots in the surrounding Aspen Meadows area and the historical use of Lot 6 prior to the development of The Promontory. Westview agrees to implement the re-vegetation and restoration plan by October 1, 2000. 3. Fees Paid to The City of Aspen. Westview is the current owner to the rights and benefits of all charges and fees paid to the City and/or its various departments paid by its predecessors in interest as owners of Lot 6, including Community Development Group of the Aspen, L.L.C. These fees include the following: A. Park Dedication Fee: $ 21,840.00 B. Housing Mitigation Fees: $896,400.00 All rights to these funds are by this Agreement absolutely and irrevocably conveyed to the City and Westview waives all rights to a refund of these funds, subject to the following: i. Housing Mitigation Fees. Westview shall receive a credit in the amount of $896,400.00 which may be applied, in whole or in part, towards any future employee housing mitigation impact fees (or any similar fees hereafter imposed by the City, however denominated) which may be required in the event of future development of Lot 6 or any portion thereof. This credit amount shall automatically increase cumulatively at the lesser of either (1) five percent (5%) per annum, or (2) an amount (based upon the Consumer Price Index, All Items, U.S. City Average, All Urban Consumers (CPI-U) 1982-84--100, published by the U.S. Department of Labor, Bureau of Labor Statistics) calculated as follows: The credit amount multiplied by the CPI-U last published prior to the date of Westview's notice of desire to use the credit, divided by the CPI-U current as of the date of this Agreement (the parties agree that the CPI-U for March, 2000, was 171. I). If the calculation of the cumulative annual increases in the credit amount as aforesaid would result in the credit being less than $896,400 (i.e. if there is a net decrease in the CPI-U) then the credit shall be deemed to be $896,400. Further, if the CPI-U is discontinued, comparable statistics on the purchasing power of the consumer dollar published by the Bureau of Labor Statistics of the United States Department of Labor shall be used for making the computation above. If the Bureau of Labor Statistics shall no longer maintain statistics on the purchasing power of the consumer dollar, comparable statistics published by a responsible financial periodical or recognized authority reasonably acceptable to Westview and the City shall be used for making the Page 2 computation above. If the base year "1982-84=100" or other base year used in computing the CPI-U is changed the figures used in making the adjustment above shall be changed accordingly so that ail increases in the CPI-U are taken into account notwithstanding any change in the base year. Employee housing mitigation impact fees shail be determined pursuant to the City's regulations in effect at the time of any future development, but Westview shall be entitled to a full credit in the amount of $896,400.00 plus the annual cumulative increases, provided for above, towards any housing mitigation fees required. All unused portions of such credit shall not be forfeited, but rather shall continue to accrue interest as aforesaid and may be applied, in whole or in part, at the time of any subsequent additionai development or redevelopment of Lot 6. In partiai consideration of the waiver of any refund of these housing mitigation fees, it is agreed that Westview, in the event of future development of Lot 6, shall retain the right to make a "cash-in-lieu" payment as opposed to the actual construction of on or off site housing despite any changes to the Aspen Municipal Code, the Asper~Pitkin County Housing Authority, or any successor thereto, which may occur in the future, and that the aforesaid credits shail be applicable towards such "cash-in-lieu" payment. ii. Park Dedication Fees. Westview shail receive a credit in the amount of $21,840.00 which may be applied, in whole or in part, towards any future park dedication fees which may be required in the event of future development of Lot 6 or any portion thereof. This credit amount shail automatically cumulatively increase at the rate of five percent (5%) per annum commencing on the date of the execution of this Agreement until such credit is applied. iii. In the event that Lot 6 is subdivided into smaller lots, both the employee housing mitigation credits and the park dedication credits may be ailocated prorata among such sub-lots, based on the relative square footage of each such sub-lot in proportion to the overail square footage of Lot 6. 4. Existing Land Use Approvais. The parties agree that the existing Land Use Approvais granted pursuant to "THE ASPEN MEADOWS" Specially Planned Area Development and Subdivision Agreement, recorded January 24, 1992, in Book 667 at Page 731 and Ordinance No. 14, Series of 1991 by the Aspen City Council recorded in Book 762 at Page 811, and all subsequent amendments thereto (hereinafter the "Land Use Approvals"), shail be deemed to be a site specific development plan. The parties further agree that the execution of this agreement shall not affect any rights which Westview may have regarding common law and statutorily vested rights pursuant to the laws of the State of Colorado, and shall not expire, subject only to the following: Page 3 A. Nothing shall exempt the existing Land Use Approvals from subsequent reviews and approvals required by the general roles, regulations and ordinances of the City of Aspen provided that such reviews and approvals are not inconsistent with the existing approvals referred to above. B. The existing Land Use Approvals shall not preclude the application of ordinances or regulations which are general in nature and are applicable to all property subject to land use regulation by the City including, but not limited to, building, fire, plttrnbing, electrical and mechanical codes. In this regard, as a condition of this site development approval, Westview shall abide by any and all such building, fire, plumbing, electrical and mechanical codes, unless an exemption therefrom is granted in writing. C. The applications of new ordinances developed to address the discovery of natural or man-made hazards on or in the immediate vicinity of Lot 6, which hazards could not reasonably have been discovered at the time of existing site specific development plan approval, and which hazards, if uncorrected, would pose a serious threat to the public health, safety, and welfare. 5. Trail Easement. At such time as construction is complete on all trails located in easements on Lot 6, including the "Picnic Point" Trail Easement and the trail easement along the easterly edge of Lot 6 along Meadows Road, Westview and the City agree that there shall be an "as built" survey performed at the City's expense showing all trail easements affecting Lot 6. At the time of the completion of the trail easements affecting Lot 6 and the "as built" survey the parties agree to execute and record in the public records appropriate documentation vacating the Temporary Access Easement recorded in Book 667 at Page 864 of the records of Pitkin County and the prior "Picnic Point" Trail Easement covering the northwest comer of Lot 6, and stipulating that the trail easements as set forth on the "as- built" survey comprise the sole trail easements encumbering Lot 6. The City hereby acknowledges and agrees that: i. The portion of the "Picuic Point" trail currently construed on Lot 6 meets all of the City's design and safety criteria. ii. Neither Westview nor any successor owners of Lot 6 or any of their respective officers, directors, members, managers, shareholders, heirs, personal representatives, successors or assigns (collectively, the "Owner Parties") shall have any liability or responsibility whatsoever as a result of the "Picnic Point" trail segment on Lot 6 not being construed in the originally located easement (to the extent of any discrepancy between its as-built location and the original easement location), or for the operation, maintenance or condition of such trail or the trail to be located along the easterly edge of Lot 5, or for any accidents or incidents occurring on either such trail. Page 4 Without limiting the foregoing, the City, to the fullest extent permitted by law, hereby agrees to INDEMNIFY, DEFEND and HOLD HARMLESS the Owner Parties from, against, and with respect to any and ail losses, costs (including, without limitation, reasonable attorneys' fees), expenses, claims, demands, and causes of action of any nature whatsoever (collectively, "Damages") resulting from the existence of use of any public trails or trail easements located on Lot 6 or any portion thereof, even if it is aileged or proved that the Damages claimed are caused, in whole or in part, by the negligence or strict liability of the Owner Parties, but not to the extent that any Damages are caused by the willful misconduct of the Owner Parties. The foregoing release and indemnification provisions shail survive the execution hereof without limitation as to time, and shail be incorporated and restated in the documentation to be executed and recorded by the parties upon the completion of the "as-built" survey referenced above. 6. Binding Effect. The provisions hereof shail run with and constitute a burden upon the title to Lot 6 and shall be binding upon and shail inure to the benefit of Weswiew and the City, their respective heirs, personai representatives, successors and assigns, including, without limitation, all successor owners of Lot 6, or any portion thereof. 7. Severabilit¥. If any of the provisions of this Agreement or any paragraph, sentence, clause, phrase, word or section or the application thereof in any circumstances is invaiidated, such provision, paragraph, sentence, clause, phrase, word or section shail be severed from the Agreement and the remainder shall remain in full force and effect and shail be construed, to the fullest extent possible in such a manner as to preserve the original intent of the pa~ies hereto as set forth herein. 8. Entire Agreement; Amendment. This Agreement contains the entire undersl2mding and agreement between the parties herein with respect to the transactions contemplated hereunder and may be aitered or amended from time to time only by written instrument executed by each of the parties hereto. 9.~ Reasonableness. In all dealings with one another under, and in connection with all determinations or interpretations that are to be made pursuant to this Agreement, the parties hereto, their agents, employees, designees and affiliates, and any third parties cailed upon to make any determination pursuant to the provisions of this Agreement, shail conduct themselves reasonably, fairly and in good faith. 10. Attorney Fees. In the event of any dispute arising under this agreement resulting in litigation between the parties, the prevailing party therein shall be entitled to the award of its reasonable attorneys fees and costs therein in addition to any other relief to which it shall be entitled, all as shail be determined by the Court having jurisdiction there over. P~e5 11. Counterparts. This Contract may be executed in multiple counterparts, each of which shall constitute an original, and all of which taken together shall constitute one and the same document. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year first above-written. ATTEST: THE CITY OF ASPEN, COLORADO, a Municipal Corporation ~2athryn Ko~, City Clerk WESTVIEW HOLDiNGS L.L.C., a Colorado limited liability company By: ~"~_~.~~~"-'-'7 / STATE OF COLORADO }, SS. COUNTY OF PITKIN On ~ ~.~Z) ~2000, RachelE. Richards, MayorfortheCityofAspen, Colorado, a municipal corporation, personally appeared before me, to be the signer of the above instmmem, ged that she signed it. Y HAND AND.OFFICIAL SEAL. ion expires: ~q /~- O~/ Notary Pub~ SS. COUNTY OF 15g On~ 2000, ~,~J~IbFOPJ~-,, ~OL/]~a~//~.Y!O'I~.as Manager of Westview Holdings LLC, a Coldrado limited liability company, personally appeared before me, to be the signer of the above instrument, and acknowledged that~' signed it. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: ~ nj ~ Notary Public ! b('~'"'l.I Nota~yPid~ ~l~lelTmm~ [ ~.:~~J'' ~ffi. 18, 2004 .......... _~ Page 6