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HomeMy WebLinkAboutresolution.council.147-00 RESOLUTION NO. Z'//7 Series of 2000/ A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A PRE- ANNEXATION AGREEMENT WITH RICHARD K. PETRICK, LLC, AND AUTHORIZING THE MAYOR AND THE CITY MANAGER TO EXECUTE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN. WHEREAS, there has been submitted to the City Council a Pre-Annexation Agreement between the City of Aspen and the Richard K. Petrick, LLC, a copy of which agreement is annexed hereto and made a part hereof; and WHEREAS, the City Council believes that it is in the best interests of the City that the development plan described in said pre-annexation be pursued at this time. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, that the City Manager and the Mayor are hereby authorized to execute said pre-annexation agreement and all related documents on behalf of the City of Aspen. Dated: //~ ~'-~) .2000. ard I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held /)/) ~ .9~ ? ,2000. thryn~S, oc, ity er JPW-11/20/2000-G: \j ohn\word\resos\petrick-preannex, doc Pre-Annexation Agreement Petrick Property Page 1 PRE-ANNEXATION AGREEMENT PETRICK PROPERTY THIS PRE-ANNEXATION AGREEMENT ("Agreement") is entered into and made on November 27, 2000, by and between the City of Aspen, a Colorado home role municipal corporation, whose address is 130 South Galena Street, Aspen, Colorado 81611, hereinafter referred to as the "City"; and Richard K. Petrick, LLC, 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 this Agreement by either the City Manager, Mayor, or Mayor Pro-Tem. RECITALS AND REPRESENTATIONS WHEREAS, the Landowner represents that it comprises 100% of all owners of a parcel of land commonly known as the Petrick Property, being more particularly described in Exhibit A appended hereto and incorporated herein by this reference ("Property Proposed to be Annexed"); 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 seq4 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 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 has, in accordance with C.R.S. Section 31-12-102, petitioned to have the Property Proposed to be Annexed to be incorporated within the boundaries of the City of Aspen. NOW, THEREFORE, in consideration of the mutual covenants contained herein, IT IS AGREED AS FOLLOWS: 1. Landowner acknowledges that annexation of property to the City of Aspen municipal boundaries is within the plenary legislative powers of the City Council and the decision to annex property is entirely within the sound discretion of the City Council and the rights of referendum and initiative reserved unto its citizens. Landowner further acknowledges that the following terms, conditions, and restrictions for future land use development of the Property Proposed to Pre-Annexation Agreement Petriek Property Page 2 Be Annexed are material considerations of the City Council in approving the annexation of the Property Proposed to Be Annexed. Failure to comply with this Pre-Annexation Agreement by the Landowner shall, in the sole discretion of the City Council, lead to de-annexation of the Property proposed to Be Annexed. 2. A major concern of the City in determining whether it is in the interest of the City to annex the Property Proposed to be Annexed is whether Applicant is able to adequately stabilize the slope on the property that was disturbed in the past or will be disturbed by additional construction on the property. Exhibit B shows the approximate location of the area designated for slope stabilization. Applicant is concerned that the cost of stabilizing the slope to the satisfaction of the City may be cost prohibitive. Accordingly, the parties hereto agree that the following is a specific condition precedent to the annexation of the Property Proposed to be Annexed. Within six months of the date of this Pre-Annexation Agreement, but before annexation, Applicant shall cause to be prepared and present to the City a detailed landscape and slope stabilization plan showing stabilization techniques to the City of Aspen's Community Development Department showing the size, species, quantity, and location of all existing and planned native vegetation and retaining walls in the areas proposed for slope stabilization and re- vegetation. The landscape and stabilization plan shall include an estimated budget for the total cost of the work. The presentation of the aforementioned landscape and stabilization plan to the City shall constitute Applicant's agreement to have the re-vegetation and stabilization plan implemented in accordance with this pre-annexation agreement following the annexation of the Property Proposed to be Annexed. If the re-vegetation and slope stabilization plan is determined to be acceptable by the City's Parks and Engineering Departments, the City Council shall approve and adopt an ordinance annexing the Property Proposed to be Annexed into the City limits of the City of Aspen. If Applicant fails to submit a re-vegetation and slope stabilization plan within six months of the date of this Pre-Annexation Agreement, then such failure shall be considered by the City as a withdrawal of the Petition to Annex by the Applicant, this Agreement shall become null and void, and the City shall be relieved of any obligation to annex the Property Proposed to be Annexed. 3. Any future development upon the Property Proposed to Be Annexed shall conform to the following conditions, restrictions and terms: a. If the property is rezoned to R-15, the Applicant shall provide one (I) accessory dwelling unit of at least 600 square feet of net livable space. The unit shall be deed restricted.to mandatory occupancy prior to the issuance of the Change Order to the building permit. This Condition may be waived by City Council if City Council makes a determination that adequate on-site parking for the accessory dwelling unit cannot be provided in a reasonable or appropriate manner. b. Unless the ADU requirement is waived pursuant to 3.a., above, the Applicant shall convey an undivided fractional interest in the ownership of the property to the Aspen/Pitkin County Housing Authority for the purposes of enforcing the mandatory occupancy deed restriction. The City Attorney shall approve the legal documents conveying the undivided fractional interest. The Applicant may submit an alternative option to satisfy the mandatory occupancy issue acceptable to the City Attorney. c. The Applicant shall indemnify and hold harmless the AsperJPitkin County Housing Authority and City of Aspen from any claims, liability, fees or similar charges related to Pre-Annexation Agreement Petrick Property Page 3 ownership of an interest in the property. The City Attorney shall approve the legal documents granting the indemnification set forth above. d. All exterior construction activity on the residential structure shall conclude on or before March 31, 2001. e. A conservation easement, deed restriction, or other similar mechanism acceptable to the City's Attorney's Office shall be placed over the entire parcel, excluding the residence, designated parking areas, and access. No development outside the existing building envelope and driveway(s) shall occur, excluding slope stabilization, re-vegetation, driveway grading, and fencing in compliance with the City of Aspen's Municipal Code. f. The property shall never be re-subdivided or further subdivided. g. Any future changes to the exterior of the building shall comply with all provisions of the then current City of Aspen Land Use Code, and be subject to an 8040 Greenline Review and Residential Design Standards, unless determined to be exempt pursuant to the standards in effect at the time. h. · The building shall be limited in size to that existing at the time the Certificate of Occupancy is issued, or the City's current Land Use Code, whichever is more restrictive. All construction in progress under a valid Pitkin County building permit at the time of annexation may be completed irrespective of this provision. i. The Applicant shall indemnify and hold harmless the City of Aspen from any claims, liability, fees or similar charges related to any and all damages to adjacent and downhill properties, including access and the public right-Of-way for all potential erosions and rock falls resulting from or above the subject property. j. The Applicant shall record a new plat showing all site improvements, including, the building envelope, access, parking areas, and retaining walls. k. The Change Order to the building permit application shall include: 1) A copy of the final and recorded City of Aspen Ordinance. 2) The conditions of approval printed on the cover page of the building permit set. 3) A completed tap permit for ~ervice with the Aspen Consolidated Sanitation District. A set of detailed plans showing all units need to be submitted to ACSD so that a detailed estimate of service fees can be performed. 4) Detailed plans demonstrating an adequate fire sprinkler system and alarm system for the new buildings. The applicant must replace the service line with a minimum of 2", or whatever is calculated by the sprinkler designer, as approved by the Aspen Fire Marshal, to provide the required flows. The plans must also include detailed information on how all of the potential residences' sprinkler systems will work together, 5) Detailed plans for the building showing units to the Aspen Fire Marshal so when smoke is detected in a unit the firemen know which level and location to go to. 6) Detailed building plans showing all unit s~parations and points of entry and ex]t. 7) All on-site drainage needs to be shown on the change order to the building permit application, including a drainage plan and an erosion control plan, prepared by a Colorado licensed Civil Engineer, demonstrating how sediment and debris on-site Pre-Annexation Agreement Petrick Property Page 4 during and after construction will be maintained. Ifa ground recharge system is required, a soil pemolation report will be required to correctly size the facility. A 2-year storm frequency should be used in designing any drainage improvements. The drainage plan is Subject to the City Engineer's approval. 8) A fugitive dust control permit for the remainder of the construction, if required by the City's Environmental Health Department. 9) Detailed re-grading plans for the south driveway demonstrating compliance with the City of Aspen's Municipal Code for driveways to the extent possible, approved by the City Engineer. The City Engineer shall approve the re-grading. 1. Prior to the issuance of a Change Order to the building permit: 1. All tap fees, impacts fees, and building permit fees shall be paid. If an alternative agreement to delay payment of the Water Tap and/or Parks Impact fee is finalized, those fees shall be payable according to the agreement. 2. Payment for Pitkin Mesa Drive street improvements in the amount of $3,000 to the City of Aspen. m. The Applicant shall implement the re-vegetation and slope stabilization plan referenced above at Section 2. The Applicant shall provide a Letter of Credit in an amount equal to one-hundred twenty percent (120%) of the estimate of the cost to perform the work set forth in the re-vegetation and slope stabilization plan referenced in Section 2 above to the City of Aspen for financial assurance that that the slope stabilization work will be completed within three (3) years of the annexation at the Applicant's expense. The Letter of Credit shall have an expiration date of three and one-half (3 ½) years beyond the date of the annexation of the property. If the re-vegetation and slope stabilization plan, as set forth in Section 2 above is not completed withh~ three years of the date of the annexation to the satisfaction of the City, the City may draw upon the Letter of Credit to complete the work~ If the Applicant implements the plan to the satisfaction of the City, the City shall provide an official letter detailing the Applicant's satisfaction of this requirement and releasing him of any further requirements with regard to the landscaping and stabilizing of slopes. n. The north driveway/access shall be abandoned and re-vegetated pursuant to Section 2 above. The north driveway/access shall be re-vegetated prior to the final building inspection for the structure. o. If there are any encroachments into the public rights-of-way, the encroachment must either be removed or be subject to current encroachment license requirements. p. The Applicant shall not track mud onto City streets during the construction. A washed rock or other style mud rack must be installed during construction. q. Metering and ownership of the water lines needs to be expressed through the condominiuna association and in the condominiumization documents. r. The primary contractor shall submit a letter to the Community Development Director stating that the conditions of approval have been read and understood. s. No excavation or storage of dirt or material shall occur within tree driplines or outside of the approved building envelope and access envelope. Pre-Annexation Agreement Petrick Property Page 5 t. All construction vehicles, materials, and debris shall be maintained on-site and not within public rights-of-way. u. The applicant shall abide by all noise ordinances. Construction activity is limited to the hours between 7 a.m. and 7 p.m. No construction activity is allowed on Sundays. v. All uses and construction shall comply with the City of Aspen Water System Standards and with Title 25 and applicable portions of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code as they pertain to utilities. w. The Applicant or owner shall mitigate any public impacts that this project causes, including but not limited to utility expenses and sanitary sewer and water lines. x. The Applicant shall provide a minimum of seven (7) parking spaces on site. Four (4) of the spaces shall be within the garage. This requirement may be reduced to six (6) parking spaces if City Council waives the ADU requirement pursuant to 3.a., above. 4. In the event that Landowner defaults in any of its duties as set forth herein, City shalI 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. 5. 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. 6. The panics hereto agree that this Agreement, by its terms, shall be binding upon and inure to the benefit of 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. 7. It is expressly understood and agreed that enforcement of the terms and conditions of this Agxeement, and all rights of action relating to such enforcement, shall be strictly reserved to the City and Landowner or successors, heirs, legal representatives, and assigns thereof 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. 8. 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. Pre-Annexation Agreement Petrick Property Page 6 9. The parties agree to execute any additional documents or take any additional action that is necessary to carry out this Agreement. 10. 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 requiting the consent of the City. 11. 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 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. 12. The City shall record this Agreement with the Clerk and Recorder's Office of Pitkin County. Landowner shall pay the reasonable cost of recordation of this Agreement. The terms, conditions, tights and benefits of this agreement shall mn with the lands to be annexed hereunder. 13. Unless otherwise stated in this Agreement, exhibits referenced in this Agreement shall be incorporated into this Agreement for all purposes. 14. 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 provismns 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 Property Proposed to Be Annexed, or the approval of any land use approvals as contemplated by this Agreemem, 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. 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 Property Proposed to Be Annexed has already occurred, City shall, upon its own volition or upon a petition for de-annexation submitted by Landowner, approve the de-annexation of the Property Proposed to Be Annexed. CITY OF ASPEN, a municipal corporation ATTEST: APPROVED AS TO FORM: City Clet~ -} ~('~ '~'~'7~ Pre-Annexation Agreement Petrick Property Page 7 LANDOWNER By: STATE OF COLORADO ) COUNTY OF PITKIN ) Acknowledged before me this day of 2000, by in his/her capacity as of Notary My commission expires: Pre-Annexation Agreement Peu:ick Property Page 8 STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) Acknowledged before me this day of 2000, by in his/her capacity as of Notary My commission expires: Pre-Annexation Agreement Petrick Property Page 9 LIST OF EXHIBITS A Legal description of property proposed to be annexed JPW-11/29/O0-G:\john\word\agr\petrick-pre annexation agreement.doe