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HomeMy WebLinkAboutordinance.council.073-92 ~548~& 0~/15/95 12:J8 Rec ~60.00 BK, ~O& PG 29 Silvia Da~is~ Pitkir Cntv C]r-~p n~ ~ ~- ORDINANCE NO. ~ (Series Of 1992) AN ORDINANCE RATIFYING AND APPROVING A SECTION M AMENDMENT TO THE FIRST AMENDED AND RESTATED PLANNED UNIT DEVELOPMENT/SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAIN SUBDIVISION. WHEREAS, on September 29, 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 Ritz Carlton Hotel component of the Aspen Mountain Subdivision; and WHEREAS, a hearing was conducted before city Council on October 26, 1992, during which Savanah successfully demonstrated that the reasons necessitating extension in the subject construc- tion 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: ,f,~J~548~6 .3o/]..¢/,5 i2:~8 Rec $60.00 E~... ?O& PG ~0 Silvia Davi'~'~ F'itkin Cr¢:y C:l. el¢'l.,:~ Doc $.0C, 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 (recorded in Book 627 at Page 457 in the records of the Pitkin County Record- er), June 10, 1991 (recorded in Book 654 at Page 418 in the records of the Pitkin County Recorder), and August 10, 1992 (recorded in Book 689 at Page 317 in the records of the Pitkin County Recorder) are amended to provide as follows: From T__o 1. Final Certificate of Occupancy for the Ritz Carlton Hotel 10/1/92 12/4/92 2. Completion of exterior of hotel property and hardscape along public rights-of-way 10/1/92 12/4/92 3. Lot 6 clean up 10/1/92 12/4/92 4. Certificate of Occupancy Summit Place 8/1/93 8/1/94 5. Demolition Permit for Lot 5, Grand Aspen Hotel 10/1/95 reaffirmed at 10/1/95 Section 2 The amendments as provided for herein are subject to all the terms and conditions as set forth in that written decision issued by city Council pursuant to Savanah's petition dated September 29, 1992, requesting the extension in the above-described con- struction schedule deadlines, a copy of which is attached hereto as Exhibit 1. ~'~54856 0JI1519~ 1.~....8~ ?,Rec ~60.00 BK ?0~ PG Silvia Davis~ F'itkin Cnty Cler. k~ Doc $.00 Section 3 The amendments as provided for herein are 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 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 =J~ day of ~~ , 1992, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. . . 3.~. 1~/95 1.~,.._8 Rea~' ¢60. :x> k~l',:' ?0~ F'G ~2 S:~lvia Davis~ I-ltk~.r~ Cnty Clerk,¢ Doc INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the ~/-~-'~'day of ~ , 1992. John~. Bennett, Mayor ATTEST: 'Ka~ryn ~Koch/, ~ity Clerk FINALLY adopted, passed and approved this ~ day of ~ , 1992. John'S. Bennett, Mayor ATTEST: E~~ ~ity Cler/ jc1029.3 4 ~1~]5548~56 0J/15/gzl 12::58 Rec $60.00 BK ~0~ PG ~ Siivia Davis, Pitkin Cnty C].e~r.k, Doc $,00 BEFORE THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO IN RE THE MATTER OF SAVANAH LIMITED PARTNERSHIP'S REQUEST FOR A SECTION M AMENDMENT TO THE FIRST AMENDED AND RESTATED PLANNED UNIT DEVELOPMENT/SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAIN SUBDIVISION AND SAVANAH'S NON-COMPLIANCE WITH CERTAIN TERMS AND CONDITIONS OF SAID AGREEMENT AS AMENDED. This matter is before the City Council upon the petition of Savanah Limited Partnership ("Savanah") pursuant to Section M of the First Amended and Restated Planned Unit Development/Sub- division Agreement for the Aspen Mountain Subdivision ('~PUD Agreement"), seeking an extension in the construction scheduling for Subdivision development, and Savanah's request for a hearing concerning its non-compliance with certain construction deadlines contained in the PUD Agreement. Pursuant to Savanah's petition and request, a public hearing was convened upon notice on October 26, 1992. Savanah appeared, with legal counsel, and produced testimony and other evidence in support of its petition. City staff persons and members of the public were also offered an opportunity to be heard. Having heard all of the offered testi- mony and argument and having reviewed the documentary evidenceias submitted and made part of the record herein, the city Council finds as follows: 1. On September 29, 1992, Savanah Limited Partnership submitted a written petition to the City pursuant to Section M of the PUD Agreement seeking an extension in the construction schedule deadline for the Ritz Carlton Hotel component of the subdivision. Specifically, Savanah asked that the established deadline for obtaining a certificate of occupancy for the hotel be extended from October 1, 1992, to and until November 9, 1992. 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 expressly acknowledge and agree that the City Council shall not unreasonably refuse to extend the time peri- ~K]~54856 05115/95 12:~8 Rec $60.00 BK ?O& PG Silvia Davis.~ Pitkin Cnty Cter~k~ Doc $.00 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 the control of Owner, despite good faith efforts on its part to perform in a timely manner." 3. Savanah has alleged that the following facts and/or circumstances have caused delays in the progress of the construc- tion of the Ritz Carlton Hotel component of the subdivision and that such facts and circumstances were beyond its control: (i) Unavailability of skilled labor in sufficient numbers to meet construction demands despite area and region-wide recruitment efforts and the imple- mentation of overtime working schedules; (ii) Weight restrictions on the Maroon Creek Bridge as imposed by the Colorado Department of Transporta- tion causing unavoidable extensions in concrete delivery and pouring schedules and other material deliveries; (iii) Severe and abnormal snowstorms in October, 1991, which delayed installation of the roofing member of the main hotel building. 4. In addition to the extension requested as to the certificate of occupancy for the hotel, Savanah has also asked to be allowed to extend completion deadlines for the exterior of the hotel property and hardscape along public rights-of-way and the clean-up of Lot 6 of the subdivision to and until October 10, 1992. 5. City Council finds the Savanah has been able to demon- strate by a preponderance of the testimony and evidence as established in the record that its failure to meet the October 1, 1992 deadline date for the issuance of a certificate of occupancy for the Ritz Carlton Hotel resulted from those facts and circum- stances as summarized in Paragraph 3 above, and that such facts and circumstances were beyond Savanah's control despite its good faith efforts to perform. 6. City Council further finds that a more realistic and obtainable deadline for the issuance of a certificate of occupan- cy for the Ritz Carlton Hotel is December 4, 1992, and not November 9, 1992, as requested by Savanah. 2 ~I4~554.856 015/15/95 ] ....... J8 Rec ~s6(~.(')o BK ?06 PG ~5 Silvia Davis~ F'~t-~n C~t.y Cler'k~ Doc $.00 NOW, THEREFORE, BASED UPON THE ABOVE AND FOREGOING, City Council does hereby grant to Savanah Limited Partnership the following extensions to the construction schedule deadlines for the Aspen Mountain Subdivision, which extensions shall be incor- porated into a written amendment to the PUD Agreement pursuant to Sections M and 0(6), subject to those terms and conditions as set forth below: EXTENSIONS From To 1o Final Certificate of Occupancy for the Ritz Carlton Hotel 10/1/92 12/4/92 2. Completion of exterior of hotel property and hardscape along public rights-of-way 10/1/92 12/4/92 3. Lot 6 clean up 10/1/92 12/4/92 4. Certificate of Occupancy Summit Place 8/1/93 8/1/94 5. Demolition Permit for Lot 5, Grand Aspen Hotel 10/1/95 reaffirmed at 10/1/95 CONDITIONS 1. Savanah shall immediately make available and ensure the use of eighty (80) parking spaces within the hotel garage for construction worker's vehicles so as to reduce the necessity and demand for on-street parking by construction personnel. Such parking spaces shall remain available for off-street parking by construction personnel until no longer needed as determined by the Director of Public Works. 2. Savanah shall immediately devise and implement a delivery schedule to regulate deliveries made to the Ritz Carlton Hotel and property. Such schedule must be approved by the Direc- tor of Public Works and establish set hours during which all deliveries to the hotel and hotel property shall be made. Said schedule shall remain in place until no longer needed as deter- mined by the Director of Public Works. 3. Savanah shall complete and execute escrow documents by November 2, 1992, securing Savanah's construction of the Ice Rink 3 ~1~554856 05/15/95 12:58 Rec ~60~00 BK ?O& F'G Silvia Davis, Pitkin Cnty Clerk~ Doc and Park on Lot 6 of the subdivision. All escrow documents shall be subject to approval by the City Attorney. 4. The effectiveness of the extensions 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. In the event that any condition as set forth above is not sub- stantially complied with, then the extensions 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 sanctions or penalties for its non-compliance, which may include the revocation or termination of any or all approvals contained in the PUD Agreement. NON-COMPLIANCE The City Council tables and continues until December 14, 1992, at the hour of 5 o'clock p.m., its deliberations and consideration relevant to sanctions and/or penalties, if any, to be imposed upon Savanah by reason of its non-compliance with the October 1, 1992 deadline date for the issuance of a certificate of occupancy for the Ritz Carlton Hotel. Done this ~__ day of ~~ , 1992, nuns pro tuns October ~6, 1992. THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO Jo Bennett, Mayor ATTEST: Kathryn S.~och, City Clerk jc1028.3 4 ~,%]s54856 05/15/95 -. Silvia Davis, Pitki. n Cnty 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 ~_7.-~ , 1992, provides as follows: RECITALS WHEREAS, on September 29, 1992, Savanah submitted a written petition to the City pursuant to Section M of the PUD Agreement seeking an extension in the construction schedule deadline governing the construction and completion of the Ritz Carlton Hotel component of the Aspen Mountain Subdivision; and WHEREAS, a hearing was conducted before the City Council on October 26, 1992, in accordance with Section M of the PUD Agree- ment relating to requests for extension of one or more time periods required for performance, during which Savanah success- fully demonstrated that the reasons necessitating the extension in the existing construction schedule deadline were beyond its control; 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 the parties thereto. NOW, THEREFORE, in consideration of the mutual covenants and conditions as contained herein, it is agreed that the provisions hereinbelow shall amend the PUD Agreement as follows: 1. 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 (recorded in Book 627 at Page 457 in the records of the Pitkin County Record- ed), on June 10, 1991 (recorded in Book 654 at Page 418 in the records of the Pitkin County Recorder), and on August 10, 1992 (recorded in Book 689 at Page 317 in the records of the Pitkin County Records), are amended to provide as follows: From T__o 1. Final Certificate of Occupancy for the Ritz Carlton Hotel 10/1/92 12/4/92 2. Completion of exterior of hotel property and hardscape along public rights-of-way 10/1/92 12/4/92 3. Lot 6 clean up 10/1/92 12/4/92 4. Certificate of Occupancy Summit Place 8/1/93 8/1/94 5. Demolition Permit for Lot 5, Grand Aspen Hotel 10/1/95 reaffirmed at 10/1/95 6. The amended construction schedule deadlines as provided for in paragraph 1 above shall be and remain in full 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", and incorporated herein that was issued upon and in response to Savanah's petition of September 29, 1992, seeking a Section M amendment. 7. All other terms and conditions of the PUD Agreement and the previous Section M amendments dated June 11, 1990, June 10, 1991, and August 10, 1992, not inconsistent with or superseded by this amendment, shall remain in full force and effect. 8. This amendment document shal. 1 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,. COLORADO John Bennett, Mayor ATTEST: Kathryn S. Koch, city Clerk 2 .~.t.].v~.a bavzs,¢ F'zz:kin Cr~ty £.~lc.*F'l.::~ Dc)(:: "r4s. OCf SAVANAH LIMITED PARTNERSHIP By: ASP/B~--~TERPRISES INTERNATION- By: ~ Attorney : SaV~nah Limited Partnership State of__ California __] ~ OPTIONAL SECTION ~ ~. CAPACITY CLAIMED BY SIGNER CountY of Lo s AnQ'e les ~ Though statute does not require the NoraW to ~ ~ ~ .,~ fill in the data below, doing so may prove invaluable to persons relying onthe document. 12 / 8 / 9 2 before me, Laurie Simon , [] iNDIVIDUAL DATE NAME, TITLE OF OFFICER - E,G., "JANE DOE, NOTARY PUBLIC" [] CORPORATE OFFICER(S) personally appeared Omar R. Benjamin President NAME(S) OF SIGNER(S) TITLE(S) [] personally known to me - OR - [] proved to me on the basis of satisfactory evidence [] PARTNER(S) [] LIMITED to be the person(s) whose name(s) is/are [] GENERAL subscribed to the within instrument and ac- [] A%I'ORNEY-IN-FACT knowledged to me that he/she/they executed [] TRUSTEE(S) the same in his/her/their authorized []GUARDIAN/CONSERVATOR capacity(les), and that by his/her/their E]OTHER: .~'~'~"~'~'~'~"~ signature(s) on the instrument the person(s), ~.-..?~!' ~UPd~ S~,~,~ or the entity upon behalf of which the i ('~.-*'~";~i~i~~ i~,; I person(s) acted, executed the instrument. ~ '%~~' ~''''S'~u~*¢ l, SIGNER IS REPRESENTING: ~ M~, Oc~m E×~r~ MAY ~6,~99¢ NAME OF PERSON(S) OR ENTITY(lES) ~ WITNESS my hand and official seal. Aspen Enterprises ~~~ International SIGNATURE OF NOTARY ~ 0PTIONALSECTI0~sl; ~mend ~ an~ es~ ~e~ ~±anne~ THIS CERTIFICATE MUST BE A~J'ACHED TO TITLE OR TYPE OF DOCUMENT Un]_t Deve~opment~'Sub~[:Lv]-s3-on Aqree- THE DOCUMENT DESCRIBEDATRIGHT: ment for the Aspen ~Ounta±n Subdiv. NUMBER OF PAGES 3 DATE OF DOCUMENT 10/26/92 Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. SIGNER(S) OTHER THAN NAMED ABOVE ©1992 NATIONAL NOTARY ASSOCIATION · 8236 Remmet Ave., P.O. BOX 7184 · Canoga Park, CA 91309-7184 Certific'ate of Secretary I, Clayton M. Corwin, do hereby certify that I am the duly elected, qualified and acting Secretary of Aspen Enterprises International, Inc., a Colorado corporation (this "Corporation"). I do further certify that as of the date hereof, the following persons are duly elected directors and/or officers of this Corporation, holding such office as set forth opposite-their-hame: Omar R. Benjamin Director and President Clayton Mo Corwin Director and Secretary R. Theodore Mueller, II Vice President and Treasurer IN WITNESS WHEREOF, I have hereunto set my hand and the official seal of this Corporation this 8th day of December, 1992. Secret.~y