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HomeMy WebLinkAboutbocc.con.253.2008 CONTRACT # 53 -'~/~~D 08:59 38 AM#: 550820, 07/04/2008 at APPROVED BY t OF 4, R $21.00 Doc Code AMEND CO~ESOLUTION Janice K. Vos Caudill, Pitkin County, 7~ ~ 73~~~c'~'%~% 1ST AMENDMENT TO NON-DEVELOPMENT COVENANT AND NON- DEVELOPMENT DEED RESTRICTION THIS 1ST AMENDMENT. is made an,d:..enter•ed into by and among Ziegler Pitkin County Colorado Property[, W isconsiri p8~tners'-:. hereinafter referred to as "Ziegler," Zipcorp, Inc., a Colorado corpbration; ~e~ ~+RaT:dr referred to as "Zipcorp," and the Board of County Commissioners of PitF': ~:.nty, Colorado, hereinafter referred to as the "BOCC." WITNESSETH: WHEREAS, on or about April 23, 1990, Ziegler and Zipcorp made a certain Non- DevelopmentCovenant for Ziegler Pond Lands restricting the lands described therein and agreeing that there would be no amendment to the Covenant without the approval of the BOCC, that was filed for 'record in the Office of the Clerk and Recorder of Pitkin County, Colorado in Book 623 at Page 880 as Reception No. 329919, hereinafter referred to as the "Covenant"; and WHEREAS, on or about April 23, 1990, Ziegler and Zipcorp made a certain Non- Development Deed-Restriction for Ziegler Owned Subdivision Lands restricting the lands described therein and agreeing that there would`lie no amendment to the Deed Restriction without the approval of the:~(~G~;'ftafi'Nid~ file' ~ ecord in the Office of the Clerk and Recorder of Pitkin Count ;=Cot©r~~if+'i~~ 5~.~;. y ~d at Page 882 as Reception No. 329920, hereinafter referred to as fhe "DP.-:,- r~>;;,inction"; and WHEREAS, Ziegler ~ ~ _ipcorp have entered into a contract to sell lands that are encumbered by the Covenant and the Deed Restriction to the Snowmass Water and Sanitation District, a Colorado special district, hereinafter referred to as "SWSD"; and WHEREAS, SWSD has requested Ziegler, Zipcorp and the BOCC to clarify thatthe development activity approved by the BOCC by Resolution No. 053-2008 that was filed for record in the Office of the Clerk and Recorder of Pitkin County, Colorado Reception No. 550139 and by Ordinance No. 013-2008 that was filed for record in the Office of the Clerk and Recorder of Pitkin County, Colorado as Reception No. 550138 does not conflict with the development contemplated under the Covenant and the Deed Restriction. NOW, THEREFORE; for.good and,vafuable consideration, the adequacy and sufficiency of which is hereby ackrowl~dgeii;' ZieplPr. Zipcorp and the BOCC covenant, S agree and amend the Coven~rif and`the ~'.-•ad `:~ctriction as follows: 9 Page 1 of 4 1 1. Covenant Amendrnents''The;Covi=hant`is amended as follows: ~..,a, .r~.~;. a. Paragraph No. fi is'alren~!d:d b;< the addition of the following at the end of the Paragraph: 6. In areas where this Covenant encumbers real property that is owned by the Snowmass Water and Sanitation District or in areas where the District has an interest in such real property by easement, the written consent of the Board of Directors of the District is required. b. Anew paragraph No. 7 is added, as follows: 7. Nothing contained herein will preclude, inhibit or impair development activities to be conducted on the Non-Development Covenant Lands as authorized and contemplated in Board of County Commissioners Ordinance No. 013-2008,anci in Resolution No. 053-2008. 2. Deed RestricticYi'fAi'nehdrr~ent ~~Tfie De?d Restriction is amended as follows: , a. Paragraph No. 5,is amen.~!'• ny the addition of the following at the end of the Paragraph: 5. In areas wf-~ere this Deed-Restriction encumbers real property that is owned by the Snowmass Water and Sanitation District or in areas where the District has an interest in such real property by easement, the written consent of the Board of Directors of the District is required. b. Anew paragraph No. 6 is added, as follows: 6. Nothing contained herein will preclude, inhibit or impair development activities to be conducted on the Non-Development Deed-Restricted Lands as authorized and contemplated in Board of County Commissioners Ordinance No; 01,3'2008 and in Resolution No. 053-2008. 3. Conflict. Any cc~~rr,~~fliet;Fi~~t;een the C~~~e!~ant and this 15` Amendment will be resolved in favor of this 15~-A'nieridment. !'.ny conflict between the Deed Restriction and this 15f Amendment will be'r~sol~ied ~n'avor of this 151 Amendment. 4. Amendment or Moc!ifio4iion. This 15` Amendment may be amended or modified only by a document in writing, executed by Ziegler, Zipcorp, the BOCC and SWSD, and filed for record in the Office of the Clerk and Recorder of Pitkin County, Colorado. Page 2 of 4 ti i,.. ~ l . 5. Binding. This 15' P.^~~:,i~'inent will be binding upon and inure to the benefit of Ziegler, Zipcorp, the BOCC ;zr9 SWSD and their successors and assigns. IN WITNESS WHEREOF, Ziegler, Zipcorp and the BOCC have caused this 15' Amendment to be executed by their authorized representatives. Ziegler Pitkin County Colorado Property, Zipcorp, Inc., a Colorado corporatio a Wisconsin partnership gy. Petar D. Ziegle r sident Peter D. Zi a F.;i~;*t'is(.:;1-'r,:a~~=:, ~ Managing Partner':??~~=:~i<+~r.:. ~Jeted June,3V, 2008 Dated on June ~ 2008 S APPROVED: Board of County Commissioners of Pitkin County, Colorado Snowmass Water and Sanitation District, a Colorado special district By: /s J ck Hatfield, airntaK- By: ~ad~/~ David F. Sp nce, President Rated Jo:.e-= Sul S'~ ~oo~ Dated June 3Q, 2008 y (Acknrnr;;e :yments on following page.) Page 3 of 4 ' ~ _ v . _ \ r ACKNOWLEDGMENT STATE OF yV I,~C.D~'151~''9 ss. COUNTY OF~~InG{~'C~Y~ The foregoing 15f Amendment to Non-Development Covenant and Non- Development Deed-Restriction, was acknowledged before me by Peter D. Ziegler as Managing Partner of Ziegler Pitkin County Colorado Property, a Wisconsin partnership and by Peter D. Ziegler as. President of Zipcorp, Inc., a Colorado corporation on June .30 , 2008. WITNESS MY HAND,4N0::r~~:;IAL SEAL. My commission exp~re~ 1 a, ~~y~,EN F, OG ~9 A~/91.~G~,y= Not ry u lic STATE OF COLORADO ) ~OF W1S~ ss. COUNTY OF PITKIN ) The foregoing 1~` Amendment to Non-Development Covenant and Non- Development Deed-Restriction was'ackhowledged before me by Jack Hatfield as Chair of the Board of County Commissii5nets of Pitkin County, Colorado on Jtx~e 2008. JufY WITNESS MY HAND AND OFFICIAL SEAL. My commission expire: ~'C -O/ -2~9 ~O~PRY pie`' a .n ~YNDEE R, ' tary Public ~ : DEAN COL - Page 4 of 4 , l RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITICIN COUNTY, COLORADO GRANTING APPROVAL TO THE ZIEGLER RESERVOIIt PUBLIC- INSTITUTIONAL MASTER PLAN, ACTIVITY ENVELOPE/STI'E PLAN REVIEW, SUBDIVISION EXEMPTIONS AND GMQS EXEMPTION FOR CIVIC AND INSTITUTIONAL USES AND SUBDIVISION EXEMPTION FOR A MAJOR PLAT AMENDMENT Resolution No.QS~-2008 RECITALS 1. The Snowmass Water and Sanitation District ("Applicant") has applied to the Board of County Commissioners of Pitkin County, Colorado ("BOCC") requesting approval of a master plan for the Ziegler Reservoir parcel. The Applicant proposes to expand the existing reservoir and use it as a public water supply reservoir. The Applicant is requesting the following land use approvals: A. Rezoning from AR-10 to P-I (Public and Institutional) B. P-I Master Plan Review C. Subdivision Exemption to Create Parcels for Community Facilities D. GMQS Exemption for Civic and Institutional Uses E. Activity Envelope Review F. Major Plat Amendment (to Hidden Meadows Subdivision) 2. The property is located on Ziegler Divide Way, and is more specifically described in Exhibit A. 3. The property contains 17.535 acres and is zoned AR-10. 4. The Pitkin County Planning and Zoning Commission considered the proposed rezoning at a regularly scheduled meeting on March 4, 2008, and recommended approval by a vote of 3-0. 5. The BOCC considered the application at duly noticed public hearings on April 9 and May 14, 2008. 6. The BOCC finds that the application is consistent with the applicable provisions of the Pitkin County Land Use Code, including Sec. 2-40-100, standards for P-I master plans; Sec. 6-30-120, standards for a GMQS exemption for civic and institutional uses; and Sec. 2-30-30(h)(4), standards for a subdivision exemption to create a parcel for public facilities; and Sec. 2-30-40(i)(2), standards for a subdivision exemption for a major plat amendment. 7. The BOCC further finds that impacts on wildlife can be mitigated and impacts on man-made wetlands will be mitigated by the creation of new wetlands with a net increase in the amount and diversity of wetlands at the site. 8. The BOCC further finds that the activity envelope is primarily comprised of slopes of less than 30%, with the following exceptions: A. The regrading and revegetation of the area around the new dam will impact slopes in excess of 30%; the slopes in this area comply with Sec. 7-20-20(c)(3) of the Code, minor slope anomaly, which permits development on slopes in excess of 30%. RECEPTION#: 550139, 06!09/2008 at 01:01:13 PM, 1 OF e. R $0.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO r J Resolution No.~~-2008 Page 2 B. Three sections of the Ziegler Divide Way when relocated will cross slopes in excess of 30%. These sections comply with Sec. 7-20-20(c)(5), which permits short driveway encroachments for a maximum of I OO linear feet per parcel, and Sec. 7-20-20(cx3), minor slope anomaly. NOW, THEREFORE, BE IT RESOLVED by the BOCC that it hereby grants approval of the Ziegler Reservoir P-I Master Plan, Subdivision Exemption, GMQS Exemption, Activity Envelope/Site Plan and Major Plat Amendment, subject to the following conditions, which shall run with the land and be binding on all successors in interest: I . The Applicant shall adhere to all material representations made in the current or prior applications or in public meetings or hearings and shall consider those representations to be conditions of approval, unless amended by other conditions. 2. Applicant shall continue to abide by its contractual obligations with Pitkin County including the 1978 Agreement, the 1995 Water Settlement Agreement and the Trigger Point Methodology Agreement. 3. Applicant will fill and refill Ziegler Reservoir only with water rights that are diverted in priority as administered by the Office of the State Engineer. When diverting water from Snowmass Creek to fill or refill Ziegler Reservoir through the Snowmass Creek Pipeline, the Applicant will obtain a new water right that will honor the senior administration of the CWCB minimum stream flow water right. 4. Applicant will consent to the cancellation of any remaining portion of the Sam's Knob Reservoir conditional water right after the expanded Ziegler Reservoir has obtained a storage water right for the expanded reservoir, has obtained a new fill and refill water right for the expanded reservoir and the expanded Ziegler Reservoir and appurtenances are fully constructed, installed and operational. 5. Applicant will utilize the Zeigler Reservoir in a manner consistent with its representations concerning the need for the reservoir, the utility of the reservoir and the integration of the reservoir into its operating facilities. These representations include the following: the Applicant intends to utilize Ziegler Reservoir to store water diverted from its direct flow water sources for emergency purposes and for system reliability. Direct flow diversions from the East Snowmass Creek water source will be the operationally preferred water source to fill and refill Ziegler Reservoir. Applicant additionally intends to store and use water in the reservoir to respond to circumstances that cause its East Snowmass Creek, Brush Creek or Snowmass Creek direct flow water sources untreatable or unavailable from situations similar to the following: (1) loss or diminished production due to a landslide, snow slide, pipeline blockage, or other interruption or failure of the its diversion, treatment or delivery facilities; (2) contamination from forest fire, flood, chemical spill, contaminants, bacteria, turbidity, or similar occurrences; or (3) drought conditions or a loss of flow or diminished flow from direct flow water sources. Under appropriate operational, hydrological and atmospheric conditions, Applicant intends to utilize its direct flow water sources from East Snowmass Creek and Brush Creek prior to commencing direct flow diversions from its Snowmass Creek water source through the Snowmass Creek Pipeline. Utilization of water stored in Ziegler Reservoir and direct flow diversions of water from its East Snowmass Creek and Brush Creek water sources will provide a buffering effect from direct flow diversions from its Snowmass Creek water source, especially at times of low stream flow in Snowmass Creek. Water stored in Ziegler Reservoir could be used to: (1) supplement direct flow water source diversions during periods of high demand and low stream flows; (2) supplement or replace direct flow water sources that have been contaminated as a result of runoff or rainstorms that created turbid water conditions; (3) deliver water to the Water Treatment Plant for processing; (4) Resolution No.~ -2008 Page 3 deliver water to the Water Treatment Plant for processing to replenish operational potable water storage; (5) deliver water to the Water Treatment Plant for processing to replenish depleted potable water storage as a result of structural fires, forest or brush fires or other events that leave the potable system storage depleted; (6) provide a reliable source of stored water for protection against unforeseen events or circumstances that render water supply sources untreatable or unavailable. 6. Prior to submission of any development permit applications, the Applicant shall be required to submit for approval by the County Attorney and Community Development a revised "Non- . Development Covenant for Ziegler Pond Lands." The Covenant shall be amended to allow development associated with the expansion of the reservoir for a public water supply. 7. Prior to the proposed expansion of the reservoir, Applicant shall obtain an earthmoving permit from the County for applicable maintenance activities including the repair, construction and installation of pipelines and utilities within easements, the rehabilitation, construction and installation of a subgrade pump station, maintenance of the reservoir and compliance with directives from the Division of Water Resources of the Department of Natural Resources. The permit application shall include: A. A description of the maintenance activities. B. A copy of the directive from the Division of Water Resources, if applicable. C. An erosion and sedimentation control plan, if applicable. 8. Applicant shall obtain an earthmoving permit from the County for the proposed expansion of the reservoir, including work within the utility easements. The permit application shall include: A. A copy of a Notice of Intent and an approval letter from the State Engineer's office along with any other required state permits. B. Documentation of adequate water rights. C. A State Stormwater Permit for the disturbance of more than one (1) acre of soil. D. An erosion and sedimentation control plan. E. A tree removal mitigation plan as proposed in the application. F. A revegetation plan for the wetland areas to be reviewed and approved by Pitkin County staff prior to permit issuance. Financial security may be required for the revegetation of the disturbed areas. 9. Applicant shall obtain an Access Permit from the County to realign a portion of Ziegler Divide Way. The permit application shall include: A. A tree removal mitigation plan. B. A revegetation plan to be reviewed and approved by Pitkin County staff prior to permit issuance. Financial security may be required for the revegetation of the disturbed areas. l0. A Construction Management Plan shall be submitted with all development permits. All on-site staging shall occur within the activity envelope. 11. Prior to submission of the earthmoving pertnit application for reservoir maintenance or the reservoir expansion, whichever occurs first, the Applicant, in consultation with the Division of W ildlife, shall conduct a boreal toad survey utilizing standard survey protocol in the spring. If a breeding population is found, the Applicant shall create and implement a mitigation plan, which shall be reviewed and approved by the Division of Wildlife. l Resolution No.~l -2008 Page 4 12. The side slopes of the reservoir shall be 5:1 or a minimum of 3:1, except where the pipeline and pump station will be located. Applicant shall construct a littoral shelf along the edge of the pond and plant with wetland vegetation. 13. If any area ofthe proposed expansion of the reservoir is lined, other than the dam structure, the liner shall be covered with a minimum of 2' of topsoil from the high water level to a depth recommended by the Division of Wildlife. 14. Construction workers shall not bring dogs on-site. A bear proof trash container shall be provided on- siteduring construction for all edible and food-related trash. 15. Prior to submission of any development permit applications related to the expansion of the reservoir, the Applicant shall be required to submit for approval by the County Attorney and Community Development the Subdivision Exemption Plat and Site Plan/Activity Envelope Plan. The above referenced approvals shall be a condition precedent to finalization and recordation. A. The Site Plan shall be amended to identify the location of the dam and the underground pump house. B. The Exemption Plat shall be amended to include a BOCC signature block rather than a Community Development Director signature block. 16. This master plan for the reservoir shall allow 0' setbacks on all sides of the reservoir parcel to accommodate changes in grade of more than 30" in height up to the property boundaries. 17. As some of the work associated with the realignment of the driveway will occur on the adjacent Ziegler Family parcels, which will not be subject to the P-I master plan, the Applicant may be required to obtain variances from the Board of Adjustment for development within the setbacks on those parcels if the grade will be changed by more than 6'. Approval of an activity envelope within such setbacks does not assure approval of a variance. 18. Statutory vested rights for the approvals contained herein are granted pursuant to the Pitkin County Land Use Code and Colorado Statutes, subject to the exceptions set forth in Pitkin County Land Use Code, § 4-140 and C.R,S., § 24-68-105. The statutory vested rights granted herein shall expire on May 14, 2018. ~ _M__~....___ Resolution No. p1~-2008 Page 5 NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY on the 9'" day of March, 2008. APPROVED AND ADOPTED on the 14`" day of May, 200B. PUBLISHED AFTER ADOPTIQN FOR VESTED REAL PROPERTY RIGHTS in the Aspen Times Weekly on the `d°I' day of OK , 2008. BOARD OF COUNTY COMMISSIONERS, PITKIN COUNTY, C/OLORADO By ! c~.-~C {1Z,~ orothea Farri~/ ice-Chair ATT ST: Je tte Jones, Clerk the BOCC A ROVED AS TO CONTENT: APPROVED AS TO FORM: 'ndy ouben John Ely Community Development Director County Atfbrney P081-07 PID 27302312006 & 273303100002 9 I ~ ROPERTY DESCRIPTION NOWMASS WATER AND SANITATION DISTRICT BOUNDARY DESCRIPTION ESULTING PARCEL PARCEL OF LAND SITUATED iN TRACT 47 ANO TRACT 51, SECTION 2, TOWNSHIP 10 SOUTH, RANGE 86 WEST OF THE SIXTH RINCIPAL MERIDIAN, COUNTY OF P17KIN, STATE OF COLORADO; SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS OLLOWS~ OMMENCING AT ANGLE POINT N0. 8 OF SAID TRACT 51, BEING THE SAME AS ANGLE POINT NO. 1 OF TRACT 50, A GLO •RASS CAP IN PLACE, TIdF POINT OF BEGINNING THENCE N89'52'07"W ALONG THE SOUTHERLY BOUNDARY OF SAID TRACT 51 DISTANCE OF 38.35 FEET; THENCE LEAVING SAID SOUTHERLY BOUNDARY ALONG THE ARC OF ANON-TANGENT CURVE TO HE RIGHT HAVING A RADIUS OF 117.15 FEET AND A CENTRAL ANGLE OF 70'38'42", A DISTANCE OF 144.45 FEET, (CHORD EARS N03'OS'45"W A DISTANCE OF 135.47 FEET); THENCE N32'14'36"E A DISTANCE OF 40,98 FEET; THENCE ALONG THE ARC IF ANON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 459,36 FEET AND A CENTRAL ANGLE OF 21'50'01", A (ISTANCE OF 175.05 FEET, (CHORD BEARS N26'OB'15"E A DISTANCE OF 173.99 FEET); THENCE N15'11'15"E A DISTANCE OF :14.50 FEET; THENCE N19'14'34"E A DISTANCE OF 189.10 FEET; THENCE ALONG THE ARC OF CURVE 70 THE RIGHT HAVING A tADIUS OF 270.33 FEET AND A CENTRAL ANCLE OF 108'33'15", A DISTANCE OF 512.17 FEET, (CHORD BEARS N73'31'12"E A )ISTANCE OF 438.93 FEET); THENCE 853'11'36"E A DISTANCE OF 290.77 FEET; THENCE ALONG THE ARC OF CURVE TO THE LIGHT HAVING A RADIUS OF 273.11 FEET AND A CENTRAL ANGLE OF 49'39'13", A DISTANCE OF 236.68 FEET, (CHORD BEARS ~28'21'S9"E A DISTANCE OF 229.34 FEET); THENCE 838'10'24"E A DISTANCE OF 89.23 FEET; THENCE 814'07'36"W A )ISTANCE DF 216.04 FEET; THENCE 502'07'39"W A DISTANCE OF 113.D0 FEET; THENCE 526'23'21"W A DISTANCE OF 121.96 'EET; THENCE 842'16'15"W A DISTANCE OF 77.54 FEET; THENCE 589'08'19"W A DISTANCE OF 120.57 FEET; THENCE T70'S6'04"W A DISTANCE OF 43.99 FEET; THENCE 581'07'50°W A DISTANCE OF 69.58 FEET; THENCE N83'58'16"W A DISTANCE )F 221.08 FEET; THENCE N87'12'34"W A DISTANCE OF 209.52 FEET; THENCE N85'24'00"W A DISTANCE OF 100.68 FEET; (HENCE N72'57'22"W A DISTANCE OF 43.17 FEET; THENCE N38'15'21"W A DISTANCE OF 7.30 FEET TO A POINT ON THE NESTERLY BOUNDARY OF TRACT 47; THENCE N00'07'37"E ALONC SAID WESTERLY BOUNDARY A DISTANCE OF 40.28 FEET TO fHE POINT OF BEGINNING: SAID PARCEL CONTAINING 17.534 ACRES, MORE OR LESS. TO COLORADO I,AW YOU MUST COMMENCE ANY IECAL WY DEFECT IN THIS SURVEY WITHIN THREE YEARS ;OVER SUCH DEFECT. IN NO EVENT MAY ANY ACTON ECT W THIS SLVtVEY BE COMMENCED MORE THAN 1EN E OF' CERIIFICATON SHOWN HEREON. ~O