HomeMy WebLinkAbout11 RFM CP1 Covenant Acceptance - 2nd reading MEMORANDUM
TO: Board of County Commissioners
Regular Meeting—June 14, 2017
THRU: Cindy Houben, Community Development Director
FROM: Suzanne Wolff,Assistant Director
RE: Ordinance Accepting a Restrictive Covenant for the Use and Agreement for an
Agricultural Building—Second Reading
SUMMARY: The Applicant is requesting that the Board of County Commissioners accept a restrictive
covenant for the use and agreement for an agricultural building.
The BOCC approved the Ordinance on First Reading on May 24,2017.
OWNER/APPLICANT: Roaring Fork Meadows LLC
REPRESENTATIVE: Phillip Ring
LOCATION: 165 Hoaglund Ranch Road; Common Parcel 1,Roaring Fork Meadows Subdivision/PUD
BACKGROUND:
The BOCC approved construction of a three-bedroom,deed-restricted dwelling unit on Common Parcel 1
for employee housing mitigation,pursuant to Resolution No. 077-2011. The Site Plan was recorded in
Plat Book 105 at Page 12. The unit has been completed and is occupied by the ranch manager.
The Community Development Director approved an amendment to the Activity Envelope and granted
Site Plan approval to construct an agricultural building containing approximately 1,573 square feet on
Common Parcel 1 for storage of agricultural equipment,pursuant to Administrative Decision No. 83-
2016. The Applicant is eligible to develop up to 6,150 square feet of agricultural/accessory floor area on
Common Parcel 1,pursuant to the Subdivision/PUD approvals;the 1,573 square feet counts towards that
total. The Amended Site Plan was recorded in Plat Book 117 at Page 9. The approval requires
recordation of a Restrictive Covenant as a condition of the building permit.
RECOMMENDATION: Staff recommends that the BOCC approve the attached Ordinance accepting
the Restrictive Covenant on second reading.
ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO AUTHORIZING ACCEPTANCE OF A
RESTRICTIVE COVENANT FOR THE USE AND AGREEMENT FOR AN
AGRICULTURAL BUILDING
ORDINANCE NO. -2017
1. Roaring Fork Meadows,LLC ("Applicant")is the owner of real property located in Pitkin
County, Colorado,which is located at 165 Hoaglund Ranch Road, and is described as Common
Parcel 1 of the Roaring Fork Meadows Subdivision/PUD.
2. The BOCC approved construction of a three-bedroom, deed-restricted dwelling unit on Common
Parcel 1 for employee housing mitigation, pursuant to Resolution No. 077-2011. The Site Plan was
recorded in Plat Book 105 at Page 12. The unit has been completed and is occupied by the ranch
manager.
3. The Community Development Director approved an amendment to the Activity Envelope and
granted Site Plan approval to construct an agricultural building containing approximately 1,573
square feet on Common Parcel 1 for storage of agricultural equipment,pursuant to Administrative
Decision No. 83-2016. The Applicant is eligible to develop up to 6,150 square feet of
agricultural/accessory floor area on Common Parcel 1,pursuant to the Subdivision/PUD approvals;
the 1,573 square feet counts towards that total. The Amended Site Plan was recorded in Plat Book
117 at Page 9. The approval requires recordation of a Restrictive Covenant as a condition of the
building permit.
4. Land Use Code Sec. 5-20-70(j)(8)requires recordation of an occupancy covenant and
agreement against a property that takes advantage of a floor area exemption for an
agricultural building.
5. The Applicant has executed a Covenant Agreement, which restricts the use of the agricultural
building.
6. Pitkin County Home Rule Charter, Section 2.8.1.1 requires the Board to take official action
by ordinance for the acquisition of any real property asset, and the County Attorney believes
that the future enforceability of these types of covenants is best served by acceptance through
ordinance. A covenant burdening real property is by definition a property interest held by the
County.
7. The BOCC reviewed the proposed Restrictive Covenant on first reading at a regular meeting on
May 24,2017. The BOCC adopted the Ordinance accepting the Covenant Agreement on
second reading at a public hearing on June 14, 2017.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin
County, Colorado that:
1. The BOCC approves and accepts the Restrictive Covenant Agreement for the Use and
Agreement for an Agricultural Building (Exhibit A).
2. Upon approval of the form of the Covenant by the County Attorney, the Chair is authorized to
execute the Covenant.
INTRODUCED AND FIRST READ ON THE 24th DAY OF MAY, 2017.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE
ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON , 2017.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED
ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com) ON THE
DAY OF 2017.
ADOPTED AFTER A PUBLIC HEARING AND SECOND READING ON THE 14th DAY OF
JUNE, 2017.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION,IN THE ASPEN
TIMES WEEKLY ON THE DAY OF 2017.
POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com) ON
THE DAY OF 2017.
ATTEST: BOARD OF COUNTY COMMISSIONERS
By By:
Jeanette Jones George Newman, Chair
Deputy County Clerk
Date:
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
John Ely, County Attorney Cindy Houben, Community Development Director
P025-15;PID 246721203801
RESTRICTIVE COVENANT
FOR THE USE OF AND AGREEMENT FOR
AN AGRICULTURAL BUILDING
THIS RESTRICTIVE COVENANT ("Restrictive Covenant") is made and entered this
th day of April 2017, by Roaring Fork Meadows LLC ("Grantor" or "Owner"), concerning
the property known as 165 Hoaglund Ranch Road, Parcel ID# 246721203801, located in Pitkin
County, for the benefit of the Pitkin County Board of County Commissioners ("County").
WITNESSETH
WHEREAS,Grantor owns the real property described as Common Parcel 1, Roaring
Fork Meadows Subdivision("Property"), which Property will contain a new Agricultural
Building as allowed pursuant to Sec. 5-20-70 of the Pitkin County Land Use Code. Said
Agricultural Building will contain approximately 1,573 square feet of exempt floor area as
approved in Building Permit No. 0028.2017.pbld. For the purposes of this Restrictive Covenant,
the approved Agricultural Building and all appurtenances and fixtures associated therewith shall
hereinafter be referred to as the"Agricultural Building"; and
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WHEREAS,this Restrictive Covenant imposes certain covenants upon the Property,
which restrict the Use of the Agricultural Building, as more particularly set forth herein.
NOW,THEREFORE, for and in consideration of the covenants, terms,conditions,and
restrictions hereinafter set forth and for other good and valuable consideration,the receipt and
sufficiency are hereby acknowledged, Grantor does hereby grant and convey to the County,
forever and in perpetuity,an interest in the Property, for and in consideration of the recitals and
mutual covenants,terms,conditions and restrictions contained herein:
I. Restrictive Covenant pertaining to Use of the Agricultural Building. The Use
of the Agricultural Building shall henceforth be limited to care for, shelter or enclose livestock,
horses,poultry, feed, or field equipment,or otherwise used for in support of an on-site
agricultural operation. An indoor riding arena shall not be considered a barn.
2. Covenant running with the land: binding effect. The provisions of this
Restrictive Covenant shall constitute a covenant that runs with the title to the Property as a
burden thereon for the benefit of the County, its successors and assigns and shall be deemed an
appurtenance to the title to such land.
3. Permitted uses and activities. As owners of the Property,the Grantor retains the
right to perform any act consistent with the Land Use Code to the extent such act is not
prohibited or limited by the requirements of this Restrictive Covenant. These ownership rights
include, but are not limited to,the right to exclude any member of the public trespassing on the
Property and the right to sell, lease,or otherwise transfer the Property to anyone Grantor
chooses. Nothing herein shall be construed to be an approval by Grantee under the Land Use
Code for any purpose.
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4. Enforcement and Inspection. This Restrictive Covenant and its terms and
representations shall be fully enforceable by the County, its successors,assigns and agents in any
action at law or equity or both,to secure compliance, including but not limited to,seeking
injunctive relief and/or specific performance requiring the Grantor, its successors or assigns to
cease and desist all activity in violation of the terms of this Restrictive Covenant and to return
the Agricultural Building to its condition prior to any violation. Moreover,the County and its
successors, assigns and agents shall be permitted access to, and to enter upon,the Property at
reasonable times upon at least 48 hours advance notice to the Grantor or Grantor's
representative,solely for the purpose of monitoring, inspection,and if necessary,remediation of
the Agricultural Building in order to enforce and assure compliance with the terms and
conditions of this Restrictive Covenant.
5. Costs and liabilities. Grantor retains all responsibilities and shall bear all costs
and liabilities of any kind related to ownership,operation,upkeep,taxes and maintenance of the
Property, including but not limited to,costs associated with compliance with this Restrictive
Covenant. The County's acceptance of this Restrictive Covenant shall in no way be construed as
an assumption of any duties or liabilities associated with the Property and Grantor acknowledges
that by this Restrictive Covenant,Grantor continues to retain responsibility for any and all duties
and liabilities associated with the Property.
6. Subordination. At the time of the conveyance of this Restrictive Covenant,the
Grantor represents that the Property is not subject to any mortgage, deed of trust,or judgment
lien,or any other instrument that might result in a foreclosure action that could affect the
viability of this Restrictive Covenant.
7. Incorporation of the Land Use Code. The Land Use Code,as may be amended
from time to time,and any terms or definitions contained therein, are hereby incorporated by this
reference in their entirety.
8. Modification. The terms of this Restrictive Covenant can only be modified by an
amended covenant executed by both Grantor and County and recorded in the records of the Clerk
and Recorder for Pitkin County,Colorado.
9. Venue and jurisdiction. Grantor and the County consent to venue and
jurisdiction in the District Court for Pitkin County, Colorado for all matters concerning the
interpretation and enforcement of this Restrictive Covenant.
10. Attorneys fees and costs. In the event of any action or suit between the parties
hereto or their successors and assigns to enforce any of the agreements,covenants or restrictions
contained herein,the substantially prevailing party in any such action or suit,whether by final
judgment or out of court settlement,shall recover from the other party all costs and expenses of
such action or suit including reasonable attorneys fees.
11. Section headings. Paragraph or section headings within this Restrictive
Covenant are inserted solely for convenience of reference, and are not intended to,and shall not
govern, limit or aid in the construction of any terms or provisions contained herein.
12. Further actions. The parties to this Restrictive Covenant agree to execute such
further documents and take such further actions as may be reasonably required to carry out the
provisions and intent of this Restrictive Covenant or any agreement or document relating hereto
or entered into in connection herewith.
13. Warranties. Grantor warrants that it has all necessary power and authority to
grant the Covenant and that this instrument has been duly authorized, approved, and executed.
Grantee warrants that this instrument has been duly authorized,approved, and executed by
Grantee.
14. Notices. Any notice which is required to be given under this covenant shall be in
writing and shall be hand-delivered or sent by registered or certified regular mail,postage pre-
paid and via e-mail (electronic delivery) to the mailing and e-mail addresses set forth below.
Each party by notice sent under this paragraph may change the address to which future notices
should be sent.Electronic delivery of notices shall be considered delivered upon receipt of
confirmation of delivery on the part of the sender.
To Grantor: Roaring Fork Meadows LLC
55 Waugh Drive#1111
Houston,TX 77007
Attn: Ned S. Holmes
To County: Pitkin County Manager
123 Emma Road, Suite 106
Basalt, CO 81621
Jon.Peacock@pitkincounty.com
With Copies To:
Pitkin County Attorney
123 Emma Road, Suite 204
Basalt, CO 81621
attorney@pitkincounty.com
IN WITNESS WHEREOF,Grantor has executed this Restrictive Covenant as of the date and
year first written above.
Grantor:
Roaring Fork Meadows LLC
By:Ned S. Holmes Investments,Inc.,Manager
Ned S.Ho mes
Chairman and CEO
State of Texas )
) ss,
County of Harris )
746
The foregoing Restrictive Covenant was acknowledged before me this /1 day of April
2017 by yr/`jy J; /lot,r'F$, •
Witness my hand and official seal
My commission expires on: (ty ,2 5 61/
,,,,,,,,,,,, c*/&_
f•; D.ELLEN FEINGOLD Public
=;1 • i - My Notary ID#554242 otary
{a; Expires April 25,2018
ATTEST: ACCEPTED BY:
Pitkin County Board of County Commissioners
Jeanette Jones Date By: George Newman, Date •
Deputy Clerk BOCC,Chair
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
John M. Ely Date Cindy Houben, Date
County Attorney Community Development Director
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RECE]?TTON4: 614240, 1.D/07/2014 at 12:40;27 PM, 1 OF 1, R .S11.00
DP $0.00 .Tanios EC. Vos Caudill, Pitkin County, CO
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STATEMENT OF AUTHORITY
(as-30-172,C.R.S.)
1. This Statement of Authority relates to an entity named Wearing Fork Meadows LLC,a Colorado
limited liability company
And is executed on behalf of the entity pursuantto the provisions of
Section 38-30-172 C.R.S.
2. The type ofenlilyis a Ili-nited liability company
s. The mailing address for the entity Is: -
55 Waugh Drive,Suite 1111
Houston.7X 77007-6837
4. The entity is formed under the laws of Colorado
5. The name of the person(s)authorized to execute Instruments conveying,encumbering,or otherwise
affecting title to real property on behalf Of the entity Is:
Ned S.Holmes.Chairman and CEO
Kathleen E.Temme,Vice President and Secretary
John C.Kinsella.Rasta-tent Secretary of Ned S.Holmes investments.Inc.as
Manager
6. The authority of the foregoing person(9)to bind the entity Is t1 Not limited OR 0 Limited as follows:
7. other matters concerning the manner In which the entity deals with Interest in real property:
Paced this day or October , 2014 .
Ned S. Holmes,Chairman&CEO — —  . , -
tied S. Holmes Xuveetmeuts, Inc.. Manager
State of Texas
County of Harris
The foregoing instrument was acknowledged before me this day of October
2014 ,by
Ned S. Holmes
es t178
Chairman&CEO - of
Ned S.Holmesinvestments.Inc..as Manager of Roaring Fork Meadows LLC
_ Witness my hand and anklet seal. ,
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ir if•71i, n.ELLEN FEIN3ptfl
fi MVCOMMISSIONEXPInE8 etary Public
. yl Ap1125.2018 My commission expires:
Stafam.nf of Authority 901ar Pall eTC0 page I Art