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Home My WebLink AboutLand Use Case.300 S Spring St.0005.2009.ASLU--=07 E, HYMAN AVE 0005.2009.ASLU / MINOR REVIEW 2737-18-2-27-001 1~1--1/tâ‚¬ L â‚¬3*voz-6 (1 lo 1 7 0- .. THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0005.2009.ASLU PARCEL ID NUMBER 2737 18 2 27 001 ter (44 PA A-v~ Ic 5 PROJECTS ADDRESS 707 SIERRÂ«VISTA PLANNER JENNIFER PHELAN CASE DESCRIPTION MINOR REVIEW REPRESENTATIVE SNOWMASS CORP DATE OF FINAL ACTION 2.24.2009 CLOSED BY Angela Scorey on 07/29/2009 .. RESOLUTION NO. 13 (Series of 2009) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, GRANTING A SECOND AMENDMENT TO THE SUBDIVSION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION, 300 S. SPRING STREET AND 707 E. HYMAN AVENUE, CITY OF ASPEN, COLORADO Parcel ID: 273718227101 and 273718227102 WHEREAS, pursuant to the Subdivision Agreement for the Hannah Dustin Subdivision, successors and assigns of' the agreement may "on its own initiative petition the City Council for an amendment to the final plat or,...subdivision agreement;" and, WHEREAS, the Applicant requests approval to a second amendment to the Subdivision Agreement for the Hannah Dustin Subdivision to allow for the issuance of Certificates of Occupancies for portions of the completed project; and, WHEREAS, Community Development Department reviewed the request and suggested changes to the draft agreement that were incorporated into the draft; and, WHEREAS, City Council has reviewed and considered the subdivision agreement amendment request and has reviewed and considered the recommendation of the Community Development Director; and, WHEREAS, the City Council finds that this Resolution allowing for approval of the proposed amendments furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN, COLORADO, THAT: Section 1: in accordance with the provisions of Article 7.4 of the Subdivision Agreement for the Hannah Dustin Subdivision, the City Council of the City of Aspen, Colorado, does hereby grant the Second Amendment to the Subdivision Agreement for the Hannah Dustin Subdivision conditioned on amendments to the agreement being incorporated by the City attorney with regard to amending the timing of the release of the deposit, developing a final sunset date for feature of the deposit, addressing how any interest from the deposit is distributed, and not guaranteeing a credit for future mitigation requirements for the Commercial Phase. RECEPTION#: 556911, 03/05/2009 at 02:40:57 PM, 1 OF 5, R $26.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO .. Resolution No. 13, Series of 2009 Page 2 Section 2: This Resolution shall not affect any existing litigation 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 3: lf any section, subsection, sentence, clause, phrase, or portion of this Resolution 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. APPROVED, February 23,2009, at g public meeting before the City Council of the City of Aspen.Olorado. n / < n A 4 --- 1 fl/1 9.A# Ak (~sÂ«-07 ,Â©dit/ 106Â«641 3(-4.67 MichaÂ¥ C Iteland. Mayp/ iohn W6782Â§ter, Lity Attorney ATTEST: Â«Â£Â»13 >4 4-6-_ Kathryn S. Ko~ City Clerk Exhibit A Second Amendment to the Subdivision Agreement for the Hannah Dustin Subdivision .. SECOND AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION This Second Amendment to Subdivision Agreement for the Hannah Dustin Subdivision (the "Second Amendment") is made this ~RM> day of121*-u.O.*21 , 2009, by and among the CITYOF ASPEN, a municipal corporation (the "City"), the SNOWMASS CORPORATION, a Colorado corporation ("Snowmass"), and HYMAN STREET BROWNSTONES, LLC, a Colorado limited liability company ("Brownstones"). RECITALS: A. The City entered into a Subdivision Agreement for the Hannah Dustin Subdivision with Hyman Avenue Holdings, LLC, the predecessor in interest to Snowmass and Brownstones, on September 25,2006 (the "Subdivision Agreement"). B. The Subdivision Agreement was amended by a document entitled "Amendment to Subdivision for the Hannah Dustin Subdivision" on November 7, 2006 (the "First Amendment"). C. The City, Snowmass and Brownstones desire to further amend the Subdivision Agreement and the First Amendment as set forth in this Second Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Waiver of Completion Requirement. Upon satisfaction of the requirements of Section 2, below, the provisions of Section 8.1(iii) of the First Amendment, which require the Commercial Phase to be 50% complete in order for the Residential Phase to obtain a Certificate of Occupancy shall be waived. 2. Deposit. As consideration for the waiver described in Section 1, above, Snowmass shall deposit the sum of $500,807.25 with the City, either in cash or in the form of an irrevocable letter of credit prior to the issuance of a Certificate of Occupancy for the Residential Phase. The deposit is intended to provide a reasonable financial assurance that Snowmass will undertake construction of the Commercial Phase and, in particular, the affordable housing unit which is required as a condition of Commercial Phase approval, To that end, the deposit shall be forfeited and may be retained and utilized by the City for affordable housing purposes if a building permit for the Commercial Phase has been approved but not issued by July 31, 2009, which is the date on which vested property rights are due to expire (the "Commencement Deadline"). If the vested property rights period is extended, the Commencement Deadline shall automatically be extended to the new date on which the vested property rights for the Commercial Phase are to expire. 1 f a building permit for the Commercial Phase is issued by the Commencement Deadline, Snowmass may request and the City shall refund the deposit based upon the following schedule. Twenty-five percent (25%) of the deposit shall be refunded after the framing inspection approval has been attained. The remainder of the deposit shall be refunded after issuance of a Certificate of .Occupancy for the Commercial Phase. I f a Certificate of Occupancy for the Commercial Phase has not been issued within twenty-four months after a building permit is obtained, the City shall have no obligation to refund the balance of the deposit then held by the City. Any interest accrued by the deposit of the sum of $500,807.25 with the City shall be retained by the City. 3. Completion of Residential Phase. The parties acknowledge and agree that the Residential Phase is, on the date hereof, more than 50% complete. 4. Assurance of Financing. In satisfaction ofthe requirements of Section 8.10ii) of the First Amendment, Snowmass shall provide the City with a written confirmation of its construction loan from Bank of America, to be delivered to the City along with the Deposit. 5. Housing Mitigation Credit. If construction of the Commercial Phase has not begun prior to the Commencement Deadline referred to Section 2, above, and as a result the Deposit is forfeited, Snowmass may, nevertheless, be entitled to a credit, up to $500,807.25, to be applied against affordable housing mitigation requirements associated with development of the Commercial Phase , if any, which are in addition to the requirement for construction of a two-bedroom Category 11 housing unit within the Commercial Phase, The credit shall only be available, however, i f such unit is actually constructed within the Commercial Phase and if, as a result of expired vested property rights, additional affordable housing mitigation is required; however, the City is under no obligation to issue any credit. CITY OF ASPEN, COLORADO, . a Colorado municipallco:Poratiy(' By: AA 14 A / CÂ«,CJ 1,21'2009 f v \ 4r \1Â£ Michael C. Ireland, M~or Kathryn S. Koc h~~fty Clerk SNOWMASS CORPORATION, a Colorado corporatif~ AWw w. I(*< ablitt#ley-in-Fact 46i James W. Light, President HYMAN STREET BROWNSTONES, LLC, a C~'orado li'7~td Ptility comfany ~ Wibert D. BowÂ¢len,planager 2 .. STATE OF COLORADO ) COUNTY OF 8 i kin & ss. -, rhe foregoing instrument was acknowledged before me this ~-~~-4 day of 1~0Uh/l*lA/1 , 2009, by Michael C. Ireland, Mayor, and Kathryn S. Koch, City Clerk, of the ' City of Asper( Colorado, a Colorado municipal corporation. h h. N.â‚¬49 Witness my hand and official seal. 4~:SLFARPRP My commission expires: 1 #617##1 ,,~~ll MI Notary Public *4:PedÂ·49 STATE OF COLORADO ) Â»aasss, ) SS. Mv Commission Expires 0912&/2000 COUNTY OF P-\4an ) The foregoing instrument was acknowledged before me this 2694 day of 94.-0- , 2009, by Andrew W. Light, as Attorney-in-Fact for James W. Light, as President obsnowmass Corporation, a Colorado corporation. 2, gRON 04 Â® Witness my hand and official seal. 0 ,4 My commission expires: \Â£42.517Â£11 ---h \ \ ~ f I.j O TA f; &1-0. 11/* 2 0 Notary Public 2 --1 A 1. B. ... 'T/Nt/C I ./ 00 j 5,. ~ CO Log iÂ»> 04 40*804' STATE OF COLORADO ) SS. COUNTY OF--9,Â©un ) The foregoing instrument was acknowledged before me this 26%_ day of , 2009, by Robert D. Bowden, as Manager of Hyman Street Brownstones, LLC, a Colorado hmited liability company. Witness my hand and official seal. 440 0%0A N â‚¬04,/,4 43 + I My commission expires: \D~ 25 ~21:>(\ -61 f ~- rjorARY ~Â°j Notkiry Public 1- d PUBLIC Of '42,6 .9. 9 0*. OF CO\-0 49 '4/'/1111'll i",\ G \Chent\5nowmass Co,p\Hannah Dusun\Second Amendmem to Subdivilon Agicomenl for the Hannah Dwun Subdmilon 022509 FTNAL doc 3 ......... .. Regular Meeting Aspen City Council February 23,2009 Bart Johnson, representing the applicants, told Council they have a 99-year ground lease, which is a lease o f the dirt and they purchased the building. Under the ground lease, the applicants have the right to redevelop the property. A ground lease is a financing or a tax tool and conveys properly rights without conveying the property. The applicants legally own the building. Johnson said the applicants would like to figure out a way to redevelop without a legal battle. Councilman Johnson asked if the ground lease can be conveyed to others. Johnson said the ground lease is assignable. Councilman Romero asked if this encumbrance was disclosed to the applicants. Johnson said this would not have been covered by title insurance because it is a land use matter and the landlord did not disclose the existing of this deed restriction. Haas said the applicants propose to replace the 1:1 deed restriction with a requirement that this property be subject to the PUD regulations as may be amended. Haas said the existing conditions of the property are determined to be the PUD in place and any changes from the existing conditions will be reviewed as an insubstantial amendment by staff or a substantial amendment, which will go through P&Z and Council. Bendon said a PUD allows for the protections on the property in exchange for the deed restriction. To do a different project, Council would review the PUD. True said staff is not prepared to recommend ona PUD exchange and recommended this be continued. Mayor Ireland opened the public hearing. Ruth Karver, 708 East Cooper, requested Council to make sure the drainage issues from their property to her property are addressed. Ms. Karver told Council all the water from this property drains on to her property and into the basement. Ms. Karver said they have dealt with staff, sun'eyors, and the property owners. They have added water proofing and foundation drains. The applicants said they will bring Ms. Karver into their proposals early on and will address drainage. th Councilman Skadron moved to continue Ordinance #2, Series o f 2009, to March 9 ; seconded by Councilman Romero. All in favor, motion carried. RESOLUTION #13. SERIES OF 2009 - Hannah Dustin Subdivision Agreement Amendrnent Jennifer Phelan, community development department, told Council this request is to amend a subdivision agreement on 300 Spring street. Ms. Phelan told Council this was approved in 2006 for redevelopment; there is an existing commercial building on the property. The approval allowed for the addition of 3 affordable housing units, 2 free market residential units and 2400 square feet of new commercial space. After city approval, the property was condominiumized into two property ownership units, a residential and a commercial component. The residential component has 2 free market and 2 affordable housing units with underground parking. The commercial component was the additional 2400 square feet and one affordable housing unit. 8 . Regular Meeting Aspen City Council February 23,2009 Ms. Phelan noted the original subdivision agreement was amended to allow for each ownership interest at different times but it required the framing inspection for one phase of development be received prior to the C/O for the other development. Ms, Phelan said the residential phase is close to receiving a C/O but the commercial phase has not started and will not be at 50% for the framing inspection as required by this agreement. The applicant is requesting an amendment to the agreement to allow for a C/O for the residential phase. Ms. Phelan said staffhas worked with the applicant and this proposal requires a deposit o f $500,807 be received by the city prior to any C/Os being issued. Ms. Phelan noted this money covers the cash-in-lieu payment for a category 2, two bedroom unit. Ms. Phelan pointed out there is a deadline for the applicant to receive their building permit which is July 31, 2009, which is also the vested rights expiration date. Ms. Phelan said i f the building permit is not issued, the deposit will be forfeited to the city. If the applicant applies for an extension to the vested rights, the deadline date will change to whatever the new vested rights date is. Ms. Phelan said with the deposit with the city, if the applicant receives their building permit by the commencement date, the applicant would receive 25% of the deposit back when the footing inspection is received and the rest of the deposit at framing inspection. The framing inspection was chosen as halfway of the project and is a guarantee that the project will be finished. Ms. Phelan said this agreement recognizes the current economic challenges and tries to protect the interests of the city. Councilman Johnson said this was an infill project and when it was reviewed by the city, it was one project - commercial, residential and affordable housing. Councilman Johnson said if only the residential project was proposed, the applicants may not have gotten out of staff review. Councilman Johnson asked if it is outlined how the city may spend the money. Ms. Phelan said if the applicants do not receive a building permit by the required date, the money will be for feited. Councilman Johnson asked i f the applicants can apply for an extension o f their vested rights and what happens to the money. Ms. Phelan said that would be an application to Council for an extension of vested rights and if Council approved an extension, there would be a new date for receiving a building permit. The deposit would still be required. The money will sit in an account and will not be forfeited until the applicants do not receive a building permit. Ms, Phelan noted the amount of the deposit is to create incentive to get a building permit. Mayor Ireland asked what the city is relinquishing rights to the deposit at framing or footing, which could result in a halfbuilt building and no deposit. Ms. Phelan told Council typically the amount o f investment to a framing inspection leads to a complete project. Councilman Johnson said there has been reliance by applicants that the land use code trumps the Aspen Area Community Plan and ifa project is in compliance with the land use code, they should get an approval. Councilman Johnson said the Hannah Dustin building was an infill project that received extra building rights because of what was offered. Councilman Johnson noted this project was approved; one subdivision amendment has been granted to delay construction o f the commercial portion of the 9 .. Regular Meeting Aspen City Council February 23,2009 project. This is a second request to the subdivision approval to delay further the commercial construction. Councilman Johnson said he does have faith that the commercial portion of the project will be built. Councilman Johnson stated his concern is that the residential and commercial have been separated and if the city does not require the commercial be built as proposed, there will be no commercial or a very different commercial project. Councilman Johnson said even i f the city gets the 3500,000, it is difficult to build an employee unit. Councilwoman Kasabach asked the community benefit of getting the commercial space expanded. Councilman Johnson said the promise of infill was a recognition that development within Aspen should occur east of the roundabout or the airport. One o f the reasons it was difficult to get affordable commercial space is that lack of that space. Councilman Johnson said Council wanted affordable housing in town rather than creating sprawl. Councilman Johnson said a proj ect with commercial space or affordable housing enabled one to get free market residential space. Councilman Johnson said this project received the benefit of two free market residential units and has not met the other promises. Councilman Johnson said there is a lack of reliance on the public that the promises made are the promises kept. Councilman Johnson said he would like to rely on consistency and this request has a cost to public perception. David Myler, representing the applicant of the commercial portion of the project, stated he does not agree with the comments and the applicants have tried to be mindful of the community interest and benefits in this project and that the community receives what it thought it was getting when the proj ect was approved. Myler stated the applicants were not the original developers and they did not feel the original program would work. Myler said 2 of the 3 affordable housing units are complete and ready to be occupied. These units can be rented or sold. In order to be rental units, the housing authority gets a small percentage of the units. The deed restriction has been approved by the housing authority. The first free market unit is ready to be sold after this issue is resolved. Myler told Council all 10 of the parking spaces are complete. All on site improvements, except for planting some trees, have been made. What is left on the project is one category 2 deed restricted unit and that is the reason for the $500,000 deposit, the city has the money available to replace the mitigation requirement o f that unit i f the project is not complete. Myler told Council the applicants spent time and energy reevaluating the design and increasing the energy efficiency and improving the handicap access. Myler said a benefit is real estate transfer tax revenues from the sale of free market units and 2 affordable housing units for the community. Andrew Light, applicant, told Council $500,000 is a significant amount of deposit which will encourage the applicant to complete the 2400 square feet of commercial space. Councilman Johnson asked if an affordable housing unit adds to the value of a free market unit. Myler said it confers some value, Councilman Romero said the main issue is burdens and benefits for the community and the premise behind the infill and to link the two sides of the project; commercial and residential. Councilman Romero asked where the parking is located, Myler said 10 spaces are in the basement o f the residential 10 1 . Regular Meeting Aspen City Council February 23,2009 project with an elevator, 8 spaces are for the office building, 2 spaces are for the residences. There are 3 surface spaces for the affordable housing units. Councilman Romero said he would consider this proposal but does not favor the proposed refund mechanism. Councilman Romero said that puts the burdens and benefits out of balance. Councilman Romero said he would like to see the weight o f the recovery of the deposit to the very end of the commercial project. Councilman Romero said the trigger point of footing inspection for 25% refund should be eliminated. Councilman Romero said the first trigger point for any refund of the deposit should be the framing inspection and it should be no more than 25% and the balance of the refund be tied to certificate of occupancy. Councilman Romero said there should be a sunset for this project when the city can call to retain the deposit. Councilman Skadron said he can support staffs recommendation in that the commercial component may or may not be built. Allowing for the residences to be occupied serves the community better than having empty units. Councilman Skadron said the 2 affordable units can be occupied, which also serves the city's interest. The additional affordable unit can be finished with the deposit o f $500,000. Councilman Skadron stated he can support this with the time changes suggested made by Councilman Romero. Councilman Skadron said the risk to the community is smaller by approving the amendment to the subdivision. Mayor Ireland said empty structures are economically destructive for communities and for neighborhoods. Mayor Ireland said he can support the compromise with the additional condition that if the owner of the commercial interest fails to build the project and forfeits the money, the applicant cannot come to the city and state they get credit for providing affordable housing. This would be a forfeit, not a down payment toward a future project. Mayor Ireland said the extension of the payment to time of certificate of occupancy should be an issue at any renewal of vested rights. The city should make sure they are not tied into an all or nothing extension o f vested rights. John Worcester, city attorney, asked if the applicants can represent that Snowmass Corporation and Hyman Street Brownstones, LLC are not inter related. Myler said these are two separate entities and no individual is involved in both. Myler said the applicants are not suggesting they can come back after forfeiting the deposit and get credit against future affordable housing requirements. Myler said if they lose vesting and if the city were to require more that 1 two-bedroom unit and if that two bedroom unit is built, they may get credit towards additional requirements, Mayor Ireland said he would like to create the maximum incentive to build the commercial project. Mayor Ireland supports negotiating a later phasing of the forfeiture relief and the credit toward housing needs to be worked out with the city attorney's o ffice. Myler requested this be approved contingent on staff review Mayor Ireland moved to approve Resolution #13, Series of 2009, with the provision that exhibit A will be substantially as attached and directed to the city attorney for 11 .. Regular Meeting Aspen Citv Council February 23,2009 negotiation; seconded by Councilman Skadron. All in favor, with the exception of Councilman Johnson. Motion carried. Councilman Johnson moved to go into executive session at 8:40 p.m. pursuant to C.R.S. 24-6-402(4) (a) The purchase, acquisition, lease, transfer, or sale o fany real, personal, or other property interest and (e) Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators; seconded by Councilman Skadron. The topics are negotiations with the Burlingame homeowners association; negotiations with Jody Gerberg and discussions of the BMC property. All in favor, motion carried. Also present are Jim True, Barry Crook, Chris Everson, Scott Miller, John Laatsch, Steve Barwick, John Worcester and Kathryn Koch. Councilman Romero moved to come out of executive session at 9:40 p.m.; seconded by Councilman Skadron. All in favor, motion carried. Councilman Romero moved to adjourn at 9:40 p.m.; seconded by Councilman Skadron. All in favor, motion carried. 4 ' - Kathryn~Koch, Citf Clerk 12 P287 MEMORANDUM lia. TO: Mayor Ireland and City Council FROM: Jennifer Phelan, Community Development Deputy Director ~-~ MEETING DATE: February 23,2009 RE: Subdivision Agreement Amendment for the Hannah Dustin Subdivision (300 Spring Street) - Resolution ~, Series 2009 APPLICANT /OWNER: STAFF RECOMMENDATION: Snowmass Corporation Staff recommends approval of the proposed amendment. REPRESENTATIVE: David Mylar, The My'lar 1-:2:1-Â·.;- A.~-:.Â·~..-- L. ..., Law Firm, P.C. %*11 LOCATION: ~1 -' 1/ 300 Spring Street and tÂ· 707 Hyman Avenue - y CURRENT ZONING & =44Â·V USE Mixed Use (MU) zone district. Existing .* C '46â€¢ building with , ..4 9 ./ . 4 -I-,Â· 4Â· ..4:3' G rÂ·'Â·8Â£f,Â·. commercial uses with a maâ‚¬0* .121;Â·. =zn residential addition -- . Â·Â·WSÂ·'. 1 I .%.6.-1â€¢44U' 1.-gy-34" under construction. -".Â· 1,Â·-Â·Â·Â·.: Â·. â€¢.â‚¬AlÂ·.-44. A:kax;k':342.-;.Â·w.Â·plaâ‚¬f~~Â«~ â€¢f SUMMARY: . J.1 ' I I -Â· -Â·,-,:Â·UiT;2-9J-)Â¢45/i The Applicant requests Subject property. an amendment to the subdivision improvements agreement associated with the approved development. REQUEST OF COUNCIL: City Council is asked to grant an amendment to the subdivision agreement for the Hannah Dustin Subdivision. BACKGROUND: Ordinance No.16 (Series of 2006) (Exhibit E) approved the development of an additional 2,440 sq. ft. of net leasable commercial o ffice space, two (2) free-market units and Subdivision Amendment for the Hannah Dustin Subdivision Staff Report, Page 1 of 4 P288 three (3) affordable housing units on a lot that had an existing commercial building upon it. A Subdivision Agreement for the Hannah Dustin Subdivision was executed in September of 2006 (Exhibit C) to memorialize requirements associated with the development approval. Subsequent to the development approval the property owner condominiumized the property into two interests and sold each interest to different purchasers. The two interests can be generalized as the Commercial interest and the Residential interest, as the Commercial interest contains the existing commercial building as well as the approved commercial addition and one (1) affordable housing unit. The Residential interest contains the two (2) free-market units and two (2) affordable housing units as shown in Figure 1, below. Figure 1: Hannah Dustin's Ownership Interests Commercial Interest Residential Interest Existing Net leasable space, EAST HYMAb AVENUE Two free-market residential 7UG' 10.~, plus 2,440 sq. ft of new net dwellings and two affordable leasable and an affordable housing units housing unit PÂ»c}pc=t/cowc..rE DIOKWAU~TO CONNECT 'A rn, Eu,rn./.Al, / 4,4.-7 :444 f ,*~1--88-b-f -irf : .---9~-1.-1,1-:--1-1 1 *3Â·r.*29 .061 -f 'Â·- auy:J' IM#-IC.'77(11)k9 4'â€žItLA466Â·Â·-~~~E- - --ri |-,1t - fZZP"-*--.Ce,Ic-TIW-Â¢T~---LD- 11 I - 1---- ./Â¢th -?Â·:': 4.1,044/ A .0==-=:Rm- U rl- =:lul/ . C m r.=I= O,r- 1-1-1-+ 1 ...#14- N= 911 1 9/ U~ Mil , y.---t. D?[C.NA-1 71- 4~ -Â·......fker......=al dE. 12 9 - 1---=-- t= L == = 1- 1 1 .CK a PUBLIC AMENmES . ./.Â·â€ž/ loe . 1 P < L -ED AT 3,008,5 6,F. , m --*/ 1/5--1Â· 0 0 ALLEY BLOCK 105 As a result of having two ownership interests in the property and realizing that the timing of construction may be different for each ownership interest (potentially affecting provisions within the subdivision agreement), the owners requested that the agreement be amended. An amendment to the original subdivision agreement was recorded on November 9, 2006 (Exhibit D). The amendment memorialized the property interests as the Residential Phase and Subdivision Amendment for the Hannah Dustin Subdivision Staff Report, Page 2 of 4 SOUTH SPRING STREET P289 Commercial Phase. As noted previously, the Residential Phase contains two (2) free-market units and two (2) affordable housing units while the Commercial Phase contains the commercial addition and one (1) affordable housing unit. The agreement acknowledged that each phase may be constructed independently; however, the agreement required an unfinished phase be fifty percent complete (framing inspection approval) prior to a Certificate of Occupancy being issued for the other phase. The agreement also required that assurances be provided showing that the incomplete phase have the necessary funding to be completed. Since the amendment to the subdivision agreement, the construction of the Residential Phase has been undertaken; however, the Commercial Phase has not begun construction, although a building permit application is under review by the building department. The Residential Phase is close to completion but the Commercial Phase is not ready to start construction and will not meet the requirement of being fifty percent complete for the Residential Phase to receive a Certificate of Occupancy (C.O.). PROPOSAL: The Applicant is requesting a second amendment (Exhibit A) to the subdivision agreement to allow for the issuance of C.O.s for the Residential Phase, prior to the fifty percent completion of the Commercial Phase. Specifically, the Applicant is proposing to provide a deposit of $500,807.25 that will be forfeited to the city if the building permit for the Commercial Phase has been approved for issuance but has not been issued (due to failure to pay any outstanding fees) by July 31, 2009. If the building permit is issued on or prior to July 31 st, the Applicant will be available for a refund of the deposit; although the refund is phased and tied to attaining certain construction inspection approvals. Deposit Amount: The deposit amount of $500,807.25 is equivalent to the current cash-in-lieu fee for a two bedroom Category 2 affordable housing unit. The Applicant is proposing that if the vesting expires and additional mitigation is required to complete construction of the approved project, then the forfeited deposit can be used to offset any additional requirements. Commencement Deadline: July 31, 2009, is the date the vested rights expire and is proposed to be considered the commencement deadline to have had the building permit for the Commercial Phase issued. The Applicant has the ability to request an extension of the vested rights through City Council. As currently proposed, if the vesting period is extended then the commencement deadline will become the new expiration date of the project's vested rights. A separate land use application would need to be submitted and approved by the City Council to extend the vested rights associated with this property. Refund of the Deposit: Once a building permit is issued a builder has a year to attain his first inspection. The first inspection is the footing inspection. Assuming the applicant meets the commencement deadline, the amendment has been crafted to link the release of the deposit to completing certain phases of construction. Twenty-five percent of the deposit is available to be refunded to the Applicant once footing inspection approval has been attained. The remainder of the deposit is available when the framing inspection approval has been attained. DISCUSSION: The Hannah Dustin Subdivision was approved as a single project with a mix of uses: commercial, free-market residential and affordable housing. This project has been approved as a Subdivision Amendment for the Hannah Dustin Subdivision Staff Report, Page 3 of 4 .. whole and should not be treated as an a la carte development; however, staff recognizes the economic climate the community is experiencing and understands why the request has been submitted. Staff has worked with the Applicant to come up with a deposit amount that is substantial enough that it should create enough incentive for the Applicant to begin construction of the commercial net leasable space and the remaining affordable housing unit while linking the release of the deposit, upon attaining certain field inspection approvals. RECOMMENDED ACTION: Staff recommends approval of the second amendment to the subdivision improvements agreement to the Hannah Dustin Subdivision. PROPOSED MOTION: "I move to approve Resolution No. I 3, Series of 2009, approving the requested Second Amendment to the Subdivision Agreement for the Hannah Dustin Subdivision." CITY MANAGER COMMENTS: ATTACHMENTS: Exhibit A - Proposed Second Amendment to the Subdivision Agreement for the Hannah Dustin Subdivision Exhibit B - Cover letter from David Mylar dated February 9,2009and proposed second Exhibit C - Subdivision Agreement for the Hannah Dustin Subdivision Exhibit D - Amendment to Subdivision Agreement for the Hannah Dustin Subdivision Exhibit E - Ordinance No. 16 (Series of 2006) Subdivision Amendment for the Hannah Dustin Subdivision Staff Report, Page 4 0 f 4 . E+ThmT*--A P293 DRAFT 02/13/09 SECOND AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION This Second Amendment to Subdivision Agreement for the Hannah Dustin Subdivision (the "Second Amendment") is made this day of , 2009, by and among the CITYOF ASPEN, a municipal corporation (the "City"), the SNOW-MASS CORPORATION, a Colorado corporation ("Snowmass"), and HYMAN STREET BROWNSTONES, LLC, a Colorado limited liability company ("Brownstones"). RECITALS: A. The City entered into a Subdivision Agreement for the Hannah Dustin Subdivision with Ilyman Avenue Holdings, LLC, the predecessor in interest to Snowmass and Brownstones, on September 25,2006 (the "Subdivision Agreement"). B. The Subdivision Agreement was amended by a document entitled "Amendment to Subdivision for the Hannah Dustin Subdivision" on November 7,2006 (the "First Amendment"). C. The City, Snowmass and Brownstones desire to further amend the Subdivision Agreement and the First Amendment as set forth in this Second Amendment, NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1, Waiver of Completion Requirement. Upon satisfaction of the requirements of Section 2, below, the provisions of Section 8.1(iii) of the First Amendment, which require the Commercial Phase to be 50% complete in order for the Residential Phase to obtain a Certificate of Occupancy shall be waived. 2. Deposit. As consideration for the waiver described in Section 1, above, Snowmass shall deposit the sum of $500,807.25 with the City, either in cash or in the form of an irrevocable letter of credit prior to the issuance of a Certificate of Occupancy for the Residential Phase. The deposit is intended to provide a reasonable financial assurance that Snowmass will undertake construction of the Commercial Phase and, in particular, the affordable housing unit which is required as a condition of Commercial Phase approval. To that end, the deposit shall be forfeited and may be retained and utilized by the City for affordable housing purposes if a building permit for the Commercial Phase has been approved but not issued by July 31, 2009, which is the date on which vested property rights are due to expire (the "Commencement Deadline"). If the vested property rights period is extended, Â· the Commencement Deadline shall automatically be extended to the new date on which the vested property rights for the Commercial Phase are to expire. If a building permit for the Commercial Phase is issued by the Commencement Deadline, Snowmass may request and the City shall refund the P294 deposit based upon the following schedule. Twenty-five percent (25%) of the deposit shall be refunded after the footing inspection approval has been attained. The remainder of the deposit shall be refunded after the framing inspection approval has been attained. 3. Completion of Residential Phase. The parties acknowledge and agree that the Residential Phase is, on the date hereof, more than 50% complete. 4. Assurance of Financing. In satisfaction of the requirements of Section 8.1(iii) of the First Amendment, Snowmass shall provide the City with a written confirmation of its construction loan from Bank of America, to be delivered to the City along with the Deposit. 5. Housing Mitigation Credit. If construction of the Commercial Phase has not begun prior to the Commencement Deadline referred to Section 2, above, and as a result the Deposit is forfeited, Snowmass may, nevertheless, be entitled to a credit, up to $500,807.25, to be applied against affordable housing mitigation requirements associated with development of the Commercial Phase, if any, which are in addition to the requirement for construction of a two-bedroom Category II housing unit within the Commercial Phase. The credit shall only be available, however, if such unit is actually constructed within the Commercial Phase and if, as a result of expired vested property rights, additional affordable housing mitigation is required. CITY OF ASPEN, COLORADO, a Colorado municipal corporation By: Michael C. Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk SNOWMASS CORPORATION, a Colorado corporation By: James W. Light, President HYMAN STREET BROWNSTONES, LLC, a Colorado limited liability company By: John A. Elmore, II, Manager P295 STATE OF COLORADO) ) SS. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2009, by Michael C. Ireland, Mayor, and Kathryn S. Koch, City Clerk, of the City of Aspen, Colorado, a Colorado municipal corporation. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO) ) SS. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 20091 by James W, Light, as President of Snowmass Corporation, a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO) ) SS. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2009, by John A. Elmore, II, as Manager of Hyman Street Brownstones, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public P296 /fi*he\TLE= THE MYLER LAW FIRM, P.C. TELEPHONE A Colorado Professional Corporation DAYID J. MYLER' (970) 927-0456 ROBYN J. MYLER 123 FACSIMILE (970) 927-0374 ADMn'TED IN CO', NY; CT' 211 Mmuc~m A VENUE EMAILS SUITE 201 dmyler@mylerlawpc.com BASALT, COLORADO 81621 rmyler@mylerlawpo.com RHONDA E NEFF, LEGAL ASS]STANT maff@mylerlawpc.com CONNIE A. WOOD, LEGAL ASSJSTANT cwood@mylcrlawpc.com February 9,2009 Aspen City Council 130 South Galena Street Aspen, CO 81611 RE: Second Amendment to Subdivision Agreement for the Hannah Dustin Subdivision Ladies and Gentlemen: Pursuant to Ordinance No. 16, Series of 2006, the City Council approved a mixed use development known as Hannah Dustin. The project consists of a Residential Phase and a Commercial Phase. The Residential Phase contains two (2) free market units, two (2) deed restricted units and ten (10) underground parking spaces, eight (8) of which are to be available for us by the owners or tenants of the Commercial Phase. The Commercial Phase consists of 2,440 square feet of office space and one (1) deed restricted unit. In 2006, the initial developer conveyed the parcels on which the Residential Phase and the Commercial Phase are to be developed to separate developers. Hyman Street Brownstones, LLC purchased the propert)ron which the Residential Phase was to be developed and the Snowmass Corporation purchased the property on which the Commercial Phase was to be developed. Contemplating that the phases would not be undertaken and completed simultaneously, but recognizing that certain community benefits (in particular, affordable housing and structured parking) for the entire project were located in each of the phases, the owners and the City amended the initial Subdivision Agreement to provide that a Certificate of Occupancy for one phase would not be issued until the other phase was at least 50% complete and that the owner ofthe incomplete phase was able to provide evidence of financing sufficient to complete that phase. Â· The Residential Phase, including two (2) affordable housing units and all of the underground parking, is nearing completion. However, the Snowmass Corporation has not been able to begin construction of the Commercial Phase and, thus, will not be able to satisfy the 50% completion requirement by the time that the Residential Phase will be eligible for a Certificate of Occupancy. P297 THE MYLER LAW FIRM, P.C. Aspen City Council February 9,2009 Page 2 The Snowmass Corporation spent several months last summer and fall processing its application for a building permit. The process was substantially delayed in order to work with the Building Department to redesign significant elements of the office addition to accommodate new requirements and requests relating to handicap access. That process has been completed and the Building Department is prepared to issue a permit for construction of the Commercial Phase at any time. In addition, Snowmass Corporation obtained, last fall, a commitment from Bank of America for construction financing sufficient to complete the Commercial Phase. Snowmass Corporation was prepared to commence construction with the expectation that they could achieve 50% completion prior to the time that the Residential Phase would be eligible for a Certificate of Occupancy when the financial climate began to change for the worse. Although the financing remains available, it was not considered prudent to commence construction last fall or at the present. We approached the Community Development Department and the City Attorney with a request to amend the Subdivision Agreement in order to remove the 50% completion requirement. Our objective was to obtain additional time to commence and complete the Commercial Phase in order to better understand the economic situation, while at the same time removing obstacles to the issuance of a Certificate of Occupancy for the Residential Phase. We proposed to establish a new deadline for commencement of the Commercial Phase and to provide security to address the shortfall in affordable housing mitigation should the Commercial Phase not proceed. After a series of discussions with Jennifer Phelan and John Worcester, we agreed to provide a deposit in the amount of $500,807.25, either in cash or in the form of an irrevocable letter ofcredit, that will be forfeited if Snowmass Corporation does not commence construction ofthe Commercial Phase, including a two-bedroom Category II affordable housing unit, by July 31,2009. The amount of the deposit is equal to the cash-in-lieu fee for the number of employees to be housed by the Commercial Phase and, thus, will provide the City with the full mitigation required by the project if the Commercial Phase is not constructed. Please note that the deadline corresponds with the expiration of the vested rights period for the Commercial Phase. If the vested rights period is extended, which may be the subject of a separate application to the City, the deadline for commencement of construction will also be extended. Snowmass Corporation fully intends to begin construction of the Commercial Phase as soon as financial and market conditions permit. If we begin before the deadline, the deposit will be refunded. If not, the deposit will be forfeited. If the Commercial Phase is developed after the deadline and if a two-bedroom Category II unit is constructed on site, Snowmass Corporation will, however, be entitled a credit up to the forfeited deposit for any additional mitigation that may be required by the City's housing regulations then in place. We believe that the credit arrangement is fair and appropriate since it only comes into play if a two-bedroom Category II unit is actually constructed on site and is only applied to affordable housing mitigation which may be required in P298 THE MYLER LAW FIRM, P.C. Aspen City Council February 9,2009 Page 3 addition to that unit. Such additional mitigation would only be required if development of the Commercial Phase occurs after the expiration of vested rights and if the City has amended its housing mitigation regulations to require additional housing. In short, Snowmass Corporation is attempting to achieve some flexibility in determining when to begin its project, to remove an impediment to completion and occupancy of the Residential Phase and, at the same time, to provide financial assurances that the project' s mitigation requirements will be satisfied. We do not perceive that the City has any risk. Two (2) of the three (3) affordable housing units and all ten (10) ofthe parking spaces will be complete in the next month or so. The third affordable housing unit will be constructed when the Commercial Phase is completed and, in the meantime, the City will have an adequate financial assurance that the project's housing mitigation requirements will be satisfied even if the Commercial Phase is not constructed. We appreciate your consideration of this matter and ask that you accommodate our request for some degree of flexibility in these uncertain times. Very truly yours, THE MYLERLAW FIRM, P.C. David J. Myler -- . EÂ«EVOCJP299 SUBD[VISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION THIS SUBDIVISION AGREEMENT is made and entered into this 16.~day of ~â‚¬2~eA~*006, by and between THE CITY OF ASPEN, COLORADO, a municipal corporation (hereinaher referred to as the "City") and Hyman Avenue Holdings, LLC a Colorado limited liability company (hereinafter referred to sometimes as the 'Applicant" and sometimes as "Hyman Avenue Holdings"). WITNESSETH: WHEREAS, Hym@ Avenue Holdings has submitted to the City an "Application" consisting of a request forjapproval from subdivision, various growth management reviews, commercial design review, and condominiumizaton to add 2,440 square feet of net leaseable space, two (2) free market residential units, and three (3) affordable housing units to be consolidated, platted and known as the Hannah Dustin Subdivision (the "Property"), which Application requested the approval, execution and recordation of a Final Subdivision Plat of the Property (the "Final Plat"); and WHEREAS, the City has fully considered and approved the Application, Final Plat, and the proposed development and impmvement of the Property pursuant to Ordinance No. 16 (Series of 2006) , and the effects of the proposed development and improvements of said ~ Property on adjoining or neighboring properties and property owners; and WHEREAS, the City has imposed certain conditions and requirements in connection with its approval of the Application, and its execution and recordation of the Final Plat, such matters being necessary to promote, protect, and enhance the public health, safety, and general welfare; and WHEREAS, Hyman Avenue Holdings is willing to acknowledge, accept, abide by, and faithfully perform the conditions and requirements imposed by the City in approving the Application, and the Final Plat; and WHEREAS, under the authority of Sections 26.445.070 (C and D) and 26.480.070 (C and D) of the Aspen Municipal Code, the City is entitled to certain financial guarantees to ensure that the required public facilities are installed and Hyman Avenue Holdings is prepared to provide such guarantees that hereinafter set forth; and WHEREAS, contemporaneously with the execution-and recording of this Subdivision Agreement the City and Hvman Avenue Holdings have executed and recorded the Final Plat in Plat Book qi at Pagel~ , Reception No.535934 in the ofice of the Clerk and Recorder of Pjtkin County, Colorado. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution, and acceptance of this Subdivision Agreement for recordation by the City, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: filli~ Illu Illil Illillilll lill Illilli Hilifil Hll lili 528933 Page: 1 of 10 {00036009.DOC/ 1} 09/25/2006 09 : 121 1 JANICE K VOS CAUDILL PITKIN COUNTY CO R 51,00 D 0.00 P 300 ARTICLE I PURPOSE AND EFFECT OF SUBDIVISION AGREEMENT 1.1 Purpose. The purpose of this Subdivision Agreement is to, along vuith the Final Plat, set forth the complete and comprehensive understanding and agreement of the parties with respect to the development of the Hannah Dustin Subdivision and to enumerate all terms and conditions under which such development may occur. 1.2 Effect. It is the intent ofthe parties that this Subdivision Agreement and the Final Plat shall effectively supersede and replace in their entirety all previously recorded and unrecorded subdivision, condominium, and other land use approvals and related plats, maps, declarations, and other documents and agreements encumbering the Property, including and without limitation those matters identified in Article V below (collectively, the "Prior Approvals and Instruments"), but expressly excluding the following which shall not be superseded and replaced bv this Subdivision Agreement: (a) The terms and conditions of City of Aspen Ordinance No. 16, Series of 2006, recorded on July 12, 2006 as Reception No. 526319, Pitkin County, Colorado; (b) The terms and conditions of the Amended and Restated Condominium Declaration of Hannah Dustin, a Condominium, recorded on August 29,2006 as Reception No. 527925, Pitkin County, Colorado (including any subsequent amendments thereto); and (c) The terms and conditions of the First Amended Plat of the Hannah Dustin Condominiums, recorded on August 29,2006 in Plat Book 80 at Page 3, Reception No. 627927, Pitkin County, Colorado (including any subsequent amendments thereto). ARTICLE 11 ZONING AND REGULATORY APPROVALS 2.1 Approval Ordinances. Pursuant to Ordinance No. 16 (Series of 2006), the Aspen City Council granted Subdivision approvals, providing for the development an additional 2,440 s. f. of net leasable space, two (2) free-market residential units, and three (3) deed-restricted affordable housing units, on the Property located at 300 South Spring Street, Aspen, Pitkin County, Colorado (collectively, the "Project"). This Subdivision Agreement and the Final Plat incorporate all of the pertinent provisions of Ordinance No. 16 (Series of 2006). In the event of any inconsistencies between the provisions of Ordinance No. 16 (Series of 2006) and the provisions of this Subdivision Agreement and the Final Plat, the plovisions of this Subdivision Agreement and the Final Plat shall contiol. 2.2 Dimensional Requirements. Ordinance No. 16 (Series of 2006) established and approved a multi-family building consisting of two (2) free-market residential units and three (3) deed-restricted affordable housing units of the Hannah Dustin Subdivision. The redevelopment of the building as presented complies with the dimensional requirements of the Mixed-Use (MU) Zone District. The structure shall meet all of the required Commercial Design Standards applicable to a multi-family building. Compliance with these requirements will be verified by the City of Aspen Zoning Officer at the time of building permit review. 2.3 Off-street Parking. The project shall provide sixteen (16) off-street parking spaces, four (4) of which shall be designated for the use of the free market residential units, three (3) of which {00036009.DOC/ 1} 2 11111111111111'llilli lili lilli 528933 Page: 2 of 10 03/25/2006 09 : 12: JANICE K VOS CAUDILL PITKL. COUNTY CO R 51.00 D 0.00 .. P301 shall be designated for use by the affordable housing units, and nine (9) required spaces which shall be for the use of the commercial space and guest parking. 2.4 Affordable Housing. The affordable housing units shall be in compliance with the Aspen/Pitkin County Housing Authority's.Employee Housing Guidelines. The Applicant shall record a deed restriction on each of the affordable housing units at the time of recordation of the condorninium map and prior to the issuance of a Certificate of Occupancy for the building, classifying the units as Category 2 units. Included in the governing documents shall be language reflecting the potential br the units to become ownership units. If the Applicant chooses to deed restrict the affordable housing units as rental units, the Applicant shall convey a 1/10 of a percent, undivided interest in the units to the Aspen/Pitkin County Housing Authority prior to the issuance of a certificate of occupancy on any portion of the building. The units may be deed-restricted as rental units, but the units shall become ownership units at such time as the owners would request a change to *for-sale" units or at such time as the Aspen/Pitkin County Housing Authority deems the units to be out of compliance with the rental occupancy requirements in the Affordable Housing Guidelines for a period of more than year. ARTICLE 111 APPROVALS AND EXEMPTIONS 3.1 Sidewalk and Landscaping Improvements. Prior to issuance of a certificate of occupancy for any portion of the development, the Applicant shall have installed a sidewalk with a parkway strip meeting the City Engineer's design requirements along the entire lot frontage abutting East Hyman Avenue. Appropriate street tree plantings shall occur in the parkway strip along the property frontage on both East Hyman Avenue and South Spring Street. The Applicant shall submit a landscaping plan for plantings in the right-of-way for review and approval by the City Parks Department prior to installation of right-of-way plantings. 3.2 Trash/Utility Service Area. A trash/utility service area with a linear footage of fourteen (14) feet and a depth of ten CIO) feet shall be provided between the existing building and the alleyway. A trash compactor shall be installed to justify the reduction in the trash/utility/recycling area. 3.3 School Lands Dedication Fee. Pursuant to Land Use Code Section 26.630, School Lands Dedication, the Applicant shall pay a fee-in-lieu of land dedication in conjunction with any residential development in the subdivision. The Applicant shall paythe school lands dedication fee associated with the subdivision as calculated by the City Zoning Officer using the dedication schedule prior to building permit issuance as set forth in Land Use Code Section 26.630.030, School Lands Dedication: Dedication Schedule. The Applicant shall provide the market value of the land including site improvements, but excluding the value of structures on the site. 3.4 Park Development Impact Fee. Pursuant to Land Use Code Section 26.610, Part Development Impact Fee, the Applicant shall pay a park development fee in the. amount of $19,176.20 pMor to building permit issuance. The fee is assessed based on the following calculation: Proposed Commercial: 2,440 s. f. of new net leasable square feet multiplied by $1,530.00 per 1,000 s.f. = $3,733.20 {00036009.DOC/ 1} 3 1111111111-lilli lilill.lilil 11 1.11 lili Page: 3 of 10 528933 03/25/200S 09:121 JANICE K VOS CAUDILL PITKIN COLN-Y CO R 51,00 D 0.00 . . 0 Proposed Residential: 2 (four-bedroom) Free Market Residential Units multiplied by $3,634 per unit = $7:268.00 3 (two-bedroom) Residential Units multiplied by $2,725 per unit = $8,175.00 Total: $19,176.20 3.5Impact Fees. The Applicant will pay all impact fees shall be paid prior to the issuance to the issuance of a building permit. 3.6 Employee Housing Mitigation. The development shall contain gross affordable housing floor area equal to or greaterthan 30% free-market residential floor area. This percentage shall be verified by the City Zoning Officer prior to building permit issuance. 3.7 Water Department Standards. Hyman Avenue Holdings shall comply with the City of Aspen Water System Standards, with Title 25 of the City of Aspen Municipal Code, and with applicable standards of Title 8 of the City's Municipal Code (Water Conservation and Plumbing Advisory Code), as required by the City of Aspen Water Department. Each of the units within the building shall have individual water meters. 3.8 Sanitation District Standards. The Applicant shall comply with the Aspen Consolidated Sanitation District's rules and regulations with respect to the Project: (a) Sanitation seivice is contingent upon Hyman Avenue Holdings compliance with ACSD rules, regulations, and specifications at the time of construction; (b) All clear water connections are prohibited, i.e., ground water (roof, foundation, perimeter, patio drains), including entrances to underground parking garages (if any); (c) All improvements below grade development shall require installation of a pumping station; (d) Shared service line agreements are required where more than one unit is served by a single service line; (e) All ACSD total connection fees must be paid prior to the issuance of a building permit. 3.9 Electrical Department Requirements. The Applicant shall have an electric connect load summary conducted by a licensed electrician in order to determine if the existing transformer on the neighboling property has sufficient capacity for the Hannah Dustin Redevelopment. If a new supplemental transformer is required to be installed on the subject property, the Applicant shall provide for a new transformer and its location shall be approved by the Community Development Department prior to installation. The Applicant shall dedicate an easement to allow for City Utility Personnel to access the supplemental transformer for maintenance purposes, if a supplemental transformer is installed. 3.10 Subdivision Plat. The Final Plat shall be recorded in the Office of the Clerk and Recorder of Pitkin County, Colorado within 180 days after City Council's final approval of Ordinance No. 16(Series of 2006). 3.11 Subdivision Agreement. This Subdivision Agreement shall be recorded within 180 {00036009.DOC/ 11 4 Page: 4 of 10 528933 09/25/2005 09 : 121 JAN.CE K 705 CAUDILL PITKIN COLN-Y CO R 51.00 D 0.00 P303 days after the City's grant of final approval of the Project (Ordinance No. 16, Series 2006). 3.12 Fire Department Reauirements. The Applicant shall install a fire sprinkler system and alarm system that meets the equirements of the Fire Marshal. 3.13 Building Permit Requirements. Any building permit application for the Project shall include and/or depict the following information: (a) A signed copy of Resolution No. 09 (Series of 2006) and Ordinance No. 16 (Series of 2006) granting final land use approval. (b) The conditions of approval of Ordinance No. 16(Series of 2006) shall be printed on the cover page of the building pennit set. (c) A completed tap pen-tit for sewer service from ACSD. (d) A drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which maintains sediment and deblis on-site during and after construction. If a ground recharge system is required, a soil percolation report will be required to correctly size the facility. A 5-year storm frequency should be used in designing any drainage improvements. (e) Construction Management Plan pursuant to the Building Department's requirements. The Construction Management Plan shall include an identification of construction hauling routes, construction phasing, and a Construction Traffic and Parking plan for review and approval by the City Engineer and Streets Department Superintendent. The Construction Management Plan shall conform to the standards and requirements for construction management plans in effect at the time of building permit submission. (D A fugitive dust control plan to be reviewed and approved by the City Engineering Department. (g) A detailed excavation plan that utilizes vertical soil stabilization techniques for review and approval by the City Engineer. 3.14 Vested Rights. The development approvals granted by the City pursuant to Ordinance No. 16(Series of 2006) shall constitute a site-specific development plan, which is vested for a period three (3) years from the date of issuance of a development order by the City. Article IV Prior Approvals and Instruments There are no recorded prior approvals for this Subdivision. Article V Subdivision Improvements 11"11! 01 1 {00036009.DOC# 1} 528933 5 j lill# ifill illili ll# 01# lili #Wil 1 1 lilli lili lill Page: 5 of 10 03/Z5/2006 09:12! JANJCE K VOS CAUDILL PITKIN COL,FY CO R 51.00 0 0.00 P304 Prior to the issuance of any Certificate of Occupancy with respect to the Project, Hyman Avenue Holdings shall accomplish the following subdivision improvements (collectively, the "Subdivision Improvements"), all as further depicted and described on the Final Plat: (1) installation of a detached sidewalk, location of the existing driveway entrance, with a parkway strip meeting the City Engineer's design requirements along the entire lotfrontage abutting East Hyman Avenue, along with two ANSI-conforming handicapped ramps at the Hyman and Spring intersection, and curb replacement for the existing driveway cut on Hyman Avenue, at an estimated cost of Gr#Bmen., (2) installation of appropriate parkway plantings, including trees, grass, and irrigation, in the parkway strip along the property frontage on both East Hyman Avenue, at an estimated cost of ~; In order to ensure construction and installation of the Subdivision Improvements (1) and (2) described immediately above, Hyman Avenue Holdings shall provide to the City either an irrevocable standby letter of credit from a financially responsible lender or a bond in the amount of ji%&5(&58. Said letter of credit or bond shall be provided to the City prior to the issuance of a grading or access permit with respect to the Project, shall be in a form reasonably acceptable to the City Attorney, and shall give the City the unconditional right, upon default hereof by Hyman Avenue Holdings, subject to the provisions of Article VI below, to draw funds as necessary and upon demand to partially or fully complete and/or pay for any of such improvements or pay any outstanding and delinquent bills for work done thereon by any party, with any excess letter of credit or bond amount to be applied irst to additional administrative or legal costs associated with any such default and the repair of any deterioration in Subdivision Improvements already constructed before the unused remainder, if any, of such letter of credit or bond is released to Hyman Avenue Holdings. Notwithstanding the foregoing, delays or other problems resulting from acts of God or other events beyond the reasonable control of Hyman Avenue Holdings shall not constitute a default hereunder so long as a good faith effort is being made to remedy the problem and the problem is in fact resolved within a reasonable period for time following its occurrence. As portionsÂ· of the Subdivision Improvements are completed, the City Engineer shall inspect them, and upon approval and written acceptance, he shall autholize a reduction in the outstanding amount of the letter of credit or bond equal to an agreed upon estimated cost br the completed portion of the Subdivision Improvements; provided, however that ten percent CIO%) of the estimated costs shall be withheld until all ofthe Subdivision Improvements are completed and approved by the City of Aspen Public Works Director. It is the express understanding of the parties that compliance with the procedures set forth in Article VI below pertaining to the procedure for default and amendment to this Subdivision Agreement shall be required with respect to the enforcement and implementation of these financial assurances and guarantees to be provided by Hyman Avenue Holdings as set forth above. Article VI Non-Compliance and Request for Amendments or Extensions In the event that the City determines that Hyman Avenue Holdings is not acting in ~*22Â®8Lampliance with the tenns of this Subdivision Agreement or the Final Plat, the City 6 r28933 Ium Imimi| Nmmi mvi |~I EMR :/25/2006 09:13 Page: 5 of 10 JANICE K VOS CAUDILL PITKIN COLNTY CO R 51.00 D 0.00 .. P305 shall notify Hyman Avenue Holdings in writing specifying the alleged non-compliance and asking that Hyman Avenue Holdings remedy the alleged non-compliance within such reasonable time as the City may determine, but not less than 30 days. If the City determines that Hyman Avenue Holdings has not complied within such time, the Citymay issue and serve upon Hyman Avenue Holdings a written order specifying the alleged non-compliance and requiring Hyman Avenue Holdings to remedy the same within thirty (30) days. Within twenty (20) days of the receipt of such order, Hyman Avenue Holdings may file with the City Engineering Department either a notice advising the City that it is in conipliance or a written request to detennine any one or both of the following matters: (a) Whether the alleged non-compliance exists or did exist; or (b) Whether a variance, extension of time or amendment to the Final Plat orthis Subdivision Agreement should be granted with respect to any such non-compliance which is determined to exist. Upon the receipt of such request, the City shall promptly schedule a meeting of the parties to considerthe matters set forth in the order of noncompliance. The meeting of the parties shall be convened and conducted pursuant to the procedures normally established by the City. If the City determines that a non-compliance exists which has not been remedied, it may issue such orders as may be appropriate, including the imposition of daily fines until such non-compliance has been remedied, the withholding of permits and/or certificates of occupancy, as applicable; provided, however no order shall terminate any land use approval. The City may also grant such variances, extensions of time or amendments to the Final Plat orto this Subdivision Agreement as it may deem appropriate under the circumstances. The parties expressly acknowledge and agree that the City shall not unreasonably refuse to extend the time periods for performance hereunder if Hyman Avenue Holdings demonstrates that the reasons for the delay(s) which necessitate said extension(s) result from acts of God or other events beyond the reasonable control of Hyman Avenue Holdings, despite good faith efforts on its part to perform in a timely manner. Article VII General Provisions 7. 1 Successors and Assigns. The provisions hereof shall be binding upon and inure to the benefit of Hyman Avenue Holdings and the City and their respective successors and assigns. 7,2 Governing Law. This Subdivision Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 7.3 Inconsistency. If any of the provisions of this Subdivision Agreement or any paragraph, sentence, clause, phrase, word, or section or the application thereof in any circumstance is invalidated, such invalidity shall not affect the validity of the remainder of this Subdivision Agreement, and the application ofany such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstance shall not be affected thereby, 7.4 Integration.- This Subdivision Agreement and any exhibits attached hereto contains the entire understanding between the parties hereto with respect to the transactions {00036009.DOC/ 1} 7 1 111 111'llillill. 21 --11 11111111111 1111 lili Page: 7 of 10 ~ 528933 09/25/2006 03: 10 JANI-E K VCS CAUDILL FITKIN COLNTY CO R 51.00 D 0.00 P306 contemplated hereunder. Hyman Avenue Holdings and its successors and assigns may on its own initiative petition the City Council for an amendment to the Final Plat orthis Subdivision Agreement or for an extension of one or more of the time periods required for the performance hereunder. The City Council sha[I noi unreasonably deny such petition for amendment or extension after considering all appropriate circumstances. Any such amendment or extension of time shall only become effective upon the execution by all parties hereto that are affected by the proposed amendment. 7.5 Headings. Numerical and title headings contained in this Subdivision Agreement are for convenience only, and shall not be deemed detenninative of the substance contained herein. As used herein, where the context requires, the use of the singular shall include the plural and the use of any gender shall include all genders. 7.6 Acceptance and Recordation of Final Plat. Upon execution of this Subdivision Agreement by both parties hereto, the City agrees to approve and execute and the Final Plat and to accept the same br recordation in the Office of the CleR and Recorder of Pitkin County, Colorado, upon payment of the recordation fees by Hyman Avenue Holdings. 7.7 Notice. Notices to be given to the parties to this Subdivision Agreement shall be considered to be given if delivered by facsimile, if hand delivered, or if deljvered to the parties by registered or certified mail at the addresses indicated below, or such other addresses as may be substituted upon written notice by the parties or their successors or assigns: The City: City of Aspen City Manager; Community Development Director 130 South Galena Street Aspen, Colorado 81611 Hyman Avenue Holdings: Hyman Avenue Holdings, LLC c/o Peter Fomell 402 Midland Park Place Aspen, CO 81611 Facsimile: (970) 925-6767 With a copy to: Curtis Sanders, Esq. Krabacher & Sanders, PC 201 North Mill Street Aspen, CO 81611 Facsimile: (970) 925-1181 1 11---11 lilli 111111 lili lilli lili lili[ 111 lilli 111111] Page: 8 of 10 528933 e9/25/2006 09.121 JANICE K VOS CAUDILL PITKIN COUNTY CO R 51.00 D 0.00 {00036009.DOC/ 1} 8 Â· P307 IN WITNESS WHEREOF, the parties have hefeunto set their hands and seals as of the day and year first above written. CITY: CITY OF ASPEN,GAIRADO, a Colorado municipal corporatiol, A-~ ~ Byt Heldli Krand@rud, IM,or & Attest;/ U .Â«-T. -4 , =1 U an o UAUUL.UA,0,1~ 74- 1/ Kathryn S. Koc~City Clerk APPROVED AS TO FORM: Ljoh-ri-WorciEdt, City Attorney Hyman Avenue Holdings: Hyman Avenue Holdings, LLC, a Colorado limited liability company, as owner of Unit A, Hannah Dustin Condominiums, according to the First Amended Plat of the Hannah Dipti,41 Condominiums, recorded on August 29, 2006 in P]A Fook 80 at Page Â©Reception No. 627927, Pitkin Cooblk Coletado. f) At' fil By: ~ vf~ ~/~ Petef'Fornell, as its Managing Member Hyman Avenue Holdings, LLC, a Colorado limited liability company, as owner of Unit A, Hannah Dustin Condominiums, according to the First Amended Plat of the Hannah DAin.tondominiums,Accorded on August 29, 2006 in *af 846 480-4 PagpA Rbception No. 627927, pliMn 7~*Lpo\oradd. / ~ 3 A-1-10-1 v l By: Petdr Fofndll, as its Managing Member 4 'Iri 11,11'ji ImE 11# ii- 1 Page: 9 of 10 528933 09/25/2006 09 : 121 JANICE K VOS CAUDILL PITKIN COUNTY CO R 51.00 D 0.00 {00036009.DOC/ 1} 9 P308 STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) .Crlk The foregoing instrument was acknowledged before me this W day of08#)11,<006 by Helen Klanderud as Mayor of the City of Aspen, Colorado, a municipal corporation. ..-Â·- .- g#*6~; l3231~2.. Witness my hand and official seal, 73%Â°(87.46.:4th My commission expires: 111,41 8 : 'i.-4% 06 I - 11 : Ch .t-: Notary Public CLE' /- -7 STATE OF COLORADO ) ) SS. My ConlmiSEL 43,08 03/25/2009 COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this'27 'day of Kathryn S. Koch, City Clerk of the City of Aspen, Colorado, a municipal corporatioDÂ· Witness my hand and official seal, 062 : \ 1 4 ff: My commission expires: 9 ~-2,5~4 3 : . 7 L , 6 . 'k,47 Notary Public 49557 Py Commastn Expirs 09/25/2009 STATE OF COLORADO ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this Lgpday ofgfi 2006 by Peter Fornell, Managing Member of Hyman Avenue Holdings, LLC, a Colorado limited' liability company. Witness my hand and official seal, My commission expires: Brandi-L. Jepson / Notary Public My Commission Expires 07/25/2009 |Â»ach' 7;. 2~-127Â·' 601 E. Hopkins Notary Public Aspen, CO 81611 ~ 528933 Â£9, 42 4. .... 4241 Page: 10 of 10 09/25/2006 09: 12 JANICE K VOS CAUDILL PITKIN COUNTY CO R 51,00 D 0.00 Ul) JEPSON I .. 0 {00036009.DOC/ 1} e ob '66\Â·6# 6 10 , O-tÂ«-p-309 Or : 4 ' A.,CAJ 1, i AMENDMENT TO SUBDIVISION AGREEMENT U FOR THE HANNAH DUST]N SUBDIVISION Avi< A%21 YEU,11% ~ This AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAN DUSTIN SUBDIVISION (this "Ammdment") is made this 3.+1-% day of November, 2006 by and among tbe City of Aspen, Colorado, a municipal corpora~on (ths "City"); Hyman Avenue Holdings, LLC, a Colorado limited liability company (':HAH' ') and TheÂ· Snowmass Corporation, a Colorado corporation ("Tsc,). RECITALS HAH and the City are parties to that certain Subdivision Agreement for the Hannah Dustin Subdivision recorded in the real estate records of Pitkin County, Colorado on September 25,2006 under Recoption No. 528933 (the "Subdivision Agreement'D. B. The SIA. applies to certain real property in Pitkin County, Colorado known as tha Hannah Dustin Subdivision, according to the Plat recorded in Plat Book 81 at Page 44 as Reception No, 528934 (the "Subdivision'D. C. Subsequent to the rocordation of the Subdivision Agreemont, HAH conveyed to TSC a portion of the Subdivision legally described as Unit A, Hannah-Dustin Condominiums, according to the Plat thereof recorded October 2, 1985 in Plat Book 17 at Page 78 as Reception No. 271969 and First Amended Plat of the Hannah Dustin Condominiums recorded August 29,2006 in Plat Book 80 at Page 3 as Reception No. 527927, and as defined and described by the Amended and Restated Condominium Doclaration of Hannah-Dustin, a condominium reÂ©orded August 29,2006 as Reception No. 527925 and as shown on the Hannah Dustin Subdivision Plat, Pe:cordnd September 25,2006 in Plat Book 81 at Page 44 as Reception No. 528934 ("Unit "A")- D. The City, HAH and TSC desire to amend tho Subdivision Agreement as set forth in this Amendment AGREEMENT Now therefore, for good and valuable considerations, the receipt and sufficiency of which are hereby confessed and acknowlodged, the City, HAH and TSC hereby amend the Subdivision AgrBement as follows: 1, There is hemby added to the Subdivision Agreement a new Articlo VI]I captioned "Project Phasing/Certificates of Occupancy" as follows: Article VIN Project Phasing/Certificates of Occupancy 8.1 Rearidential and Commercial Phmes. Ths parties acknowledge that tho Project may be constructnd in phases: The residentia] phase (the "Residentia] Phase"), consisting of two (2) free-market residential units, two (2) affordable housing units, and ten (10) parking spaces in an underground parking garage (ths "Garage"); and the commBrcial phase (the "Commercial Phase"), consisting of 2,440 square fect of office space and onv (1) affordable housing unit The Residential Phase will b= constructad on Unit B of the Hannah Dustin Condominiums according to the First Amended Plat thereof recorded. August 29, 1 --I lill lilli - I li F 1 I il li 1 1 Il illl 11/03/2005 03:53 530875 Page: 1 of 3 JANI_E K VDS JUDILL r ]TK- - ..)LATY CD R 25.00 D 0.80 P310 ., 2006, as Reception No. 627927 in the office of the Clerk and Recorder of Pitkin County (tbo ~Condominium Plat"). The Commorcial Phse will bs constnictsd on tbo westerly half of the proporty describd as Unit A of the Hannah Dustin Condominiums on the Condominium Plat. It is also acknowltdgod thai each phase contains elements (affordable housing units and parking) that are requirad to scrve and mitigats impacts for the entire Project Ths City agfees that each of the Residential Phase and Commercial Phase may be undertaken and complotod separately and independently of the other and that a Certificalc of Occupancy shall be iBm]Dd for each phase, independently of the othnr, provided that (D construction for which a Certificate of Occupancy is being requested has been completed in accordance with mlevant building pennie to the extent that it qualifies for a Certificate of Occupancy pursuant to the City's building regulations, (ii) DD default e,dsts under the terms of this Agreement and, (iii) the other phage of the Project bas obtained a building permit, is at least fifty percent (50%) complete and thai the City has receivcd roasonable assurances from the developer of the incomplete phase thai such developer has or can obtain adequate funds to complete that phase. For purposus of this Agr=Dent, a phase of the Project shall be dcemod to be fifty pucent (50%) complete when the framing inspection approval has been attained. Ths parties also understand that a Certificate of Occupancy will not be issued for any phase of the Project if thu physical access to such phase is provided through Dr across areas of th e other unfinished phase that are dangerous due to ongoing construction. 8.2 Garage. Upon completion of construction of the Garage to the extent necessary for the Garage to function as a parking garage (and prior to completion of the remaindcr of the Residential Phase, incJuding other elements of the Residential Phase that may be located in the Garag~ such as mechanical rooms) and providtid that (i) construction of the Garage has been completed in accordance with relevant building permits to the extent that it qualifies for a Certificate of Occupancy pursuant to the City's building regulations, and (ii) no default exists under the terms of this Agreement a Certificate of Occupancy shall be isguod for the Garage (but not the remainder of the Residential Phase). Upon issuance of the Certificate of Occupancy for the Garage, the owner of the Residential Phase shall be entitled to condominiumize the parking spaces in the Garage. 2. HAH signed the Subdivision Agreement in two places and there is a typographical error in HAH'; socond signature block The reference in the second signaturo block for HAH to "Unit A, Hannah Dustin Condominiums..." is hereby corrected to make reference to 'Unit B, Hannah Dustin Condominums...." 3. The Subdivision Agreement, as amended by this Amendment, remains in ful] force and effect. IN WnNESS WHEREOF, the parties have h.reunto set their hands as oftbe day and year first above written. City of Aspp,~ municipal corporation BY. / /-7'FlGI~.--1:=a--IU Hejori K.]andorud, Mayor 0 Attest: / By:-42>Â«4_ I --I]Ill Ill -1.Ill[--[ I~-Ill-1-lilli lili 530875 Page: Z of 3 11/09/2006 09:53 Jkhll-E K VOS JAUDILL r IT- IN JOUNTY ED R 15,00 D 0.00 Kdhryn S. Koo~~it$ Clcrif [Signatures Continut On Following Page] 2 . P311 530B75 - liananlinillipelimillaillilinalill 11/03/2035 03:53 Page: 3 of 3 JANICE K VCS CAUDILL PITKIN COUNTY CO R 1-5 ,60 D 0.00 Approved as to Form: 9/11 9 +FEE#9*r John WKr~MW, City Attorney Hyman#~ue/goldiFIR, LLC, a Colorado limited liability company 37-. AK Â»-4 Pcter For#5)1, 21'itS Managing Member The Snowmass Corporation Colorado corporation By: ,Rify,4 (A . L~10 PrinÂ©i#Pe: TA #ra 1-. 0: 5 6.r TioebÂ·flt&-14/frf- STATE OF ~01*~+- ) ) 8. COUNTY OF ~/*tuj ) The foregoing insiument was acknowledged before me thisÂ·~#~ day of ~~~LE*Re,Lâ€¢'2006, by Helen Klanderud as Mayor, and byKathryn S. Koch as Clerk, on behalf of the City of 45&~D. Witness my hand and official seal. #07 My commission expires: 01-/17/z.De- ... L,2 n . #e< JACYJa '\ ~ ~ f Lon*H /0 ~ jo# Nbta#lublic VRpbl0427 STATE OF Â¤ L,~cat> ) '4*~5~ ) SS. COUNTY OF-~Me n ) The foregoing instrument was acknowledged before me this L day of j~vit*&.hi ~Â£~ Fomel] as Managing Member of Hyman Avenue Holdings, LLC. Witness my hand and official seal. My commission expires: *1*Ed D ;l~~~,~.u~-Q d~-2; le~c=~3 00:>- e: UU Â¢L NolÂ»~blic 9...64 4 000*4 ... STATE OF &3662:34/Y) ) +402 COUNTY OF 4 AL 6{trd*C**9 -aclinowledged before me this 1 day of ~~~~~ .~~ 2006, by of The Snowmass Corporation. Wit 2*'y hand }cial seal. A My rr#r*PiR,B:,pbs i BLUEKAMP; Man. 4442 A. Notary Public L 3 . , ~ E, P312 ORDINANCE NO. 16 (SERIES OF 2006) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING WITH CONDITIONS THE HANNAH DUSTIN BUILDING SUBDIVISION TO ADD 2,440 SQUARE EEET OF NET LEASABLE SPACE, TWO FREE MARKET RESIDENTIAL UNITS, AND THREE AFFORDABLE HOUSING UNITS TO THE PROPERTY LOCATED AT 300 SOUTH SPRING STREET, CITY OF ASPEN, PITKIN COUNTY, COLORADO. Parcel ID: 2737-182-27-001 WHEREAS, the Community Development Department received an application from Hyman Avenue Holdings, LLC, represented by Stan Clauson Associates, LLC, requesting approval of subdivision, various growth management reviews, commercial design review, and condominiumization to add 2,440 square feet of net leasable space, two (2) free-market residential units, and three (3) affordable housing units to the Hannah-Dusting Building located at 300 S. Spring Street; and, WHEREAS, the subject property contains 12,000 square feet andÂ·is zoned MU (Mixed Use); and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended approval, with conditions, of the proposed subdivision and associated land use requests; and, Â¥VHEREAS, during a public healing on April 4,2006, the Planning and Zoning Commission approved Resolution No. 09, Series of 2006, by a six to zero (6-0) vote, approving a growth management review for expansion ofmixed use development, a growth management review for free-market residential units within a mixed use development, a growth management review for affordable housing, commercial design review, a commercial design standard variance, special review to vary the utility/trash/recycling area, and recommending that City Council approve with conditions, the proposed Subdivision and condominiumization to add 2,440 square feet of net leasable space, two (2) free- market residential units, and three (3) affordable housing units to the Hannah-Dusting Building located at 300 S. SpringÂ·Street; and, WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions ofthe Municipal Code as identified herein; and, WHEREAS, the Aspen City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Planning and Zoning Commission finds that this resolution furthers and is necessary for the promotion ofpublic health, safety, and welfare. 11.1[1111~.11- -11,1-1.1 1 111111 lilli'.1111'lll 07/12/2006 08:55 526319 e Page: 1 of 6 JANISE K VOS 3 UDI-L PITKIN COUNTY CO R 31.00 D 0.00 P316 Section 16: Impact Fees All other impact fees, as applicable, at the time of building permit submission shall be paid prior to the issuance of a building permit. Section 17: Employee Housing Mitigation The development shall contain gross affordable housing floor area equal to or greater than 30% of the gross free-market residential floor area. This percentage shall be verified by the City Zoning Officer prior to building permit issuance. Section 18: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 19: This ordinance shall not effect any existing litigation 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 conducted and concluded under such pIior ordinances. Section 20: If any section, subsection, sentence, clause, phrase, or portion of this resolution 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 21: A public hearing on the ordinance shall be held on the 12* day of June, 2006, in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen days prior to which, a public notice ofthc same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as prvided by law, by the City Council of the City of Aspen on the 24~' day~I' -2~~0~ A J Helâ‚¬h 161i/KlaidERIE;Niayor *F-pe.4 FINALLY, a**ted, pasged and appro~fthis 268 day of June, 2006. Attabt: Kathrn S. ch, Cify Clerk Helen Kalin Kladne*'6rNTayor 1111111 Illi ll'l lil li 1 -111111 lill.- -11 Ill-1 lili ll.1 526319 Page: 5 of 6 07/12/2006 08:55 JANICE K VOS C UDILL r ITKIN COUNTY C. R 31.00 0 0.00 .. P315 Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Each ofthe units within the building shall have individual water meters. Section 11: Sanitation District Requirements The Applicant shall comply with the Aspen Consolidated Sanitation District's rules and regulations. No clear water connections (roof, foundation, perimeter drains) to ACSD lines shall be allowed. All improvements below grade shall require the use of a pumping station. If more than one unit is to be served by a single service line, the Applicant shall enter into a shared service line agreement. Section 12: Electrical Department Requirements The Applicant shall have an electric connect load summary conducted by a licensed electrician in order to determine if the existing transformer on the neighboring property has sufficient capacity for the Hannah-Dustin Redevelopment. If a new supplemental transformer is required to be installed on the Hannah-Dustin property, the Applicant shall provide for a new transformer and its location shall be approved by the Community Development Department prior to installation. The Applicant shall dedicate an easement to allow for City Utility Personnel to access the supplemental transformer for maintenance purposes, i f a supplemental transformer is installed. Section 13: Exterior Lighting All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor lighting. Section 14: School Lands Dedication Fee Pursuant to Land Use Code Section 26.630, School lands dedication, the Applicant shalI pay a fee-in-lieu of land dedication prior to building permit issuance, The City of Aspen Zoning Officer shall calculate the amount due using the calculation methodology and fee schedule in affect at the time of building permit submittaI. The Applicant shall provide the market value of the land including site improvements, but excluding the value of structures on the site. Section 15: Park Development Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a park development impact fee in the amount of $19,176.20 pnor to building permit issuance. The fee is assessed based on the following calculation: Proposed Commercial: 2,440 SF of new net leasable square feet multiplied by $1,530.00 per 1,000 SF=$3,733.20 Proposed Residential 2 (four-bedroom) Free Market Residential Unit multiplied by $3,634 per unit= $7,268.00 3 (two-bedroom) Residential Units multiplied by $2,725 per unit= $8,175.00 Total: $19,176.20 07/12/2006 08:5 526319 Page: 4 of 5 JANICE K VOS CAUD-LL PITKIN COUNTY CO R 31,00 D 0.00 P314 Section 4: Dimensional Requirements The Hannah-Dustin building shall continue to be in compliance with the dimensional requirements of the Mixed Use (MU) Zone District. The City of Aspen Zoning Officer shall verify compliance with the allowed dimensional requirements at the time of building permit submittal. Section 5: Off-street Parking The project shall provide sixteen (16) off-street parking spaces, four (4) ofwhich shall be designated for the use of the free market residential units, three (3) of which shall be designated for use by the affordable housing units, and nine (9) of which shall be designated for the use ofthe commercial space and guest parking. Section 6: Sidewalk and Landscaping Improvements The Applicant shall install a sidewalk detached from the curb with a parkway strip along East Hyman Avenue for the length of the property frontage that meets the City Engineer's standards prior to issuance of a certificate of occupancy on any portion of the development. Appropriate street tree plantings shall occur in the parkway strip along the property frontage on both East Hyman Avenue and South Spring Street. The Applicant shall submit a landscaping plan for plantings in the right-of-way for review and approval by the City Parks Department prior to installation of right-of-way plantings. Section 7: Trash/UtilitÂ¥ Service Area A trash/utility service area with a linear footage of fourteen (14) feet and a depth of ten (10) feet shall be provided between the existing building and the alleyway. A trash compactor shall be installed to justify the reduction in lhe trashfutility/recycling area. Section 8: Affordable Housing Unit The Applicant shall record a deed restriction on each of the affordable housing units prior to the issuance of a certificate of occupancy on the building classifying the units as Category 2 units. If the Applicant chooses to deed restrict the affordable housing units as rental units, the Applicant shall convey a 1/10 of a percent, undivided interest in the units to the Aspen/Pitkin County Housing Authority prior to the issuance of a certificate of occupancy on any portion of the building. The units may be deed-restricted as rental units, but the units shall become ownership units at such time as the owners would request a change to "for-sale" units or at such time as the Aspen/Pitkin County Housing Authority deems the units to be out of compliance with the rental occupancy requirements in the Affordable Housing Guidelines for a period o f more than year. Section 9: Fire Mitigation The Applicant shall install a fire sprinkler system and alarm system that meets the requirements of the Fire Marshal in the entire building, including existing spaces. Section 10: Water Department Requirements The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing li li 1-111- -11111-1111111-1-1 lili 111 li lli lll 07/12/2006 08:55 526319 Page: 3 of 5 JAN.CE K VOS CAUD.LL P. TKIN COLATY CO R 31.00 D 0.00 P313 NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF ASPEN CITY COUNCIL AS FOLLOWS: Section 1: Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, (and whereas the Planning and Zoning Commission approved with conditions, a growth management review for expansion of mixed use development, a growth management review for free-market residential units within a mixed use development, a growth management review for affordable housing, commercial design review, a commercial design review variance, and special review to vary the utility/trash/recycling area dimensions), the City Council approves, the proposed Subdivision and condominiumization to add 2,440 square fept of net leasable space, two (2) free-market residential units, and three (3) affordable housing units to the Hannah- Dusting Building located at 300 S. Spring Street, with the conditions contained herein. Section 2: Plat and Agreement The Applicant shall record a subdivision plat and agreement that meets the requirements of Land Use Code Section 26.480, Subdivision, within 180 days ofapproval. Section 3: Building Permit Application The building permit application shall include the following: a. A copy of the final City Council Ordinance and P&Z Resolution. b. The conditions of approval printed on the cover page of the building permit set. c. A completed tap permit for service with the Aspen Consolidated Sanitation District. d. A drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which maintains sediment and debris on-site during and after construction. If a ground recharge system is required, a soil percolation report will be required to correctly size the facility. A 5-year storm frequency should be used in designing any drainage improvements. e. A construction management plan pursuant to the Building Department's requirements. The construction management plan shall include an identification of construction hauling routes for review and approval by the City Engineer and Streets Department Superintendent. f. A fugitive dust control plan to be reviewed and approved by the City Engineering Department. g. A detailed excavation plan that utilizes vertical soil stabilization techniques for review and approval by the City Engineer. 526319 Page: 2 of 5 07/12/2006 08:55 JANICE K VOS CHUD-LL P.T,fIN COLA-Y CO R 31.00 D 0.00 P317 APPROVED AS TO FORM: /77 , 6080 toyÂ»3 Joh:rWorcester, City Attorney 1111'll lilli lilill Ill lili 111111111'll ill lillilill lili 526319 Page: 6 of 5 07/12/2006 08:55 JANICE K VOS CAUDILL PITKIN COUNTY CO R 31.00 0 0.00 .. THE MYLER LAW FIRM, P.C. TELEPil(Â»IE A Colorado Professional Corporation DAvID J MYLERi (970) 927-0456 ROBYN J MYLER 123 FACSIMI!.E (970) 927-0374 ADMITTED [N CO', NY', CT' 211 MIDLANIDAVENUE 1:MAII.S SunE201 dmyler@mylerlampc.com BASALT. COLORADO 81621 rmyler@mylerlawpc.com RHONDA E NEFF, LEGAL ASSISTANT meff@mylerlawpc,com CONNIE A WOOD, LEGAL ASSISTANT ewood@mylerlawpc.com January 20,2009 RECEIVED t 8 VIA OSM DELIVERY JAM, 1 -4 4 Jennifer Phelan, Deputy Director -'' 2009 Aspen Community Development Department 0.1.W., - Th 130 South Galena Street - )PUFN Aspen, CO 81611 RE: Hannah Dustin - Second Amendment to Subdivision Agreement Dear Jennifer: Pursuant to my email this morning, enclosed is Check #20-010724 for $1,470.00 from the Snowmass Corporation regarding the above-referenced matter. Please let me know if you have any questions or need anything further. Very truly yours, THE MYLER LAW FIRM, P.C. By K~*7~7~ David J. Myler Enclosure . REL . JAN k >f â€ž'4 CITY Or DRAFT OMMUNITY DL SECOND AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION This Second Amendmentto Subdivision Agreement forthe Hannah Dustin Subdivision (the "Second Amendment") is made this day of December, 2008, by and among the CITY OF ASPEN, a municipal corporation (the "City"), the SNOWMASS CORPORATION, a Colorado corporation ("Snowmass"), and HYMAN STREET BROWNSTONES, LLC, a Colorado limited liability company ("Brownstones"). RECITALS: A. The City entered into a Subdivision Agreement for the Hannah Dustin Subdivision with Hyman Avenue Holdings, LLC, the predecessor in interest to Snowmass and Brownstones, on September 25,2006 (the "Subdivision Agreement"). B. The Subdivision Agreement was amended by a document entitled "Amendment to Subdivision for the Hannah Dustin Subdivision" on November 7, 2006 (the "First Amendment"). C. The City, Snowmass and Brownstones desire to further amend the Subdivision Agreement and the First Amendment as set forth in this Second Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Waiver of Completion Requirement. Upon satisfaction ofthe requirements of Section 2, below, the provisions of Section 8.1(iii) of the First Amendment, which require the Commercial Phase to be 50% complete in'older for the Residential Phase to obtain a Certificate of Occupancy shall be waived. 2. Deposit. As consideration for the waiver described in Section 1, above, Snowmass shall deposit the sum of $498,000.00 with the City, either in cash or in the form of an irrevocable letter of credit. The deposit is intended to provide a reasonable financial assurance that Snowmass will undertake construction of the Commercial Phase and, in particular, the affordable housing unit which is required as a condition of Commercial Phase approval. To that end, the deposit shall be forfeited and may be retained and utilized by the City for affordable housing purposes i fconstruction ofthe foundation for the Commercial Phase has not begun by July 31,2009 pursuant to a valid building permit. Upon commencement of construction prior to that date, Snowmass may request and the City shall refund the deposit. 3. Completion of Residential Phase. The parties acknowledge and agree that the Residential Phase is, on the date hereof, more than 50% complete. \\/2-/DO 2'i~, 1, i 0 61 -2 1. (-203~) 9~Â£:i/â‚¬5 - 625 /kE .. 4. Assurance of Financing. In satisfaction ofthe requirements of Section 8.1(iii) of the First Amendment, Snowmass shall provide the City with a written confirmation of its construction loan from Bank of America, to be delivered to the City along with the Deposit. 5. Housing Mitigation Credit. If the Deposit is forfeited pursuant to Section 2, above, Snowmass shall, nevertheless. beentitledtoacredit, upto $498,000.00, to be applied against any affordable housing mitigation requireinents, 211,0ve and her onil the requirement for LutihtructicÂ·: . )ti,)il: pr .1 1%%; bedrockil , 1 Flice; tr\ 1 1 11<ltihi:11' :111$'. either associated with developmentofthecurrently approved Commercial Phase ofthe Hannah Dustin Subdivision or to any other approved development which requires affordable housing mitigation. CITY OF ASPEN, COLORADO, a Colorado municipal corporation By: Michael C. Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk SNOWMASS CORPORATION, a Colorado corporation By: James W. Light, President HYMAN STREET BROWNSTONES, LLC, a Colorado limited liability company By: John A. Elmore, II, Manager 3 .. ATTACHMENT 2 -LAND USE APPLICATION RECEIVED PROJECT: Name: Hannah Dustin Condominiums 4 U 2000 '0441/t;,42%~ Location: 707 East Hyman Avenue, Aspen, CO 81611 (Indicate street address, lot & block number. legal description where appropriate) Parcel ID # (REQUIRED) , %4 2 APPLICANT: Name: Snowmass Corporation Address: P. O. Box 620, Basalt, CO 81621 Phone #: (970) 927-0847 REPRESENTATIVE: Name: David J. Myler, The Myler Law Firm, P.C. Address: 211 Midland Avenue, Suite 201, Basalt, CO 81621 (970) 927-0456 Phone #: TYPE OF APPLICATION: (please check all that apply): U GMQS Exemption U Conceptual PUD U Temporary Use U GMQS Allotment E Final PUD (& PUD Amendment) U Texâ‚¬Map Amendment U Special Review ~ Subdivision U Conceptual SPA U ESA -8040 Greenline, Stream Â£ Subdivision Exemption (includes U Final SPA (& SPA Margin, Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ..Up i Commercial Design Review 1 Lot Split lit, : ' Small Lodge Conversion/ Expansion Residential Design Variance E Lot Line Adjustment ~ Other: Amendment to Subdivision Agreement Conditional Use EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) Development of mixed use project approved by Ordinance No. 16, Series of 2006, including a Subdivision Agreement. PROPOSAL: (description of proposed buildings, uses, modifications, etc.) To provide a further amendment to the Subdivision Agreement relating to phasing. Have you attached the following? FEES DUE: $ 1,470.00 U Pre-Application Conference Summary 1 Attachment # 1, Signed Fee Agreement El Response to Attachment #3, Dimensional Requirements Form U Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards U 3-D Model for large project All plans that are larger than 8.5" X 11" must befolded. A diskwith an electric copy of all written text (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre-application conference summary will indicate if you must submit a 3-D model. UE m -4. .-. , t t,-3 CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT Agreement for Payment of City of Aspen Development Application Fees CITY OF ASPEN (hereinafter CITY) and Snowmass Corporation (hereinafter APPLICANT) AGREE AS FOLLOWS: 1. APPLICANT has submitted to CITY an application for Second Amendment to Subdivision Agreement for the Hannah Dustin Condominiums (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that the City of Aspen has an adopted fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to -be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to enable the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit in the amount of $ 1,470.00 which is for hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPI,ICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review at a rate of $235.00 per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN APPLICANT SNOWMASS CORPORATION 1 J : By: 'B~r: Chris Bendon : ,'Â·-" David J. Myler, Authorized Representative Community Development Director Date: Billing Address and Telephone Number: 211 Midland Avenue Suite 201 Basalt, CO 81621 cel# 1 1 31 - U- 2 iz- t- Q:2 4 0005. PGA-Lk . 2:ca .. . â€¢Li, â€¢.i' .- -,1-&, i. ..-,-,I'fl- ...M~./*,ti Elle Edit Record Navigate FQrm Reports Format Tab Help * 3 4 )1 4 he 0 J a. 14 1 , /1 0 &! 9& 0 giG |0â‚¬1 14 9 1 . J ./'8% J_9 * 4 ]-EFI Valuation ICustom Fields | actions | Fees I Parcels | Fee Summarz | Sub termits | Attachments | Routing Status | Routing 4 * Permit Type laslu Aspen Land Use Permit # ~0005.2009.ASLU Address |707 E HYMAN AVE 2| Apt/Suite | City |ASPEN State ICO _I Zip |81611 LJ Â£~__ Permit Information Master Permit ~ 161~ Routing Queue |aslu07 Applied lot/20/2009 -J Project 1 11 Status ipending Approved | _j Description ~ MIMOR REWIEW RE: HANNAH DUSTIN SECOND AMENDMENT TO 5UBDIVISION Issued | _| AGREEMENT Final | j" Submitted |SNOWMASS CORP Clock |Running Days ~0 Expires ~01/15/2010 -~ , Ovvner Last Name |HYMAN AVENUE HOLDINGS, -~ First Name ~ i BOX 1747 ~ SPRINGFIELD MO 65801 Phone |(970) 379-3434 1%, i -32 1~ Owner Is Applicant? 1-- Â°Â»1 Applicant ' 3<% Last Name ~IOWMA55 CORP L.| First Name | [PO BOX 5000 , | SNOWMA55 VILLAGE CO 81615 ~ 31 Phone I Cust # ~23706 Lender ' Last Name ~ -~ First Name ~ ! Phone | AspenGold[bl ~-J~ i Record: 1 of 1 C,(Ett 16-01072.4 c w A-rvwvUr- 5 \i470.0 0 olt- 6-Py 3*_ 0250 5- 6 q'Â°01~ ~ sdnoig gel] 1,#9Â¥4