HomeMy WebLinkAboutcoa.lu.pu.Aspen Mountain Lodge Section M.1992—Aspen Mountain Lodge-Savanah Limited^'-'
Section M Amendment - Coaet.1992
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BEFORE THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO
IN RE THE MATTER OF SAVANAH LIMITED PARTNERSHIP'S REQUEST FOR A
SECTION M AMENDMENT TO THE FIRST AMENDED AND RESTATED PLANNED
UNIT DEVELOPMENT/SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAIN
SUBDIVISION AND SAVANAH'S NON-COMPLIANCE WITH CERTAIN TERMS AND
CONDITIONS OF SAID AGREEMENT AS AMENDED.
This matter is before the City Council upon the petition of
Savanah Limited Partnership ("Savanah") pursuant to Section M of
the First Amended and Restated Planned Unit Development/Sub-
division Agreement for the Aspen Mountain Subdivision ("PUD
Agreement"), seeking an extension in the construction scheduling
for subdivision development, and Savanah's request for a hearing
concerning its non-compliance with certain construction deadlines
contained in the PUD Agreement. Pursuant to Savanah's petition
and request, a public hearing was convened upon notice on October
26, 1992. Savanah appeared, with legal counsel, and produced
testimony and other evidence in support of its petition. City
staff persons and members of the public were also offered an
opportunity to be heard. Having heard all of the offered testi-
mony and argument and having reviewed the documentary evidence as
submitted and made part of the record herein, the City Council
finds as follows:
1. On September 29, 1992, Savanah Limited Partnership
submitted a written petition to the City pursuant to Section M of
the PUD Agreement seeking an extension in the construction
schedule deadline for the Ritz Carlton Hotel component of the
subdivision. Specifically, Savanah asked that the established
deadline for obtaining a certificate of occupancy for the hotel
be extended from October 1, 1992, to and until November 9, 1992.
2. Section M of the PUD Agreement provides as follows in
its relevant part as pertinent hereto:
"... the Owner or its successors or assigns may, on its
own initiative, petition the City Council for a vari-
ance, an amendment to this Agreement, or an extension
of one or more of the time periods required for perfor-
mance under the Construction Schedules or otherwise.
The City Council may grant such variances, amendments
to this Agreement, or extensions of time as it may deem
appropriate under the circumstances. The parties
expressly acknowledge and agree that the City Council
shall not unreasonably refuse to extend the time peri-
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ods for performance indicated in one or more of the
Construction Schedules if Owner demonstrates by a
preponderance of the evidence that the reasons for the
delay(s) which necessitate such extension(s) are beyond
the control of Owner, despite good faith efforts on its
part to perform in a timely manner."
3. Savanah has alleged that the following facts and/or
circumstances have caused delays in the progress of the construc-
tion of the Ritz Carlton Hotel component of the subdivision and
that such facts and circumstances were beyond its control:
(i) Unavailability of skilled labor in sufficient
numbers to meet construction demands despite area
and region -wide recruitment efforts and the imple-
mentation of overtime working schedules;
(ii) Weight restrictions on the Maroon Creek Bridge as
imposed by the Colorado Department of Transporta-
tion causing unavoidable extensions in concrete
delivery and pouring schedules and other material
deliveries;
Severe and abnormal snowstorms in October, 1991,
which delayed installation of the roofing member
of the main hotel building.
4. In addition to the extension requested as to the
certificate of occupancy for the hotel, Savanah has also asked to
be allowed to extend completion deadlines for the exterior of the
hotel property and hardscape along public rights -of -way and the
clean-up of Lot 6 of the subdivision to and until October 10,
1992.
5. City Council finds the Savanah has been able to demon-
strate by a preponderance of the testimony and evidence as
established in the record that its failure to meet the October 1,
1992 deadline date for the issuance of a certificate of occupancy
for the Ritz Carlton Hotel resulted from those facts and circum-
stances as summarized in Paragraph 3 above, and that such facts
and circumstances were beyond Savanah's control despite its good
faith efforts to perform.
6. City Council further finds that a more realistic and
obtainable deadline for the issuance of a certificate of occupan-
cy for the Ritz Carlton Hotel is December 4, 1992, and not
November 9, 1992, as requested by Savanah.
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NOW, THEREFORE, BASED UPON THE ABOVE AND FOREGOING, City
Council does hereby grant to Savanah Limited Partnership the
following extensions to the construction schedule deadlines for
the Aspen Mountain Subdivision, which extensions shall be incor-
porated into a written amendment to the PUD Agreement pursuant to
Sections M and 0(6), subject to those terms and conditions as set
forth below:
EXTENSIONS
From To
1. Final Certificate of
Occupancy for the Ritz
Carlton Hotel
10/l/92
12/4/92
2. Completion of exterior of
hotel property and hardscape
along public rights -of -way
10/1/92
12/4/92
3. Lot 6 clean up
10/1/92
12/4/92
4. Certificate of Occupancy
Summit Place
8/1/93
8/1/94
5. Demolition Permit for
Lot 5, Grand Aspen Hotel
10/1/95
reaffirmed
at 10/1/95
CONDITIONS
1. Savanah shall immediately make available and ensure the
use of eighty (80) parking spaces within the hotel garage for
construction worker's vehicles so as to reduce the necessity and
demand for on -street parking by construction personnel. Such
parking spaces shall remain available for off-street parking by
construction personnel until no longer needed as determined by
the Director of Public Works.
2. Savanah shall immediately devise and implement a
delivery schedule to regulate deliveries made to the Ritz Carlton
Hotel and property. Such schedule must be approved by the Direc-
tor of Public Works and establish set hours during which all
deliveries to the hotel and hotel property shall be made. Said
schedule shall remain in place until no longer needed as deter-
mined by the Director of Public Works.
3. Savanah shall complete and execute escrow documents by
November 2, 1992, securing Savanah's construction of the Ice Rink
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and Park on Lot 6 of the subdivision. All escrow documents shall
be subject to approval by the City Attorney.
4. The effectiveness of the extensions as granted herein
shall be contingent upon Savanah's compliance, as determined by
the City staff, with all of those conditions as set forth above.
In the event that any condition as set forth above is not sub-
stantially complied with, then the extensions granted herein
shall automatically be rendered invalid and such failure(s) to
comply shall constitute non-compliance with the First Amended and
Restated PUD/Subdivision Agreement. Savanah shall thereafter be
entitled to a hearing before City Council to determine sanctions
or penalties for its non-compliance, which may include the
revocation or termination of any or all approvals contained in
the PUD Agreement.
NON-COMPLIANCE
The City Council tables and continues until December 14,
1992, at the hour of 5 o'clock p.m., its deliberations and
consideration relevant to sanctions and/or penalties, if any, to
be imposed upon Savanah by reason of its non-compliance with the
October 1, 1992 deadline date for the issuance of a certificate
of occupancy for the Ritz Carlton Hotel.
Done this JAI day of � 1992, nunc
pro tunc October 6, 1992.
ATTEST:
4ue�r��
Kathryn S. Koch, City Clerk
jc1028.3
THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO
By: L 5. 1�
Johii S. Bennett, Mayor
►,i
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SECTION M AMENDMENT TO THE FIRST AMENDED AND RESTATED
PLANNED UNIT DEVELOPMENT/SUBDIVISION
AGREEMENT FOR THE ASPEN MOUNTAIN SUBDIVISION
THIS AMENDMENT to the First Amended and Restated Planned
Unit Development/Subdivision Agreement for the Aspen Mountain
Subdivision ("PUD Agreement"), being entered into between the
City of Aspen, Colorado ("City") and Savanah Limited Partnership
"Savanah" or "Owner") on this 2 day of �-M AER ,
1992, provides as follows:
R E C I T A L S
WHEREAS, on September 29, 1992, Savanah submitted a written
petition to the City pursuant to Section M of the PUD Agreement
seeking an extension in the construction schedule deadline
governing the construction and completion of the Ritz Carlton
Hotel component of the Aspen Mountain Subdivision; and
WHEREAS, a hearing was conducted before the City Council on
October 26, 1992, in accordance with Section M of the PUD Agree-
ment relating to requests for extension of one or more time
periods required for performance, during which Savanah success-
fully demonstrated that the reasons necessitating the extension
in the existing construction schedule deadline were beyond its
control; and
WHEREAS, Section M of the PUD Agreement authorizes exten-
sions of the time periods for construction schedules upon a
proper showing; and
WHEREAS, Section 0(6) of the PUD Agreement authorizes
amendments to the Agreement by written instrument executed by the
parties thereto.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions as contained herein, it is agreed that the provisions
hereinbelow shall amend the PUD Agreement as follows:
1. Savanah's construction schedule deadlines as set forth
in Section A2 of the PUD Agreement, and as previously amended by
those Section M amendments executed on June 11, 1990 (recorded in
Book 627 at Page 457 in the records of the Pitkin County Record-
ed), on June 10, 1991 (recorded in Book 654 at Page 418 in the
records of the Pitkin County Recorder), and on August 10, 1992
(recorded in Book 689 at Page 317 in the records of the Pitkin
County Records), are amended to provide as follows:
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From To
1. Final Certificate of
Occupancy for the Ritz
Carlton Hotel 10/1/92 12/4/92
2. Completion of exterior of
hotel property and hardscape
along public rights -of -way 10/1/92 12/4/92
3. Lot 6 clean up 10/1/92 12/4/92
4. Certificate of Occupancy
Summit Place 8/1/93 8/1/94
5. Demolition Permit for
Lot 5, Grand Aspen Hotel 10/1/95 reaffirmed
at 10/1/95
6. The amended construction schedule deadlines as provided
for in paragraph 1 above shall be and remain in full force and
effect only insofar as Savanah complies with all of those terms
and conditions as set forth in that written decision of the City
Council of the City of Aspen attached hereto as Exhibit 11111, and
incorporated herein that was issued upon and in response to
Savanah's petition of September 29, 1992, seeking a Section M
amendment.
7. All other terms and conditions of the PUD Agreement and
the previous Section M amendments dated June 11, 1990, June 10,
1991, and August 10, 1992, not inconsistent with or superseded by
this amendment, shall remain in full force and effect.
8. This amendment document shall be promptly recorded in
the records of the Pitkin County Clerk and Recorder's office.
IN WITNESS WHEREOF, the parties have hereunto set their
signatures on the day and year as first written above.
ATTEST:
Kathryn S,="Koc City Clerk
Z=
THE CITY OF ASPEN, COLORADO
By: 5, (�
John S. Bennett, Mayor
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SAVANAH LIMITED PARTNERSHIP
By: ASP TERPRISES INTERNATION-
C. G al Partner
By:
Cr j amin
President
AFIPROVED AS TO, FARM:
Attorney for Sa nah Limited
Partnership
STATE OF COLORADO )
ss.
County of Pitkin )
The foregoing instrument was executed and/or acknowledged
before me this day of 1992, by
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
jc1029.1
r�
i
Notary Public
Address
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Certificate of Secretary
I, Clayton M. Corwin, do hereby certify that I am the duly
elected, qualified and acting Secretary of Aspen Enterprises
International, Inc., a Colorado corporation (this "Corporation").
I do further certify that as of the date hereof, the following
persons are duly elected directors and/or officers of this
Corporation, holding such office as set forth opposite their name:
Omar R. Benjamin Director and President
Clayton M. Corwin Director and Secretary
R. Theodore Mueller, II Vice President and Treasurer
IN WITNESS WHEREOF, I have hereunto set my hand and the
official seal of this Corporation this 8th day of December, 1992.
Secret y
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ORDINANCE NO. -T:�)
(Series of 1992)
AN ORDINANCE RATIFYING AND APPROVING A SECTION M AMENDMENT TO THE
FIRST AMENDED AND RESTATED PLANNED UNIT DEVELOPMENT/SUBDIVISION
AGREEMENT FOR THE ASPEN MOUNTAIN SUBDIVISION.
WHEREAS, on September 29, 1992, Savanah Limited Partnership
("Savanah") submitted a written petition to the City Council
pursuant to Section M of the First Amended and Restated Planned
Unit Development/Subdivision Agreement ("PUD Agreement") for the
Aspen Mountain Subdivision seeking an extension in the construc-
tion schedule governing construction and development of the Ritz
Carlton Hotel component of the Aspen Mountain Subdivision; and
WHEREAS, a hearing was conducted before City Council on
October 26, 1992, during which Savanah successfully demonstrated
that the reasons necessitating extension in the subject construc-
tion schedule were beyond its control; and
WHEREAS, Section M of the PUD agreement authorizes amend-
ments to construction schedule deadlines under circumstances as
demonstrated by Savanah.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO, THAT:
Section 1
The following amendment to the First Amended and Restated
Planned Unit Development/Subdivision Agreement for the Aspen
Mountain Subdivision, as amended, is hereby ratified and ap-
proved:
Savanah's construction schedule deadlines as set forth in
Section A2 of the PUD agreement, and as previously amended by
those Section M amendments executed on June 11, 1990 (recorded in
Book 627 at Page 457 in the records of the Pitkin County Record-
er), June 10, 1991 (recorded in Book 654 at Page 418 in the
records of the Pitkin County Recorder), and August 10, 1992
(recorded in Book 689 at Page 317 in the records of the Pitkin
County Recorder) are amended to provide as follows:
From To
1. Final Certificate of
Occupancy for the Ritz
Carlton Hotel 10/1/92 12/4/92
2. Completion of exterior of
hotel property and hardscape
along public rights -of -way 10/1/92 12/4/92
3. Lot 6 clean up 10/1/92 12/4/92
4. Certificate of Occupancy
Summit Place 8/1/93 8/1/94
5. Demolition Permit for
Lot 5, Grand Aspen Hotel 10/1/95 reaffirmed
at 10/1/95
Section 2
The amendments as provided for herein are subject to all the
terms and conditions as set forth in that written decision.issued
by City Council pursuant to Savanah's petition dated September
29, 1992, requesting the extension in the above -described con-
struction schedule deadlines, a copy of which is attached hereto
as Exhibit 1.
2
Section 3
The amendments as provided for herein are to be reflected in
a written amendment document attached hereto as Exhibit 2 which
shall be executed and filed in the records of the Pitkin County
Clerk and Recorder's Office.
Section 4
This ordinance shall not have any effect on existing litiga-
tion and shall not operate as an abatement of any action or
proceeding now pending under or by virtue of the ordinances
repealed or amended as herein provided, and the same shall be
construed and concluded under such prior ordinances.
Section 5
If any section, subsection, sentence, clause, phrase or
portion of this ordinance is for any reason held invalid or
unconstitutional ina court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent
provision and shall not affect the validity of the remaining
portions thereof.
Section 6
A public hearing
on the ordinance
shall be held
on the �3
day of
, 1992,
in the City
Council
Chambers, Aspen City Hall, Aspen, Colorado.
3
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by
the City Council of the City of Aspen on the / _ day of
1992.
ATTEST:
Kathryn V Koch, City Clerk
FINALLY adopted,
S
John S. Bennett, Mayor
passed and approved this '3
ATTEST:
Kathryn S. Koc , City Clerk
jc1029.3
, 1992.
4
day of
4�- S, (&-�
John S. Bennett, Mayor
•
cat
130
MEMORANDUM
DATE: December 2, 1992
TO: Mayor and City Council
•
ien
treet
1611
FROM: Jed Caswall, City Attorney
RE: Aspen Mountain PUD/Subdivision Non -Compliance -- Continued
Proceedings.
Council initially undertook proceedings on October 26th on the
issue of whether Savanah Limited Partnership ("Savanah") should
be subject to sanctions for its failure to meet the October 1st
construction schedule deadline for the Ritz Carlton Hotel. The
October 26th proceeding was publicly noticed and a public hearing
was held to solicit evidence on the matter. Savanah appeared at
that time and offered facts in explanation and mitigation of its
failure to comply with the mandated constructed schedule.
Savanah's request for an extension in the construction deadline,
submitted to Council pursuant to Section M of the Aspen Mountain
PUD/Subdivision Agreement, was also heard at that time. At the
conclusion of the hearing, Council voted to grant an extension in
the construction (certificate of occupancy) deadline for the
hotel (to and until December 4, 1992), and table to December 14th
a final decision on possible non-compliance sanctions. The
matter is before you at your December 7, 1992, meeting due to a
rescheduling with the consent of Savanah.
(A copy of the October 26th meeting minutes is attached for your
reference in refreshing your recollections of the meeting and the
evidence presented.)
It appears from a review of the meeting minutes that the hearing
concerning sanctions was not formally closed on the 26th. Hence,
the first order of business at the December 7th proceeding might
be to ask if anyone else wishes to comment on the matter further,
then close the hearing.
As noted at the October 26th hearing, City Council's jurisdiction
and authority to impose sanctions against Savanah for missing the
October 1st construction deadline for the hotel derives from
® REC RR _CL`/
VCLEO RARER
•
Memorandum to Mayor and City Council
December 2, 1992
Page 2
Paragraph 19 of the June, 1991 Section M amendment to the PUD/
subdivision agreement, which provides as follows:
The effectiveness of the extensions granted herein shall be
contingent upon Savanah's compliance, as determined by the
City Staff, with all of those conditions set forth above.
In the event that any condition as set forth above is not
substantially complied with, then all extensions as granted
herein shall automatically be rendered invalid and such
failure(s) to comply shall constitute non-compliance with
the First Amended and Restated PUD/Subdivision Agreement.
Savanah shall thereafter be entitled to a hearing before
City Council to determine sanctions or penalties for its
non-compliance, which may include the revocation or termina-
tion of any or all approvals contained in the PUD Agreement.
A penalty or sanction need not be imposed if, in Council's
judgment, no useful public purpose would be served thereby. On
the other hand, if Council determines a sanction is warranted and
necessary, it must be based upon and reasonably reflect the
evidence and other information presented to you during the
hearing.
RECOMMENDATION: Planning staff and the Manager's office recom-
mend that Savanah reimburse the City for planning fees associated
with staff time spent on this issue in the amount of $3,800.00.
EMC/mc
jc122.1
cc: Diane Moore, Planning Director
Robert W. Hughes, Esq. (for Savanah)
HADID
Aspen
Holdings,
Inc.
November 6, 1990
Mayor William Stirling
Aspen City Council
130 South Galena
Aspen, Colorado 81611
Dear Mayor and City Council Members:
You are reviewing a proposed ordinance next Monday to allow the
Board of Adjustment to permit conditional use approval for
temporary storage of construction materials.
This ordinance is coming forward in response to a request made by
us earlier this summer. Currently we are approved for storage of
construction related materials on the lots comprising the PUD. We
are using the Top of Mill site for all storage as that is the only
vacant parcel.
Earlier this summer we made a request to utilize the acre of our
land above the Lift One Condominiums known as the Barbee property.
The Top of Mill is at the end of one of the steepest grades in
Aspen and the street has been narrowed during construction. The
approach is past many separate hotel and condominium projects.
Most important is that the Aspen Ski Club is located at the top of
Mill Street. Every day during ski season this property is swarming
with parents, children and coaches. To drive the road requires a
head of steam to make it to our property. The prospect of semi -
trucks loaded with brick and masonry going up this hill during the
winter is worrisome.
The Barbee property is ideally located for material storage. It
is level, is only on block from the hotel and has only one
neighbor, the Lift One Condominiums. We had agreed to screen the
site to mitigate the impacts.
600 East Cooper Street Suite 200 Aspen Colorado 81611 (303) 925-4272 FAX: (303) 925-4387
•
•
Mayor William Stirling
Aspen City Council
November 7, 1990
Page two
While staff agrees that the Barbee property is practical and offers
advantages, apparently there is no mechanism in the City Code to
allow for temporary storage of materials on this site. Fred Smith,
an employee of Lift One, has registered a complaint about the
Barbee property.
We encourage you to look favorable upon this ordinance and to
support our temporary use request. The staff has been extremely
helpful in our request. We look forward to a successful
resolution.
Thank you for your attention.
Sincerely,
ye7-'- , �I
Perry Harvey, Direc r
Hadid Aspen Holdings, Inc.
PAH/ld
ESCROW AGREEMENT AND INSTRUCTIONS
THIS ESCROW AGREEMENT AND THESE INSTRUCTIONS are entered
into and given as of January 4 , 199 3 , by and
among Savanah Limited Partnership, a District of Columbia Limited
Partnership ("Savanah"), the City of Aspen, Colorado (the "City")
and Norwest Bank Denver, N.A. as escrow agent ("Escrow Agent"),
with reference to the following:
RECITALS:
A. The City and Savanah have entered into that certain
First Amended and Restated Planned Unit Development/Subdivision
Agreement for the Aspen Mountain Subdivision dated October 3,
1988 and recorded in Book 574 at Pages 792, et seq., of the
Pitkin County, Colorado real property records (the "PUD Agree-
ment").
B. On May 21, 1992, Savanah submitted a written petition
to the City pursuant to Section M of the PUD Agreement seeking an
extension in the construction schedule deadline governing con-
struction and development of Lot 6, the proposed Ice Rink and
Park (herein so-called), within the Aspen Mountain Subdivision.
C. The hearing was conducted before the City Council on
July 13, 1992, in accordance with Section M of the PUD Agreement,
which section relates to requests for extensions of time periods
and construction schedules, during which Savanah successfully
demonstrated that the reasons necessitating the extension of the
existing scheduled construction deadline were beyond its control.
As a consequence, the City and Savanah entered into that certain
Section M Amendment to the PUD Agreement dated August 10, 1992
(the "PUD Amendment"), recorded at Book 689 at Pages 317-323 of
the Pitkin County, Colorado, real property records.
D. One of the conditions to the PUD Amendment is that
Savanah deposit $700,000.00 in escrow for the benefit and in the
name of the City of Aspen to secure performance by Savanah in
regard to the following:
1. The establishment of a permanent fund to defray
operation and maintenance costs for the Wagner
Park Ice Rink (herein so-called) in the event the
City should determine to authorize such ice rink;
or
2. Construction by Savanah of the Ice Rink and Park
as approved by the Aspen City Council and as re-
quired by the PUD Agreement on Lot 6 of the Aspen
Mountain Subdivision.
•
E. Since the execution of the PUD Amendment the City
Council has determined not to proceed with or authorize the
development of the Wagner Park Ice Rink preferring instead to
proceed solely with the development and construction of the Ice
Rink and Park as called for in the PUD Agreement, as amended.
F. Savanah has herewith deposited with Escrow Agent the
sum of $700,000.00 (the "Escrow Fund") and, with respect to the
Escrow Fund, Savanah and the City agree with each other and
instruct Escrow Agent as follows:
1. Escrow Agent shall deposit the Escrow Fund in a
separate interest -bearing money fund account in
the name of the City. The Escrow Fund shall be
insured to the extent of FDIC limits and shall be
backed by a pledge of Escrow Agent's assets pursu-
ant to the Colorado Public Deposits Law.
2. Notwithstanding that the Escrow Funds are deposit-
ed in the name of the City, Escrow Agent shall pay
to Savanah quarterly all interest that accrues on
the Escrow Fund, three to five days after the end
of the month upon posting to the account.
3. The Escrow Fund is intended and shall be used in
conjunction with Savanah's construction and timely
completion of the Ice Rink and Park on Lot 6 of
the Aspen Mountain Subdivision on or before Octo-
ber 1, 1993, in accordance with the final develop-
ment plan, approvals and conditions as contained
in Ordinance No. 12 (Series of 1992). Pursuant
thereto, Savanah and City shall jointly submit to
Escrow Agent written instructions from time to
time authorizing Escrow Agent to issue draws upon
the Escrow Fund in favor of Savanah to defray the
costs of construction of the Ice Rink and Park.
Each draw request shall be accompanied by an
Authorization to Escrow Agent to Disburse Funds
signed by the Director of Public Works and the
Planning Director of the City of Aspen. The
Director of Public Works and the Planning Director
shall sign any Authorization to Escrow Agent to
Disburse Funds presented to them by Savanah pro-
vided that the amount to be disbursed fairly cor-
responds to actual work performed in connection
with and progress toward the successful completion
of the Ice Rink and Park. Upon presentation of
such Authorization to Escrow Agent, Escrow Agent
shall disburse monies from the Escrow Fund to
FJ
E
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Savanah in the amount specified in the authoriza-
tion. Escrow agent shall have no duty to verify
the validity of the notices or documents.
4. Upon final completion and acceptance by the City
of Aspen of the Ice Rink and Park on Lot 6 of the
Aspen Mountain Subdivision, and written notifica-
tion thereof by the City to Escrow Agent, all
monies, if any, remaining in the Escrow Fund shall
be disbursed forthwith to Savanah. In the event,
however, that Savanah fails to finally complete
the Ice Rink and Park in accordance with all
terms, conditions and approvals as contained in
Ordinance No. 12 (Series of 1992) and/or fails to
obtain a final certificate of occupancy for same
on or before October 1, 1993, then Escrow Agent,
upon receipt of written confirmation by the City
Manager of the City of Aspen of Savanah's fail-
ure(s), shall disburse forthwith all monies re-
maining in the Escrow Fund to the City and such
payment shall constitute and be a sanction and
penalty against Savanah for its failure to com-
plete the Ice Rink and Park in accordance with the
above -noted approvals.
5. All funds as disbursed by Escrow Agent to the City
by reason of Savanah's failure to timely comply
with the approvals contained in Ordinance No. 12
(Series of 1992) shall be deposited by the City in
a clearly identified account of its own choosing
in accordance with C.R.S. Section 29-1-803(1) and
shall be used by the City only for recreational
amenities available to the general public.
6. All notices sent under the terms of this Escrow
Agreement and instructions shall be in writing,
hand delivered to Escrow Agent at Norwest Bank
Denver N.A., Corporate Trust Services, 1740 Broad-
way, Denver, Colorado 80274-8693; to Savanah at
600 East Cooper Avenue, Aspen, Colorado 81611,
with a copy to Robert W. Hughes, Esq., Oates,
Hughes & Knezevich, 533 East Hopkins Avenue,
Aspen, Colorado 81611; and to the Aspen City Man-
ager, 130 South Galena Street, Aspen, Colorado
81611, with a copy to the Aspen City Attorney, 130
South Galena Street, Aspen, Colorado 81611.
7. No amendment of this Escrow Agreement is binding
on Escrow Agent unless such amendment is in writ-
3
ing signed by all parties hereto and deposited
with the Escrow Agent. Should any dispute arise
among the parties hereto or with any third parties
or should Escrow Agent receive conflicting demands
with reference to the Escrow Funds, the Escrow
Agent may, at its option, but without limiting
other rights, stop all proceedings in the perfor-
mance of the Escrow Agreement and withhold deliv-
ery of the Escrow Fund until such dispute or con-
flicting demands have been resolved and written
proof thereof has been delivered to Escrow Agent,
or Escrow Agent may file an interpleader suit in
District Court, Pitkin County, Colorado. On the
filing of an interpleader suit, the Escrow Agent
shall be fully released and discharged from any
obligations or liability in connection with the
Escrow Fund.
8. The parties agree to indemnify, pay and hold harm-
less Escrow Agent from all charges, damages, judg-
ments, costs, expenses and reasonable legal fees
expended or incurred by Escrow Agent in the
performance of its duties hereunder.
9. The parties acknowledge that the Escrow Agent is a
mere stakeholder and should not be required to
perform any services or duties except for the
safekeeping of money or other documents received
by it and the disposition of the same in accor-
dance with the written instructions of this Escrow
Agreement.
10. The Escrow Agent shall not be liable for the lack
of authority of any person to execute this Escrow
Agreement, any notice required by this Escrow
Agreement, or any amendment to this Escrow Agree-
ment. The Escrow Agent shall not be liable for
the failure of the parties to comply with these
instructions or any documents filed or referred to
herein. The Escrow Agent shall not be liable for
any inadvertent failure of the Escrow Agent to
comply with these instructions or any agreement or
document filed or referred to herein, or for fraud
perpetrated on any person in connection with the
Escrow Agreement, or for forgeries or imperson-
ations occurring in connection with the Escrow
Agreement. The Escrow Agent shall also not be
responsible for the sufficiency, correctness or
validity of any instruments deposited with the
4
•
Escrow Agent. The Escrow Agent shall be liable
only for its willful acts or any misconduct with
respect to the Escrow Agreement.
11. Payment for any and all escrow fees or charges
imposed by Escrow Agent in connection with its
performance under this Agreement shall be the sole
responsibility of Savanah and shall be paid ac-
cording to the Escrow Agent's fee schedule.
IN WITNESS WHEREOF, this Escrow Agreement has been entered
into and these Instructions have been given as of the 4th day
of January , 199 3 .
SAVANAH LIMITED PARTNERSHIP,
a District of Columbia Limited
Partnership
By:
rdinan . Belz III
Executiv Director
CITY OF ASPEN
BY:
Amy geru
city0lanage
THESE ESCROW INSTRUCTIONS ARE ACCEPTED AND RECEIPT OF THE ESCROW
FUND IS HEREBY ACKNOWLEDGED THIS DAY OF ,
1993.
jc1028.2
ESCROW AGENT
NORWEST BANK DENVER, N.A.
By: J.
Corpora e Trust Services
5
Ilk II
INIIN
NOiRWEST INVESTMENTS
AFIII/ AND TRUST
/lF Iv/I
•
NORWEST INVESTMENTS AND TRUST
CORPORATE TRUST SERVICES
ESCROW FEE SCHEDULE
Inception and First -Year Administration Fee
• $1,500 for a Norwest Bank Denver agreement
• $2,500 for a custom drafted escrow agreement
Market Value Fee
On the first
On the next
On the balance
Minimum Annual Fee
Transaction Charges
Security Transactions
Wire Transfers
Receipts
Disbursements
$ Per $1,000
$500,000 $ 2.00
$500,000 $ 1.00
$ .50
$1,500.00
$ 25.00
$ 15.00
$ 5.00
$ 5.00
Preparing Interest Allocations
Preparing and Filing Taxpayer Reports
Each 1099
Minimum Charge
$ 10.00/
calculation
$ 2.00
$ 100.00
Extraordinary Services
Additional reasonable compensation will be charged for
extraordinary services based on our then current standard
hourly charge. Extraordinary services include, but are not
limited to, attending escrow closings, processing
assignments of escrow interests, reviewing and accepting
modifications or amendments to the escrow agreement, and
letter of credit draws.
Reimbursables
All out-of-pocket expenses incurred in the administration
of the account, including postage, telephone charges,
insurance, photocopies, supplies, and legal fees, with the
exception of legal fees incurred at the inception of the
account, will be billed at cost.
Overdrafts
Any overdrafts at Norwest Bank Denver caused by failed
or incomplete wires of funds or failed or incomplete
securities deliveries will be reimbursable to Norwest Bank
Denver at prime plus two percent (2%).
Norwest Bank Denver
9i
N461
•
RECEIVED
JAN 2 1 1 3
City MaAagerWayors Office
•
r
0
f
City en
130 S ° { treet
Aspenclorad+ ,r 611
MEMORANDUM
DATE: October 20, 1992
TO: Mayor and City Council
FROM: Jed Caswall, City Attorney h�
RE: Savanah Limited Partnership Request For Section M Amendment
Regarding Construction Deadline For Ritz -Carlton Hotel.
On September 29, 1992, Savanah Limited Partnership ("Savanah")
submitted a written request to the City for an extension in the
deadline date for obtaining a certificate of occupancy for the
Ritz -Carlton Hotel. A public hearing on the request has been set
for October 26th before City Council. This memo is being provid-
ed to assist you in preparing for and in conducting the hearing.
JURISDICTIONAL FRAMEWORK
The First Amended and Restated Planned Unit Development/Subdivi-
sion Agreement for the Aspen Mountain Subdivision, executed
between the City and Savanah Ltd. Partnership on October 3, 1988,
provides, in part, at Section M as follows:
"... the Owner or its successors or assigns may, on its own
initiative, petition the City Council for a variance, an
amendment to this Agreement, or an extension of one or more
of the time periods required for performance under the
Construction Schedules or otherwise. The City Council may
grant such variances, amendments to this Agreement, or
extensions of time as it may deem appropriate under the
circumstances. The parties expressly acknowledge and agree
that the City Council shall not unreasonably refuse to
extend time periods for performance indicated in one or more
of the Construction Schedules if Owner demonstrates by a
preponderance of the evidence that the reasons for the
delay(s) which necessitate such extension(s) are beyond the
control of the Owner, despite good faith efforts on its part
to perform in a timely manner."
Previous extensions in the construction schedule for the subdivi-
sion were granted by Section M amendments in 1990, 1991, and
4 PRCNTEOON
REC VCLEO PAPER
•
i
Memorandum to Mayor and City Council
October 21, 1992
Page 2
earlier this year (the ice rink extension). The 1991 amendment
extended the certificate of occupancy date for the Ritz -Carlton
from October 1, 1991, to October 1, 1992.
As noted previously, Savanah submitted its current request for a
Section M amendment in writing on September 29, 1992. Savanah
seeks to extend the hotel certificate of occupancy deadline date
from October 1, 1992, to November 9, 1992. Additionally, Savanah
asks to establish the following new deadlines for the following
tasks:
Substantial completion of the exterior of the hotel
property and hardscape along public rights -of -way by
October 10, 1992.
- Clean up and regrading of Lot 6 (ice rink/park) by
October 10, 1992.
These last two items may be viewed as moot in that Council will
not address them until October 26th, by which time the tasks
involved should be complete.
While not mentioned in Savanah's amendment request, Council may
also wish to examine the following dates, which were established
by the 1991 Section M amendments, but which were automatically
rendered invalid by reason of Savanah's failure to meet the
October 1, 1992 deadline for a certificate of occupancy for the
hotel:
Certificate of Occupancy for Summit Place - August 1,
1993.
- Demolition Permit for the Grand Aspen Hotel - October
1, 1995.
PROCEDURAL FRAMEWORK
While the PUD agreement does not explicitly require a public
hearing as a precondition to a determination on whether Council
should grant a Section M amendment, this office and the Planning
Department have consistently recommended a public hearing proce-
dure concerning Section M amendments and public hearings have
been previously conducted in regard thereto (both the 1991 and
1992 amendments were preceded by public hearings).
0
•
Memorandum to Mayor and City Council
October 21, 1992
Page 3
Consistent with the nature of the subject matter, Council will be
acting in a quasi-judicial role in hearing and ruling upon
Savanah's most recent schedule amendment request. Section 24-6-
205C of the Municipal Code sets forth the general hearing proce-
dures applicable to the proceeding:
(1) Testimony and evidence upon factual matters shall be
given under oath or affirmation (technical rules of
evidence, however, are not to apply).
(2) Any person may appear and submit evidence.
(3) Council may exclude testimony or evidence that it finds
to be irrelevant, immaterial or unduly repetitious.
(4) Persons may ask relevant questions of other persons
appearing at the hearing, but only at the discretion of
the Mayor.
(5) Any person representing another person or organization
must present written evidence of their authority to
speak on behalf of such other person or organization
(assuming they are absent at the hearing).
(6) Council may continue the hearing to a fixed date and
time. Savanah also has the right to request one con-
tinuance.
(7) After the presentation of all evidence, argument and
discussion, Council shall vote on Savanah's extension
request by motion briefly stating its findings of fact
and conclusions based thereon. Council's decision
shall be reduced to writing and provided to Savanah.
Council need not enter its determination immediately,
but may defer same to a later date prior to which time
a proposed written decision may be prepared by staff
for approval at the later date. Judicial review of
Council's decision may be sought by Savanah pursuant to
Rule 106(a)(4) of the Colorado Rules of Civil Proce-
dures. Any decision made by Council must be supported
by reliable, probative and substantial evidence and
shall be based only on evidence presented at the time
of the hearing.
The burden of persuasion as to whether a Section M amendment is
warranted and should be granted rests with Savanah. The standard
Memorandum to Mayor and City Council
October 21, 1992
Page 4
to be applied is whether Savanah can demonstrate by a preponder-
ance of the evidence that the reason for the delay(s) which
necessitate the requested extension(s) are beyond its control
despite its good faith efforts to perform in a timely manner.
"Preponderance of the evidence" means that the existence of a
proposition asserted is more probably true than not.
Either the Planning Department or the City Attorney will open the
public hearing with a brief introduction concerning the amendment
process. Savanah should then be permitted to proceed to make its
case for the extension(s). (Please refer to Savanah's written
extension request dated September 29, 1992). Council may ask
questions of staff or Savanah. After Savanah's presentation,
staff may offer comments or questions. Members of the public may
thereafter offer testimony or other relevant evidence. Staff and
Savanah should be allowed to respond, with Savanah being permit-
ted to offer any final arguments or a closing statement.
SCELLANEOUS
Also on Council's agenda for the 26th is a public hearing to
determine what, if any, sanctions or penalties should be imposed
upon Savanah by reason of its failure to comply with the October
1, 1992 deadline for securing a certificate of occupancy.
Council may wish to combine the two hearings into one proceeding.
APPENDIX
Attached for your information and inclusion into the record of
the proceedings are the following documents:
"A" City Council Findings, Conclusions and Order Granting
Last Section M Amendments For Ritz -Carlton Hotel Con-
struction Deadline(s), June 10, 1991.
"B" Savanah's Request For Section M Amendment dated Septem-
ber 29, 1992.
"C" E. Caswall Letter to Savanah Responding to Request For
Immediate Hearing dated September 30, 1992.
"D" G. Lyman Memo Re: Status Tour of Ritz -Carlton Hotel
dated October 1, 1992.
"E" Notice of Non -Compliance dated October 1, 1992.
•
•
Memorandum to Mayor and City Council
October 21, 1992
Page 5
"F" G. Lyman Memo Re: Status of Ritz -Carlton dated October
6, 1992.
"G" Notice of Section M Amendment Hearing dated October 7,
1992.
"H" B. Gish Memo Re: Ritz Carlton Manpower Staffing dated
October 13, 1992.
"I" Published Notice of Hearing dated October 9, 1992.
"J" Video Tape of Ritz -Carlton Inspection Tour dated
October 1, 1992 (available, but not necessarily to be
introduced unless Council so desires).
EMC/mc
Attachments
jc1020.3
cc: City Manager
Planning Director
Public Works Director
Building Inspector
Robert W. Hughes, Esq.
BEFORE THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO
IN RE THE MATTER OF SAVANAH LIMITED PARTNERSHIP'S REQUEST FOR A
SECTION M AMENDMENT TO THE FIRST AMENDED AND RESTATED PLANNED
UNIT DEVELOPMENT/SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAIN
SUBDIVISION.
This matter is before the City Council upon the petition of
Savanah Limited Partnership ("Savanah") pursuant to Section M of
the First Amended and Restated Planned Unit Development/Subdivi-
sion Agreement for the Aspen Mountain Subdivision ("PUD Agree-
ment"), seeking certain extensions in the construction scheduling
for subdivision development. Pursuant to Savanah's petition, a
public hearing was convened upon notice on April 17, 1991, which
was continued for further proceedings to May 21st and 29th, 1991.
Savanah appeared, with legal counsel, and produced testimony and
other evidence in support of its petition. Additional testimony
and evidence on the matter was submitted by the City staff and
members of the public. Having heard all of the offered testimony
and argument and having reviewed the documentary evidence as
submitted and made part of the record herein, the City Council
finds as follows:
1. On March 15, 1991, Savanah submitted a written petition
to the City pursuant to Section M of the PUD Agreement seeking an
extension in the present construction schedule deadlines govern-
ing construction and development within the Aspen Mountain
Subdivision.
2. Section M of the PUD Agreement provides as follows in
its relevant part as pertinent hereto:
"... the Owner or its successors or assigns may, on its
own initiative, petition the City Council for a vari-
ance, an amendment to this Agreement, or an extension
of one or more of the time periods required for perfor-
mance under the Construction Schedules or otherwise.
The City Council may grant such variances, amendments
to this Agreement, or extensions of time as it may deem
appropriate under the circumstances. The parties
expressly acknowledge and agree that the City Council
shall not unreasonably refuse to extend the time peri-
ods for performance indicated in one or more of the
Construction Schedules if Owner demonstrates by a
preponderance of the evidence that the reasons for the
delay(s) which necessitate such extension(s) are beyond
M
EXHIBIT A —
the control of the Owner, despite good faith efforts on
its part to perform in a timely manner."
3. Savanah seeks extensions in the current construction
schedule deadlines as follows:
From
To
(i)
Certificate of Occupancy
Ice Rink/Park
10/1/91
10/1/92
(ii)
Certificate of;Occupancy
Ritz -Carlton Hotel
10/1/91
10/1/92
(iii)
Building Permit Issuances
Ute City Place
10/1/91
4/1/92
(iv)
Certificate of Occupancy
Summit Place
8/1/92
8/1/93
(v)
Demolition Permit
Grand Aspen Hotel
10/1/94
10/1/95
4. Savanah has alleged that the following facts and/or
circumstances have caused delays in the progress of construction
of the Ritz -Carlton Hotel component of the subdivision develop-
ment and that such facts and circumstances were beyond its
control:
(i) The Persian Gulf War and resulting adverse impact
on Savanah's principal financing resources situat-
ed in Saudi Arabia, including the non -liquidity
and non -transferability of Saudi Arabian currency.
The general economic slow down and recession im-
pacting the economy of the United States and,
particularly, the hotel and resort segment of
same.
5. City Council finds that Savanah has been able to
demonstrate by a preponderance of the testimony and evidence as
established in the record that the Persian Gulf War and its
resulting impact on the Saudi Arabian currency (riyal) has
adversely affected Savanah's ability to finance its construction
activities associated with the Aspen Mountain Subdivision and
that such factors have caused delays in the progress of construc-
tion that were beyond the control of Savanah despite its good
faith efforts to perform.
2
Ab
6. City Council further finds that Savanah has not been
able to demonstrate by a preponderance of the testimony and other
evidence presented that general economic or recessionary condi-
tions existing in the United States economy have caused delays in
its construction activities or schedules associated with the
development of the subdivision, or that alleged adverse economic
conditions as may be affecting the project were the result of
facts or circumstances beyond Savanah's control.
7. City Council further finds that the testimony and other
evidence as reflected in the record before it establishes by a
preponderance that internal legal disputes and management dis-
agreements between the partners have exacerbated and contributed
to the delays in the project's construction schedules and that
such factors were within the control of Savanah.
8. The delays in the construction schedules for the Ritz -
Carlton Hotel have and will cause significant disruption in the
City's downtown core area by extending construction activities
and the adverse traffic, dust, noise and visual impacts associat-
ed therewith.
9. The preponderance of the evidence presented by Savanah
does not demonstrate that Savanah will complete the construction
of the Ritz -Carlton Hotel, thus, warranting the imposition of
additional financial assurances upon Savanah to protect the City
and the citizens of Aspen from the adverse impacts of an unfin-
ished construction project.
NOW, THEREFORE, BASED UPON THE ABOVE AND FOREGOING, City
Council does hereby grant to Savanah Limited Partnership the
following extensions to the construction schedule deadlines for
the Aspen Mountain Subdivision, which extensions shall be incor-
porated into a written amendment to the PUD Agreement pursuant to
Sections M and 0(6), subject to those terms and conditions as set
forth below:
EXTENSIONS
1. Certificate of Occupancy
Ice Rink/Park
2. Certificate of Occupancy
Ritz -Carlton Hotel
3. Building Permit Issuance
Ute City Place
FROM TO
10/1/91 10/1/92
10/1/91 10/1/92
10/1/91 4/l/92
4. Certificate of Occupancy
Summit Place 8/l/92 8/1/93
5. Demolition Permit for Lot 5
Grand Aspen Hotel 10/1/94 10/l/95
CONDITIONS
1. Savanah shall upgrade the entire exterior fence (with
screening) adjacent to the Ritz -Carlton Hotel construction site
and Ice Rink/Park site. With regard to the visual appearance of
the Ice Rink/Park parcel, the fence will be moved approximately
twenty feet to the South off of the Durant Street curb, and all
areas exterior to the fence, except for the parking lot, shall be
seeded. A gravel path shall also be installed in this area.
Fugitive mud and dust prevention measures will be utilized on
these sites. All construction materials stored on the Ice
Rink/Park site shall be removed from public view at street level.
All of these items shall be completed by August 1, 1991, and to
the satisfaction of the Public Works Director.
2. The construction entry to the Blue Spruce off of Durant
Street shall be cleaned up and not utilized for construction
activities and the site shall continue to be fenced (with screen-
ing). This shall be completed by September 1, 1991, and to the
satisfaction of the Public Works Director.
3. The Blue Spruce structure shall be cleared of construc-
tion materials and scaffolding shall be concealed from public
view at street level. These items shall be completed by Septem-
ber 1, 1991, and to the satisfaction of the Public Works Direc-
tor.
4. A safe pedestrian path shall be installed on the East
side of Mill Street between the Ritz -Carlton Hotel construction
site and the Grand Aspen Hotel. This shall be completed by July
1, 1991, and to the satisfaction of the Public Works Director.
5. Temporary patch work shall be installed on Mill Street
between the Grand Aspen Hotel and Ritz -Carlton construction site.
This work shall be completed by August 15, 1991, and to the
satisfaction of the Public Works Director.
6. Patch work on Dean Street shall be installed in front
of the Grand Aspen Hotel and shall be completed by July 1, 1991,
and to the satisfaction of the Public Works Director.
7. Bank stabilization on both the South and West sides of
the Ritz -Carlton Hotel construction site shall be completed by
n
September 1, 1991, and to the satisfaction of the Public Works
Director.
8. Savanah shall apply for rezoning of the Ice Rink/Park
parcel to a "Park" zoning designation by July 1, 1991. Savanah does not apply for such rezoning, the City shallIif
nitiate
rezoning with all fees to be paid by Savanah.
9. Savanah shall submit a final development plan for the
Ice Rink/Park parcel to the City by September 25. l99i
10. Savanah shall -complete submission of all necessary
information for a "Number 111 building permit for the Ritz -Carlton
Hotel to the Building Department by July 8, 1991. A list of the
outstanding documents and/or information Savanah has yet to
provide the Building Department pursuant to its building permit
application is attached hereto as Attachment 1.
11. Savanah shall obtain and City shall issue the "Number
1" building permit by September 1, 1991, and all necessary fees
and applicable taxes shall be paid by Savanah at that time.
12. Savanah shall secure and fence Summit Place and remove
all debris from the site. The West wall shall also be repaired.
These items shall be completed by August 1, 1991, and to the
satisfaction of the Public Works Director. Alternatively,
Savanah may elect to demolish the Summit Place structures provid-
ed that said demolition is completed by August 1, 1991.
13. The construction schedule submitted by Savanah (Attach-
ment 2) shall be substantially adhered to as determined by City
staff.
14. Savanah shall post a cash bond or similar liquid
financial assurance in an amount no less than Four Million
Dollars ($4,000,000.00) to secure the demolition of the Ritz -
Carlton Hotel site. Savanah shall have thirty (30) days from the
date of this decision to reach agreement with the City Attorney
as to the form of such financial assurance. The financial
assurance, in a form satisfactory to the City Attorney, shall be
posted by Savanah no later than September 1, 1991. '
15. All fees owed to the City for the processing of any
land use application, including fees associated with Savanah's
petition for a Section M amendment, shall be paid by September 1,
1991.
16. Savanah shall have one (1) year from the date of
issuance of the demolition permit for the Grand Aspen Hotel to
R
5
reconstruct the eighteen (18) residential units previously
demolished pursuant to the subdivision development. This condi-
tion shall constitute and be incorporated as a formal amendment
to Section L of the PUD Agreement.
17. Savanah shall comply with all representations and
conditions as contained in its letter dated May 1, 1991, exclud-
ing the construction schedule attached thereto, submitted by F.
Belz and J. Imbriani, and addressed to the City Attorney (Attach-
ment 3 hereto).
18. Savanah shall acknowledge and agree to the transfer and
application by the City of some or all of the $535,000.00 pledged
by Savanah to secure performance of the landscaping associated
with the Ritz -Carlton Hotel (such pledge presently in the form of
an irrevocable letter of credit, Citibank Ref. 40051455) toward
the installation and completion of public street, sidewalk, curb
and gutter improvements in the subdivision in the event the hotel
is not completed and funds presently or in the future to secure
such improvements are or become insufficient to do so in the
opinion of the Public Works Director.
19. The effectiveness of the extensions as granted herein
shall be contingent upon Savanah's compliance, as determined by
the City Staff, with all of those conditions as set forth above.
In the event that any condition as set forth above is not sub-
stantially complied with, then all extensions as granted herein
shall automatically be rendered invalid and such failure(s) to
comply shall constitute non-compliance with the First Amended and
Restated PUD/Subdivision Agreement. Savanah shall thereafter be
entitled to a hearing before City Council to determine sanctions
or penalties for its non-compliance, which may include the
revocation or termination of any or all approvals contained in
the PUD Agreement.
ATT ST:
City Clerk
Done this /d'/ day of , 1991.
City Council of the City f Aspen
By :
Mayor
R
•
4-
SAVANAI-1 LIMITED
FCC-dinmuxl L. W,lz III
I AI ( I I I\ I. I Ili;l I I I):;
September 29, 1992
Aspen City Council
City Attorney
130 S. Galena Street
Aspen, CO 81611
PARTNERSHIP
J�"'l)�51
LM
D
Str � 9 i it
A7TORNEy S
OFFICE
Re: AMENDMENT TO AMENDED PUD AGREEMENT -ASPEN MOUNTAIN
SUBDIVISION
Dear Council Members,
Prior to the expiration of the current deadline for a Certificate of Occupancy on The Ritz -Carlton
Hotel, we are formally petitioning the Aspen City Council for an amendment to the Construction
Schedule established for the Hotel in the amendment dated June 10, 1991 to the First Amended
and Restated Planned Unit Development/Subdivision Agreement, Aspen Mountain Subdivision
(the "PUD Agreement").
This Current Construction Schedule calls for Savanah Limited Partnership ("Savanah") to receive
a Certificate of Occupancy (C.O.) on or before October 1, 1992. Savanah has devoted every
available resource to the meeting of this date. However, there have been extenuating
circumstances beyond the control of Savanah that we have attempted to accommodate in the
Construction Schedule that will preclude us from obtaining a Certificate of Occupancy by the
October 1 date. We are, therefore, hereby requesting an extension to November 9, 1992 of the
time within which Savanah must obtain its Certificate of Occupancy. This request is made
pursuant to the provisions of Section "M" of the First Amended and Restated Planned Unit
Development/Subdivision Agreement, which provides:
"In addition to the foregoing, the Owner or its successors or
assigns may, on its own initiative, petition the City Council for a
variance, an amendment to this Agreement, or an extension of one
or more of the time periods required for performance under the
Construction Schedules or otherwise. The City Council may grant
such variances, amendments to this Agreement, or extensions of
time as it may deem appropriate under the circumstances. The
parties expressly acknowledge and agree that the City Council shall
not reasonably refuse to extend the time periods for performance
indicated in one or more of the Construction Schedules if Owner
(d ill I ( � ���I ri'I til_ ti�.lill' '(lll . .�til)l'll. �.l ) ;;I1;11 • _;I1.� 4) �.i- I �� I A.A .iO.i �)��:�--I-.iti7
EXHIBIT B _
Aspen City Council
September 29, 1992
Page Two
demonstrates by a preponderance of the evidence that the reason
for the delay(s) which necessitate such extension(s) are beyond the
control of the Owner, despite good faith efforts on its part to
perform in a timely manner."
The basis for this request are the following environmental and staffing factors that affected our
schedule. These factors were beyond our control.
1) Availability of Labor: Despite extraordinary efforts to maintain the required
manpower on the job, due to the amount of construction occurring throughout the
region and the state, this was not possible. We have continually employed
overtime within certain trades while always being sensitive to the effect of
overtime on the long term productivity of laborers and being sensitive to the
impact upon the immediate neighbors. At times during this year we have been
as much as 20-30% below projected manpower needs.
2) Weight Restrictions on the Maroon Creek Bridge: This restriction increased the
number of concrete trucks and other delivery vehicle trips. We had to extend our
concrete pouring schedule and other delivery and material installation schedules.
This restriction had a definite negative impact on our schedule.
3) Weather: The severe and abnormal snowstorm last October arrived when we
were installing the roofing member on the main building. This impacted our
scheduling in terms of closing in the building before winter.
These factors were entirely beyond our control. The location of the site and the summer season
required that we not overly expand our construction hours. Also, to ensure a quality working
environment and accident free productivity, we have used selective overtime. Thus we are
requesting a forty day extension to receive our C.O. We also propose that the Revised
Construction Schedule provide for the following:
- Substantial completion of the exterior of the hotel property and hardscape along
public rights of way by October 10, 1992.
As provided in the Section M Amendment for the Ice Rink, Lot 6 will be
cleaned -up by October 10, 1992.
- All work past October 10, 1992 would be interior except deliveries and minor
work such as punch list, landscaping, signage, etc.
Aspen City Council
September 29, 1992
Page Three
Given the closeness of the October 1 date we must request an immediate (i.e., within 24 hours)
hearing on the matter and, of course, are hereby waiving the benefit of any hearing notice
requirements contained in the PUD Agreement.
Sincerely yours,
SAVANAH LIMITED PARTNERSHIP
ByXT&W7
er inan . Belz III, Executive Director
nvsnsh\1trs\counci1.pud
k
City, yoaf s D e n
130 ,South`'GWw ena tree
'`
Asa n C_.olora8LA 611
VIA HAND DELIVERY
September 30, 1992
Ferdinand C. Belz III
Executive Director
Savanah Limited Partnership
600 East Cooper Avenue, Suite 200
Aspen, Colorado 81611
Re: Your September 29th Request to Amend Aspen Mountain Subdivi-
sion/PUD Agreement.
Dear Ferd:
This office is in receipt of the above -noted request in which
Savanah asks that an "immediate" hearing be convened by the City
Council to address same. As you know, neither the subject
PUD/Subdivision Agreement or any provision in the municipal land
use code requires an immediate hearing as you request. As you
also know, all but one member of the City Council is out of the
country and, hence, no Bearing is possible until October 13th at
the earliest. In any event, the City appreciates Savanah's
desire to act quickly on this matter and will undertake all
reasonable steps to accommodate Savanah in this regard.
Very truly yours,
Edward M. Caswall
City Attorney
EMC/mc
jc930.1
cc: Robert W. Hughes, Esq.
Planning Director
City Manager
.aEw
EXHIBIT C
r
To: Amy Margerum
r'
From: Gary Lyman, CBO GV
Date: October 1, 1992 ou O /
Subject: Status tour of The Ritz -Carlton, October 1, 1992,
10:10 a.m.
This is a preliminary summary of the findings of the site visit and
early next week, after viewing video tape and updating status with
inspectors, fire marshal, etc., I will present a more detailed
report. The hotel, as of this date, does not meet the requirements
for the issuance of a Temporary Certificate of Occupancy.
Ballroom area -- workman scaffolds, cords, hoses, ladders,
plywood on floor; exiting was cluttered with workers' tools, cords,
scaffolds, ladders.
Kitchen -- was incomplete for equipment installations;
plumbing for hand.sink.
Administration area -- was substantially complete with the
exception of built-in shelf installation and some ceiling tile.
2nd Floor of A Building -- substantial compliance with some
workmen; exiting was cluttered with workmen, tools, cords, etc.
3rd Floor of A Building -- substantial compliance; not quite
as far as 2nd floor; exiting was cluttered with workman, etc.
4th Floor of A Building -- incomplete painting, floorcovering,
plumbing; presidential suite was in drywall hanging stage.
5th Floor of A Building -- was incomplete painting,
floorcovering, plumbing; presidential suite was in framing and
drywall hanging stage.
Roof of A Building -- not complete for equipment installation.
Exterior -- north side of building, entrance to parking
garage, courtyard still under construction with scaffold, heavy
equipment, bricklaying, precast being set, etc.
Parking garage -- still has construction activity.
In addition, it was agreed on September 9, 1992, that all areas of
construction activity would be sealed from access from occupiable
areas. This has not been accomplished.
EXHIBIT D —
P�
ey
VIA HAND DELIVERY AND
CERTIFIED MAIL
October 1, 1992
Savanah Limited Partnership
c/o Ferdinand L. Belz III, Executive Director
600 East Cooper Avenue, Suite 200
Aspen, Colorado 81611
Re: Aspen Mountain Subdivision/PUD
Dear Sir:
Pursuant to paragraph 3 of the Amendment To The First Amended And
Restated Planned Unit Development/Subdivision Agreement for the
Aspen Mountain Subdivision dated June 10, 1991, and Section M of
the First Amended and Restated Planned Unit Develop-
ment/Subdivision Agreement for the Aspen Mountain Subdivision
dated October 3, 1988, this is to advise you that the City of
Aspen has determined, based upon a physical inspection of the
Ritz -Carlton Hotel site that Savanah Limited Partnership is not
in compliance with certain terms and conditions of the above -
noted PUD/Subdivision Agreement(s). Specifically, the City has
concluded that Savanah Limited Partnership has failed to meet the
requirements for the issuance of a certificate of occupancy for
the Ritz -Carlton Hotel by the specified date of October 1, 1992,
as set forth in the PUD/Subdivision agreement, and that such
certificate of occupancy will not and cannot issue on this date.
Until further notice, work may proceed in accordance with the
issued building permit.
Very truly yours,,
'el- &fwa1w
Edward M. Caswall
City Attorney
cc: Robert W. Hughes, Esq.
recycicdpaper
EXHIBIT E —
0 fe
To: Amy Margerum
From: Gary Lyman, CBO G�_
Date: October 6, 1992
Subject: Status of the Ritz -Carlton, October 1, 1992.
As discussed in my October 1, 1992 memo, I have reviewed the record
in the Building Department for information pertaining to the status
of the Ritz -Carlton Hotel as of October 1, 1992. The hotel, as of
this date, did not meet the requirements for the issuance of a
Temporary Certificate of Occupancy.
According to our records, no final building or plumbing
inspections had been requested or performed through October 1.
Final mechanical inspections have been signed off for the
central plant and most of the roof -top equipment on Building A.
The individual rooms have not been signed off for final mechanical.
Ballroom area -- workman scaffolds, cords, hoses, ladders;
exiting was cluttered with workers' tools, cords, scaffolds,
ladders. The ballroom service areas, employee dining and
administrative offices are complete except final inspections and
some punch list items.
Kitchen -- was incomplete for equipment installations;
plumbing for hand sink.
2nd Floor of A Building -- substantial compliance with some
workmen; exiting was cluttered with workmen, tools, cords, etc.
3rd Floor of A Building -- substantial compliance; not quite
as far as 2nd floor; exiting was cluttered with workman, etc.
4th Floor of A Building -- incomplete painting, floorcovering,
plumbing; presidential suite was in drywall hanging stage.
5th Floor of A Building -- incomplete painting,
floorcovering, plumbing; presidential suite was in framing and
drywall hanging stage.
I
M
EXHIBIT F
v
Exterior -- north side of building, entrance to parking
garage, courtyard still under construction with scaffold, heavy
equipment, bricklaying, precast being set, etc.
Parking garage -- still has construction activity.
In addition, it was agreed on September 9, 1992, that all areas of
construction activity would be sealed from access from occupiable
areas. This has not been accomplished.
The Building Department staff believes the work is progressing well
and they should be complete enough for the Temporary Certificate
of occupancy within approximately two to three weeks.
cc: Jed Caswall
Bill Efting
Diane Moore
J
0-1
October 7, 1992
cil
130
AsF
Robert W. Hughes, Esq.
Oates, Hughes & Knezevich
533 East Hopkins Avenue
Aspen, Colorado 81611
a
en
reet
611
Re: Aspen Mountain Subdivision/PUD -- Non -Compliance Hearing --
Section M Amendment Request.
Dear Bob:
As a follow-up to my previous letter to Ferd Belz dated September
30th regarding a hearing on Savanah Limited Partnership's request
for a Section M amendment pertinent to the construction schedule
deadline for the Ritz -Carlton Hotel, and in response to your
letter dated October 6, 1992, requesting a hearing relevant to
possible penalties arising from the notice of non-compliance
dated October 1, 1992, and served upon Savanah on that date, this
is to advise you that City Council will conduct the hearings as
requested by Savanah on Monday, October 26, 1992, at 5:00 o'clock
p.m., at the Aspen City Hall, 130 South Galena Street. It is
possible that Council will combine the two hearings into a single
proceeding absent an objection from Savanah to such a procedure.
As with previous Section M amendment requests seeking a construc-
tion deadline extension, Savanah will have the burden to demon-
strate by a preponderance of the evidence that the reasons neces-
sitating a new deadline resulted from facts and circumstances
beyond its control. Savanah has already set forth certain
reasons in its letter dated September 29, 1992, justifying the
extension request. Savanah has also identified the proposed new
certificate of occupancy deadline date as November 9, 1992.
Please ensure that this new date, if granted, will be adequate to
meet your proposed construction time -table.
As for the non-compliance hearing, paragraph 19 of the City
Council's Findings and Order dated June 11, 1991, which was
incorporated into the 1991 Section M amendment establishing the
present construction schedule, stipulates that the only issue(s)
to be heard by Council will be those dealing with possible
penalties or sanctions arising from Savanah's current non-compli-
ance with the existing schedule. Savanah will be entitled to
offer facts and other evidence in explanation and/or mitigation
da — rc—
EXHIBIT G
Letter to Robert W. Hughes, Esq.
October 7, 1992
Page 2
of its failure to comply with the October 1, 1992, certificate of
occupancy deadline. The issue of whether a non-compliance
exists, however, will not be before Council.
Hearing notices will be published in a local newspaper of general
circulation. The hearings will be conducted in accordance with
the General Hearing Procedures as described in Section 24-6-
205(c) of the Aspen Municipal Code, at least insofar as the same
are applicable to the particular proceedings. Should you have
any questions concerning the procedures or any aspect of this
notice, please do not hesitate to contact me.
Very truly yours,,
Edward M. Caswall
City Attorney
EMC/mc
jc107.1
cc: Ferd Belz, Savanah Ltd. Partnership
Diane Moore, Planning Director
Amy Margerum, City Manager
•
lul u • , - Ju
TO: Amy Margerum
Jed Caswall
Gary Lyman
Diane Moore
Wayne Vandemark
Tom Baker
FROM: Bob Gish Ve
DATE: October 13, 1992
RE: P= CARLTON MANPOWER STAFFING
Attached for your information is a copy of the construction staffing levels of the Ritz
Carlton project.
OLCi 1 3 * •,?
RFG/sp/m 123.92
EXHIBIT H
RITZ-CARLTON HOWEL
PCL SCHEDULED VS ACTUAL MANPOWER
600
500
400
300
200
100
0
. r'41EC�4
132
366
341 351
311
269 1
Fa
A 383
330
150
60 0
62
10 20 15
SEP OCT NOV DEC JAN FEB MAR APK MAY JUN JUL AUU atF UUi NUV Utl
SCHEDULED MANPOWER __+_ ACTUAL MANPOWER
RITZ—CARLTON HOTEL A
ASPEN, COLORADO Y
DAILY FORCE SUMMARY C T C E
S.punb.r, 1092 R O R R
A T A A
T W T F S S Y T W T F S S Y T W T F S S Y T W T F S S Y T W F A F O
11 12 1] I. 1S 1e 17 6 19 20 21 22 2] 24 2S 2e 27 Ze 29 10 T L T E
PCL
C.rp-d—
C—t Flnith—
Crow Op.r.t—
Labor.n
S,.pomdon/OH-
s:;BCOI:TFACTORS
R.irrf-dr.g Steel
Muonry
Sr Sw.1
M91r.ark GR
M111w.rk 6rw
W.t.rproofing
Ro.eng
M kror.
c.rp.t
Dry..l
T9.
Mud.
R-C.nt flooring
A.—t. "l.
P.klerq
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M.clwNc.l
Control.
El-bic.l
Fir. Prot.cti
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H rd.c 0.11. os
•o•( 0 1
Colon M.t.4
Y
gas".
H&H
Toilet .ec..wA..
M11..tor Cor.c.pb
TOTAL MANPOWER
1 2 4 S e 7 e 9 10
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2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 ] 1 1 ] 1
47
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214
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1 1.4.4
t
16 Aspen Times Daily Friday, October 9,1992
PUBLIC NOTICE
RE: THE ASPEN MOUNTAIN SUBDIVISION
(RITZ-CARLTON) SECTION M PUD AMENDMENT
NOTICE IS HEREBY GIVEN that a public hearing will be held on
Monday, October 26, 1992 at a meeting to begin at 5:00 pm before
the Aspen City Council, City Council Chambers, 130 South Galena
Street, Aspen, Colorado to consider an application by Savana
Limited Partnersh;p in accordance with Section M of the First
Amended and Restated PUD/Subdivision Agreement for Aspen
Mountain Subdivision requesting an extension of the PUD
Construction deadline for the Ritz -Carlton Hotel portion of the
PUD/Subdivision project. For further information, contact Diane
Moor at the Aspen/Pitkin Planning Office, 130 S. Galena St.,
Aspen, CO 920-5090.
s/John Bennett, Mayor
Aspen City Council
EXHIBIT I —
r
City o Aspen
130 South Galena Street
Aspen, Colorado 81611
MEMORANDUM
DATE: October 19, 1992
TO: Mayor and City Council
WE
FROM: Jed Caswall, City Attorney
0-11
RE: Aspen Mountain PUD/Subdivision Non -Compliance Proceeding
This memo is being provided to assist in your preparation for and
use at the public hearing scheduled for Monday, October 26, 1992,
relevant to Savanah Limited Partnership's failure to timely
comply with certain terms and conditions of the Aspen Mountain
PUD/Subdivision Agreement relevant to the construction of the
Ritz -Carlton Hotel.
JURISDICTIONAL FRAMEWORK
Pursuant to Section M of the First Amended and Restated PUD/Sub-
division for the Aspen Mountain Subdivision (at pages 50-51),
executed between the City and Savanah Limited Partnership
("Savanah") on October 3, 1988, the City may serve upon Savanah a
notice of non-compliance when there has been a failure on
Savanah's part to adhere to established construction deadlines
for the project. In June, 1991, when Savanah was granted an
extension of one year in which to obtain a certificate of occu-
pancy for the Ritz -Carlton Hotel component of the subdivision
(from October 1, 1991 to October 1, 1992), City Council effec-
tively amended the non-compliance portion of the PUD/subdivision
agreement so as to provide that in the event Savanah failed to
meet the new completion date, a hearing would be conducted to
determine what sanctions or penalties, if any, should be imposed
upon Savanah by reason of its failure. Specifically, paragraph
19 of the findings and order entered by the Council setting the
October 1, 1992 completion date for the hotel provides:
The effectiveness of the extensions granted herein shall be
contingent upon Savanah's compliance, as determined by the
City Staff, with all of those conditions set forth above.
In the event that any condition as set forth above is not
substantially complied with, then all extensions as granted
herein shall automatically be rendered invalid and such
RECYCI D
wECVCtEO VAVER
•
•
Memorandum to Mayor and City Council
October 19, 1992
Page 2
failure(s) to comply shall constitute non-compliance with
the First Amended and Restated PUD/Subdivision Agreement.
Savanah shall thereafter be entitled to a hearing before
City Council to determine sanctions or penalties for its
non-compliance, which may include the revocation or termina-
tion of any or all approvals contained in the PUD Agreement.
On September 28th and October 1, 1992, City staff, and in partic-
ular the Building Department, conducted thorough inspections of
the Ritz -Carlton Hotel to determine whether it had reached an
appropriate level of construction completion for issuance of a
certificate of occupancy as called for in the PUD agreement.
Those inspections showed that construction of the hotel was
behind schedule, that neither a certificate of occupancy nor a
temporary certificate of occupancy could issue for the hotel (or
any part thereof), and that the project was in substantial non-
compliance with the PUD agreement relevant to the October 1, 1992
certificate of occupancy deadline date.
On October 1, 1992, a written notice of non-compliance was hand -
delivered to Savanah. On October 6th, Savanah submitted a
written request for a hearing. On October 7, 1992, written
notice was mailed to Savanah advising it of a hearing to be
conducted by City Council regarding sanctions pertinent to its
non-compliance. Public notice of the hearing was published in
The Aspen Times, on October 9, 1992.
As noted previously, the hearing to be conducted on October 26th
by the Council is to determine what, if any, penalty should be
imposed upon Savanah for missing the October 1st deadline date.
Whether or not Savanah is in non-compliance with the PUD Agree-
ment is not at issue. Pursuant to the 1991 Council order,
Savanah has already been determined to be in non-compliance by
the City staff. No penalty or sanction need be imposed if, in
Council's judgment, no useful public purpose would be served
thereby.
PROCEDURAL FRAMEWORK
Section M of the PUD Agreement states that hearings concerning
non-compliance shall be convened and conducted pursuant to those
procedures established by Council for other hearings. Section
24-6-205C of the Municipal Code sets forth the general hearing
procedures to be followed in land use matters:
•
•
Memorandum to Mayor and City Council
October 19, 1992
Page 3
(1) Testimony and evidence upon factual matters shall be
given under oath or affirmation (technical rules of
evidence, however, do not apply).
(2) Any person may appear and submit evidence.
(3) Council may exclude testimony or evidence that it finds
to be irrelevant, immaterial or unduly repetitious.
(4) Persons may ask relevant questions of other persons
appearing at the hearing, but only at the discretion of
the Mayor.
(5) Council may continue the hearing to a fixed future date
and time. Savanah also has the right to request one
continuance.
(6) Any person representing another person or organization
must present written evidence of their authority to
speak on behalf of such other person or organization.
(7) As a quasi-judicial proceeding, Council shall base any
decision arising from the hearing upon only those facts
and/or evidence as presented at the hearing.
(8) Any decision shall be reduced to writing and provided
to Savanah. Council need not enter a determination
immediately, but may defer same to a later date prior
to which a proposed written decision may be prepared by
staff for Council's approval. Judicial review of
Council's decision will be available to Savanah pursu-
ant to Rule 106(a)(4) of the Colorado Rules of Civil
Procedure.
During the hearing Savanah shall be allowed to offer facts or
other evidence in explanation or mitigation of its failure to
comply with the October 1st deadline. Council may ask questions
of Savanah, ask questions of staff, and/or direct staff or
Savanah to provide additional information. While the Planning
Staff normally opens a public hearing dealing with a land use
issue, in this instance the need for such an opening presentation
is minimal in that the fact of Savanah's non-compliance is
already established. Public comment or testimony should follow
Savanah's presentation with Savanah and staff being allowed to
follow up thereafter. Savanah should be permitted to make any
final comments or argument.
•
Memorandum to Mayor
October 19, 1992
Page 4
and City Council
MISCELLANEOUS
Also on Council's agenda for October 26th is a public hearing to
determine Savanah's previously submitted request for an amendment
in the construction schedule for the Ritz -Carlton Hotel. Savanah
submitted the amendment request on September 29, 1992. This
public hearing has also been publicly noticed in the newspaper.
Council may wish to combine the two hearings into one proceeding.
It should also be noted that Savanah continues to work on com-
pleting the hotel pending the non-compliance hearing and that it
is possible that it could effectively moot the issue by bringing
the project into compliance and securing a certificate of occu-
pancy prior to the 26th.
T DDT.`MnT V
Attached for your information and inclusion into the public
record at the hearing are the following documents:
"A" City Council Findings, Conclusions and Order Re: Sec-
tion M Amendment Establishing Construction Schedule
Deadline, June 10, 1991.
"B" G. Lyman Memo Re: Temporary Certificate of Occupancy
For The Ritz -Carlton Hotel, September 14, 1992.
"C" B. Gish Memo Re: Ritz Carlton Certificate Of Occupancy,
September 25, 1992.
"D" G. Lyman Memo Re: Temporary Certificate of Occupancy
For Ritz -Carlton, September 29, 1992 (with attachment).
"E" Savanah Request For Section M Amendment, September 29,
1992.
"F" G. Lyman Memo Re: Status Tour Of Ritz -Carlton,
October 1, 1992.
"G" E. Caswall Letter Re: Savanah's Request For Immediate
Hearing, September 30, 1992.
"H" Notice of Non -Compliance, October 1, 1992.
"I" Request For Hearing, October 6, 1992.
17J
Memorandum to Mayor and City Council
October 19, 1992
Page 5
"J" G. Lyman Memo Re: Status of Ritz -Carlton, October 6,
1992.
"K" Notice of Non -Compliance Hearing, October 7, 1992.
"L" B. Gish Memo Re: Ritz -Carlton Manpower Staffing, Octo-
ber 13, 1992.
"M" Published Notice Of Hearing, October 9, 1992.
"N" Video tapes of 10/1/92 inspection tour (available, but
not necessarily to be introduced unless Council so
desires).
EMC/mc
jc1019.1
cc: City Manager
Public Works Director
Building Inspector
Robert W. Hughes, Esq.
Planning Director
BEFORE THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO
IN RE THE MATTER OF SAVANAH LIMITED PARTNERSHIP'S REQUEST FOR A
SECTION M AMENDMENT TO THE FIRST AMENDED AND RESTATED PLANNED
UNIT DEVELOPMENT/SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAIN
SUBDIVISION.
This matter is before the City Council upon the petition of
Savanah Limited Partnership ("Savanah") pursuant to Section M of
the First Amended and Restated Planned Unit Development/Subdivi-
sion Agreement for the Aspen Mountain Subdivision ("PUD Agree-
ment"), seeking certain extensions in the construction scheduling
for subdivision development. Pursuant to Savanah's petition, a
public hearing was convened upon notice on April 17, 1991, which
was continued for further proceedings to May 21st and 29th, 1991.
Savanah appeared, with legal counsel, and produced testimony and
other evidence in support of its petition. Additional testimony
and evidence on the matter was submitted by the City staff and
members of the public. Having heard all of the offered testimony
and argument and having reviewed the documentary evidence as
submitted and made part of the record herein, the City Council
finds as follows:
1. On March 15, 1991, Savanah submitted a written petition
to the City pursuant to Section M of the PUD Agreement seeking an
extension in the present construction schedule deadlines govern-
ing construction and development within the Aspen Mountain
Subdivision.
2. Section M of the PUD Agreement provides as follows in
its relevant part as pertinent hereto:
"... the Owner or its successors or assigns may, on its
own initiative, petition the City Council for a vari-
ance, an amendment to this Agreement, or an extension
of one or more of the time periods required for perfor-
mance under the Construction Schedules or otherwise.
The City Council may grant such variances, amendments
to this Agreement, or extensions of time as it may deem
appropriate under the circumstances. The parties
expressly acknowledge and agree that the City Council
shall not unreasonably refuse to extend the time peri-
ods for performance indicated in one or more of the
Construction Schedules if Owner demonstrates by a
preponderance of the evidence that the reasons for the
delay(s) which necessitate such extension(s) are beyond
Exhibit A
00
*0
the control of the Owner, despite good faith efforts on
its part to perform in a timely manner."
3. Savanah seeks extensions in the current construction
schedule deadlines as follows:
From
To
(i)
Certificate of Occupancy
Ice Rink/Park
10/1/91
10/1/92
(ii)
Certificate of:Occupancy
Ritz -Carlton Hotel
10/1/91
10/1/92
(iii)
Building Permit Issuances
Ute City Place
10/1/91
4/l/92
(iv)
Certificate of Occupancy
Summit Place
8/1/92
8/1/93
(v)
Demolition Permit
Grand Aspen Hotel
10/l/94
10/1/95
4. Savanah has alleged that the following facts and/or
circumstances have caused delays in the progress of construction
of the Ritz -Carlton Hotel component of the subdivision develop-
ment and that such facts and circumstances were beyond its
control:
(i) The Persian Gulf War and resulting adverse impact
on Savanah's principal financing resources situat-
ed in Saudi Arabia, including the non -liquidity
and non -transferability of Saudi Arabian currency.
The general economic slow down and recession im-
pacting the economy of the United States and,
particularly, the hotel and resort segment of
same.
5. City Council finds that Savanah has been able to
demonstrate by a preponderance of the testimony and evidence as
established in the record that the Persian Gulf War and its
resulting impact on the Saudi Arabian currency (riyal) has
adversely affected Savanah's ability to finance its construction
activities associated with the Aspen Mountain Subdivision and
that such factors have caused delays in the progress of construc-
tion that were beyond the control of Savanah despite its good
faith efforts to perform.
2
6. City Council further finds that Savanah has not been
able to demonstrate by a preponderance of the testimony and other
evidence presented that general economic or recessionary condi-
tions existing in the United States economy have caused delays in
its construction activities or schedules associated with the
development of the subdivision, or that alleged adverse economic
conditions as may be affecting the project were the result of
facts or circumstances beyond Savanah's control.
7. City Council further finds that the testimony and other
evidence as reflected in the record before it establishes by a
preponderance that internal legal disputes and management dis-
agreements between the partners have exacerbated and contributed
to the delays in the project's construction schedules and that
such factors were within the control of Savanah.
8. The delays in the construction schedules for the Ritz -
Carlton Hotel have and will cause significant disruption in the
City's downtown core area by extending construction activities
and the adverse traffic, dust, noise and visual impacts associat-
ed therewith.
9. The preponderance of the evidence presented by Savanah
does not demonstrate that Savanah will complete the construction
of the Ritz -Carlton Hotel, thus, warranting the imposition of
additional financial assurances upon Savanah to protect the City
and the citizens of Aspen from the adverse impacts of an unfin-
ished construction project.
NOW, THEREFORE, BASED UPON THE ABOVE AND FOREGOING, City
Council does hereby grant to Savanah Limited Partnership the
following extensions to the construction schedule deadlines for
the Aspen Mountain Subdivision, which extensions shall be incor-
porated into a written amendment to the PUD Agreement pursuant to
Sections M and 0(6), subject to those terms and conditions as set
forth below:
EXTENSIONS
FROM TO
1. Certificate of Occupancy
Ice Rink/Park 10/1/91 10/1/92
2. Certificate of Occupancy
Ritz -Carlton Hotel 10/1/91 10/1/92
3. Building Permit Issuance
Ute City Place 10/1/91 4/1/92
4. Certificate of Occupancy
Summit Place 8/1/92 8/1/93
5. Demolition Permit for Lot 5
Grand Aspen Hotel 10/1/94 10/1/95
CONDITIONS
1. Savanah shall upgrade the entire exterior fence (with
screening) adjacent to the Ritz -Carlton Hotel construction site
and Ice Rink/Park site. With regard to the visual appearance of
the Ice Rink/Park parcel, the fence will be moved approximately
twenty feet to the South off of the Durant Street curb, and all
areas exterior to the fence, except for the parking lot, shall be
seeded. A gravel path shall also be installed in this area.
Fugitive mud and dust prevention measures will be utilized on
these sites. All construction materials stored on the Ice
Rink/Park site shall be removed from public view at street level.
All of these items shall be completed by August 1, 1991, and to
the satisfaction of the Public Works Director.
2. The construction entry to the Blue Spruce off of Durant
Street shall be cleaned up and not utilized for construction
activities and the site shall continue to be fenced (with screen-
ing). This shall be completed by September 1, 1991, and to the
satisfaction of the Public Works Director.
3. The Blue Spruce structure shall be cleared of construc-
tion materials and scaffolding shall be concealed from public
view at street level. These items shall be completed by Septem-
ber 1, 1991, and to the satisfaction of the Public Works Direc-
tor.
4. A safe pedestrian path shall be installed on the East
side of Mill Street between the Ritz -Carlton Hotel construction
site and the Grand Aspen Hotel. This shall be completed by July
1, 1991, and to the satisfaction of the Public Works Director.
5. Temporary patch work shall be installed on Mill Street
between the Grand Aspen Hotel and Ritz -Carlton construction site.
This work shall be completed by August 15, 1991, and to the
satisfaction of the Public Works Director.
6. Patch work on Dean Street shall be installed in front
of the Grand Aspen Hotel and shall be completed by July 1, 1991,
and to the satisfaction of the Public Works Director.
7. Bank stabilization on both the South and West sides of
the Ritz -Carlton Hotel construction site shall be completed by
4
V
September 1, 1991, and to the satisfaction of the Public Works
Director.
8. Savanah shall apply for rezoning of the Ice Rink/Park
parcel to a "Park" zoning designation by July 1, 1991. f
Savanah does not apply for such rezoning, the City shallIinitiate
rezoning with all fees to be paid by Savanah.
9. Savanah shall submit a final development plan for the
Ice Rink/Park parcel to the City by September 25, 1991.
10. Savanah shall -complete submission of all necessary
information for a "Number l" building permit for the Ritz -Carlton
Hotel to the Building Department by July 8, 1991. A list of the
outstanding documents and/or information Savanah has yet to
provide the Building Department pursuant to its building permit
application is attached hereto as Attachment 1.
11. Savanah shall obtain and City shall issue the "Number
1" building permit by September 1, 1991, and all necessary fees
and applicable taxes shall be paid by Savanah at that time.
12. Savanah shall secure and fence Summit Place and remove
all debris from the site. The West wall shall also be repaired.
These items shall be completed by August 1, 1991, and to the
.
satisfaction of the Public Works DirectorAlternatively,
Savanah may elect to demolish the Summit Place structures provid-
ed that said demolition is completed by August 1, 1991.
13. The construction schedule submitted by Savanah (Attach-
ment 2) shall be substantially adhered to as determined by City
staff.
14. Savanah shall post a cash bond or similar liquid
financial assurance in an amount no less than Four Million
Dollars ($4,000,000.00) to secure the demolition of the Ritz -
Carlton Hotel site. Savanah shall have thirty (30) days from the
date of this decision to reach agreement with the City Attorney
as to the form of such financial assurance. The financial
assurance, in a form satisfactory to the City Attorney, shall be
posted by Savanah no later than September 1, 1991. '
15. All fees owed to the City for the processing of any
land use application, including fees associated with Savanah's
petition for a Section M amendment, shall be paid by September 1,
1991.
16. Savanah shall have one (1) year from the date of
issuance of the demolition permit for the Grand Aspen Hotel to
.
5
reconstruct the eighteen (18) residential units previously
demolished pursuant to the subdivision development. This condi-
tion shall constitute and be incorporated as a formal amendment
to Section L of the PUD Agreement.
17. Savanah shall comply with all representations and
conditions as contained in its letter dated May 1, 1991, exclud-
ing the construction schedule attached thereto, submitted by F.
Belz and J. Imbriani, and addressed to the City Attorney (Attach-
ment 3 hereto).
18. Savanah shall acknowledge and agree to the transfer and
application by the City of some or all of the $535,000.00 pledged
by Savanah to secure performance of the landscaping associated
with the Ritz -Carlton Hotel (such pledge presently in the form of
an irrevocable letter of credit, Citibank Ref. 40051455) toward
the installation and completion of public street, sidewalk, curb
and gutter improvements in the subdivision in the event the hotel
is not completed and funds presently or in the future to secure
such improvements are or become insufficient to do so in the
opinion of the Public Works Director.
19. The effectiveness of the extensions as granted herein
shall be contingent upon Savanah's compliance, as determined by
the City Staff, with all of those conditions as set forth above.
In the event that any condition as set forth above is not sub-
stantially complied with, then all extensions as granted herein
shall automatically be rendered invalid and such failure(s) to
comply shall constitute non-compliance with the First Amended and
Restated PUD/Subdivision Agreement. Savanah shall thereafter be
entitled to a hearing before City Council to determine sanctions
or penalties for its non-compliance, which may include the
revocation or termination of any or all approvals contained in
the PUD Agreement.
ATT ST:
City Cle
Done this /0'7 Jday of , 1991.
City Council of the City f Aspen
By:
Mayor
n
U R G E N T
M E M O R A N D U M
To: Tom Dunlop, Environmental Health
Diane Moore, Planning Department-�
Bill Drueding, Zoning Department sfP ) 4
Judy McKenzie, Water Department )xll
Wayne Vandemark, Fire Marshal
Chuck Roth, Engineering Department
.Jed Caswall, City Attorney
;;�w
Bob Gish, Public Works Department
George Robinson, Parks Department
Tom Baker, Housing Authority
Bruce Matherly, Aspen Consolidated Sanitation District
Dallas Everhart, Finance Department
Craig Murray, Holy Cross Electric
Ray Patch, Rocky Mountain Natural Gas
From: Gary Lyman, CBO, Building Department
Date: September 14, 1992
Subject: Temporary Certificate of Occupancy for the Ritz Carlton
Hotel
--------------------------------------
--------------------------------------
Bechtel has requested that the Ritz be considered for a Temporary
Certificate of Occupancy effective October 1, 1992. The conditions
for issuance being discussed are:
1. Not open to public; for occupancy of Ritz personnel for
hiring and training purposes.
2. An expiration for the first week of December
(approximate) which means final Certificate of Occupancy
will have to be obtained prior.
3. Occupiable areas will be completely. free of workmen,
tools, cords, hoses, ladders, scaffold, construction
equipment, etc.
4. Unoccupiable areas to be.secured to not allow access by
other than construction personnel.
The areas that are projected to be incomplete are: Upper ski
lounge, lobby lounge, and grand stair will be short carpet and
millwork. Fourth, fifth, and sixth floors of B Building will still
need carpet, paint, and punch list. The public elevators will be
short millwork. The bridge from Building A to The Blue Spruce will
be incomplete. Twenty fire -rated doors will not be hung. The
health club, fine dining, and Blue Spruce retail will be
incomplete.
Exhibit B """
If you or your department have any concerns with the issuance of
a Temporary Certificate of Occupancy under these terms, please
inform me of those concerns so that I can see that they are
resolved or the TCO not issued, whichever is appropriate. Please
have your concerns submitted to my office no later than September
18, 1992, or sooner if possible.
cc: Amy Margerum, City Manager
Stan Berryman, County Public Works
MEMORANDUM
TO: Gary Lyman
Diane Moore
Jed Caswail
Wayne Vandermark
George Robinson
Tom Dunlop
Tom Baker SLY 1 8
FROM: Robert Gish
DATE: September 25, 1992
RE: RITZ CARLTON CERTIFICATE OF OCCUPANCY
Gary Lyman will take the lead in issuing the temporary Certificate of Occupancy for the
Ritz Carlton Hotel. For Gary to issue this permit, all of the provisions of the PUD and
conditions established, must meet all of your approvals. Please review Gary's September
16, 1992 letter.
The Certificate of Occupancy must be earned by their actions. The conditions we set
forth in our September 9, 1992 meeting must be met to issue the certificate. If the
certificate cannot be issued then it must be held until the conditions are met.
I met with John Cunningham today and we discussed the following issues.
* The ice rink location will be cleared of all construction materials and the site
graded smooth. No gravel or temporary landscaping will be installed. The
conditions of the ice rink approvals shall dictate the use and condition of
the property. The area cannot be used for parking.
* Storage of materials will be allowed on the top of Mill site. I will follow up
in the next several weeks to develop a phase -out program of the materials
or a plan to allow continual usage of the property.
* I have requested again that they voluntarily do not park employees' cars
along Monarch and adjacent streets to lessen the impact to the
neighborhood. They have agreed to use the Ritz Parking Garage for some
portion of the cars.
* The bridge will not be completed as indicated in our earlier meeting.
Exhibit c
Ritz Carlton Certificate of Occupancy
September 25, 1992
Page Two
As I will be out of town next week, Rob Thomson wi
for the Public Works Department.
My recommendation to Gary is to review the issuance
Jed before it is issued.
cc: Rob Thomson
Jack Reid
RFG/sp/m 120.92
I,
t
M E M O R A N D U M
SEP p 9
To: Amy Margerum
From: Gary Lyman, C. B.O. ( ;4—
Date: September 29, 1992
Subject: Temporary Certificate of Occupancy for Ritz Carlton
As you are aware, agreements were reached September 9, 1992, in a
meeting with PCL, Bechtel, Savanah, various subcontractors, and
city staff to include Bob Gish, Wayne Vandemark, Diane Moore, Jed
Caswall, and myself. These agreements detailed what would not be
complete as of October 1. All city staff present agreed we could
accommodate a temporary Certificate of Occupancy under certain
conditions described in my September 14 memo to department heads
and in Jed's September 16 memo to City Council (both attached).
It is important to note that these agreements were forged around
Bechtel's, PCL's, and Savanah's requests and were exactly what they
wanted.
Monday afternoon, I took considerable time to inspect the Ritz to
see for myself the progress. During this inspection, it became
glaringly obvious that they could not be even close to complying
with the terms agreed to for the TCO. My estimate at this time is
that they are at least two to three weeks behind schedule.
Therefore, I will not be in a position to sign off on a temporary
Certificate of Occupancy as originally expected.
Thursday, October 1, Diane Moore and myself plan on doing a site
visit so that I can report back to you in a detailed account of the
status of progress.
Exhibit D
DATE:
TO:
FROM:
RE:
Or
Cit
ac
:ofASDen
130 ;Sgth Alma treet
Aspen;.Colorad°o$t 611
r, as
MEMORANDUM
September 16, 1992
Mayor and City Council
Jed Caswall, City Attorney'
Ritz Hotel Construction Sched Lpdate
Staff (B. Gish, G. Lyman, S. Kanipe, W. Vandemark, D. Moore and
myself) met with Savanah, Bechtel, PCL and various subcontractor
officials last Wednesday (9/9/92) to assess the construction
progress for the Ritz with an eye to the October 1st PUD certifi-
cate of occupancy date. You may recall from my memo to you
dated August 4th that I thought the Ritz folks were going to fall
a little short in making the October lst date and, in view of our
meeting last week, it appears that such will be the case.
Our meeting lasted for approximately two hours and was very
productive. Each aspect of the hotel complex was reviewed
utilizing blueprints illustrating the various stages of construc-
tion. Mechanical, structural and life/safety issues were gone
over in detail. A bottom -line summary is as follows.
The Ritz will not be ready for opening to the public by
October 1st.
Assuming that Bechtel/PCL keep to the schedule as
represented on Wednesday, and get done the things they say they
will have done, the Ritz should be ready and eligible for a
temporary or partial certificate of occupancy by Octok-,er lst. A
temporary certificate of occupancy would reflect compliance by
the Ritz with all health and safety requirements and conformance
with the Uniform Building Code standards, and would allow Ritz
personnel to occupy various parts of the complex for hiring and
training purposes. The public and other non -construction person-
nel, however, would not have access to the facility.
Construction activities remaining after October 1st
would include:
Memorandum to Mayor and City Council
September 16, 1992
Page 2
Interior finish work throughout many areas of the
hotel (e.g., mill work, carpeting installation,
painting, door installation, etc.).
Exterior finish work on the "bridge" connecting
the Blue Spruce to the main hotel (this will in-
clude the use of a mobile crane to install the
pre -cast trim).
- Installation/completion of public elevators.
- Interior ("tenant finish") for retail spaces and
the Blue Spruce.
- Installation/construction of the health club.
- Installation/construction of the fine dining room.
- Installation/completion of the apres ski lounge.
- Anticipated continuing public impacts beyond October
ist include:
Truck traffic, including semi -trucks, will contin-
ue to deliver at the site for two months. Even
after construction halts, furniture and other
furnishings will continue to be delivered. (We
have asked Savanah/Bechtel/PCL to suggest a deliv-
ery schedule setting restricted hours for truck
deliveries.)
A mobile crane will remain on site until the pre-
cast trim is completely installed on the Blue
Spruce bridge.
Labor force traffic/parking (we have asked
Savanah/Bechtel/PCL to clear the Ritz garage and
require all workmen to park in the garage instead
of on the streets).
Storage of materials at Top -of -Mill to continue.
Anticipated mitigation to have been completed by
October 1st, include:
Memorandum to Mayor and City Council
September 16, 1992
Page 3
- Streets, sidewalks and gutters around hotel to be
complete.
- Landscaping to be complete except for plantings
that require a later installation due to seasonal
considerations.
- Dean Street (vacated) to be completed and cleared.
- Ice rink/park lot to be cleared and graded (no
storage).
Miscellaneous - Ute City Place, a deed restricted
housing complex for 37 employees, will also not be completed by
October 1st, although under the terms of the Ritz PUD, Savanah
may temporarily deed restrict a corresponding number of rooms in
the Grand Aspen to take the place of the Ute City Place housing
until Ute City Place is completed.
Again, a temporary certificate of occupancy will allow the
occupancy of those completed portions of the hotel by Ritz
personnel for training, facility familiarization, etc. Such
areas will be free of construction workers, tools, ladders,
equipment, cords, etc. Non -permitted areas will be restricted to
construction personnel only. The Building Department is present-
ly forecasting that the expiration date for the temporary C/O
will be sometime during the first week in December.
Between October 1st and the first week in December it is antici-
pated that the following work will be completed:
- Health club (11/30)
- Blue Spruce Bridge (11/30)
- Building B interior (10/2-10/16)
- Landscape to completion (11/1)
- Public elevators (10/24)
- All mill work (10/30)
- All fire doors (10/13)
- Pre -cast storage at Top -of -Mill ended (10/30) (still
some miscellaneous storage to continue, i.e., jersey
barriers until sold).
Final completion dates for the fine dining and apres ski lounge
remain uncertain as of this writing. The fine dining may be
delayed to as late as 2/93. Savanah has advised us confidential-
a( -
Memorandum to Mayor and City Council
September 16, 1992
Page 4
ly that the currently projected public opening is set for the
weekend of 12/11-12/12.
The PUD requires that the hotel be "substantially" completed by
October 1st and that a certificate of occupancy issue. From a
technical standpoint, it could be argued that Savanah has failed
to meet the PUD deadline by reason of its inability to secure a
final certificate of occupancy. However, the Building Department
confirms that from a construction and Uniform Building Code
perspective, the hotel will be substantially complete and eligi-
ble for issuance of a temporary certificate of occupancy on
October 1st. The consensus of the City Staff is that Savanah has
and is substantially complying with the terms of the PUD and the
amendments thereto, and that no enforcement action need be taken
so long as Savanah/Bechtel/PCL adhere to their representations
concerning the scheduled minimization and elimination of the
impacts from the project on the surrounding neighborhood and City
generally. Staff has impressed upon Savanah, et al., the impor-
tance and necessity of terminating all exterior construction
activities as soon as possible and minimizing the impact of the
continuing interior work by implementing parking for the workers
in the garage, scheduling deliveries, etc. Regular monitoring of
the project will continue to ensure progress and compliance.
(For your information, Bechtel claims that the single biggest
reason for the various delays in completing the project has been
an inability to secure enough skilled workmen necessary to get
the work done. Manpower levels did not meet and exceed antici-
pated numbers until mid -August. Additionally, the project has
been delayed by the untimely delivery of special order construc-
tion materials, e.g., special pre -cast trim, etc.).
As outlined above, the current plan is to issue a temporary C/O
for the Ritz on October 1st. If asked, staff will advise the
press and public that there has been substantial compliance with
the terms of the PUD and that no enforcement action (or permit
revocation) is contemplated so long as work continues to comple-
tion as scheduled. Monitoring and inspections will continue.
Savanah still needs to submit an application for certain PUD
amendments (i.e., the Blue Spruce), and we have stressed that
they should get it in before October. We also expect Savanah to
deposit the $700,000 for the ice rink into an escrow fund. If
there are any variations from what is described above, staff will
get back to the Council with the information.
Memorandum to Mayor and City Council
September 16, 1992
Page 5
If any councilmember has questions concerning anything discussed
above, or if you disagree with the proposed course of action,
please let Amy or me know.
Thank you.
EMC/mc
jc916.1
cc: Amy Margerum, City Manager
Bob Gish, Public Works
Gary Lyman, Building Department
Diane Moore, Planning Department
0C
SAVANAH LIMITED
I --(,Id )ruxl L. I,(.Iz III
September 29, 1992
Aspen City Council
City Attorney
130 S. Galena Street
Aspen, CO 81611
PARTNERSIIIP
Sci' 1 9
CITY AITORNlyS
Re: AMENDMENT TO AMENDED PUD AGREEMENT -ASPEN MOUNTAIN
SUBDIVISION
Dear Council Members,
Prior to the expiration of the current deadline for a Certificate of Occupancy on The Ritz -Carlton
Hotel, we are formally petitioning the Aspen City Council for an amendment to the Construction
Schedule established for the Hotel in the amendment dated June 10, 1991 to the First Amended
and Restated Planned Unit Development/Subdivision Agreement, Aspen Mountain Subdivision
(the "PUD Agreement").
This Current Construction Schedule calls for Savanah Limited Partnership ("Savanah") to receive
a Certificate of Occupancy (C.O.) on or before October 1, 1992. Savanah has devoted every
available resource to the meeting of this date. However, there have been extenuating
circumstances beyond the control of Savanah that we have attempted to accommodate in the
Construction Schedule that will preclude us from obtaining a Certificate of Occupancy by the
October 1 date. We are, therefore, hereby requesting an extension to November 9, 1992 of the
time within which Savanah must obtain its Certificate of Occupancy. This request is made
pursuant to the provisions of Section "M" of the First Amended and Restated Planned Unit
Development/Subdivision Agreement, which provides:
"In addition to the foregoing j the Owner or its successors or
assigns may, on its own initiative, petition the City Council for a
variance, an amendment to this Agreement, or an extension of one
or more of the time periods required for performance under the
Construction Schedules or otherwise. The City Council may grant
such variances, amendments to this Agreement, or extensions of
time as it may deem appropriate under the circumstances. The
parties expressly acknowledge and agree that the City Council shall
not reasonably refuse to extend the time periods for performance
indicated in one or more of the Construction Schedules if Owner
�� i�i I „� �� �i'I �I tilllll' �(1O • .�tiE)('ll. i.O II • . ( ,i !)_'.1 I_'i _' 1 .\.X .ill.i !�"�-i I_�tiI
Exhibit E
•C
Aspen City Council
September 29, 1992
Page Two
demonstrates by a preponderance of the evidence that the reason
for the delay(s) which necessitate such extension(s) are beyond the
control of the Owner, despite good faith efforts on its part to
perform in a timely manner."
The basis for this request are the following environmental and staffing factors that affected our
schedule. These factors were beyond our control.
1) Availability of Labor: Despite extraordinary efforts to maintain the required
manpower on the job, due to the amount of construction occurring throughout the
region and the state, this was not possible. We have continually employed
overtime within certain trades while always being sensitive to the effect of
overtime on the long term productivity of laborers and being sensitive to the
impact upon the immediate neighbors. At times during this year we have been
as much as 20-30% below projected manpower needs.
2) Weiaht Restrictions on the Maroon Creek Bridge: This restriction increased the
number of concrete trucks and other delivery vehicle trips. We had to extend our
concrete pouring schedule and other delivery and material installation schedules.
This restriction had a definite negative impact on our schedule.
3) Weather: The severe and abnormal snowstorm last October arrived when we
were installing the roofing member on the main building. This impacted our
scheduling in terms of closing in the building before winter.
These factors were entirely beyond our control. The location of the site and the summer season
required that we not overly expand our construction hours. Also, to ensure a quality working
environment and accident free productivity, we have used selective overtime. Thus we are
requesting a forty day extension to receive our C.O. We also propose that the Revised
Construction Schedule provide for the following:
Substantial completion of the exterior of the hotel property and hardscape along
public rights of way by October 10, 1992.
As provided in the Section M Amendment for the Ice Rink, Lot 6 will be
cleaned -up by October 10, 1992.
All work past October 10, 1992 would be interior except deliveries and minor
work such as punch list, landscaping, signage, etc.
Aspen City Council
September 29, 1992
Page Three
Given the closeness of the October 1 date we must request an immediate (i.e., within 24 hours)
hearing on the matter and, of course, are hereby waiving the benefit of any hearing notice
requirements contained in the PUD Agreement.
Sincerely yours,
SAVANAH LIMITED PARTNERSHIP
By Z TdW,, �
er inan . Belz III, Executive Director
savanah\ltrs\council. pud
To: Amy Margerum
From: Gary Lyman, CBO
Date: October 1, 1992 OW O I 4
Subject: Status tour of The Ritz -Carlton, October 1, 1992,)
10:10 a.m.
This is a preliminary summary of the findings of the site visit and
early next week, after viewing video tape and updating status with
inspectors, fire marshal, etc., I will present a more detailed
report. The hotel, as of this date, does not meet the requirements
for the issuance of a Temporary Certificate of Occupancy.
Ballroom area -- workman scaffolds, cords, hoses, ladders,
plywood on floor; exiting was cluttered with workers' tools, cords,
scaffolds, ladders.
Kitchen -- was incomplete for equipment installations;
plumbing for hand.sink.
Administration area -- was substantially complete with the
exception of built-in shelf installation and some ceiling tile.
2nd Floor of A Building -- substantial compliance with some
workmen; exiting was cluttered with workmen, tools, cords, etc.
3rd Floor of A Building -- substantial compliance; not quite
as far as 2nd floor; exiting was cluttered with workman, etc.
4th Floor of A Building -- incomplete painting, floorcovering,
plumbing; presidential suite was in drywall hanging stage.
5th Floor of A Building -- was incomplete painting,
floorcovering, plumbing; presidential suite was in framing and
drywall hanging stage.
Roof of A Building -- not complete for equipment installation.
Exterior -- north side of building, entrance to parking
garage, courtyard still under construction with scaffold, heavy
equipment, bricklaying, precast being set, etc.
Parking garage -- still has construction activity.
In addition, it was agreed on September 9, 1992, that all areas of
construction activity would be sealed from access from occupiable
areas. This has not been accomplished.
Exhibit F
Clty,�, oaf
130 'S u
Asth` G
a nColo
VIA HAND DELIVERY
September 30, 1992
Ferdinand C. Belz III
Executive Director
Savanah Limited Partnership
600 East Cooper Avenue, Suite 200
Aspen, Colorado 81611
en
reet
611
Re: Your September 29th Request to Amend Aspen Mountain Subdivi-
sion/PUD Agreement.
Dear Ferd:
This office is in receipt of the above -noted request in which
Savanah asks that an "immediate" hearing be convened by the City
Council to address same. As you know, neither the subject
PUD/Subdivision Agreement or any provision in the municipal land
use code requires an immediate hearing as you request. As you
also know, all but one member of the City Council is out of the
country and, hence, no hearing is possible until October 13th at
the earliest. In any event, the City appreciates Savanah's
desire to act quickly on this matter and will undertake all
reasonable steps to accommodate Savanah in this regard.
Very truly yours,
4A 0". P /, � 4�,I /�
Edward M. Caswall
City Attorney
EMC/mc
jc930.1
cc:
Robert W. Hughes, Esq.
Planning Director
City Manager
Exhibit G
1
cis
VIA HAND DELIVERY AND
CERTIFIED MAIL
October 1, 1992
t01
it
41-
EN
Savanah Limited Partnership
c/o Ferdinand L. Belz III, Executive Director
600 East Cooper Avenue, Suite 200
Aspen, Colorado 81611
Re: Aspen Mountain Subdivision/PUD
Dear Sir:
Pursuant to paragraph 3 of the Amendment To The First Amended And
Restated Planned Unit Development/Subdivision Agreement for the
Aspen Mountain Subdivision dated June 10, 1991, and Section M of
the First Amended and Restated Planned Unit Develop-
ment/Subdivision Agreement for the Aspen Mountain Subdivision
dated October 3, 1988, this is to advise you that the City of
Aspen has determined, based upon a physical inspection of the
Ritz -Carlton Hotel site that Savanah Limited Partnership is not
in compliance with certain terms and conditions of the above -
noted PUD/Subdivision Agreement(s). Specifically, the City has
concluded that Savanah Limited Partnership has failed to meet the
requirements for the issuance of a certificate of occupancy for
the Ritz -Carlton Hotel by the specified date of October 1, 1992,
as set forth in the PUD/Subdivision agreement, and that such
certificate of occupancy will not and cannot issue on this date.
Until further notice, work may proceed in accordance with the
issued building permit.
Very truly yours,
'4/. &0'alw
Edward M. Caswall
City Attorney
cc: Robert W. Hughes, Esq.
recycledpaper _
Exhibit H
LAW OFFICES OF
0A"I"ES, 1IUG11ES & KNEZEVICII
PROFESSIONAL CORPORATION
THIRD FLOOR, ASPEN PLAZA BUILDING
533 EAST HOPKINS AVENUE
ASPEN. COLORADO 61611
LEONARD M. OATES - AREA CODE 303
ROBERT W. HUGHES TELEPHONE 920 1700
RICHARD A. KNEZEVICH ' TELECOPIER 920 1121
IED D. GARDENSWARTZ
OF COUNSEL: October 6, 1992 JOHN THOMAS KELLY O`rl O
HAND DELIVERY
Amy Margerum =
Aspen City Manager
130 South Galena
Aspen, Colorado 81611
RE: Aspen Mountain Subdivision/PUD
October 1, 1992 Notice of Non -Compliance
Dear Amy:
On behalf of Savanah Limited Partnership, and pursuant to the terms of the First
Amended and Restated Planned Unit Development/Subdivision Agreement and amendments
thereto, this shall constitute a request for a hearing before the Aspen City Council with respect
to any sanctions or penalties that may be imposed by reason of the finding by the City of non-
compliance on the part of Savanah under the PUD Agreement, as such finding has been
evidenced in the above -referenced notice.
Savanah further requests that a hearing be held in the soonest time possible in the
circumstances.
Sincerely,
OAT", IifgGI JE& KNEZEVICII, P.C.
By:
. Hug
RWH%dward
cc: M. Caswall, Esq. (Hand Delivery)
.Perry Harvey
aaV AIIIIAItraWargClwu.0I
Exhibit I
09 0 6 � 0,
To: Amy Margerum
From: Gary Lyman, CBOIJ_
Date: October 6, 1992
Subject: Status of the Ritz -Carlton, October 1, 1992.
As discussed in my October 1, 1992 memo, I have reviewed the record
in the Building Department for information pertaining to the status
of the Ritz -Carlton Hotel as of October 1, 1992. The hotel, as of
this date, did not meet the requirements for the issuance of a
Temporary Certificate of Occupancy.
According to our records, no final building or plumbing
inspections had been requested or performed through October 1.
Final mechanical inspections have been signed off for the
central plant and most of the roof -top equipment on Building A.
The individual rooms have not been signed off for final mechanical.
Ballroom area -- workman scaffolds, cords, hoses, ladders;
exiting was cluttered with workers' tools, cords, scaffolds,
ladders. The ballroom service areas, employee dining and
administrative offices are complete except final inspections and
some punch list items.
Kitchen -- was incomplete for equipment installations;
plumbing for hand sink.
2nd Floor of A Building -- substantial compliance with some
workmen; exiting was cluttered with workmen, tools, cords, etc.
3rd Floor of A Building -- substantial compliance; not quite
as far as 2nd floor; exiting was cluttered with workman, etc.
4th Floor of A Building -- incomplete painting, floorcovering,
plumbing; presidential,suite was in drywall hanging stage.
5th Floor of A Building -- incomplete painting,
floorcovering, plumbing; presidential suite was in framing and
drywall hanging stage.
Exhibit J "'
i
Exterior -- north side of building, entrance to parking
garage, courtyard still under construction with scaffold, heavy
equipment, bricklaying, precast being set, etc.
Parking garage -- still has construction activity.
In addition, it was agreed on September 9, 1992, that all areas of
construction activity would be sealed from access from occupiable
areas. This has not been accomplished.
The Building Department staff believes the work is progressing well
and they should be complete enough for the Temporary Certificate
of Occupancy within approximately two to three weeks.
cc: Jed Caswall
Bill Efting
Diane Moore
• 0
C
13
A
October 7, 1992
Robert W. Hughes, Esq.
Oates, Hughes & Knezevich
533 East Hopkins Avenue
Aspen, Colorado 81611
00,
en
reet
611
Re: Aspen Mountain Subdivision/PUD -- Non -Compliance Hearing --
Section M Amendment Request.
Dear Bob:
As a follow-up to my previous letter to Ferd Belz dated September
30th regarding a hearing on Savanah Limited Partnership's request
for a Section M amendment pertinent to the construction schedule
deadline for the Ritz -Carlton Hotel, and in response to your
letter dated October 6, 1992, requesting a hearing relevant to
possible penalties arising from the notice of non-compliance
dated October 1, 1992, and served upon Savanah on that date, this
is to advise you that City Council will conduct the hearings as
requested by Savanah on Monday, October 26, 1992, at 5:00 o'clock
p.m., at the Aspen City Hall, 130 South Galena Street. It is
possible that Council will combine the two hearings into a single
proceeding absent an objection from Savanah to such a procedure.
As with previous Section M amendment requests seeking a construc-
tion deadline extension, Savanah will have the burden to demon-
strate by a preponderance of the evidence that the reasons neces-
sitating a new deadline resulted from facts and circumstances
beyond its control. Savanah has already set forth certain
reasons in its letter dated September 29, 1992, justifying the
extension request. Savanah has also identified the proposed new
certificate of occupancy deadline date as November 9, 1992.
Please ensure that this new date, if granted, will be adequate to
meet your proposed construction time -table.
As for the non-compliance hearing, paragraph 19 of the City
Council's Findings and Order dated June 11, 1991, which was
incorporated into the 1991 Section M amendment establishing the
present construction schedule, stipulates that the only issue(s)
to be heard by Council will be those dealing with possible
penalties or sanctions arising from Savanah's current non-compli-
ance with the existing schedule. Savanah will be entitled to
offer facts and other evidence in explanation and/or mitigation
"""°°" Exhibit K
'I
Letter to Robert W.
October 7, 1992
Page 2
Hughes, Esq.
4f
of its failure to comply with the October 1, 1992, certificate of
occupancy deadline. The issue of whether a non-compliance
exists, however, will not be before Council.
Hearing notices will be published in a local newspaper of general
circulation. The hearings will be conducted in accordance with
the General Hearing Procedures as described in Section 24-6-
205(c) of the Aspen Municipal Code, at least insofar as the same
are applicable to the particular proceedings. Should you have
any questions concerning the procedures or any aspect of this
notice, please do not hesitate to contact me.
Very truly yours,
Edward M. Caswall
City Attorney
EMC/mc
jc107.1
cc: Ferd Belz, Savanah Ltd. Partnership
Diane Moore, Planning Director
Amy Margerum, City Manager
MEMORANDUM
TO: Amy Margerum
Jed Caswall
Gary Lyman
Diane Moore
Wayne Vandemark
Tom Baker
FROM: Bob Gish re
DATE: October 13, 1992
RE: RITZ CARLTON MANPOWER STAFFING
-----------------------------------------------
-----------------------------------------------
Attached for your information is a copy of the construction staffing levels of the Ritz
Carlton project.
09 1 3 ;;;?
RFG/sp/ml23.92
"'— Exhibit L "—
600
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400
300
200
100
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•
RITZ-CARLTON HO L
PCL SCHEDULED VS ACTUAL MANPOWER
ilFc- # �
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� 341
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-- 289
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132
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P OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AU(i SEP QUF NOV DEC:
SCHEDULED MANPOWER _#-- ACTUAL MANPOWER
RrrZ—CARLTON HOTEL A
ASPEN, COLORADO Y
DAILY FORCE SUMMARY C T C E
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Friday, October 9,1 M Aspen Times Daify 25
PUBLIC NOTICE
RE: THE ASPEN MOUNTAIN SUBDIVISION
(RITZ-CARLTON) NON-COMPLIANCE HEARING
NOTICE IS HEREBY GIVEN that a public hearing will be held on
Monday, October 26, 1992 at a meeting to begin at 5:00 pm before
the Aspen City Council, City Council Chambers, 130 South Galena
Street, Aspen, Colorado to consider possible penalties and/or
sanctions to be assessed against Savana Limited Partnership by
reason of its failure to comply with certain terms and conditions of
approval set forth in the First Amended and Restated
PUD/Subdivision Agreement for the Aspen Mountain Subdivision
as amended, and, specifically, its failure to meet the construction
deadline date for the Ritz -Carlton Hotel. For further information,
contact Diane Moor at the Aspen/Pitkin Planning Office, 130 S.
Galena St., Aspen, CO 920-5090.
s/John Bennett, Mayor
Aspen City Council
Exhibit M