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HomeMy WebLinkAboutagenda.council.regular.20091027CITY COUNCIL AGENDA October 26, 2009 5:00 P.M. Call to Order II. Roll Call III. Scheduled Public Appearances a) Proclamation -Aspen High School Football b) Recommendations of the Historic Preservation Task Force c) APA Award for Public Involvement IV. Citizens Comments 8~ Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Deletions and Additions c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters maybe adopted together by a single motion) a) Resolution #87, 2009 -Contract -Ozone Monitoring System b) Resolution #88, 2009 -World Cup Banners on Main Street c) Minutes -October 13, 2009 VII. Public Hearings a) Resolution #86, 2009 -Temporary Use -Dark Horse Alley Food Cart b) Ordinance #22, 2009 -Opt In to Local Energy Improvement District c) Ordinance #21, 2009 -Red Butte Cemetery PUD continue to 11/9 d) Resolution #52, 2009 -Lift One Lodge Conceptual PUD e) Resolution #78, 2009 -Wheeler Opera House, 320 E. Hyman, Conceptual PUD VIII. Action Items a) Request Waiver Stormwater Fee -Aspen Institute b) Code Interpretation Appeal - 980 Gibson Floor Area Associated with a Parcel continue to 11/23 c) Resolution #89, 2009 -Code Interpretation Appeal -Man-made Landforms d) Resolution #90, 2009 -Code Interpretation Appeal -Decks and Floor Area IX. Adjournment Next Regular Meeting November 9. 2009 COUNCIL'S ADOPTED GUIDELINES / Stick to top priorities / Foster a safe, supportive, innovative work environment that encourages creativity and acceptable risk-taking / Create structure and allow adequate time & resources for citizen processes COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. via. MEMORANDUM TO: FROM: THRU: DATE OF MEMO: MEETING DATE: RE: Mayor and City Council Jannette Whitcomb, Senior Environmental Health Program Coordinator Lee Cassin, Environmental Health Director ~ ~C ~ October 13, 2009 October 26, 2009 Ozone Monitoring System Contract REQUEST OF COUNCIL: Staff requests award of a contract to Golder Associates Inc. for the purchase, installation and maintenance of an ozone monitoring system that is entirely funded by impact fees that can only be used for such purposes, and must be used in the next year or two. A Request for proposals was issued for this project with only two applications received. Golder Associates was the lower bidder by over $10,000. The total contract is for $45,585 and includes EPA approved ozone monitoring equipment and one yeaz of data management, calibrations, and training of city staff. Total project cost including wireless connection and roof mounting is $48,703 PREVIOUS COUNCIL ACTION: • Council passed Ordinance 33 establishing the Air Quality Impact Fee in 2006. • Council officially requested to be a State Ozone Monitoring location on May 13, 2008, but the State was unable to fund a monitor. BACKGROUND: In the eazly 1980's Aspen had a gray cloud of particulates hanging over the city during the winter. The Environmental Protection Agency (EPA) designated the City of Aspen a PM-10 non-attainment in 1988, but with progressive measures such as paid parking, expanded mass transportation, and banned wood fireplaces and uncontrolled commercial chaz- broilers, the City was re-designated on 2001 as a maintenance azea. While the particulate haze persists in wintertime, concentrations have recently been much lower than they were previously. In 2006, City Council recognized the significant impacts development has on air quality and passed an ordinance requiring new development to pay an air quality impact fee. The fees paid by development go into a dedicated fund that can only be spent on air quality projects such as Page 1 of 4 pollution monitoring and must be spent within a finite period of time. To date this fund has a total of $52,550. During the summer of 2007, the U.S. Forest Service recorded the highest level of ozone ever measured on the Western Slope with a reading of 79 ppb (8-hour average) and in 2008 another high reading was recorded at 65 ppb (8-hour average), both on Aspen Mountain. The EPA Clean Air Act Standard for ozone is an 8-hour average of 75 ppb. Understanding Ozone Ozone is a gas that occurs both in the Earth's upper atmosphere and at ground level. In the upper atmosphere ozone is "good" and protects us from the sun's harmful ultraviolet (UV) rays. At ground level, ozone is "bad" and is an air pollutant that is harmful to breathe and that damages crops, trees and other vegetation. It is a main ingredient of smog. Hot weather and sunlight interacting with oxides of nitrogen (NOx) and volatile organics (VOC) cause ground-level ozone to form in harmful concentrations in the air. Emissions from oil and gas drilling and motor vehicle exhaust are thought to be the main sources of NOx and VOC, with gasoline vapors and chemical solvents being lesser sources. Breathing ozone can trigger a variety of health problems including chest pain, coughing, throat irritation, and congestion. It can worsen bronchitis, emphysema, and asthma. In Pitkin County, there aze approximately 1,200 asthma cases (children and adults with asthma; taken from 2005 American Lung Association report) and 4.3 hospitalizations per 10,000 per year related to asthma (Health Statistics Section, Colorado Department of Public Health and Environment, May 2003.). DISCUSSION: Why Monitor The Colorado Department of Public Health and Environment (CDPHE) and U.S. Forest Service have been monitoring for ozone due to the oil and gas operations along the I-70 corridor and upwind of the Roazing Fork Valley. US Forest Service has an ozone monitor located on top of Aspen Mountain that recorded the highest 8-hour average reading anywhere on the Western Slope in 2007; another high level was recorded again in 2008. Currently, science cannot tell us what the high levels on top of Aspen Mountain mean for Aspen's air quality and whether City of Aspen residents are being exposed to high levels of ozone or not. Locating an ozone monitor within the city limits is the only way to know. An ozone monitoring system will determine sources of ozone levels in Aspen. It will let us know whether ozone levels in Aspen are safe, and whether they require more stringent controls on gas drilling emissions, and/or whether local traffic is a greater source. The Ozone Monitoring System The contract for the ozone monitoring system includes purchase of the necessary monitoring equipment, quality assurance of data so it will meet state and federal quality standards, meteorological data, 2010 data management and validation, and routine maintenance. The system Page 2 of 4 is designed to provide real time ozone readings on an hourly basis as well as validated data that will be used for local, regional and State air quality analysis and planning. The monitoring equipment will be located at the Golf pump house, located next to the Parks Department's main office on Cemetery Lane and Highway 82. This site was chosen for its ideal monitoring conditions and it is located near a CDOT weather station that will provide necessary meteorological information at no cost to the City (saving the City about $2000). For the first year, the system will be maintained by Golder Associates, per the contract. As part of this contract, Golder will train Environmental Health staff on all aspects of the system. FINANCIAL/BUDGET IMPACTS: This project will be paid for completely by the Trust and Agency Fund, Air Quality Impact Fees that can only be used for air quality projects, and which must be spent within the next couple of years. Staff will be including this contract in the 2009 fall supplemental request for budget authority. The total cost of the contract is $45,585 for the ozone monitoring system and will be paid from the Trust and Agency Fund, which currently has a balance of $52,550. This contract is for 1-year and will end on December 31, 2010. In the fall of 2010, staff will present Council with the following options for consideration: Renewal of the service contract to be paid for with Air Quality Impact Fee fund balance; the service contract is expected to be small since the main expense is purchase and installation of the equipment in the first yeaz; or Have staff take over the maintenance and data management for the ozone monitoring system. Additional expenditures associated with the ozone monitoring systems but not included in this contract are the installation of a data access connection for approximately $1,727; estimated costs for one emergency repair visit by Golder $1050; materials for prep work for mounting probe on the pump house building (done by Asset staff) $100. Total project cost that will be presented in the fall supplemental will be for $48,703 ENVIRONMENTAL IMPACTS: Aspen faces all of the conditions likely to produce high ozone levels, a nearby monitoring site has shown very high ozone levels, and we have a sensitive population potentially exposed to a harmful criteria air pollutant. Knowing the high levels recorded on Aspen Mountain, the Environmental Health Department feels it is responsible for determining levels Aspen citizens aze exposed to. Fortunately, dedicated funding exists that cannot be used for other purposes, so we can act fairly quickly in response to these recent readings. This is consistent with Aspen Area Community Plan and Ecological Bill of Rights goals to protect the health of Aspen residents and visitors by maintaining healthful air quality. This Page 3 of 4 system is one step in meeting Council's Best Year Yet goal of creating specific and measurable programs to help residents reduce their environrpental footprint. RECOMMENDED ACTION: To ensure protection of the health of our residents and visitors, staff recommends that we begin monitoring for ozone and that City Council approve this contract with Golder Associates for a total of $45,585 using dedicated air quality impact fees. ALTERNATIVES: Council could not approve the contract for an ozone monitoring system. The main concern with not moving forward with this project is that we suspect levels may be high in Aspen and without monitoring, we would not know what Aspen's ozone levels are or whether ozone is a health risk to our community. Other alternatives include delaying the contract until later in 2010, but this fund cannot be used for other purposes and its funds must be spent in a reasonable time. The City could also continue to ask the State to fund a monitor, but state funding is not likely. PROPOSED MOTION: "I move to approve Resolution # for the ozone monitoring system contract with Golder Associates, Inc. in the amount of $45,585..." CITY MANAGER COMMENTS: ATTACHMENTS: Page 4 of 4 RESOLUTION #~ (Series of 2009) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND COLDER ASSOCIATES, INC. SETTING FORTH THE TERMS AND CONDITIONS REGARDING THE PURCHASE, INSTALLATION AND MAINTENANCE OF AN OZONE MONITORING SYSTEM AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Golder Associates, Inc., a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section I That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Golder Associates, Inc. regarding the purchase, installation and maintenance of an ozone monitoring system a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held October 26, 2009. Kathryn S. Koch, City Clerk CITY OF ASPEN STANDARD FORM OF AGREEMENT the City of Aspen City At[orneY'a Clhce PROCUREMENT SUPPLY AND PROFESSIONAL SERVICES City of Aspen Project No.: AGREEMENT made as of day of , in the yeaz BETWEEN the City: T7~e City of Aspen c/o Jannette Whitcomb 130 South Galena Street Aspen, Colorado 81611 (970) 920-5055 And the Professional: Golder Associates Inc. c/o Stephen R. Andersen 2625 Midpoint Drive, Suite F Fort Collins, CO 80525 (970) 484-3857 For the Following Project: If this Agreement requires the City to pay an amount of money in excess of $10,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: Resolution No.: Notes: Ozone Monitoring System Exhibits appended and made a part of this Agreement: Exhibit A: List of supplies, equipment, or materials to be purchased. Exhibit B: Warranties Exhibit C: Scope of Work. Exhibit D: Hourly Fee Schedule. Agreement for Procurement and Professional Services Page 1 The City and Professional agree as set forth below. SUPPLY PROCUREMENT 1. Purchase. Professional agrees to sell and City agrees to purchase the supplies, equipment, or materials as described in Exhibit A, appended hereto and by this reference incorporated herein, for the sum of Twenty Thousand, Four Hundred and Thirteen Dollazs ($20,413). 2. Delivery. FOB Golder Associates Inc. Attn: Stephen R. Andersen, 2625 Midpoint Drive, Suite F, Fort Collins, CO 80525. 3. Contract Documents. This Agreement shall include all Contract Documents as the same aze listed in the Invitation to Bid or Request for Proposals and said Contract Document aze hereby made a part of this Agreement as if fully set out at length herein. 4. Wan•anties. Manufacturer warranties for both Teledyne and Campbell equipment aze described in Exhibit B, appended hereto and by this reference incorporated herein. 5. Successors and Assi¢rts. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Professional respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Professional shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. PROFESSIONAL SERVICES 6. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit C attached hereto and by this reference incorporated herein. 7. Completion. Professional shall commence Work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and Gaze and the orderly progress of the Work in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later than January 31, 2011, with the installation and operation of all the equipment no later than December 22, 2009. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 8. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit D appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed Twenty Five Thousand, One Hundred and Seventy-two Dollars ($25,172). Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days Agreement for Procurement and Professional Services Page 2 from receipt of the Professional's bill. Professional hereby grants to the City an option to renew the following professional services for an additional one yeaz term at the same price set forth in this Agreement; provided that the City gives Professional advance notice, 60 days before the completion date set forth above, of its intention to exercise its option to renew the professional services for an additional calendaz yeaz. The professional services subject to the option to renew shall include: Routine Operation at $2600, Quarterly Calibration at $6473, Data Management at $6280 and Project Management $1300. 9. Non-Assignability. Both parties recognize that this Agreement is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The Ciry shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. 10. Termination of Procurement. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 1 L Termination of Professional Services. The Professional or the City may terminate the Professional Services component of this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other parry, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepazed by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. 12. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with Agreement for Procurement and Professional Services Page 3 respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 13. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, and employees from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise directly with this contract, if such injury, loss, or damage is caused to the extent of the negligent act, omission, or error of the Professional. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 14. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -policy limit, and FNE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, Agreement for Procurement and Professional Services Page 4 independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) combined single limit with respect to each Professional's owned, hired and non-owned vehicles assigned to or used in perfor- mance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) Except for the Professional Liability Policy, the policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance to the extent of the Professionals negligence, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract. (f) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. Agreement for Procurement and Professional Services Page 5 (g) City shall immediately notify Professional in writing of any deficiencies or suspected deficiencies arising directly or indirectly from Professional's negligent acts, errors or omissions. Failure by City to notify Professional shall relieve Professional of any further responsibility and liability for such deficiencies. To the extent permitted by law, City and Professional agree that all liability arising directly or indirectly from this Agreement or the Services of Professional shall expire no later than one (1) yeaz from the date of Professional's acts, errors, or omissions or prior to the last date allowed in the applicable statute of limitation, whichever occurs first in time. City agrees to limit the liability of Professional, its affiliates, and their respective employees, officers, directors, agents, consultants and subcontractors ("Professional Group") to City, its employees, officers, directors, agents, consultants and subcontractors, whether in contract, tort, or otherwise, which arises from Professional's acts, negligence, errors or omissions, such that the total aggregate liability of the Professional Group to all those named shall not exceed Fifty Thousand Dollars ($50,000) or Professional's total fee for the Services rendered under this Agreement, whichever is greater. Neither party shall be responsible to the other for lost revenues, lost profits, cost of capital, claims of customers, loss of data or any other special, indirect, consequential or punitive damages. 15. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty/Casualty Pool. Copies of the CIRSA policies and manual aze kept at the City of Aspen Finance Department and aze available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 16. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 17. Notice. Any written notices as called for herein may be hand delivered or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 18. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 19. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regazd whatsoever shall not constitute a waiver of any Ageement for Procurement and Professional Services Page 6 term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 20. Execution of Agreement by City. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this Agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. Illegal Aliens -CRS 8-17.5-101 & 24-76.5-101. (a) Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) Definitions. The following terms aze defined in the new law and by this reference aze incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that aze merely incidental to the required performance. (c) By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not employ illegal aliens. (d) Professional hereby confirms that: Agreement for Procurement and Professional Services Page 7 (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendaz months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; -and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. Agreement for Procurement and Professional Services Page 8 (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen azising out of Professional's violation of Subsection 8-17.5-102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby sweazs or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 21. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. (a) Professional warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Professional for the purpose of securing business. (b) Professional agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, prepazation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) yeaz thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Professional, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Professional; and 4. Recover such value from the offending parties. Agreement for Procurement and Professional Services Page 9 22. 23. General Terms. (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written insttwnent fully executed by the parties. (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date first written above. CITY OF ASPEN, COLORADO: PROFESSIONAL: [Signature] By: By: [Name] Title: Date: Title: Date: [Signature] IName] • JPW-10/15/2009-6568448-M:\city\purchasing\Templates\Procurement & Prof Serv\Procurement & Prof Serv.doc Agreement for Procurement and Professional Services Page 10 EXHIBIT A to Supply Procurement List of supplies, equipment, or materials to be purchased E ui meat Descri tion Cost Ozone Teledyne API Mode1400E UV 03 Analyzer with $8325 Anal zer Intemal Zero Air Su 1 Calibrator Teledyne API Mode1703E UV Photometric 03 $8648 Calibrator with Internal Zero Air Pump and External Zero Air Shut-off Valve Zero Air Included with the Anal zer and Calibrator $0 Inlet Inlet and Glass Manifold including all necessary $220 Manifold parts for inlet installation such as tubing and Assembl clam s Instmment Small Cabinet with Castors and electric power $800 Rack conditioner Data Logger Campbell Scientific CR 1000 w/LoggerNet $2420 O eratin Software Station Included with the Data Logger $0 Temperature Sensor Total $20,413 Equipment Specification Sheets: • Teledyne API Mode1400E UV 03 Analyzer with Internal Zero Air Supply • Teledyne API Model 703E UV Photometric 03 Calibrator with Internal Zero Air Pump and External Zero Air Shut-off Valve • Campbell Scientific CR 1000 w/ LoggerNet Operating Software and internal temperature sensor Agreement for Procurement and Professional Services Page 11 EiA Ai{ROJPL ea OA-099E-U8] MCERTB te,tilip6 9i,a MCO500]OI00 EN 0.CGlOVaI EN1a6Y6 1/ Skandard kwo year warranty 1/ Ranges, 0-t00 ppb 40 0-10 ppm, user selectable /- Single pass ukravide4 absorption /- hLeroproeessor controlled for versatility // fvlllti-tasking software allewa viewing eF teat variables during operation // Continuous sek checking wkh alarms // Dual bi-direotiettil RS-232 ports for remote operation (optional RS-485 or E4heme4) -/ Digital sffitus outputs provide instrument operating oendifien // Adaptive signal filtering optimizes response time /- Optional Internal Zero/3pan check and dual span paints // Temperature & Preaaura oompensalien -1 Intel'rtal data logging wkh t min to 366 day Multiple average9 1/ APlcem remote operation software The Modal -0OOE W Absorptlan Ozone Analyzer Is a mF.-roproceasor-oantrelled analyzer that uses aeystem basetl on ths9eer-Lambert law for measuring kx/ rangers of azona In arnblent air. A 264 rim W 5ght signal la passed through the aarrlple cell where It is absorbed in propar>pn to the amount of ozone present Everythrm secnntls, a aw7tching valve attematss measurement betveen the sample stream and a sample that ha been scrubbed at ozone. The reauY is a true, stable ozone measurement Muttl-taskng sothval'e g'rvee real time Intl~atlcn of a larger number of ope-atonal paramsters, and provide, autornatb vvamings K dlagnoetb limiter are excaed?d. Suitt-In data aopuisition apabllky, using the anayzer s internal memory, akNVS the bgging of multiple parameters InNucNng areragad or instantaneous ~ncentratiw values, callbratbn data, an.9 operating parameters each as pressure and flow rata Stored data are ea Gy retrieved through the astral port or Optional Etnemet port via ourAFOam sattware Or from the front panel, slowing operators to perform pretlictive diagnostics and enhanced data anaryela by traOklno parameter trends. Multiple averaging periods of one minute t0 365 tla/e era avalabe far aver a parbd of one year FAg IDuatwner Support M lebprwrre arM emasl far the 6fe of the iae6wnent .m,....._ ~_ ~_ .,*..._ _ -~' '"~*w- emu;; w...."^~... ._-,.~ .._-.. Agreement for Procurement and Professional Services Page 12 Specifications Rnngas: 0-100 ppb M G-10 ppm uear selectable. Nnl rwges nntl auto-nnging supportetl UnRe: ppb, ppm Ng/m', mg/m' ero Naee: c0.3 ppb (RM8) Span Npisa: cOSYe of reatling above 100 ppb (PoNe) Lower Detectnole ^urt (LOL ).c 0.6 ppb (PoV19) Zero Drill ct.0 ppb'29 noun, <I.C ppb.`l Eny's Spmt Drift c1W of readlrg? daps Lng Trre: <l0 aecoras FLBa Mtl FWl Lrrro: c20 naoond5 to 96% Linemay. 1% b M1JII sca14 12S Specifications (wlln opM1Onal raffireroe fEetlbnck'l: Flow Rote 800 all/min Maximus ConcEMretion 1 . ppm Minimum GMCenirneon 0.050 ppm Resolution 0.6 ppb RepePHDil~ty (I tlnyS`/ 1%Of renOiYfj In3iN mwrmy a6%nf target Sunple Flory Rntfi: SCO cm'/min .10%n Operating Ter.pe.nture Rnnga: 5 -40'G (wiiF. EPA Equien'ene)~l DimeNions (rc<WxD): ]"(1]8 mm)xt]"(4S2 mm)x23.6"(6W mm) Waignt 25 Iba (12] kq): 30.6165 (13.8kg) w.m Q8 Pow°r: 1WV-120V, 220V -29P/, 50/80112, 26MV AnNOg OFRputS: tOV, 6V; tU 100m1/. >el9ctable Raco•tler ORSet sID% Senn) Ouylus: 9eriel Por[ is R8-232 (DB-BM) 9erisl Port 2: mantlnrtl RS232 a optional RS-te51DB-9F), EtMrnet Stmus (Dgrtap: 8 outputs, 6irpNS (opto+solsetl) GvraM OUiµ2 Op4onal 4-30TH, select ~P to Tree aFnnnels Apprwnli: tWEPA EQOA-0992-OS] MGEiTS' aertifietl Srtn M'..Ce00]0/00 EN19626 goprJVeC, GE n+d omen NOTE iM values BxPre96M1 dlNV¢ are to accorc0nce wlm EPh spe<YkdtiMi. NI ana 6pec!ficd4oni do Cdiatl M cMSWn[ cMtlrtrons. SCllematlc s >"v Ima mnn smr ~1et"1p1 ws :. aersi N emu n Oft<SD ~. flEN.P PSpPIpN How ~o Order MoCtl bOE W Abp>ptlan Oi ASlelyiV Inelutl6i: • 3tMtlvtl two y»ar wwraMy • Seiexer>le voltage (apeSM below) • htarnM punp • Auto ranging entl tluv rar~ges • 4Tmm tlmmater pmipula!e fitter • e lednietl tligRN stntus outputs • Wnl bi-tlirectionN F6-333 • APkom rerrwte ronbol softwnra SP.nHy InPU<AC ovkay~ 6 /raqu~ncy: ~ 1GOV-116V ^60ni ^220V-390V ^601i2 sx=ify wePUt oe,roirase: ~tOV ^SV ^1V ^O.1V OPfianBl EouipMen[ ^ lack Tarn dml~aryR'~ wm. dorsals slam Fmk mount 02okets Mly 9-2Jnn output (apeally up to Tree d.annel5) Mutti4:op aenn irnemace ^ Etnamet pon inaudes ] tt. GAT-6 cable (tllnnblfii One >BriN port) SpyiMmye eJy[a lodWJe w~b.[M'e. RntM bbSmt•e>.e~wLrdrG.Sµ(DJ.TB qp'N S[58) WCC6~8~. callwaaen Opaenn: ~ Vnlve3 Nr ealecaon or aubtOmer-wppAed zero antl spnn 5as ^IMETV Z6!O Nr B.ntl Spnn 90u'cE f0( calibration cf5ck ^ Rafere'4E 0.tljustnlar[ f6atlFAOk GOKr01 IZS °ZOrla ganfi!niM Aw~Mwie•: ^ Rs-332 eeae ^ Eryeritlables Kn ~Spme Pnrts Kf. TELEDYNE INSTRUMENTS ~r more irfarmffipn nbpul ma Telatlyna API n,.a > ` ~, °° ~~ Advanced Pollution fnatrumentotian ea,aly pf monitoring inatrumfintsa~pn prptlu5t5, , ; ° q °° A Tldedylm TeeMOlopills Cdnpefry °an ue a vies our hab5ite at ~ e tl e96o carou Pwk awe •aan Drego, cA SZi=-s2m Ph 868-E~ -9800 Fnx 858-667-9816 ww w.teled yn e-api.com fM `` : l\ Email a(N-9816Y$ieEGynE.cOm ` \~ `~ Agreement for Procurement and Professional Services Page 13 1-5tanderd two year warranty f~ Primary or treKfar standard for oalibrafion of ozone analyzers N Advsnoad E Seriee electronics /~ Output vonoentretions from 60 ppb to 6 ppm N Hbifty to set concerkra5en directy in ppb N Flow adjustable from 1 LPM to 5 LPM N up to 50 Calibration Sequenoec ~- uV Lamp Feetlbaek modes: ourteM control; reference detector control; photometer control N OptieKl Ethernet CMnect'rvay 1/ Intarnsl pumps 1/ Inlets for External Ozone Reference SoLroes ~~ Temparalure & Pressure vompeKaliM N Kgh flow /High Output available The Mo~1703E is a microprxeasor controlletl ozone calbrator torue~s as a primary or transfer standartl fa C211bratbn of Ozate anayzers. The rbd.M 703E Can tlNNer ~ncentratbrxz from 50 ppb to 6 pcm al fbeaa from t LPM 5G 5 LPM. Tne calibrator nos tvn mapr components: the ozme generating daubs, and the photometer The ozone oecerator is a flow controlled zero air supply passing by a Nr lamp Fbw rate and lamp Intens'ryare atljuated to Belly x a speclfletl ozcne ~ncsntratbn by wiume. The temperature-and pressure-compensated photometer (benilcal tc the one used In the Model 400E Ozone anaNZer) proeidea feedtaok control of the UV b-mp intent'l'y, awurirvg Blade ozoneoutput. As many as 5D indspervient ralibratim saryuenc~ may be programmed into the Nr~del'03E, wvering time pc"`rbde of up to one yeas The eetup of sequer>~s Is timple and intuitive. These ssquenxs maybe actuated c~arwaily automatlcalN or M `e remote Banat The secvenss maY be upbadad remotely, Irn;lUdirg remote edttirg! A!I prograrre are maintained in non-voatile memory. ~AOdel v03E has manyotha versatlla tsalures, Irluding a ch6Kro of o~ratbn!wm the manual keyboard, via external W ntact daSUre, renlOteyvla 83232 or Ethernet, or autcmatbalN Cn a timed bass. The dagrwstbs capabllltyia the rciost advanced io the indusn'y, Crlgcal parer, istsre ors continually monitored and alarmed when out of range. The Motls1705E Is VBfS3113, NmpE SO Gperat 3 and daSy tG 5'•BBp OperatlQla. FR6 Crolomer Support by felspnone arW ermd for the life of the umbun „ ,_ Agreement for Procurement and Professional Services Page 14 Specifications OLOre GererIItor Linevily. Fow Rate: 1 to 5 LPfd adjusinble Preoaioh Mex~mtm concentmtion; t_0 ppm: Sf 1 L M Bencn Row' Rnte: Minimum Convenwtion: 54 ppb Y 2 LPM Opernting Terrpemturt Flange: PMtomKa. Dimenaons (NxW%D} Ranqes: 140 ppD to t0 ppm, user selacimle Zero Noise o.3 PP> (~) weight gpa Na3a: <0.5% of reatling nbor2100 ppb Power. ~~~ rent cnanrel nnmog Laver DeteotnWe Liinii 1LCt): ~ 4.6 ppb {inns) Digml vontrol outputs: jero Drat c1 0 ppbP days Digital control P.p0[s: SpM Drift <1.0%/day. <2%e/r tlnya Dlglitl 9tatL16 CJtpL113: Lng Tme: <lo eeoonds Approvals: fuse and FNI Tln'P_: <30 aeoonds to 96W ,% of reading 1.0 PPD b04 ccrnn i10% 5 - 90°G T' (1]8 mmj x 1]" (433 mm) x 29° (609 mm) 36.91» (IS.~ kgj 1p6v-;2pV, 220V-3LOV, EO/60 n2 100 my 1, 5, 1o wlta 12 0pt0-I606IBtl OtNpV'w 12 optotisolmetl inputs 8 OYiplYs CE Schematic pPr10NAL -~ m_____..___, I I ORY AIfl1~py~--- {~-~~ ~{. ~~ C_1 I En~_._--_.__~ ZEROAIR IN ~ _~ u~u tvm+mvrax Rr,oraMerER eErcfl earx .tpwcm;lwa 03 ~ fM' 6EN P(f;1MI.6 ^ II(rT;UjT'i ~~ P1gTO ZERO iN l4W Orv CONIAOL P4pT0IIR0 OUi 41M 1 PNOTOMEhRINtF i0 AtU1YZER i0 ANMVZER 4ENi 10 ATMp5PNEflF I-Ic7~tif to C7rder MoaN ]09E PMatumntric Ozorlat caen.aeNr lnauaea: • SYmltlmtl two year wurarny • Digiw sruua • MernN pJrtp3 br pnetematsr aM OpUOnnl iM1terMl 2er0 Nf • Qlnl Di-tlirectional RS-232 • ccn~rervent currying bnndla Spwify InPwt AC voMa}p 6 irPquanq: (-j 10P/-fl6U ^60nZ ^220V-L'40V ^60n Speedy uufpllt DC VOkagg ^Flign flew output ~10V ^SV ^1V ~O.N ^Drysr cdroitlgg rorlntemal zero dr pump ${seP{ly ierv di! uP1MgYfiilOq: ^EMemei Poft (repl0.t96 Cne 68nn1 port) ~InternN Zen air pump ^LEAC660awmg ^Fziarnal Lare yr sM1U:-df vNie ~Orivar br eMernsl vaNCs ^ BoNI of the abwa ^ nlgn Pow /nigh output AGnBtleHal Optlena: Aeoepwiec (]Rak mOUM brazkeia (1B"f wM: OM1ASds ~ExpendaGe9 KR slides ~ gparg parts Ka ^ RACk mount brwkeM only ~ RS232 cable ^M1dti-drpp RS-232 conn6nion $pealoirgre wlyeUroewCe wLW'rmwn FsXCl dcamene xe:MNYdM.54L^F(A35N(.i.,N5g58) M?03FP)8A8R`8. ~_ TELEDYNE INSTRUMENTS Advanced Pollution lnstrumenta6on 0. ieladyne Txhnolo~as Company 9x80 Gmroll Perk Crrve • San Dlego, GA SZ12+-5201 pn. 868-66T-9800 Fu 858-65J-8815 Email dpi-62ge@teledyne.com FCr mOfe INOrmntlon abOJt MB TBIedy116 AFI famiy or monitoring mswmenmxion protlmm. vdl us or visit our w~enmte nt ww w.teled yn a-a pi.com fNE•T +eN.YOev i`e(. ~p .o ea`+\\ Agreement for Procurement and Professional Services Page 15 CR1000 Specifications PROGRAM EXECUTION RATE to ms to tm min ®10 ms kvomenk ANALOG INPUTS 13 6perenfial (DF) or is sngleendetl (SE) IMIVItmally conhguae. cnanrbl Pxparelon proviaBa Dv AMl6:'>2 arxf AM25T muNgwPls. RANGES arq RESC1LUTION. Basc resolullon (Basc Res) LS me A!D rPSOlufim of a single Cotrversbn. flaaqu6m of DF mPYVramllrb wRD Inpu revareel b bale Vla Beslc flas- Inpuf (VekneC Na56 45MayP' Nprt U` Basc Odl.'gBl©L'~ l~Wl'lr f1e3L1i~ !:5(IN fYJ] 1319 32500 333 66] 3250 393 66.] x2i 339 ft] x)5 10 20 25 039 OBT rFanpe o«emea0 0l ~9Y. exau on all :znpee a puarinlce foal NA-9pde vilYea Nlll n01 Musa Wae-rarp0. 'aaaoimio~ m of mea.a:emanrs win noel reoarsd ACCURACYa. 3(0 OGX a toading+ clkeg, 0` b 4U°C z(0.129(. of reatling. olkeq, ~2S° b 50°C z(o.16°A of readln9. otkop, 55` l0 65°G 'rna samo.ano meaaaremeni nerte ears momma ana Me CllaelC a:C NC bllovnng OCSat br LY whom revaoeY =15Beslc Pas+ I OyV OlM1aao: DFwa Iryul rerera=38anc Rea •'<o LN Oarnt416E=3Eav:c Fee a 9A VV INPUT NUtSE VOLTAGE For DF meazuramenk wIm [put twasal on 12.5 mV IrpM range, dgllal nsoNAion tlominalos br Ngher ranges. 250Iss Inletpafion: 034 tN RMS 50i(A W Inlegretion 01B pJ WAS h1lJIMlM1 TIME BETWEEN 4roLTAGE MEASUREMENTS. IrxdWas he measuemenl Ilme ana corwustim to errgneeirq unik. Fa volkge meaSUlPmBlIL4, IIP GR1000 inkg(aIPS Ind I!I[U vgul KK 0 2.a ms a a hYl 1666 ms a 2'1 ms rim cycle fa 50160 Tiz poke regcfion DF maa5lle- nlenls vM inpN rwersal trcorpdala Iwo mlPgm- fiorks wM rwelsetl input pdanfies to reduce IMmal oMel and common motle errors ana merelo:e kke Iwk;e as Icng. 250lu Analog lnlegrahon Mms SE 1/60 Hz Anaog Inlagrakon. X20 nts SE 1;50 Flz Analog lnleg:afion «25 nts SE COMMON MODE RANGE z5 V DG GOMlAON MOUE REJECTION', at0o tl6 NORMAL MODE REJECTION: ]0 dB 660 Hz when using fio W rollrfim SUSTAINED INPIR VOLTAGE W'O DAMAGE' xd fi Vx max. INPUT CURRENT. xl M ypkal, x6 nA max. m 50°C; 350 ru B 65°C INPIR RESISTANCE 20 Godns lygeal nCC,URACY OF @11LT-IN REFERENCE JUNCTION THERMISTOR (tor mermoco:We maasuremenkJ. id 3°C. -25° io W°C all tl`C, -5S" l0 85°C (-Xl odb ANALOG OUTPUTS a sa.ibhea YDlkgo adiva entry a..ins nlPasuamonl. orxl al a Ime. RANGE ANU RESOLUTION: VOllage wlglis program made Dekreen 325V wIIM1 0 6] mV aesolullon. ACCURACY'. z(QO6%ol selling + 0 6 mV), 0° l0 40'0 ,lo.lz~ of selfi:g . aB mvl, s5° ro sa°c m(U lfl4e of mlM1nfl «0 B mv). -55° Io b5'C (~XT any9 CURREM SOURCING5INKING. z25 mA RESISTANCE MEASUREMEMS MEAGUREMEM TYPES TM CRIOOO pIDVItltlS lakometrc measurements of I- and f.-wile M1rd DnJgas, antl 2-, 3-. an04wlfE (tall DlkigES. Precke, tlral polarJy Pxdlafion I ling any of mo 3 swikhetl voltage axtlblore Pfiminalas Oc ertors RATIO ACCURACY°- Assuning emilafion voltage nl al Itlasl 1000 mV, not irclutllg Dntlge reslslor error. z(? M% of wlage reatling. otkef)N 'ma a as m n~ae am not Ir;;,aee ana IUe cml ra Naakllv^xinpn OnssJm Df wnnpm reueaa~ _ 15 Esc Ras x 14 yv Otttal pi CrFw/o iryu'ISS n1=3? cF'e[«2G U/ 013e11~:3E=3Bes~c Fes+e 0 yV Ogsel valuPS ale reamaa Ly a odor U12 when B%CIbIIOn IwPISa ly USEd. PERIOD AVERAGING MEASUREMENTS The average panutl br a single cycle k MlPrmaletl Dry nlaasV IIIg IW aYamgE tlU21a1 OI d Sp¢9(lall ralnAOf olcydas TM prxloa rPSOlukon is t B2 ns arvkMtl q ma spxihetl nulMer of cycles to De measMPd, inn pgnotl amMaq' Is $b 01 W. al leading. msoMllon) Arty of ilia 16 SE arlalaJ Inpuk Can Da usetl Nr pellW avarapng. Slgrel limiting am ypbaly requtro0 ror Ina SE analog nhamal. H4R1T FREOUENCV RANGE. Inl'/1 S:yrW (ceak lc peakJ` Mtn. hfaXs ianR.... _M~n MfiYY (!USeW FrP9_ z250o m`J 500 mV 10V 2515 200 kHz 25DmV ID mV 2V taut 50 tart ~S mV 5mV RV 62µs 6kHz x2.5 mV 2mV 2'J 1Q1 Fw SkHz ~Ib6 spnal:a oanlerM al Nv OaltlGppe~ ¢:omo 'lio:"i almounn )=1NTx`ra+Nnrtum PASa vlmn) tot Cia-j .ryCe ai4nas. PULSE COUNTERS two 24bI1 Inputs selacmDle la swkn closure. high- treglx+rlcry puke, or IowJwel AC 0.1AXIMlIM COUNTS PER SCAN: ifi )x101 SWITCH CLOSURE MODE Mlmmlm Swvk:n (aasea Tlmo: 5 ms Mlnlmlm SWibh Open nine. Fins Max. Rovlco Tmc 1 Irm open wb D1mrA <ounlotl HIGH-FREQUENCY P0.GE MODE. Maximum Input Huglnrwy. 250 kHz Maximum Input Vnllaga apV Voltage Tblesnolds' C.anl upon bansl6on hom Ddow 0.5 V to above [2 V ageYilpul fillor with 12 pSlme corelanl. LCNJ{EVEL AC MODE Inlemal AC COlgkng rEllgles AC ohsPts up to x0 5 V Input Hysteresis. 16 mV ®1 Frt Maximum ac Input Voltage. z20 V Minimun ac Input Volage Sine ware /mV AMCI &ugelllz! p 1UIOlJ 200 e5m2o0 2000 0.310 IP,WO 5000 ? 3 to 20,000 DIGITAL I/O PORTS 0 pals s'omvare sdenlade, as angry bpuk or control oulpuk. C1C8 ako Prwiae edge Hmng. slmrouhne inlerrtplsN+ake up, w.tikfi closure p:lsa coupling, nI¢n M1equelxy pulse 4wnfirYJ, azyrxfxoraus wmmrmba- lions (l1ART). SDI-12 communcagons, antl SOM communcarons. HIGH-FREQUENCY PULSE MAX. 400 b-Iz SWTCH CLOSURE FREOUENCV MAX. 150 Hz OUTPIfT ``/OLTAGES (rp load): tlgh 5 p V s0.i V', low <01 OUT%fI RESISTANCE 330 oNns INPUT STATE. nlgn 3 b to t 6 V; low SI O lu 12 V INPUT FRSTERESIS: 1 4 V INPUT RESISTANCE: tOD kMlaz SERIAL DMC6AS232 SIIPPORT 0 to S V IMRT SWITCHED 12V one IrldepentlPn112 V INOgulalatl sovices smcheU n anti oft urlUer pogan control. Thxmal Gse Iro10 cured = 600 mA D 20°C, 650 tIN 6 5n°C, 360 rM ® B5 x; SDI-121NTERFAGE SUPPORT Control ports 1, 3, 5, antl ; may DB configuretl for SDF12 arymfrolbus comwlk:alore:. Up to fen SDI-12 aBnSOrs are g{pormtl per port. II meek SDI-12 Sbntlartl.vrslon 13 fa datdlogg¢I mock. CE COMPLIANCE STANDARD(Sj TO WHICH CONFORMITY IS DECLARED. IEC613262002 CPU AND INTERFACE PROCESSOR Rmesas H952322 (16-0il G%1 w;m 32-bit lnkrnalcae7 PROTOCOLS SUP{'ORTED. PakBUS,MWnus. DNP3 MEMOFY: 2 Mtylas of Rash b operaing y'slem; 4 kAylas o(ballary-Dackea SRAM Ta GPtJ u:ago, plag'am shags arm Bala swage. SERIAL INTERFACES: CS VO prclk used b inla- b1m vnm Campbell ScienlJlo pellpnamk, RS232 DCE potl rs br battery-poweretl canpdel w non- CSI mo0em canrecYOn. PARALLEL MERFACF. 40ym Inlelbce la allxNng GongaClFlash PI Emerrel perlpntnak BAUD RATES. $eleClade hom 300 D~ l0 1152 kDps. ASCII plotmol k orre slat I DTL olxl slop dl, eight nab bik, ana ro paltry. CLOCK ACCURACY:.3 min. per year SYSTEM POWER RE9UIREMENTS vGLTnce 9 s l0 lsvac (reverse polany prolmled) TYPICAL f,URRENT DRAIN. $IPap MOaa ".06tH 1 HZ Sran ltltlillmeas.. 80Wraj.zpLL mass) w/RS4d'2wmmunbekm: 16 mm w/o RS-232 commllw:alPR. 421M i Hz Scan f6 dtl. moaa., 250 Vs Irreg. 2 pulse pins 1 w/RS-232 commvllcatloR 16 r mA r./o RS-232 commuxcabrt. I mA too HZ Scan (d aAl. nleap-, 250ys Ining.) w/HS 232 rommuracafim. 2I 61nA w/o RS 232 commUnicafion: 1 s2 mA CRIOOIp(D CURREM DRAIN: Iraclive rIPg1I¢Ide gclive w:o Dacb19DL ] rM Aulive wNagdl¢Dr 1 W m4 ETERNAL BATTERIES: 12 Vrk nUndnal PHYSICAL MEASUREMENT B CONLppL MOWLE SIZE. 8v x39'x 065'(216x89%2.2 Cm) CRt000WP WIRING PANEL SIZE 94'r 4'x24' (23.6 x 102 x 61 Cm); atldbnal deararoe aepmetl Irn sepal cede and sem'or leads. WEIGHT: 2I bs(1 k~q) WARRANtt 3 years agalrlsl tlelECls m maleaak ant workmansNp Elwlrieai specifimtipns are va]id war a -25° fn +50"Lange unless ofhzrwise specified; pan-mndensingenrvonment required. To maintain zizdriml .yrecfimlian; Campbell Scienftfic recnmmendl reca]i}nating dnmloggers every'M'o years lNe recommend that the rystem configuratun and erilica] speclflcati0rts are mrfirmed with Camper Stienfijt before p¢rdmse, C~ fl15 VJ. 1800 N. L g yUCah 6¢329-9 JR4 USA Phone 14351JSu`P342 ww -. Pb IlsCCCam Cod Soenac~U,ky AusNPlia Brazil Ca De Englpntl France 0ermary outh Af bP Rpan USA lheaaquartcrsl yea Max .'Oaa Agreement for Procurement and Professional Services Page 16 EXHIBIT B to Supply Procurement Warranties Teledyne API Mode1400E UV 03 Analyzer with Internal Zero Air Supply and Teledyne API Model 703E UV Photometric 03 Calibrator with Internal Zero Air Pump and External Zero Air Shut-off Valve (two year) Campbell Scientific CR 1000 w/ LoggerNet Operating Softwaze and internal temperature sensor (three year) Agreement for Procurement and Professional Services Page 17 ~~ TELEDYNE ADVANCED POLLUTION INSTRUMENTATION, INC. A idedyrse'sshnolegis= . ^fpany TERMS AND CONDITIONS OF SALE 1. DEFINUDN$ 'Betel mrers Teledyne AQarr:ed Polllfion Irslmmantalim. Irc "BIAZY nears the legal erltiy Wmh~ing Good; Iron Seler "Goals rises the produc5 olraetl M Sella enNa pumhasxd M Buyer.'O6ef rrears ant quote, Pmposd, or oRa to sell Good prontled M Seller to Buyer "ONef meats ary Wrchase Doles or similar lndlLmmt issued by Bu)er to Seller to Wldase Goads. Seller artl Buyer are somdimas referred to herein iMrviOldN a; a Palyr mdcollaiirdyas the"Patin 2. ACCEPTANLE The lens and corditias irclWed In lls'Terrrs and Cmdtiors d Sde d«umed (herelndla, Ihs'AgreemerA) apdy to all Ollers nestle by SNler to Buyer and all Royals Orders accepted ty Seller kraphrls d Buya's Ud:rs. ant arycharges or a R91A"Illbda Ilya(o, 6 e)]I~y COrYJIIIMetl IlpJn BLlyafs erred to lhrsalarrs and cmdNOre. UMess SpsdlcdN agreed to in wMing by a Ouy artha¢ffi reaesertalte of Seller Sellerobjeclato, and s rid bound by, ant Tarts orcoMAiors Nat difla Oom or add to the Tarts aid cmdliors speciOa] herein. Sellefs fdlure to ogecl to ary tans and coMAiors or arty dha pmdslms cmldne0 in arty commavcafion hom Buys, ircluding, but rid IimAeO to. Buyers Orders, does rid waive arty d the terrre and wndllors specified herein Sellefs a¢ep4rce d arty reselling OMa a Buyers receid of Goods, wTichever aolrs Ors( will corcllsrvery ewdarce Buyers urnoNAimal axeptence d apse Tarts and coMAiars. A rrininam Qda amount d $f00.17O VSD applies. 3. PPoCES Vrtms skied dhawse in wntirg by Sella, dl pwaz ere slated In U. S. Dollar antl the picas offered ere valid for a period d IM1Ay (3Jr rJ9yg Rom Ne dale o! Sellefs OOer The picas oRered apps any to the specik gleMitir,, specKlcalias, arq ddrverywhed~les set roAh in Shcefs Olla Amy vaidion In Wartity, spwilicdiars, a deivery whaldas may nwesiitate a pace ardor tlelrvey afledule adllstmenl. UdE.=S daletl dhenvise, all plicas fa domestr delNairs era F O8. Shcefs place d sM1DrtprA ~ OMined in Ne Vndorm Comrwmial Code NCq, ant all prcai for intertallad ddnen~ ere Ex-Wales, as defined by INCOTEI1hS 2070. A. OREDR APPROVAL AND PAVMEM Slaldad payment tears for domestic Orders ere rid thiAy (9)) days from date of Sellefs imdce, slbled to credA appresal of Buyer by Sella. PayvneM lams t« iMerreliad orders rtay ffi cash in adrace bywire Irerder a at RteVaade 1e11er d credA cmtinnal wtlh Sellefs balk. CredA lairs, shipments, and pafarrame of work are at all times slbjed to the appmval of SNIa's Credt DepedmaA. Esh sdpmed s a seFarale and iMepended Irasafion ant payrtaM mist be nestle by Buyer arcoMinpy. I[ prior to shipment of Buyer's ONef Buyer 1ei51o (uNll the tarrs d paymed d ant prior lmdce srbnAletl by Seller or. A in the opnim of Seller, Blryrefs Gnarcial cmdAim become irryairetl or ursetslwlory, Seller r~rsx, Ne dgH to charge, without notice, Ne lerrrs d paymaR ardor tlday or diswMinue fudha sdpmerfE, wOhoN prqudce to arty other available legd remedes, lmil pal due odlgdiors tare been paid antl Seller has rserved attpdade assuace repaNng BMefs promp payment of fuNre odigatias. NI amalnLS due to Sella Wt rot paitl by Buys m lM due tlde bees iMami payade by Buyerlo Sella in U S. Ddlars at a Tale Ihd a equal to the lesser of ~ ere and one-half pemert (15%) pa north, or (i] the rratirrum inleral role permflffi uNerapplkade law. Imaed agrees m the bdance of urpdtl amomis as of the dde on whch Dodiors of thse amourts Dsome Ore alit the date payment s received M Seller Buyer will des be liable to Sella f« ant experes imidertal to cdleclim olp~l Ore amorists, lmlWinp reasmable dlareys lees antl cwd cos4. In the avant d Buyer's terknglcy « irsoNerry, Seller s ertAletl to IHnIn01e BM Drder that 0119taldlrg old t0 rrcaNe rem WrsameM for tarlrllr0tlai tests and expenses as provided umerMicle 13, Tamndionlor Deladt S. Tyr ,Si The amoud of ant Presets a More sales, use, mrse, lmwA ddy, a dha lax slylkffile to the maMwlure. sale. or lease of Goo4; wAl be added to the irwoice and msl fie pdd by Buyer, unless the Buyer pmvitlm Seller wAh a Tex exertptign cMifxale acceptable to the giplicdrie laxirg aRMMy 6. SHPPNG TERk6 AND PoSK Of LOSS All donedi shipments by Sella are FOB. Sellefs Dlacu of shipmert, as defiretl in lM llnAam Commemial Coda. All inlarelimal shipments Try Sella ere Ex-WOda, a; ddirred M INOJTEfttv5 BON. Pisk ollo¢lor Good will Irerslerlo Buyer rqa Sella ATtlMpeieMnobg¢ AcoryoRltl Page 1 aI2 presalirg Goods le cania If Seller prepa:5 shipping, ireymme a other related c¢1s. Bler xgrea to relnburse Sella aorrpNy for the wllsl cogs mclrred M Sella. 7. TOOLING Urtess omerwae presided by spWial wdOen ageemml sigfed by Seller and Buyer, all loding fo]ures, epyipmert, Tools, soAware, ant Oesigrs pmOiceq wpiired, a used by Sella lortM pumrees a(filling Buyers Order rerrein the prapedy of the Sella'. 8. PACKINGANO PACKAGING Seller's pots for Goads irclutle Sellefs stendaN comme¢ial packing arq pa=kagng Pny nai-slandxtl orspaial packnp or packagrtg raluiremads requested by Buyer will be awidm d,' Sellerd adtlitimalcost fo Buyer B. INSPECTION AND TESiS NI Goads rranda:lured M Seller ere srblat to Sellefs slan~N irspeclim pmcessa sod it applcable, axeplalce testing al Ballets facility. AM ad0liorel regdremer4, ircludng, wAhM limlaton, Buyefs wince irspwlion or atldtiorel tmMln4 are d Blrya5 sde expanse. Ii Seller arH Buys agce the Buyer s to irsped or Omvitle to irspedion at the place of msndedure, su:h irspedion may rid idedere umeasmady wAh Sa'IeB opemllas ant Ne Blryefs approval or relation of Goode heed on su:h source irr~edion andorteslirg msl be trade pha to s+lipmed of IM Goods. 10. TI For ant resde, expoA, or re-efyoA d the Goob, Buyer mwi corryy wJh all applcable expotl repdalias. eypoA lsasirg regdremalks, and the Urtted Slates Forego Comgl Predk~ Pcl (FCPfy1, 15 V.S.C. §§ 1Edtl1 though 7Sdd3, rs amerAffi 11. OEIh'ERY SCHEDULES AND FORCE MAJEURE Shipping dales are apaoxirrele antl regdre prompt receiq of dl necessay Buyer lunNled inforrrefion antl material II applicade Sella s rid liffile loraM dartsgas, reaa>lremaA ccaB, or penalties relde0lo late tleiredes WAhod limiting the gmadity of the ta~oirg, SHlae rid llade lordelays tlue to face majege, imlWing Gut not lintlad to. wedha cmtlAlore, ~ of God ads d civil or milOay aOholOies, fires, 9Akes. Iffi wliors, Ilwds, eaMglaha, epidemics, 4aartlre rrslncOOn, war, tenoram dot, s1Dgier a ventla tleays, a ant other caste beyond the reasmable oaMM of Seller In the Bred d soh dslaJ, Sella will Dmrrylynotiy Buys and Ne dale(sl of tlelirerywill be ddenetlfor a period comrrersurde with Ne lime Icsl dlp to the tlday. If the excusable delay lode lorce rraleae mngnues (or mesa flan nneN I9% days, Sella arq Buyer will earn here the option of lermnding the aflecletl Dfda(3) uMa Afide 12, Termiretion la Cmvederce. Il Sellefs production a cudailei for ant d the abae reasons so Ihd Sella s mffile to dplNer the Idl yaAAy of Goods wheddedla delivery to Buyer, Sella nay dlacde tlelNedes of a2ilffile Goods ammg As varies clslomers Na under ads (a simlar Goods The dlacdion will be rretle n e ammacidly lair ant reasonffile rrema. NTen slM dl«afion has bcen trade, Buyerwill be rplNstl d the e9imdetl gwla node aveilade. 12 TFRMNATIONFgi CONVENIENCE Buys Trey requmN lolamnde Blryefs Olds for calveniace in wtple a in paA ant Seller agrees to cooperate wAh Buyer in aOenpfing to melee such arangamerts cmtlNOnetl on Buyer Dating Sellerbr all OelrvaAes Irede and (or all wod in process. 1IICWIrN all apolLade dlRd Brld IndrSt LDits, SaII8rr9d9 W Ah sI1N11.9'S, old rddffi admirsl2trve aanurting arxJ legal cents, plus a nartal proN. TO the edert posside Seller will rse re smable commeraal e0ods to O~reA mrleda's and work In pmcaw from Royals ONa to dha nslomers' orders in oNa to Mnirr¢e Royals lamnahon cosy. 11 TERMNATION FIXt DEFAULT Either Perry may lamnale Ne ONerif the other Pay brewhesa rreledd pmvisim d lts Agreemed a of the DNa. In the event the a PaM (Ne'DdaUling PaMI s In brewh of a mdedal pmvidm d lhs Ageemad a Ile ONa, the dha PaM flhe 'WrvDeladting PatlY) wlll SubmO a wMten cure notice to Iha DehulOng Pertly adising d such trench. The Ddadling Paty rill oars Nleen (15). days to cure llp Rrwn Fwnaryfe,tOW Agreement for Procurement and Professional Services Page 18 beach. If tln DdauNnB Party dose not cue Ne breech wihin dw fibem (ib) day Period the NomDekcPonp PaMrlleY bmkde Ne Order. 14. CHANGES ORDERS AND AMENDMENTS AA change ardor reRUeek moat be auhmBed by Ne Buyer k the Seller in wrtn9 end NI nd be dfedyre unleac and anti Setlar cwsenb n wridn9 to the chen9a(s). Soler wAl edvke Buyer in writiiq dNe Price andw dekvery schedule inPad'd mY. d Ne change rwryed Seller s accepbnro d changes wit be subject to Buyer s agreemed m airy price eIINw delivery uhedule edjusNantc. 16. LIMITED WARRANTY Seger warronta Mel Ne Goods mwudechred by Seller wig be hee ham ddecta in materiel ant wndpnemhy br a pwkd d Mndy Four (24) months Awn Ne dale d original shipment, ezcepl for carponeMa end mvunables that have sAOder Nlyd party mmufachmi s wmany parioda. Componenh and correwnabbs mandacAnd by Nird paNes will bow the warrony diheirmandacMrer The specific wanarAY for a given prMUCb ie Ne one in eRed on Ne dde d ehpmeM In Ne evert Nri Baler Mantifiea any defecN in mriarid or wodmansHp, Buyer wit promptly nobly Seller d Ne defective Goods and Ne specific nahae d Ne defeH in accoNalwe wih ANCM iQ Realm AUNorzatioro. Seller, d is sde diswetion, hill eiher ropatr w ropkce elry such Goods found by Selbr k be deective. Salleya wananty doer not apply to arty Goods tl~ have been aubjwbd b inproper naMlation, mkuse, atleration, repak, neglect, guided, inundatim, firo, wtlw Aka. THESE EXPRESS WARRAMIES, INCLUDING REMEDIES, ARE EXCLUSIVE AND ARE IN LIEU OF ANY ANO ALL OTHER WARRAMIES, IXPRE55 OR IMPLIED. NO WARRANT OF MERCHANTABILITY OR fITNE55 FOR A PARTICOLAR PURPWE IS IMENDED OR GIVEN. IN TIE CASE OF G000$ OTHER THAN THOSE OF SELLERS OWN MANUFACTURE, SELLER MAKES ND WARRANTIES, EXPRESS, STATNORY, OR IMPLIED. i6. RETURN AUTHORIZATIONS Buyer will gwrwN noMY Seller d elry noncortomance(s) in Ne Goods antl aRard Selbr a reesarwNe oppolWniy N ireped Na Goods. No Goode may be reWrned wMout Segeys pror autlacation, es evidenced by a realm aNhazation. Dnce e reran adholzriion nunber is obtained. Buyer wit realm defective Goods tranepodadm and imvroxe Dropad in accordance wih instructions kaued by $ellw. Failure N tobw Selerb realm procedures may resuk in last Goods, delays, addNOlul aerviu, mkcking dwrgea, wamny denial, or relusel d a ahipmeM. The reran aulholvatim Ivldfer mud appear on the shipping kbel along wih all papelwoM1 auoueted wih Ne realm. Seller has the ripM b reject Grade rahmed wihod Ne coneM rehsm auNolzatim camber ckaM maM1nd on Ne oukide of Ne shipping mMainer Granting a realm euNorzation number does not ocesser9y mean Nd a wed'A vdl be approved orNd Na evaluation or ropairwill take place whhauta fee. 17. INDEMNIFICATION Emh PeM (Ne 3ndannilyilp Parry] wi hold hambas and indwndy Ne other PaM (Ne Tndemidbe] apakd al creme, judgneMS, cook, ell faee, iak5ng dmmey keg, relating k iMringemwi d U.S. patella, designs capyriAhk, or tredmaAs to Ne effiM tlW tlse iMrkging Gonda am manufedured sold, or used m whole or in part to Ne IndemndynA Palls specficatimc, dngm, drwvings, or dhatechnical data. Ta Ne ezlerd Nat one Pant's employees or agents eder on Ne propeM owned or centroMd by Ne oNer PeM. Me fiat PeM wA indemnify end hold hamless Ne oMer PeM, its oRcea, dkecNra, end mwloyees for airy pmpeM derwge or bodiy injury or deaN sauced bylhe fed Padya employees or agents. i6. LIMITATION OF LIABILTY NOTWITHSTANDING AN OTHER PRONSIONS OF THIS AGREEMEM. UDDER NO CIRCUMSTANCES IS 9TNEft PARTY LIABLE FOR ANV CONSEQUENTIAL, SPECIAL, INCIDEMAL, INDIRECT, MULTIPLE, ADMINISTRATIVE, OR PIINTIVE DAMAGES, OR AN DAMAGE OF AN INDIRECT OR CONSEQUENTIAL NATURE ARISING OM OF OR RELATED TO ITS PERFORMANCE UNDER THIS AGREEMEM, WHETHER BASED UPON BREACH OF THIS AGREEMEM, WARRANTY, OR NEGLIGENCE AND WHETHER GROIAlOED IN TORT, CONTRACT, CIML LAW, OR O71ER THEORIES OF LIABILITY, INCLUDING STRICT UABILNY, EVEN IF AOWS® IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. SELLERS TOTAL LIABINY INCLUDING, BM NOT LIMITED TD, LIABILITY FOR INOEMNRY, DEFENSE AND HOLD HARMLESS OBLIGATIONS IS LIMITED TO NO MORE THAN THE AMOLM PAID TO SELLER UNDER BUYEA'S ORDER AND BUYER AGREES TO INDEMNIFY SELLER FOR m rdvone iwrmrcia"Ircomvreiea Page 2 d2 ANY IXCESS AMOUMS. TO THE EXTEM THAT THIS LIMITAnON OF LIABILITY CONFLICTS WITH ANY OTHER PROVISION(S) OF THIS AGREEMENT. SUCH PROVISION(S) WILL RE REGARDED 0.S AMENDED TO WH4TEVER EXTENT REOUIR® TO MAKE SUCH PROVISION(S) CONSISTEM WITH THIS PROVISION 19. ARBITRATION AND LAW Dispuka Na! adce under Nk Agreement w Baler's Ordar Nri cannot be settled aMcaby by the Paltrea sal be sealed by aAibatim in San Diego, Caliomia. Unikd Stries d America under Ne DmwSng mba of Ne carmerdd conciatim and edlibetion mks dike American Arbitration Aaoeiabon Judpnwtupon the albkredon award or deasion may ba eMered'm airy toad of compeleM juistliction. Albtration ewaMa ard decisions are subledb Article 18, L'miriion dLkbidy The laws d Ne State of CaMomie. excluding N corikk d laws plwiaiona and excluding the Unied Natlonc ComeMion an the IMematiolMl Seb d Goodn ('CI$G], povem Ne iMeryretation ant edorcwreM ofNis AwoameM and Buyers Order 20. ASSIGNMEM Buyer may M acsgn or trander Nis Agreement or any Order, n whole or in pad witlwd Ne Odor wntlen apprerd of Seller 21. ETHICS AND VALUES Sder ie canrdtled k uncomwanisinA etlkcd almdaNS, shit[ edhermce to law, and cudwner satisfactim Buyer k eircouaged k commodore airy corcema w 9uecdons regaNinB Ne eNks end valise k Ne TebdNro Comorob Etldcs Halp Line, 'Take Ne RgM AcAon, at 1-87786689fi6. 22. UNENFORCEABLE PROVI$DNS In Ne event Nri one or more prwidons d Nis Aweemad docurwM k held m ba unenklpedie, Ne remdning provisions appy b Ail ant Ne invalid or unerforceabb prosision will be replaced by a provision Net kwfJy edorcea the Pa~Aei intention undedyAp Ne invalid or unedorceebla provision. z3. suRVlvaL The Fogowng ANCIes wit survive Ne temimtion or expirofion dNis ApoemeM w any Order 7: Ddnitione; a: Credt Approvd end Paymeid 5: Turns; 8: Shipping Tenns antl Rink d Loss; 7: Tpafn9; 9: Inspection end Tads; 10: E>mat CmglialNe; Fonyn Coalgt Practices Ad; 71: Delmry Schedules end Force MajNae; 12; Temunation far Comedence; 13; Teminabon fm DafaulL 15: Lmied Wananly; P: IMamnifwation: 16: Lmdakan d Liabikty 19: ArbNetiw and Law; 20: Aesgnnenk 22 Lhwdorceabk Prowswnc; and 23". Survival. 24. WHOLE AGREEMEN: AMENDMENT Th'w dowmeM is Ne entire uderstanding bebvem Ne PiNes, and d superudea ell prrviouc or addiiond agreements, a~geme~, ald draRe. Tlda doumeM may ba anended or modified Dory by wlMm agreement d dory auNoleed represeMntrxs d bosh Patios. EnddOocurwM- Peaianf~ruery9.3® Agreement for Proctdrement and Professional Services Page 19 0 b y O CR~UOQ Measurement and Control System Revision: 9/09 ~nV ~/ ` Copyright ~ 2000-2009 Campbell Scieotifi c, Inc. Agreement for Procwement and Professional Services Page 20 Warranty and Assistance The CRI000 MEASUREMENT AND CONTROL SYSTEM is warranted br CAMPBELL SCIENTIFIC, INC. to be free from defects in materials and worY.manship under normal ase and service forthirty-six i36) months fmm date of shipmrnt unless'spccifiedosherwise. Batteries have no wartanty. G4MPBELL SCIENTIFIC, INC's o6liea[ion under this warranty is limited to repairing or replacing (at CAh1PBEL.L SC(F.N'TI FIC, 176C.'s option) defective products. The cusmmer shall assume all costs of removing, reinstalling and shipping defective products to CAMPBELL SCIENTIFIC, INC. CAMPBELL SCIENTIFIC, MC, will return such products 6y surface carrier prepaid. This warranTy shall not apply to any CAMPBELL SCIENTIFIC, INC. products which have been subjected 20 modification, misuse, neglect accidents of nature. or shipping damage. This wartansy is in lien of all other warranties, expressed or implied, including waranries ofinerchantability or fitness for a particular purpose. C4MPB8LL SCIENTIFIC, INC. is not liable (or speciah indirect. incidemal, or consequential damaees. Products ma} nn[ be resumed without prior authorization. The 161lowing contact information is for US and Internmional customers residing in wunMes served by Campbell Scientific, Inc. direc[h~..4fTlia[e companies handle repairs for customers within their territories. Please visit u~ovcampb'1hci. mrn m determine which Campbell Scientific tympany: serves your country. To obtain a Returned Materials Authorization (RMA), contact CAMPBELL SCIENTIFIC. INC., phone (435) 753-234?. After an applications engineer determines the nature of the problem, an Rh1A number will be issued. Please write this number clearly on the outside ofthe shipping cotnainer. Campbell 5cientific's shipping address is: CAMPBELL SCIEN'rI FIC., INC. Rtv1Au RI5 Nest 1800 Nonh Logan, Utah 84321-1764 For all returns, the customer must fill out a "Declaration ofHazardous Material and Decontamination' form and comply with the requirements specified in it. The form is available from our website at uuuacmnphetlsoirorui~epnfr. A tympleled form must he either emailed to rrpnn+n cempbe7C<ci cnm o[ faxed to 435-750-957?. Campbell Scientific will not pmcess any retums until we receive this form. If the form is not rereived within duce daps of product receipt or is incomplete, the product will be resumed [o [he customer at [he customers expense. Campbell Scientific reserves the right to refuse service on produtts that were exposed to wntaminants [hat may cause health or safety concerns for our +xnployees_ Agreement for Procurement and Professional Services Page 21 EXHIBIT C to Professional Services Agreement Scope of Work 1) All work performed by Golder Associates will be done in a manner that meets the EPA's quality assurance guidance, specifically for data validation which shall include zero correction. 2) The project timeline will be as follows: • Notice to Proceed: October 27, 2009 • Prepare Monitoring Program Documentation: October 30, 2009 • Equipment Orders Placed: October 30, 2009 • Equipment Integration/Softwaze Development: December 4 -December 11, 2009 (based on a 5 week analyzer lead time)* • System Installation and Calibration: December 16 -18, 2009 • System Audit (Run by State): TBD • Official First Month of Data: January 2010 • First Quarter 2010 Instrument Calibration: February 2010 • Second Quarter 2010 Instrument Calibration: May 2010 • Third Quarter 20] 0 Instrument Calibration: August 2010 • Fourth Quarter 2010 Instrument Calibration: November 2010 • Sampling yeaz will end December 31, 2010 • Optional: Renewal of Maintenance Contract: TBD • Close of Project :January 31, 2011 *The manufacturing of the analyzer could either delay or move up the schedule. 3) Reports: • The Ambient Hourly Data report will be submitted monthly and in an excel format and also an AQS pipe delimited. • The QA Data report will be submitted quarterly covering the precisions checks and any audits performed; submitted in an excel format and also a AQS pipe delimited. • Annual summary report of all QA work, to include quarterly calibrations. 4) Golder Associates will supply all miscellaneous supplies for preventative maintenance for one year including: • Charcoal and desiccant • Log sheets and forms • Sample inlet filter • Other supplies as required Ageement for Procurement and Professional Services Page 22 5) The following is Golder Associates' proposal and is included as part of the Scope of Work. {~~ Golder Associates September 15, 2009 P9381863 Ms. Rebecca Hodgson Cit of Aspen Purchasing Office '130 South Galena Street Aspen, Colorado, 81611 RE: CITY PROJECT NUMBER: 2009-084 OZONE MONITORING SYSTEM Dear Ms. Hodgson: Golder Associates (Golder) has prepared the attached proposal in response to the Imitation to Bid for the City of Aspen Ozone Monitoring System project issued August 31, 2009. Golder has carefully reviewed the Imitation to Bid and information provided on the September 10, 2009 ske visit and prepared this summary scope of work, schedule, budget, and other supporting information as required by the Invitation to Bid specific to the Ozone Monitoring System. Golder (vvJw.Goldercom) is highly qualified to provide the support requested in the Imitation to Bid. Se/eral ct the staff has been providing identical support to industry and go/ernment throughout the intermountain area for more than 15 years. The Golder Fort Collins, Colorado Air Resources Laboratory has the ambient monitoring support resources and equipment, and a team of qualifed field engineers and technicians, air quality meteorologists and data analysts ready to assist the City of Aspen with this important project. Summary Scope of Work The Ozone Monitoring System will consist of one (1) United States Ernironmental Protection Agency certified equivalent method, ambient ozone monitor and support equipment, which meets the Colorado Department of Public Health and the Environment (CDPHE) Air Pollution Control Division's specifications, to be installed in a building owned by the City of Aspen. The system will be designed and operated fdlowing established US EPA and CDPHE guidelines, including. ^ EPA Requirements for Quality Assurance Project Plans (EPA QA/R-5) ^ EPA Guidance for Quality Assurance. Project Plans (EPA QA/G-5) ^ 40 CFR 58 • Appendix A Quality Assurance Requirements for SLAMS, SPMs, and PSD Air Monitoring • Appendix C Ambient Air Quality Monitoring Methodology • Appendix E Probe and Monitoring Path Siting Criteria for Ambient Air Quality Monitoring ^ Quality Assurance Handbook for Air Pollution Measurement Systems. • Volume I: A Field Guide to Ernironmental Quality Assurance (EPA/600/R-94/038) • Volume II: Ambient Air Quality Monitoring Program (EPA-454/8-08-003 December 2008) ^p W 1 ba381863 Ry d p U Dciy or p t ~ Kt (dd r cover letteq tlocx coder Assoaates mc. ~~_. 2625 M Cpdnt Dr ve $YIM1 F F 1 Gdl ns GO 80525 - Tal: (9]D) 4BG-385] Fez: (303) 98S208o www.Hddr.com Golder ASSOda[es: OperYlons In AIRC; As1A, wsrralasr4 Europe, NoRN Amedca antl SodN America Agreement for Procwement and Professional Services Page 23 Rebecca Hodgson September 15, 2009 City of Aspen Purchasing Office 2 P9381863 Tasks and costs associated with installing and operating the ozone monitoring system are detailed in the attached proposal. The scope-of-work elements are specifically defined untler each task in the proposal, and include: ^ Task 1 -Monitoring Program Documentation: Golder will prepare documentation of the project including simple checklists for operations, all equipment specdications and standard operating procedures. ^ Task 2 -Site Preparation: Golder will provide guidance to the City of Aspen for preparation of the facility to accept the system installation. ^ Task 3 -Equipment Procurement and Integration: Golder will procure, integrate and test the entire system prior to installation. All equipment will be new and under full manufacturers warranty. ^ Task 4 -Installation and Training: Golder will install the ozone monitoring system at the site prepared untler Task 2. This will include performing a complete system start-up calibation and providing training with City of Aspen personnel who will assist with routine system inspection and maintenance support. ^ Task 5 -Routine Operation: Golder will provide continual support to City of Aspen personnel for one year after installation. ^ Task 6 -Quarterly Calibrations: After the iniBal installation calibration, Golder will pertorm four system calibrations on a quarterly schedule. ^ Task 7 -Data Management: Golder will provide one year of routine data collection, validation and reporting, including training City of Aspen personnel on pertorming these activities. Goltler will provide the City of Aspen with the datalogger software to enable near real-time access to the ozone data. Golder will also download and provide the Colorado Departmern of Transportation (CDOT) meteorological data for the same period of record. ^ Task S -Project Management: Golder will provide project technical oversight and quality assurance support to the project, as well as routine communication with the City of Aspen regarding project matters. Atlditional bid information, such as qualrfications, references and a projected timeframe as requested in the Imitation to Bid, are included in the attachetl Proposal. Business Information Golder has carefully reviewed the General Provisions containetl in the RFP and we satisfy those provisions and take no exceptions or require clarification to the information prmided therein. Further, Golder does not anticipate the need for subcontractors to execute this work. The Golder axourn representative is Mr. Scott R. Park Golder Associates Inc. 2625 Midpoint Drive, Suite F Fort Collins, Colorado 80525 (970) 484-3857 z"proposels~p9361863 - ctly d aspenVneaciy of aspen ozone mmiraing system (gdtler corer letrer).AOCx /yam, ~~J" GO~dCL Y./Associates Agreement for Procurement and Professional Services Page 24 Rebecca Hodgson September'15, 2009 City of Aspen Purchasing Office 3 P938'1863 Golder is conrideM that we can design and operate the ozone monitoring system to address the objectives of the City of Aspen in an efficient and technically responsible manner that serves all stakeholders for many years into the future. We appreciate this oppoRUnily to assist the City of Aspen. Please do not hesitate to contact us shoultl you have arty questions or neetl additional information regarding our proposal. Thank you For considering Golder forthis interesting and important projeM. Respectfully, GOLDER ASSOCIATES INC. _~, ,a ~~ ~.n .J' -__.___. Stephen R. Andersen Air Quality Program Leader ~~ Scott R. Park Senior Project SdeMist ~: Attachments or Enclosures City of Aspen Ozone Monitoring System Proposal MFS z ~praposels~y9361963 - cdy d aspenVnepcdy d espm ozone mmRaing system (gdtler corer lettep.tlocx Golder Associates Agreement for Procurement and Professional Services Page 25 3.0 REFERENCES The references contained in this section possess frsthand knowledge of the experience and skill of the proposed team. Golder could also provide numerous other references for monitoring programs and regional air quality studies that served federal land managers, urban air resource managers, and industry as necessary to gain a full perspective of experience. Gordon E. Pieree (303)692-3238 Colorado Department of Public Health and Environment Ref: Northern Colorado Ozone Monitoring Environmental Protection Specialist Program Nancy D. Chick (303) 692-3226 Colorado Department of Public Health and Environment Ref: Colorado Monitoring Air Pollution Control Specalist Cindy Beeler US EPA Region VIII Environmental Engineer (303) 312-6204 Ref: Uinta Basin Air Monitoring Program zwow,.kr.%3e~ma-oiro ~w~x~x~.mmaP~om.,a..~io.~o:m•m isma„nov~anao~ CiSO ~ S Agreement for Procurement and Professional Services Page 26 CITY OF ASPEN OZONE MONITORING SYSTEM City Project Number: 2009-084 Ozone Monitoring System Subrtetted To: City of Aspen Purchasing Office 130 South Galena Street Aspen, CO, 81611 Subrrutted By: Golder Associates Inc. 2625 Midpoint Drive Suite F Fort Collins, CO, 80525 September 14, 2009 P9381863 C~ Golder '- Associates Agreement for Procurement and Professional Services Page 27 Table of Contents 1.0 ITEMIZED COSTS ..................................................................................... ..................................1 1.1 Monitoring Program Documentation ....................................................... ..................................1 1.2 Site Preparation ..................................................................................... ..................................1 1.3 Procurement and Integretion .................................................................. ..................................1 1.3.1 Equipment ...................................................................................... ..................................2 1.3.1.1 Ambient Ozone Monitor....._ ..................._..........._.............._..._ . _..........._..........._.....2 1.3.1.2 Inlet ............................................................................................ ..................................2 1.3.1.3 Calibrator .................................................................................... ..................................2 1.3.1.4 Zero Air ...................................................................................... ..................................2 1.3.1.5 Rack ........................................................................................... ..................................2 1.3.1.6 Data Logger ................................................................................ ..................................3 1.3.2 Testin9 ........................................................................................... ..................................3 1.4 Installation and Initial Onsite Training ..................................................... ..................................3 1.5 Routine Operation and Continuing Onsite Training ................................. ..................................3 1.5.1 Support and MaiMenance ............................................................... ..................................3 1.5.2 Emergency Re Pair Costs ................................................................ ..................................3 1.6 Quarterly Calibrations ............................................................................. ..................................3 1.7 Data Management .................................................................................. ..................................4 1.7.1 Data Colledion ............................................................................... ..................................4 1.7.1.1 Project Ozone Data .................................................................... ..................................4 1.7.1.2 Associated Meteorological Data .................................................. ..................................4 1.7.2 Data Validation and Reporting ........................................................ ..................................4 1.8 Project Management......__....._.........._ ....................._.......................... ....__.............._...._....4 2.0 QUALIFICATIONS ..................................................................................... ..................................5 2.1 Golder .................................................................................................... ..................................5 2.2 Project Staft......_............_ ..................._...................._.............._.......... .............._. _.._...__....6 3.0 REFERENCES .......................................................................................... ..................................7 4.0 PROJECT TIMEFRAME ............................................................................ ..................................8 5.0 EXCEPTIONS AND CLARIFICATIONS ...................................................... ..................................9 List of Tables Table 1 Summary of Proposed Costs per Task Table 2 Itemized Equipment Costs tiO~d¢T ZWWase5G9981 Po3-oryolm~nNneKigalesppnomarm~lmn~gzyziem(B~z~POpyepd l~SSOQ8tC9 Agreement for Procurement and Professional Services Page 28 1.0 ITEMIZED COSTS This section descdbes the proposed costs associated with provitling design and installation of an ozone monitoring system, as requested in the Invitation to Bid for the City of Aspen Ozone Monttodng System Projed (City Projed Number 2009-084). A summary of proposed costs is included in Table 1 and a detailed breakdown of the itemized costs is provided in the following sections. TABLE 1 Summa of Pro osed Costs er Task Task Descri tion Cost 1 Mondorin Pro ram Documentation $780 2 Site Pre aration $200 3 E ui ent Procurement and Inte ration $24,440 4 Installation and Trainin $3,512 5 Routine Operation $2,600 6 Ouarted Calibrations $6,473 7 Data Maria ement $6280 6 Project Management $1,300 TOTAL $45,585 'Equipmem costs are included wRh Procurement and IMegraSon. All project equipment will be new. A breakdown of equipment costs is included in Section 1.2.1. Golder offers to perform the work described below on a Time and Materials, cost reimbursable basis. 1.1 Monitoring Program Documentation In order to assist with training Cdy of Aspen Environmental Health Department (City of Aspen) staff on the project, Golder will prepare monitoring program documentation to consist of a brie! project description and quality assurance reference summaries, equipment technical spedfication sheets, routine weekly maintenance checklists and detailed standard operating procedures (SOPS) for all equipment to be used. 1.2 Sfte Preparation Golder will provide the City of Aspen with guidance pertaining tc fhe preparation of the site prior to system installation. The following assumptions apply: ^ The City of Aspen will provide building blue prints for the Truscott Housing Offices building. ^ The City of Aspen will ensure additional permits vyill not be needed (i.e., fire department, land use, etc.). ^ The City of Aspen will prepare the site for installation of the ambient monitoring system (e.g., electrical receptacles, telephone plug, wall penetration for air intake, etc.). ^ All utllities vnll be paitl directly by the City of Aspen. ^ The Cdy of Aspen will provide a telephohe landline. If the landline is not practical a cellular modem and service for one year may be provided by Golder at an additional cost. 1.3 Procurement and Integration This includes procurement of all necessary equipment and in-lab integration and testing of equipment for quality assurance purposes before installation at the site. During this phase, Golder will also establish relationships with all necessary agents, such as a Memorandum of Understanding (MOU) with the Colorado Department of Transportation (CDOT) for use of nearby meteorological data. Golder p~~.i,waa era-pyo esanu,~fe,yale5ren oxo~md.mnn3 •,~m~~.,uap~a,iaa,i ASSOClateS Agreement for Proctuement and Professional Services Page 29 1.3.1 Equipment Proposed equipment is briefly described in the following sections. All project equipment will be new. More detailed information on all proposed equipment, including technical specifcation sheets, is available upon request. Table 2 presents itemized equipment costs. TABLE 2 Itemized Eouipment Costs E ui ment Descri ion Cost Ozone Analyzer Teledyne API Model 400E W Oa Analyzer $8,325 with Internal Zero Air Su I Teledyne API Model 703E W Photometric 03 Calibrator Calibrator with Internal Zero Air Pump and $8,648 External Zero Air Shut-off Valve Zero Air lnduded with the Analyzer and Calibrator -- Inlet Manifold Assembly Inlet and Glass Manifoltl $220 Small Cabinet wRh Castors and electric power $800 Instrument Rack conditioner Campbell SdentiFlc CR 1000 w/ LoggerNet' 420 $2 Data Logger O ratio Software , Station Tem nature Sensor lnduded with Data Logger 1.3.1.1 Ambient Ozone Monitor Golder will use the Teledyne Advanced Pollution Instrumentation (API) Model 400E Ultraviolet (UV) Ozone (03) Analyzer. The analyzer also indudes an intemal zero air supply system and does not need an external zero air supply for operation. The model 400E attained US EPA designation as an Equivalent Method for ambient ozone concentrations per 40 CFR Part 53 (US EPA Approved: EQOA-0992-087). This model also meets or exceeds all requirements set forth by the CDPHE for ambient ozone anatyzers. It is a field proven, dependable, and simple to use, continuous gas analyzer. 1.31.21n1et The ambient sample inlet will consist of a TeFlon tubing and glass manifold system which will be constructed per EPA guidance. 1.3.1.3 Calibrator Golder will use the Teledyne API Model 703E UV Photometric 03 Calibrator with Internal Zero Air Pump and External Zero Air Shut-off Valve which will be used for weeMy precision checks and quarterly calibrations. This celibretion system will be a factory certified reference standard traceable to the National Institute of Standards and Technology (NIST). 1.3_1.4 Zero .Air The Teledyne API 400E and 703E each include an intemal zero air supply; therefore, an external zero air supply is not needed in the system. 1.3.1.5 Rack The customized floor mount rack with castors will be no larger than five feet height, thirty inches width, and forty eight inches depth. It will be equipped wRh a electric power conditioner and grounded to protect the reck mounted instrumentation. . Pw~=imsa,~.+-o,r<inw.w,wkmo~~w~o~~~o.w~m,a.m i~u,.wo~an ~.a 1tlSSOiC8rtC9 Agreement for Procttrement and Professional Services Page 30 L3L6 Data Loaner The data logger will be a Campbell Scientific CR7000 vrith external landline modem. The data logger inGudes easy to use LoggerNet software that provides remote access, reporting, and graphic display capabilities. Golder has assumed, the local operator will provide appropriate computer access for fhe City of Aspen during routine inspections, etc. Parameters to be logged on an hourty basis by the data logger will include: ^ Ambient ozone concentration (ppb) ^ Room temperature (°C) (required by CDPHE to verify the instruments were operated within specification. ^ Data logger battery voltage (~ 1.3.2 Testing Prior to field installation, Golder will integrate and test the system at our laboratory in Fort Collins, Colorado. Equipment will be tested as it would be mooing in the Held for a minimum of one week. During this time instrument precision and axurocy wdll be monitored daily. 1.4 Installation and Initial Onsite Training Golder antidpates a maximum of three days for installation and start-up calibration of the system. City of Aspen personnel who will assist with regular site maintenance will be present during the installation to receive training in the routine inspection, operation, and simple maintenance of the system. 1.5 Routine Operation and Continuing Onsite Training Golder will provide support to the Ci[y of Aspen for one year of the date of installation. A malodty of the support will be via telephone to answer questions and provide direction during routine service and maintenance activifies. Onsite training will also be provided during each Golder site visit. 1.5.1 Support and Maintenance Routine network service, such as a weekly site visit for visual inspection of the system and monthly preventative maintenance procedures, shall be provided by the City of Aspen support personnel, thus Golder labor costs for routine support will be minimal. All miscellaneous supplies for preventative maintenance have been included in the task cost summary. 1.5.2 Emergency Repait Cosfs Because all instrumentation and support systems will be new and under factory warranty, we do not anticipate there will be a need for an emergency repair visit. However, in the event of a system problem that would require a visit by a Golder feld engineer, the cost would be approximately $1,050. 1.6 Quarterly Calibrations Golder will provide four quarterly calibrations after the initial installation calibration. The schedule for the calibrations will be as follows: ^ 1 ~' Quarter 2010 -February ^ 2ntl Quarter 2010-May ^ 3`°Quarter 2010 -August ^ 4r" Quarter2010 -November riO1dCI .~°w~.~aeims-w°iev~nmrer.~in m=s<" o:o. ~~ro.re=m.m~eoum roo~.n~3 ~~~ff///"A9SOC18tC8 Agreement for Procwement and Professional Services Page 31 The calibrations wdll be performed following established EPA guidelines and all equipment used will be traceable back to NIST of other authoritative standard. 1.7 Data Management Project data celledion provided by Golder is assumed to run from November 20, 2009 through November 30, 2010. Data collection activ Ries will include daily data collection system interrogation and monthly validation and reporting. City of Aspen personnel will be trained on the data management adivities throughout the project. 1.7.1 Data Co/tection Data collection adivities will occur daily on weekdays, and will include collection and storage of project ambient ozone and supporting data, and meteorological data available from the Colorado Department of Transportation (CDOT) as described in the Invitation to Bid. 1.7.1.1 Project Ozone Data Routine project ambient ozone data collection tasks will indude a daily data download from the data logger and station performance assessment to identify any potential operational problems. Zero and span checks will be monitored daily to confrtn proper system operation and data validation. 17.1.2 Pssociated Meteorological Data Nearby meteorological data will be collected from the Colorado Department of Transportation's Highway 82 & Cemetery Lane Met Station data via the CDOT XML weather feed from cotrip.org. Meteorological data available indude howdy horizontal wind speed, wind direction, humidity and temperature. Golder will establish a memorandum of understanding (MOU) with CDOT during the procurement task (Task 2) to allow for dairy download of available meteorological data. 1.7.2 Data Vatidabon and Reporting Validation procedures will be performed after the completion of each calendar month. Electronic data summaries will be provided to the City of Aspen by the 15"' of the following month. 1.8 Project Management This task provides for technical management and project administrative support to the City of Aspen project manager. The project's success will rely on responsible monilodng of all costs and maintenance of open lines of communication with all members of the project team. The Golder Projed Manager will use GoldNet accounting system which provides daily tracking o(all project costs and monthly preparation of all irnoices for submittal to the client. Golder zwow•eewse~a-,-afro ~re~x~aKn.ma,re~~~,~m~re.~r .mmao~aw~.nma. .~SSOCIStea Agreement for Procurement and Professional Services Page 32 2.0 QUALIFICATIONS This section provides the City of Aspen a brief introduction to Golder and the proposed projeG staff. In addition, Golder has provided technical services in Aspen on severe) projects, most recently (2006) for the Aspen-Snowmass, Aspen Skiing Company where we provided geotechnical services for land stabilization of Sindair Meadows, and evaluation of dewatering a landslide area. 2.1 Golder Golder Associates is a 47 year old, well managed, employee-owned, global engineering and consulting company vtth significant resources (vaww.golder.com) availade to support the proposed project. Golder has over 6,000 employees worldwide and 49 offices in the US inducting nearly 200 staff in Colorado. The Golder North American air quality program is well established and consists of over 100 air quality engineers, atmospheric scientists, regulatory specialists, data analysts, and field technidans serving a wide range of industries. Over half of the North American staff is servidng industries and government air quality management progrems in Alaska, western Canada, and the intermountain area of the US. The Coloado program, which was established in early 2007, is focused in the Fort Collins Air Resources Laboratory with support provided by our staff in the Lakewood (Denver) office. The Fort Collins program has been exclusively developed to serve the air quality and regulatory compliance management program. This growing Fort Collins staff has substantial expertise in ambient air quality and meteorological monitoring. A few current projects that demonstrate our capabilities to assist the City o(Aspen include: ^ Uinta Basin Air Monitoring Program (UBAMP) -This is a coopeative program between [he federal land managers, regulatory agencies, energy developers, the Ute Indian Tribe, and local stakeholders to assist air quality resource management of the Uinta Basin in northeastern Utah. This remote region of the country is experiendng significent energy development. The program is a two station network equipped to monitor ozone, nitrogen oxides, fine particulate matter, and dispersion meteorology following USEPA QA guidelines as administered by UDEQ. Golder sited, designed, installed and operates the network for USEPA Region VIII. ^ Atlantic Rim Air Monitoring Program (ARAMP) -This is a voluntary, single station air quality and dispersion meteorological monitoring program sited in a remote location without utility power near the Continental Divide approximately 20 miles southwest of Rawlins, Wyoming. It is equipped with a 25{neter tower and environmentally controlled shelter to continuously monitor ozone, nitrogen oxides, and dispersion meteorology following USEPA PSD QA requirements as administered by WDEO. Golder sited, designed, installed and operated the station for Anadarko Petroleum Corporation. ^ Northam Coorado Ozone Montorng Program -This was a cooperative progrm between industry and the CDPHE. The project manager and senior air quality meteorologist now on the Golder Fort Collins staff designed and sited the project that would allow CDPHE to satisfy US EPA requirements for ozone monitoring in Northam Colorado. It took advantage of an industy pennk requirement that allowed the purchase of equipment and CDPHE to install, own and operate it. The program resulted in an agreement between Colorado State University (the foothills site location), CDPHE and Anheuser-Busch, Inc.. This highly successful project has resulted in measured exceedances of the National Ambient Air Quality Standard. ^ Mt. Emmons Air Monitoring Program -This is an ambient air monitoring project to characterize baseline contlitions prior to potential development of an underground molybdenum mine in the mountains of southwestern Colorado near Crested Butte. The project is a single station equipped to continuously monitor fne particulate matter and tlispersion meteorology following USEPA QA guideline as administered by CDPHE. Golder sited, designed, installed and operates the station for US Energy Corporation. CiO~dCi z wop«aneae,es.+-o,ror.m~~~.^urc,~o,~w~a.~.,,b,~,~~re•m.mmeas,voe~=oa~5 ~~ff//A690Q8tC9 Agreement for Procurement and Professional Services Page 33 ^ Kabanga Air Monitoring Program -This is an ambiem air monitoring projed to charecter¢e baseline condhions prior to development o(a nickel mine in remote Tanzania, Africa. The projed is a single station equipped to cominuously monaor partiwlate matter as PM10 and PM2.5 using commerdal staterofihe-science instrumentation. It is collocated with a dispersion meteorological platform. Golder sited, designed and installetl the unique system that is powered by remote power systems and operated by local technidans for Kabanga Nickel Ltd, an %s[reta Plc cempany. 2.2 Project Staff The proposed projed team is located in the Fon Collins, Colorado Golder once. Detailed rewmes of each individual can be provided upon request. Stephen Antlersen -Stephen will serve as me Golder Project Director. He is a Golder Air Oualiry Program Leader and senior air quality meteorologist. Stephen's 37 years experience in designing and managing a significant number of ambient air monitoring programs and air quality studies throughout the region will help ensure the technical goals of the program are met. His expertise incudes air quality permitting, modeling, emisdons comrol antl air resource management. Over his career, Stephen has established strorg working relationships with CDPHE and USEPA. Scoff Park - Scetl will serve as the Goltler Projed Manager and team leatler. Scott is an air quality engineer who currently serves as Projed Manager for similar programs in the Uinta Basin in northeastern Utah. He has 12 years experience as a feld engineer cenduding air quality measurement progrems throughout the Untied States and abroad. His expertise includes system design and integretion, feltl logistics arW operations, and [he quality assurance requiremems of amdent air quality and meteorological monitoring programs. Marsha Sontlertan -Marsha will serve as the Golder Data Manager. Marsha is an air quality mdeorologid (MS-Atmospheric Sdence) with 5 years experience. She is responsible for data analysis and dispersion modeling in the Golder Fort Collins Air Resources Laboratory. Her experience includes management and analysis of data collected throughout the Powtler River Basin, Green River Basin and Atlantic Rim areas of Wyoming, and the Uima Basin area of Utah. Douglas Bloeksma -Doug will serve as the Golder Field Technician. Doug is an air quality engineer (BS-Civil) in Fort Collins with 4 years experience in ernironmental programs. He is a feltl engineer specializing in indallation, operation, maintenance, and tlala retrieval of ambiem air quality and meteorological monhonng programs. ,w.,~.~,~.~n~ a„o~~~,~.n.n~,~.®~~.. ~,,,o.~ry,.,~ma-~~,~.as ASSgCiBtCS Agreement for Procurement and Professional Services Page 34 Golder Associates Inc. 2625 Midpoint drive, Suite F Fort Collins, CO 80525 (970)'48A-3857 -Phone (303) 985-2080 -Fax Golder L Associates Agreement for Procurement and Professional Services Page 35 3.0 REFERENCES The references contained in this section possess frsthand knowledge of the experience and skill of the proposed team. Golder mould also provide numerous other references for monitoring programs and regional air quality studies that served federal land managers, urban air resource managers, and industry as necessary to gain a full perepecfive of experience. Gordon E. Pierce (303) 692-3236 Coloredo Department of Public Health and Environment Ref: Northam Coloredo Ozone Monitodng Environmental Protection Specialist Program Naney D. Chick (303) 692-3226 Colorado Department of Public Health and Environment Ref: Colorado Monitoring Air Pollution Control Specalist Cindy Beeler US EPA Region VIII Environmental Engineer (303) 312204 Ref: Uinta Basin Air Monitoring Program x ~poWSahM3P~P::3-oryolesPo~~`n#elNo,ez>nozort monpnnpsynem i,g~Mf, pWOZel~~ap Asslodates Agreement for Procurement and Professional Services Page 36 4.0 PROJECT TIMEFRAME Golder is prepared to commence work immediately upon receipt of an Authorization to Proceed in order to meet deadlines set forth by the City of Aspen. Assuming Golder receives project authorization by September 28, 2009, the schedule will be roughly as follows. Prepare Monitoring Program Documentation Equipment Orders Placed Equipment Integration/Software Development System Installation and Calibration System Audit (Run by State) Offidal First Month of Data First Quarter 2010 Instrument Calibration Second Quarter 2010 Instmment Calibration Third Quarter 2010 Instrument Calibration Fourth Quarter 2010 Instrument Calibration Close of Project Operations October 2 October 2 October 26 -November 6 November 18-20 November 23 December 2009 February 2010 May 2010 August 2010 November 2010 November 30, 2010 : ww~ai.~a~aixsa.oivo~~~mm~~rv s~w~o~m mano~~v+m•m ~.m~vor aneooe ~ ~!~'~ CiOidef ~i/Associates Agreement for Procurement and Professional Services Page 37 5.0 EXCEPTIONS AND CLARIFICATIONS Golder has carefully reviewed the sample Agreement for Profesaonal Services proforma contained in the Invitation to Bid. Based on that review, Golder will require only minor modifcation to the provisions contained therein prior to beginning the work requestetl. riOlt~.El' nwo~=imea~ew-o,vo,~w~umn~M1Vnaz,+ oroa mwm~m•m•miaam.nro~.a aor..5 ASSOQ8YC8 Agreement for Procurement and Professional Services Page 38 EXHIBIT D to Professional Services Agreement Golder Associates Inc. Rate Schedule Invoices from Golder Associates Inc. include all labor charges, other direct costs, and costs associated with in-house services. Chazges include only those services directly attributable to the completion of the work. Time spent in either local or intercity travel, when travel is in the interest of the work, will be chazged in accordance with hourly rates. Time spent in depositions and in providing testimony will be charged at twice the applicable rates. Labor chazges are based upon standard hourly billing rates for each category of staff. The billing rates include costs to cover salary, payroll taxes, insurance incidental to employment, benefits (including holidays, sick leave, and vacation), administrative overheads, and profit. Rates by labor category are as follows: Bi11 Class Billing Class Title Hourlv Rate Levels 8/9 Senior Executive Professionals $165 Level 7 Practice / Progam Leader $140 Level6 Senior Consultant $130 Level 5 Senior Engineer /Scientist $120 Level 4 Senior Project Engineer /Scientist $100 Level 3 Project Engineer /Scientist $ 90 Level 2 Staff Engineer /Scientist $ 80 Level 1 Engineer /Scientist $ 70 Level D3 Senior Draftsperson $ 90 Level D2 Staff Draftsperson $ 75 Level Dl Draftsperson $ 65 Level T3 Senior Technician $ 90 Level T2 Staff Technician $ 75 Leve1T1 Technician $ 65 Level A3 Senior Administrative Support $ 75 Level A2 Staff Administrative Support $ 65 Level Al Administrative Support $ 55 Rates for laboratory services and use of equipment owned by Golder Associates Inc. will be provided upon request. Other direct costs, including materials, travel and subsistence, and subcontractor costs, will be invoiced at cost. This office services fee does not include CAD computers, color photocopies or drawing reproduction. These services will be billed at the following rates: SERVICE RATE Photocopies (large report efforts) $0.10/page CADD Computers $15/hour Color Photocopies $3/page , Drawing Reproduction $14/Mylar Drawing Reproduction $2Polueline Plotter (D and E size) $16/plot Prninr4 f nc4 hrnalydnwn Task *~ . . Descri~tion Cost 1.1 Monitorin Pro ram Documentation $780 1.2 Site Pre aration $200 1.3a E ui ment Procurement $20,413 1.3b E ui ment Irate ation $4027 1.4 Installation and Trainin $3,512 Agreement for Procurement and Professional Services Page 39 1.5 Routine O eration $2,600 1.6 Quarterl Calibrations $6,473 1.7 Data Mana ement* * $6,280 1.8 Pro~ect Mana ement $1300 Total $45,585 *For more details on tasks see Golder Associates Proposal included in Exhibit "A" the Scope of Work. **Golder Associates agrees to train City of Aspen staff in proper data management and validation. Additional Costs for Items not covered by this contract but have been submitted by Golder Associates in the event that they are deemed necessary: • Emergency Site Visit: $1,050 • Climate Controlled Enclosure 36"x36"x48" (air conditioning and heating): $6,500. Agreement for Procurement and Professional Services Page 40 v« MEMORANDUM TO: Mayor and City Council FROM: Rebecca Hodgson THRU: Randy Ready, Assistant City Manager DATE OF MEMO: October 22, 2009 MEETING DATE: October 26, 2009 RE; 2009 World Cup Flags along Main Street and Doublewide Banner over Main Street REQUEST OF COUNCIL: Staff requests Council to grant a variance to the City's Municipal Code to allow the Aspen Skiing Company to hang flags along Main Street and for a doublewide banner across Main Street for the 2009 World Cup event. PREVIOUS COUNCIL ACTION: In December 2001, Council adopted policies regarding signs on public property. Section IV (E) Eligibility for Banners and Flags on Main Street Light Poles states: Only applicants for significant anniversaries (25, 50, 75 and 100) of local non-profit organizations shall be eligible for consideration pursuant to this policy. All other requests from other organizations or for other types of events shall be forwarded to City Council. In January 2003, Council held a worksession with City staff concerning special event signs and concurred with staff that use of the Downtown light posts was acceptable for events that do not meet Section 26.510.110(B)(4)(e) eligibility requirements. In the past three years, a doublewide banner hung across Main Street for the X-Games and in August adouble-wide hung for the Wheeler Opera House's Mountain Festival in Aspen. DISCUSSION: Council has previously approved requests for banners and flags on light poles for World Cup, the Food and Wine Classic, X-Games, and for Broncos winning the Super Bowl. Doublewide banners across Main Street have been allowed for the XGames in the past few years and the Mountain Festival in Aspen this past August. Page 1 oft The World Cup flags and banner are welcoming to participants and gives the city a vibe that something exciting is taking place that our guests and citizens can take part in. RECOMMENDED ACTION: Allowing banners and flags on Main Street is a Council decision. ALTERNATIVES: If Council denies the Aspen Skiing Company's request, they will still be able to hang flags in the commercial core and a singlewide banner across Main Street. PROPOSED MOTION: This should be a brief statement for a Council member to read such as "I move to approve the Aspen Skiing Company's request for a variance and allow flags to be hung along Main Street and a doublewide banner across Main Street for the 2009 World Cup event." CITY MANAGER COMMENTS: ATTACHMENTS: Page 2 of 2 RESOLUTION # ~$ (Series of 2009) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO GRANTING APPROVAL FOR FLAGS ON THE DOWNTOWN LIGHT POSTS AND A DOUBLE WIDE BANNER OVER MAIN FOR THE 2009 WORLD CUP EVENT WHEREAS, a request was received by the City Manager's department from the Aspen Skiing Company for a variance to the City of Aspen Municipal Code Section 26.510.110(B)(4)(e) to allow flags on the Main Street light posts and downtown light poles for the 2009 World Cup event and allow atwenty-four foot wide banner over Main Street. WHEREAS, The City of Aspen Municipal Code Section 26.510.110(B)(4)(e) Eligibility for Banners and Flags on Main Street Light Posts of that policy states; Only applicants for significant anniversaries (25`", 50`", 75`", and 100`") of local non profat organizations shall be eligible for consideration pursuant to this policy. All other requests from other organizations or for other types of events shall be forwarded to City Council. WHEREAS, The City of Aspen Municipal Code Section 26.510.030 (B)(3)(b) states that one banner twelve feet in length and three feet in width may be hung over Main Street for a maximum of fourteen days. WHEREAS, The Aspen City Council has allowed the Aspen Skiing Company to hang flags along Main Street for several years and granted the Aspen Skiing Company a variance to hang atwenty-four foot wide banner over Main Street for the Winter X Games. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves the request for mounting flags along Main Street and hanging atwenty-four foot wide banner over Main Street for the 2009 World Cup event. Dated: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held October 26, 2009. Kathryn S. Koch, City Clerk Vl1a MEMORANDUM TO: Mayor Ireland and City Council THRU: Chris Bendon, Community Development Director ~~ FROM: Drew Alexander, Community Development, Planner Technician ~~ RE: Dark Horse Alley - Ute City Bank Building, 427 & 501 East Hyman Avenue Temporary Use Permit -Public Hearing Resolution No.~'b Series of 2009. DATE: October 26, 2009 Land Use Request: Wendy Nanon Smith, owner of the Dark Horse Alley food cart currently operating on Cooper Avenue, is requesting a Temporary Use Permit to operate her vending cart inside the Ute City Bank Building located at the corner of Galena and Hyman. She serves a variety of coffees, teas, salads, panini, sandwiches, etc. The cart would be placed inside the interior mall space that serves multiple businesses. The Applicant has the support of adjacent businesses and the building owner. If approved, the temporary use permit will be valid for six months starting November 28`h 2009. Staff Recommendation: Approval Applicant: James Cox, building owner. Wendy Nanon Smith, vending cart operator. Representative: Ruth Kruger, Property Manager Location: The Ute City Bank Building, corner of Hyman Avenue and Galena Street. 501 East Hyman Avenue, a.k.a. 427 East Hyman Avenue. SUMMARY: The owner of the Dark Horse Alley food vending cart would like to operate from within the Ute City Bank Building. The City has traditionally treated vending carts as commercial development, requiring affordable housing mitigation, pazking, etc. The City amended its codes in 2002 allowing outdoor vending operations on 6-month permits. The Dazk Horse Alley cart has operated under one of these permits along Cooper Avenue (on private property) this past summer. __ __ The City Council recently directed City staff to asses the City's codes and provide additional flexibility for these types of operations. The process of drafting new laws will likely take some time, more time than would meet the needs of this applicant. Staff suggested the applicant pursue a temporary permit for this winter season. Staff has not heard complaints about the Cooper Avenue operation. In fact, comments have been positive. The Applicant has agreed to obtain all necessary food preparation permits and health inspections. The temporary use process allows City Council to approve concepts that do not necessarily meet the City's codes. Temporary Use permits do not vest or become grandfathered entitlements. Staff supports this application and believes the operation will bring some desired activity to this interior space. The applicant will need to keep signage to within the City's codes, and those details can be worked-out with staff. Staff recommends the Temporary Use Permit be granted. RECOMMENDATION: Staff is recommending approval. RECOMMENDED MOTION: "1 move to approve Resolution No.~, Series of 2009, approving a temporary permit for the Dark Horse Alley to operate in the Ute City Bank Building." CITY MANAGER COMMENTS: ATTACHMENTS: A -Temporary Use Criteria B -Application RESOLUTION NO. ~W (Series of 2009) A RESOLUTION OF THE ASPEN CITY COUNCIL GRANTING A TEMPORARY USE APPROVAL FOR A FOOD VENDING CART IN THE INTERIOR ARCADE SPACE AT THE UTE CITY BANK BUILDING, 427 & 501 EAST HYMAN, ASPEN, COLORADO. ParcellD: 2737-182-24-001 (501 E. Hyman) WHEREAS, pursuant to Section 26.450 of the Aspen Municipal Code, the Applicant, James Cox and Wendy Nanon Smith, represented by Ruth Kruger, have submitted an application for a Temporary Use Permit to place a food vending cart in the interior arcade of the Ute City Bank Building located at 427 and 501 East Hyman Avenue. Temporary food vending from carts is only allowed outdoors but may be approved indoors as a temporary use; and, WHEREAS, the operation is expected to begin on November 28`h, 2009, and be in place no longer than six (6) months unless an extension is requested; and, WHEREAS, the Community Development Department has reviewed the temporary use application and recommends that the City Council approve the temporary use permit; and, WHEREAS, the Aspen City Council has reviewed and considered the temporary use request under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing; and, WHEREAS, City Council finds that the proposed temporary use is consistent with the character and existing land uses of the surrounding pazcels and neighborhood and that granting the temporary use permit will not adversely impact the community or the neighborhood; and, WHEREAS, the City Council finds that the temporary use request meets or exceeds all applicable development standazds and that the approval of the proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfaze. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN, COLORADO, THAT: Section 1 In accordance with Section 26.450.020 of the Aspen Municipal Code, the City Council of the City of Aspen, Colorado, does hereby grant James Cox and Wendy Nanon Smith a temporary use permit to install a food vending cart in the interior arcade of the Ute City Bank Building which may operate for the period of November 28, 2009, through May 28, 2010. Resolution No. ,Series 2009. Page 1 Section 2: This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 3: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a sepazate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, Adopted, Passed, and Approved on this public hearing before City Council. day of , 2009, at a duly noticed APPROVED AS TO FORM: John Worcester, City Attorney ATTEST: Kathryn S. Koch, City Clerk APPROVED AS TO CONTENT: Michael C. Ireland, Mayor Resolution No. _, Series 2009. Page 2 EXHIBIT A Dazk Horse Alley REVIEW CRITERIA aSc STAFF FINDINGS: 26.450.030 Temporary Use When considering a development application for a temporary use, City Council shall consider, among other pertinent factors, the following criteria: The location, size, design, operating characteristics, and visual impacts of the proposed use. Staff Findine: The installation will be visible from within the property. The vending cart will be installed within the mall space of the Ute City Building. Staff believes that the size and design of the temporazy installation will not create substantial negative visual impacts and the limited timeframe for the installation will not cause any long-term impacts. Staff finds this criterion to be met. The compatibility of the proposed temporary use with the character, density and use of structures and uses in the immediate vicinity. Staff Findine: This vending cart is compatible with the commercial uses in the building and is expected to compliment the existing businesses. The applicant does have the support of adjacent businesses. Staff finds this criterion to be met. The impacts of the proposed use on pedestrian and vehicular trafftc and trafftc patterns, municipal services, noise levels, and neighborhood character. Staff Findin¢: Staff does not believe that the installation will have any negative impacts on vehicular traffic, traffic patterns, municipal services, noise levels. The property has capacity for additional pedestrian use. Staff does not expect any substantial effect upon the neighborhood character. Staff finds this criterion to be met. The duration of the proposed temporary use and whether a temporary use has previously been approved for the structure, parcel, property or location as proposed in the application. Staff Findine: The installation is expected to run from November 28`h through May 28~'. Previous temporary uses have not been approved for this site. This cart operator has operated under a temporary use permit on Cooper Avenue and there are no outstanding issues with the cart. Staff finds this criterion to be met. DHA Temp Use Comments. Page 1 The purposes and intent of the zone district in which the temporary use is proposed. Staff Findine: The Ute City Bank building is zoned Commercial Core. The temporary cart is in keeping with the purposes and intent of the zone district. Staff finds this criterion to be met. The relation of the temporary use to conditions and character changes which may have occurred in the area and zone district in which the use is proposed. Staff Findine: The recent examples and experience of food vending carts has been well received. Staff expects this operator to continue to operate in a manner consistent with the peroprty owner's and the City's expectations. No significant changes to this property or the surrounding area have occurred that would affect this request. Staff finds this criterion to be met. How the proposed temporary use will enhance or diminish the general public health, safety, or welfare. Staff Finding: The applicant has agreed to obtain all necessary food preparation permit and food inspections. Staff believes this use does not represent a threat to the public health, safety or welfare. Staff finds this criterion to be met. DHA Temp Use Comments. Page 2 ~.~. DARK HORSE ALLEY r~~~~T ~ ~ zoos Li i i yr r+Jt'tN 'OMMUNITY ~EVELOPINENT DARK HORSE ALLEY will offer a place to get a cup of coffee or soup inside the public area of the Ute City Bank Building. The mobile cart will be parallel to the staircase, 6 feet out from the staircase, and taking up approximately 10 feet length of space (60 s.f.). No flow of traffic will be disturbed. The land owner, the leasing agent, and the current tenants all eagerly support the ~ ~ concept, agreeing that the added mobile, temporary vendor will increase customer traffic to their stores and create a warm, inviting ambiance to the currently empty passageway. ~~ The suggested months of operation will be from November 28``' 2009 thru May ~~ 28`h, 2010, WITH OPTION TO RENEW CITY PERMIT, IF THE EXTENSION ~ OF PERMITABLE TIME IS ALLOWD. My operation will only increase retail sales in existing spaces, as well as add revenue to the city. My operation will not contradict or compete with any other food or retail product in this area of town. Thank you for your consideration. Sin ely, endy Nanon mith P.O. Box 8433 Aspen, Colorado 81612 ~~ DINS ~' ~"~ ~~ ~ ~~ n ~~,~1 ~ ~ , ~ ~.. ~~: YF. Y 0 ~~ x.-'i i ~i'~!1~r~Y • • 5: k 7' J } ~ ~ ~;. fllS ~ ~ t 1 dv y ~' rftf~ ~~~_~ ~I~ "~ ~ §f r ~ "~~~#~~ ~~~,,~~ __. _ ~, '~.p ~qr ~ .s ,j a hew s~ ~ .;_. .. ~„~ . .: ~ _ ~. r ,~~a '' ~••~' ~ ~` ~ 9 ~~ .~ ~~ ~~, ___., ..~ ~- ~ ~. ~. :jVJ r: ~. ! i p a Ay ~`a ~ ~, .• ~~ ~ ~~ a° a<. -~"__... ;, ~j ~ "k, ~~~ t .~ , ~.~ ,nrs ~ ;' ~' ~.,, ~~ ~K µ4r f ~; ~. Y ~~ ~ a ~, . ~{'.IYf: A ~ ... .. 1 i l ~~ .+ 1~.. ; 'F.. •~ l . ,a- September 26, 2009 City of Aspen City Council 130 South Galena, Aspen, CO 81611 Dear Esteemed Council Members, We are pleased as neighbors to welcome Wendy Nanen end her concept and coffee wagon, Dark Horse Alley, into the interior space in the Ute City Bank Building. We hope that this will help to enliven the area and give her a warm environment in which to serve her snacks and beverages. Please consider this our approval for the Temporary License. Sincerely, L' m Cupit, Owne4 Black Pearl ~~~LW'v-~KlZ~~'-ls`~ atty O Patterson, Owner, Bloomingbirds, Inc. Brian E. Leach, owner, CWB Enterprises, Inc. dba Wind River Gallery Michele Broser, General Manager, Burberry u-i! ~~~ ~dco~p~~ 400 E. HVMAN AVENUE • ASPEN. COLORADO, 81 61 1 • PHONE: 970.920.4001 • FAX: 970.920.4007 September 26, 2009 City of Aspen City Council 130 South Galena, Aspen, CO 81611 Dear Esteemed Council Members, We are pleased as neighbors to welcome Wendy Nanan and her concept and coffee wagon, Dark Horse Alley, into the interior space in the Ute City Bank Building. We hope that this will help to enliven the area and give her a warm environment in which to serve her snacks and beverages. Please consider this our approval for the Temporary License. Sincerely, (.`~` 34m Cupit, Own , B~earl atty O atterson, Owner, Bloomingbirds, Inc. -~~ Brian E. Leach, owner, CWB Enterprises, Inc. dba Wind River Gallery Michele Broser, General Manager, Burberry /~i~u a~r~(~o~r~aa~r~ 4OO E. HYMAN AVENUE ASPEN, COLORADO, 8161 1 PHONE: 970.920.4001 FAX: 970.920.4007 09/29/09 T(IE 03:13 FA% 510 947 4309 JA3BS E CO% 09-29-09:02:02PM: Kf U92r and tompan4 September 26, 2009 City of Aspen City Council 130 South Galena, Aspen, CO 81611 Dear Esteemed Council Members, 970-920-4007 We are pleased to welcome Wendy Nanan and her concept s~ coffee wagon, Bark floret Alley, info the ulterior space is the Ute City Bank Building. We hope rhar this will help to enliven the area end give her a warm mviromnent in which to serve her snacks and beverages. Please consider this our approval for the Temporary license. Sincerely, ~ ` .~ Jame E. Cox,, (Owner Ruth Kruger, Proputy ivlsoager I~001 S 2/ 2 d00 E. HYMAN AVENUE AS-SN, (,oi.cwno. 8761 i PNONCi 970,92O,d001 FAX: 970.920.x007 10/02/09 FRI 22:29 FA% 510 94T 4309 JANES E CO% f~002 LIMITED DURABLE POWER OF ATTORNEY This Limited Power of Attorney is intended for use during periods when I will be outside the United States of America in connection with foreign travel. I hereby appoint and authorize Kirk E. Wong to execute all documents required to be executed by me. Unless a third party has received its revocation, this Limited Durable Power of Attorney may be relied on by third parties with whom my attorney-in-fact may deal, without evidence of my location or foreign travel status. ames E. Cox Date: To whom it may concern: I Kirk Wong has been granted Power of Attorney on behalf of Jim Cox hereby authorize the property manager of the Ute City Building one Ruth Kruger to represent the ownership in regards to the kiosk at the council meeting 10/26/2009. Ruth Kruger is authorized to represent the ownership of the Ute City Building on all matters regarding the kiosk for the Ute City Building. Feel free to contact me if there are any queries at all about this authorization being granted. Regards, Kirk Wong evan28CDoacbell.net RE~Ej~E p C~ OCT 1 0 1009 ~~IMUN11~p~ ~PMENT Parcel Detail Page 1 of 3 Pitl~in County Assessor/Treasurer Parcel Detail Information Assessor/Treasurer Property Seazch ~ Assessor Subset Query ~ Assessor Sales Search Clerk & Recorder Reception Seazch Basic Building Characteristics ~ Tax Information Pazcel Detail ~ Value Detail ~ Sales Detail ~ Residential/Commercial Improvement Detail Land Detail ~ Photographs Tax Area Account Number Parcel Number 2008 Mill Levy 001 R000493 273718216007 Owner Name and Address COX JAMES E & NANCY C/O KRUGER & CO 400 E HYMAN AVE ASPEN, CO 81611 Legal Description Subdivision: CITY AND TOWNSITE OF ASPEN Block: 89 Lot: G AND:- Lot: Thru ISubdivision: CITY AND TOWNSITE OF ASPEN Block: 89 Lot: GAND:- Lot: Thru I E 6' OF G, ALL OF H & I. Location Ph sical Address: 427 E HYMAN AVE ASPEN Subdivision• ' CITY AND TOWNSITE OF ASPEN Land Acres: 0 Land Sq Ft: 13,200 http://www.pitkinassessor.org/assessor/Pazcel.asp?AccountNumbei=R000493 10/13/2009 2009 Property Tax Valuation Information Parcel Detail Sale Date: 7/17/1982 Sale Price: 940,000 Basic Building Characteristics Number of Residential 0 Buildin s: Number of Comm/Iud 2 Buildin s: CommerciaUlndustrial Buildin Occurrence 0 Characteristics OFFICE SECOND FLOOR: 5,050 MERCH FIRST FLOOR: 6,600 MERCH BASEMENT WAREHOUSE: 3,500 Total Area: 15,150 Property Class: MERCHANDISING- IMPROVEMENT Actual Year Built: 1900 Effective Year Built: 1990 Quality of Construction: GOOD-BASE Exterior Wall: GOOD BASE Interior Wall: GOOD-BASE Nei hborhood: COA COMMERCIAL "A" CORE Tax Information No Tax Records Found Ton of Page Assessor Database Seazch Options Treasurer Database Seazch Options Pitkin County Home Page Page 2 of 3 http://www.pitkinassessor.org/assessor/Pazcel.asp?AccountNumber=R000493 10/13/2009 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: ~ ~~ ~~~ . , ,Aspen, CO SCHEDULED PUBLIC HEARING DATE: f ©t~- 13~"e 5: oo~_, 200 q STATE OF COLORADO ) ss. County of Pitkin ) I ~ne~~ c~C.C'j~f'~ (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: C/ Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing `~ `A and was continuously visible from the _ day of 200_, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested, to affected mineral estate owners by at least thirty (30) days prior to the date scheduled for the initial public hearing on the application of development. The names and addresses of mineral estate owners shall be those on the current tax records of Pitkin County. At a minimum, Subdivisions that create more than one lot, Planned Unit Developments, Specially Planned Areas, and COWAPs are subject to this notice requirement. Rezoning or text amendment: Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. ignat The foregoing "Affidavit of Notice" was acknowledged before me this ~~ day of `.3~t0(rP.wt(ZCT , 200, by _~v~~el.a Sca.l ~~ WITNESS MY HAND AND OFFICIAL SEAL My commission expires: ~ ~~-~~~ Notazy Public Publisnetl in the Aspen Times Weekly on September 27, 2009. [noses9lJ ATTACHMENTS AS APPLICABLE: ~E PUBLICATION 1PH OF THE POSTED NOTICE (SIGN lE OWNERSAND GOVERNMENTAL AGENCIES NOTICED - .._ _ __ __ T CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE AS REQUIRED BYC.R.S. §24-65.5-103.3 yMicn is i e M Aspen City Council AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE D OF PROPERTY: ~U/f,7~Jj/(~_~p~ !~ ~~~~' Aspen, CO SCHEDULED PUBLIC HEARING DATE: p ~dt~/ 7e , 200 STATE OF COLORADO ) ss. County of Pitkin ) q'L'-I' ~. 6{ywY+N ~ I, iC-w~'Yl >/ ~ LLG~ e ~ (name, please print) being or representing an Appli to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: '~ Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at Least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. '~ Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least een (15) days prior to the public hearing and was continuously visible from the y of ~= 200, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. ~ Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (1 S) days prior to the public hearing, notice was hand delivered or mailed by fast class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public heazing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) Mineral Estate (honer Notice. By the certified mailing of notice, return receipt requested, to affected mineral estate owners by at least thirty (30) days prior to the date scheduled for the initial pablic hearing on the application of development. The names and addresses of mineral estate owners shall be those on the current tax records of Pitkin County. At a minimum, Subdivisions that create more than one lot, Planned Unit Developments, Specially Planned Areas.. and COWAPs are subject to this notice requirement. __ Rezoning or text amendment Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real propeRy in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifreen (15) days prior to the public hearing on such amendments. Signature The foregoing "Affidavit of Notice' was ac owledged bef re me this ~ day of'v y hJ , 20~, by ~ U ~~ ~~ WITNESS MY HAND AND OFFICIAL SEAL My commission expires: R~ t5 \'~h"t'~' ~ ary Public o~ `:~'~rE CF ~ ATTACHMENTS AS APPLICABLE: • COPYOFTHEPUBLICATION • PHOTOGRAPH OF THE POSTED NOTICE (SIGN) • LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED BYMAIL • APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE AS REQUIRED BY C.R.S. §24-65.5-103.3 ~~ b MEMORANDUM TO: FROM: THRU: DATE OF MEMO: Mayor and City Council Kim Peterson, Global Warming Project Manager Phil Overeynder, Utilities and Environmental Initiatives Director October 5, 2009 MEETING DATE: October 13, 2009 RE: ~" reading of Ordinance No. a~ ,Consenting to the Improvement for Renewable Energy and Energy Efficiency Purposes to Any Residential or Commercial Property Within the City by the County of Pitkin. REQUEST OF COUNCIL: Council is asked to conduct a first reading of Ordinance No~ o~, Consenting to the Improvement for Renewable Energy and Energy Efficiency Purposes to Any Residential or Commercial Property Within the City by the County of Pitkin. BACKGROUND: The purpose of this resolution is to allow the City of Aspen to opt in to the local improvement district for the Energy Smart Loan Program. On September 1, 2009 the Pitkin Board of County Commissioners approved a resolution referring ballot measure lA. The question to be posed to the voters on November 3, 2009 will be the authority for Pitkin County to issue bonds in the amount of $7 million to create the "Energy Smart Local Improvement District" arising under Section 20 of Article X of the State Constitution. If Referendum lA passes, Pitkin County will create the Energy Smart Loan Program. This program will provide low interest loans to property owners to make energy efficiency and renewable energy improvements to their properties. The loans would then be repaid as a special assessment to the owner's property taxes. This resolution allows the City of Aspen to opt in to this program, thereby making the loans available to property owners within the city's municipal boundary. DISCUSSION: Finding upfront capital is a common barrier to property owners taking action on making energy efficiency and renewable energy upgrades to their buildings. By providing a low interest loan that is tied to the property, more property owners will be able to access the money needed to improve their building's energy performance. This program is voluntary and only owners who take loans will have a financial obligation to make loan repayments via a special assessment on their property taxes. Page 1 of 2 On September 28, 2009 Council passed a resolution in support of Referendum lA and the Energy Smart Loan Program. This program will generate green jobs and put the construction trades back to work. It also supports the goals of the Canary Action Plan. It also dovetails well with the City's residential energy audit program. Those residents who have energy audits will have identified the best measures to improve their homes energy performance and will be ready to apply for the Energy Smart Loan Program when it becomes available. FINANCIALBUDGET IMPACTS: There will be no financial or budget impacts to the city as a direct result of this program. Pitkin County will be administering the Energy Smart Loan Program. The program is designed to cover administrative costs to the county by charging a small application fee. The Governor's Energy Office has also committed financial support to the administration of the program. ENVIRONMENTAL IMPACTS: This ordinance is anticipated to create positive environmental impacts for the City. When home and business owners make energy efficiency and renewable energy improvements to their properties, their demand for carbon based sources of energy will decrease. This will result in less greenhouse gas emissions in the Aspen Emissions Boundary area. RECOMMENDED ACTION: Staff recommends that Council approve the first reading of Ordinance No. a` Consenting to the Improvement for Renewable Energy and Energy Efficiency Purposes to Any Residential or Commercial Property Within the City by the County of Pitkin. Staff requests that Council schedule a second reading of this Ordinance on October 26, 2009. ALTERNATIVES: Council can opt not to support this Ordinance. In that case, residents and business owners with the Aspen Municipal Boundazy would not be able to participate in the Energy Smart Loan Program. PROPOSED MOTION: "I move to approve Ordinance No. a ~ Consenting to the Improvement for Renewable Energy and Energy Efficiency Purposes to Any Residential or Commercial Property Within the City by the County of Pitkin." CITY MANAGER COMMENTS: Page 2 of 2 ORDINANCE NO. 2~" Series of 2009 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, CONSENTING TO THE IMPROVEMENT FOR RENEWABLE ENERGY AND ENERGY EFFICIENCY PURPOSES TO ANY RESIDENTIAL OR COMMERCIAL PROPERTY WITHIN THE CITY BY THE COUNTY OF PITHIN. WHEREAS, pursuant to part 6 of article 20 of title 30, Colorado Revised Statutes, as amended (hereinafter the "Act"), Pitkin County has authorized a local improvement district for the purpose of encouraging, accommodating, and financing Energy Efficiency and Renewable Energy Improvements (both as defined in the Act); and WHEREAS, Pitkin County via the Pitkin County Energy Smart Local Improvement District (the "District") desires to encourage, accommodate and provide financing for Energy Efficiency and Renewable Energy Improvements ("EE/RE") (the "Project") pursuant to the Act for the purpose of accomplishing the Project, including paying all costs necessary and incidental thereto; and WHEREAS, the City Council of the City of Aspen, Colorado, (the "Council") finds as follows: • The creation of the Pitkin County Energy Smart Local Improvement District will benefit property owners in the Aspen municipal boundary by enabling them to participate in the Energy Smart Loan Program; • The Canary Action Plan calls for community wide greenhouse gas emissions of 30 percent by 2020 and 80 percent by 2050 from 2004 baselines; • City participation in the District and Energy Smart Loan Program will enable property owners to improve the energy performance of their buildings thereby furthering the goals of the Canary Action Plan; • The City's Utilities Efficiency Program offers incentives for property owners to have energy audits on their buildings to help identify the best energy improvement measures; and WHEREAS, this Council finds that giving such consent to allow such participation is in the best interests of the residents and property owners of the City NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section I. The City hereby consents, as provided in Section 30-20-603(1)(a), Colorado Revised Statutes, as amended, to energy efficiency and renewable energy systems and improvements being installed upon any private property within the City_through Pitkin County's Energy Smart Local Improvement District, pursuant to the Act, in order that owners of properties located anywhere within the City_may voluntarily agree to participate in the District's program. Section 2. Any future consents that may be necessary or desirable for properties hereinafter included within the City of Aspen maybe given by ordinance or resolution as this Council in its discretion determines. Section 3. The officers of the City_shall take such other steps or actions necessary or reasonably required to carry out the terms and intent of this Ordinance and Consent. Section 4. If any section, paragraph, clause, or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability ofsuch section, paragraph, clause, or provision shall not affect any of the remaining provisions of this Ordinance. Section 5. All actions not inconsistent with the provisions of this Ordinance heretofore taken by the Council and the officers of the City regarding this matter hereby are ratified, approved, and confirmed. Section 6. This Ordinance shall be in full force and effect thirty (30) days after publication following final adoption. Section 7. A public hearing on this ordinance will be held the ~ day of October 2009. INTRODUCED, READ AND SCHEDULED FOR SECOND READING as provided by law, by the City Council of the City of Aspen on the day of October 2009. Attest: Kathryn S. Koch, City Clerk FINALLY adopted, passed and approved this 2009. Michael C. Ireland, Mayor day of Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor VI IG MEMORANDUM TO: Mayor Ireland and City Council THRU: Chris Bendon, Community Development Director ~~~ FROM: Drew Alexander, Community Development, Planner Technician RE: 808 Cemetery Lane, Red Butte Cemetery -Public Hearing MEETING DATE: October 26, 2009 (continue to 11 /09/09) GENERAL BACKGROUND: On May 22nd of 2009, Alan Richman Planning Services, on behalf of the Red Butte Cemetery Association, submitted a Land Use Application for a site specific development plan at the Red Butte Cemetery. The scope of work includes constructing a maintenance facility and a restoration of the Victorian-era cabin and outhouse. The project has received Conceptual Approval from HPC and approval for Conditional Use by the Planning and Zoning Commission. The Planning and Zoning Commission has also provided recommendations for the remaining reviews (Growth Management for an Essential Public Facility, Consolidated PUD, and Amendment to the Official Zone District Map). The Applicant has agreed to continue the Appeal to November 9`h in light of October 26`h'S large agenda. RECOMMENDATION: Staff recommends continuing the hearing to November 9`h. CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all motions must be made in the positive) "I move to continue the public hearing for the Red Butte Cemetery Association to November 9`h, 2009" Attachments: Exhibit A: Letter from Alan Richman Planning Services ~ea.~t 1~ccluiuu2 EXtf~r3i1' ~Q~tt~sut~ .Sezckce~ $ax 3613~a1iec, colarado 81612 ~lw«e/~ax (970)920-1125 October 16, 2009 Ms. Jennifer Phelan, Deputy Director City of Aspen Community Development Department 130 South Galena Street Aspen, CO 81611 RE: PUBLIC HEARING FOR RED BUTTE CEMETERY Dear Jennifer, ~~ ~.,~ The second reading of Ordinance 21, Series of 2009, the proposed PUD for the Red Butte Cemetery, is scheduled to occur on October 26. Earlier this week you called to inform me that the City Council agenda for that evening is quite full, due to several other major items being continued to that date. You asked if the Cemetery Association would consider continuing the public hearing until the next Council meeting, scheduled for November 9. , The Cemetery Association agrees to continue the scheduled public hearing until November 9, to allow City Council to complete its other scheduled business on October 26. We would ask, however, that this item be placed on the agenda for that date in a slot that will ensure that the hearing takes place that night. The President of the Cemetery Association, Mr. John Thorpe, will be in Aspen that night but will not be available for subsequent City Council meetings, We think it is very important that he be present to answer any questions that City Council or the public may have regarding our plans, and so we want to make sure that this project gets heard on November 9. I would like to reiterate my offer to take any City Council member for a tour of the site if they so desire. Please have them contact me individually if they wish to take the tour. Very truly yours, ALAN RICHMAN PLANNING SERVICES Alan Richman, AICP __ ~I MEMORANDUM TO: Mayor Ireland and Aspen City Council ~/~i~y~ FROM: Chris Bendon, Community Development Director t~" Y, " ' RE: Lift One Conceptual PUD/Timeshare Review -Public Hearing DATE: October 26, 2009 SUMMARY: Tonight's hearing is a continuation from October 13`h. The last meeting focused on sustainability of the project -covering issues of energy efficiency, affordable housing, the profile of lodging rooms, public access, historic assets, traffic expectations, and ski racing. Given tonight's expected large agenda on other matters, staff believes a ~ 30 minute overview of the resolution will provide a good understanding of the document. A few remaining issues may also be covered. Staff will be asking City Council to continue the hearing to November 7`h. At that meeting, staff is expecting a more substantive review of the resolution, review of any remaining issues, and a decision. Staff and the Applicant believe Council's comments to date have been incorporated into the draft. Conceptual approvals allow an applicant to apply for final and direct the applicant as to what changes, studies, specificity, etc. must be included in the final application. While Conceptual approval does not allow an Applicant to build the project, it does indicate acceptance of the basic parameters of the project -uses, site plan, massing and scale, architectural character, and mitigation of impacts. Staff recommends City Council hear an overview of the draft Resolution and continue the hearing to November 4`h. BACKGROUND: The Lift One area has had multiple development applications proceeding through development review during the past few years. The owners of the Lodge at Aspen Mountain project, the Lif[ One Lodge project, the Aspen Skiing Company, and the City of Aspen jointly initiated a master planning process in early 2008 -the Lift One Neighborhood Master Plan COWOP. That process incorporated a citizen task force and developed a master plan for the entire neighborhood. The master plan was not adopted and that process has been terminated. Prior to entering into the master planning process, the Lift One Lodge project had received positive recommendations for the Planning and Zoning Commission and the Historic Preservation Commission for their Conceptual PUD application. The Conceptual application was not forwarded to City Council, but rather tolled for the term of the master planning effort. Page 1 of 2 Resolution No. 13, Series of 2008, maintained the Lift One Lodge application as "active" and preserved the land owner's ability to renew the review if the master planning effort terminated. The 2006 PUD application did not incorporate the newer ideas of the master planning exercise (as it was prepazed prior to that effort). Some of the ideas were for items off this property and may not be accommodated on the smaller land area. But, some of the ideas aze still valid and worth pursuing. The applicant has been pursuing amendments to the application to more closely reflect the ideas of the master planning effort. CONCEPTUAL REVIEW: Conceptual Review is an opportunity to determine if a project meets the basic parameters expected of new development. It is also an opportunity to determine what changes are necessazy to the project and the submission requirements for final review. Although conceptual approval does not guazantee a final approval, there is a tacit expectation that the fundamental aspects of a proposal are acceptable and the remaining reviews are for detailed issues. CITY MANAGER COMMENTS: RECOMMENDED MOTION: "I move to continue Resolution No. 52, Series of 2009, to November9~'." PREVIOUS ATTACHMENTS: Exhibit A: July 10, 2009, memo from Bob Daniel (provided with July 27, 2009 packet) Exhibit B: Application (provided with July 27, 2009 packet) Exhibit C: July 30, 2009, memo from Bob Daniel with site plan (provided with August 10, 2009 packet) Exhibit D: September 4, 2009, memo from Bob Daniel (provided with Sept. 14, 2009, packet) Exhibit E: September 21, 2009, memo from Bob Daniel (provided with Sept. 28, 2009, packet) Exhibit F: October 5, 2009, memo from Bob Daniel (provided with October 13, 2009, packet) CURRENT ATTACHMENTS: Proposed Resolution No. 52, 2009 Exhibit G: October 19, 2009, memo from Bob Daniel Exhibit H: October 16, 2009, memo from Sunny Vann Page 2 of 2 RESOLUTION N0.52 (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING A CONCEPTUAL PLANNED UNIT DEVELOPMENT AND A CONCEPTUAL TIMESHARE APPLICATION FOR THE LIFT ONE LODGE ON PROPERTY COMMONLY KNOWN AS 233 GILBERT STREET, 710 SOUTH ASPEN STREET, AND 720 SOUTH ASPEN STREET, CITY OF ASPEN, PITKIN COUNTY, COLORADO Parcel ID: 2735-131-168-51, 2735-I31-2I0-OI, 2735-131-210-02, 2735-131-198-51, 2735-131-190-01, 2735-131-260-01 WHEREAS, the Community Development Department received an application (the Application) from the Roazing Fork Mountain Lodge -Aspen, LLC (Applicant), represented by Sunny Vann of Vann Associates, and with consent from the Aspen Skiing Company, the City of Aspen, and the Historical Society of Aspen, for approval of a Conceptual Development Plan for a Planned Unit Development (PUD) and a Conceptual Timeshare for the Lift One Lodge; and, WHEREAS, the Property is commonly known as Willoughby Pazk, Lift One Park, 233 Gilbert Street, 710 South Aspen Street, and 720 South Aspen Street, City of Aspen, Colorado, and as more fully described in Exhibit A, attached hereto; and, WHEREAS, the Application for the Lift One Lodge proposes: On Parcel 1: • A multi-story structure consisting of 27 timeshare lodging units divided into one- eighth (1/8) interests with a total of 216 member interests. With "lock-off' capability, the 27 units represent a total of 107 keys. • 24 affordable housing units. • Sub-grade pazking garages with a combined total of no more than 250 spaces, 50 spaces in a public garage for replacement of lost pazking on South Aspen Street and the current Willoughby Park surface parking. 200 spaces for lodge, commercial, Aspen Skiing Company, Club Members, and other uses associated with the lodge. • A public restaurant and apr8s ski area. • Fitness facilities. • Lodge guest facilities. • One lift tower of the historic Lift One apparatus. • Aspen Skiing Company facilities and Guest Services. • Public access and ski easements. • Ski area operations On Parcel 2: • Housing for ten employees in dormitory-style units. City Council Reso No. 52, Series of 2009. Page 1 of 13 • A public restaurant and apres ski area. • A portion of the sub-grade pazking gazage that connects to the underground pazking under Lot 1. On Parce[ 3 (Lift One Park): • A public park. • One lift tower of the historic Lift One apparatus. • Underground parking (part of the subsurface pazking garages on Lot 1) • Lift tower for surface lift • Ski area operations Ou Parce[ 4 (Willoughby Park): • A public park. • A Historical Society Museum (the Skiers Chalet Lodge will be relocated for this purpose). • The historic Lift One. • A skier drop off azea. • Terminus of surface lift and associated equipment • Access into a Public Pazking Garage and Public below grade parking • Ticket booth • Ski azea operations; and, WHEREAS, pursuant to Section 26.415.070.D., Certificate of Appropriateness for Major Development, of the Land Use Code, Conceptual approval may be granted by the Historic Preservation Commission (HPC) at a duly noticed public heazing and was granted for the review of Willoughby Pazk, Lift 1 Pazk, and Skier's Chalet Steakhouse by the HPC on August 9, 2006, via Resolution No. 21, Series of 2006, and an additional public review and approval was granted by Resolution 23, Series of 2008; and, WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire Protection District, Environmental Health Department, Parks Department, Parking Department , Aspen/Pitkin County Housing Authority, Public Works Department, and the Transportation Department as a result of the Development Review Committee meeting; and, WHEREAS, pursuant to Section 26.470.040.0.7, Affordable Housing, of the Land Use Code, a recommendation from the Aspen/Pitkin County Housing Authority is required and a recommendation for approval by the boazd was provided at their June 20, 2007, regular meeting; and, WHEREAS, said referral agencies and the Aspen Community Development Department reviewed the proposed Conceptual PUD and Conceptual Timeshare and recommended approval with conditions; and, WHEREAS, pursuant to Chapter 26.445 of the Land Use Code, Conceptual PUD approval may be granted by the City Council at a duly noticed public hearing after considering City Council Reso No. 52, Series of 2009. Page 2 of 13 recommendations by the Planning and Zoning Commission, the Community Development Director, and relevant referral agencies; and, WHEREAS, pursuant to Chapter 26.590 of the Land Use Code, Conceptual Timeshare approval may be granted by the City Council at a duly noticed public heazing after considering recommendations by the Planning and Zoning Commission, the Community Development Director, and relevant referral agencies; and, WHEREAS, Conceptual PUD and Conceptual Timeshare review by the Planning and Zoning Commission requires a public heazing and this application was reviewed at multiple public hearings where the recommendations of the Community Development Director and comments from the public were heazd; and, WHEREAS, during a regulaz meeting on June 19, 2007, the Planning and Zoning Commission opened a duly noticed public hearing to consider the project and continued the public hearing to July 10, 2007 for further discussion. At the July 10, 2007 public heazing, the Planning and Zoning Commission opened a duly noticed public hearing to consider the project and continued the hearing until July 17, 2007 for further discussion. At the July 17, 2007 public hearing, the Planning and Zoning Commission opened a duly noticed public hearing to consider the project and continued the project to July 24, 2007 for further discussion. At the July 24, 2007 public hearing, the Planning and Zoning Commission opened a duly noticed public hearing to consider the project and continued the project to August 7, 2007 for further discussion. At the August 7, 2007, public heazing the Planning and Zoning Commission opened a duly noticed public hearing to consider the project and recommended City Council approve the Conceptual Planned Unit Development and Conceptual Timeshaze application by a three to one (3-1) vote, with the findings and conditions listed hereinafter; and, WHEREAS, after the recommendations from the City of Aspen Planning and Zoning Commission and the Historic Preservation Commission were obtained and prior to City Council reviewing the Application, City Council adopted Resolution No. 13, Series of 2008, initiating a master planning effort known as the Lift One Neighborhood Master Plan involving properties within this Application, properties held by the City of Aspen, and properties held by others; and, WHEREAS, the Applicant entered into the master planning process willingly with certain conditions regarding the continued "active" status of the Lift One Lodge Application and the potential withdrawal from the master planning process among other conditions memorialized in Resolution No. 13, Series of 2008; and, WHEREAS, the City of Aspen, the other parties, and the Applicant all actively pursued the master planning effort with the assistance of a citizen task force throughout 2008 and early 2009 although the master plan was never adopted; and, WHEREAS, pursuant to Resolution No 13, Series of 2008, Section 10 "Master Planning Process may be Terminated," the Applicant withdrew from the master planning process and the City renewed review of the Lift One Lodge Application; and, WHEREAS, pursuant to Resolution No. 13, Series of 2008, Section 12 "Lift One Lodge Application on Hold," for the purposes of Section 26.304.070(f) of the Land Use Code, the Application for Lift One Lodge remained "active" during the Lift One Neighborhood Master Plan COWOP process and any and all deadlines or expiration dates associated with the Lift One Lodge Application were tolled until the date on which processing of the Application was resumed. All previously obtained consents and all previously obtained approvals or City Council Reso No. 52, Series of 2009. Page 3 of 13 recommendations of approval, in particular the approvals of the Planning and Zoning Commission and the Historic Preservation Commission remain in effect. The Application will continue to be processed and considered pursuant to the City's Land Use Regulations in place on the date that the Application to the Historic Preservation Commission was deemed complete in March of 2006; and, WHEREAS, pursuant to Resolution No. 13, Series of 2008, Section 13 "Holland House Redevelopment Credits," the time period for utilization of replacement credits for employees, lodging and other pertinent matters related to the former Holland House Lodge have been extended to 24 months after final approval, denial, or withdrawal of the current Application for Lift One Lodge; and, WHEREAS, at the direction of City Council, the applicant amended the application to better respond to and reflect community planning concepts realized during the master planning effort of the Lift One Neighborhood Master Plan, specifically a ski lift and skiing corridor through the center of the properties roughly along the historic alignment of the original Lift One, adjustments to include portions of the S. Aspen Street Right-of--Way and the Gilbert Street Right-of--Way into the project; and, WHEREAS, the Planning and Zoning Commission recommended consideration of a zero lot line from the eastern border of Lift One Park to the Lift One Lodge in order to minimize impacts to properties adjacent to the eastern boundary; and, WHEREAS, Conceptual PUD and Conceptual Timeshare approval shall only grant the ability for the applicant to submit a Final PUD and Timeshare application and the proposed development is further subject to Final PUD review, Conditional Use, Special Review, GMQS Allotment, Mountain View Plane Review, Subdivision, Subdivision Exemption, Rezoning, Timeshare and a Street Vacation and Right-of--Way Dedication Plat pursuant to the Municipal Code; and, WHEREAS, the City Council of the City of Aspen finds that the Application meets or exceeds the development review standards for a Conceptual PUD and Conceptual Timeshare, is consistent with the goals and elements of the Aspen Area Community Plan, that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare as long as certain conditions are implemented. NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Aspen hereby grants Conceptual Planned Unit Development Review Approval and Conceptual Timeshare Review Approval to the Lift One Lodge Application, subject to the conditions listed hereinafter: Section 1 Conceptual Approval: The Lift One Lodge is granted Conceptual PUD approval and Conceptual Timeshare approval for the uses as depicted and described in Exhibit B to this resolution. Section 2: Final PUD Application The Fina] PUD application shall include: A. An application for Final PUD and Timeshare application and the proposed development is further subject to Final PUD review, Conditional Use, Special Review, GMQS Allotment, Mountain View Plane Review, Subdivision, Condominiumization, Rezoning, Timeshare, City Council Reso No. 52, Series of 2009. Page 4 of 13 Commercial Design Review and 8040 Greenline Review, and a Street Vacation and Right-of- Way Dedication Plat pursuant to the Municipal Code. Apre-application conference with a member of the Community Development Department is required prior to submitting an application. B. Delineation of all dimensional provisions to become requirements of the PUD. C. A proposed subdivision plat and PUD plans. D. A Street Vacation and Right-of--Way Dedication Plat that accomplishes the following public right-of--way dedications and grants the following perpetual easements and encroachment licenses: 1. Vacation of that portion of South Aspen Street located south of Juan Street and north of the northern boundary of the Shadow Mountain Condominiums as depicted on the Conceptual PUD Development Plan; 2. Vacation of those portions of Gilbert Street depicted on Conceptual PUD Development Plan; 3. Vacation of Hill Street east of South Aspen Street through the Lift One Lodge Project; 4. Vacation of Summit Street east of South Aspen Street through the Lift One Lodge Project; and 5. Vacation of the portion of the remaining alley in Block 9, Eames Addition to the City of Aspen, within the Lift One Lodge Project. 6. Grant of a public right-of--way for relocated South Aspen Street; 7. Grant of a public ski and pedestrian easement within Lot 1, Lift One Lodge Project, within Lot 3, Lift One Park, and within Lot 4, Willoughby Park. Pedestrian use will be allowed when the surface lift is not in operation; 8. Grant of an easement granted to the Aspen Skiing Company and/or assigns within Lots 1, 3 and 4 for purposes of constructing, operating and maintaining the surface lift and other associated skiing improvements and operations; 9. Grant of a perpetual subsurface easement beneath Lot 3, Lift One Pazk, and Lot 4, Willoughby Pazk, for the use and benefit of the Lift One Lodge Project for purposes of constructing, operating, using, maintaining and accessing parking garages; 10. Grant of a perpetual subsurface easement beneath a portion of relocated South Aspen Street for the use and benefit of the Lift One Lodge Project for purposes of constructing, operating, using, maintaining and accessing a snowmelt system; and 11. Grant of a perpetual access easement across Lot 1 for the benefit of the Aspen Skiing Company. 12. The final application shall include legal descriptions of all land to be vacated and dedicated and a combined total acreage of such land in order to facilitate the implementation of the uses outlined in the site plan and Conceptual Approval attached hereto as Exhibit B. City Council Reso No. 52, Series of 2009. Page 5 of 13 13. The vacations and dedications shall become effective upon the recording of the Street Vacation and Right-of--Way Dedication Plat and the Development Agreement for the project. 14. In addition to the foregoing, the City of Aspen public right-of--way known as Dean Street, a/k/a Deane Street, is hereby officially named and designated Deane Street (with an "e"), and this spelling shall be reflected in the various Plats and Agreements recorded pursuant for this project. E. A proposed Development Agreement which sets forth a description of the subdivision improvements and other amenities required, including the following: 1. The relocation of South Aspen Street and associated sidewalks; 2. The installation and/or relocation of all utilities and drainage facilities depicted and described on the Master Utility and Drainage Plan. Drainage facilities shall be coordinated with the City Engineering Department and shall comply with the City of Aspen Engineering Department. Rights-of--Way shall be repaved as necessary; 3. Deane Street right-of--way improvements, including sidewalks; 4. The design of the Deane Street right-of--way improvements for that section of Deane Street between the South Aspen Street and Monarch Street rights-of--way shall be coordinated with the City of Aspen Community Development, Parks, and Engineering Departments. All, or a portion, of the $250,000 allocated to Deane Street improvements by Ordinance No. 32, Series of 2005 (the Chart House contribution) may be used for the design and implementation of these improvements. 5. The landscaping of South Aspen Street and other public rights-of--way. The Applicant will be required to use structural soils where anon-compacted continuous root zone cannot be provided. These soils will be required within the City Rights of Way and/or as may be required on the private property. Structural Soils aze applicable in situations where tree rooting potential is insufficient in designated planter azeas adjacent to sidewalks. Tree Lighting, electrical conduits must comply with City of Aspen standards; 6. The new Lift lA lift and other improvements to facilitate access to the lift from South Aspen Street; 7. The surface lift from Willoughby Pazk to the Lift lA Base Area Development Envelope. The Agreement shall reference and exhibit approval provided by the State of Colorado Tramway Boazd regazding the alignment and development setbacks for the new surface lift; 8. 50 subgrade public pazking spaces beneath azeas to be depicted on the Street Vacation and Right-of--Way Dedication Plat; 9. Public locker facilities. Public locker facilities shall be available in a transpazent, non- discriminatory manner on a seasonal basis via a valley wide lottery. Seasonal rental rates shall not initially exceed $300 subject to an annual increase of 3% or the CPI, whichever is greater. Locker rental agreements shall prohibit assignment and subrental; 10. A Ski Museum located in Willoughby Park; City Council Reso No. 52, Series of 2009. Page 6 of 13 11. The relocation of the volleyball courts currently located in Willoughby Park; 12. Improvements to Willoughby Park; 13. An allocation of the responsibilities for the ongoing maintenance of said improvements and amenities; 14. The Agreement shall define and describe the perpetual use of the public open space as a ski corridor; I5. The Development Agreement shall include a Transportation Management Plan that requires the Lift One Lodge Project to participate in the City of Aspen Transportation Options Program. This participation shall include, but not be limited to, lodge shuttle service, subsidized employee RFTA passes, participation in the City of Aspen car sharing program, on-site bicycles for use by employees and guests and specific marketing materials regarding the array of mobility options available to guests. F. A detailed timeshare/membership operational plan. The final application shall include representations regarding efforts that will be made to optimize occupancy and to report occupancy rates after the third and fifth years of operation. The final application shall include implementation agreements that assure the City that lodge rooms will not be priced in a manner so as to prevent rental to the general public. The plan shall require a substantial amendment review upon conversion of fractional units to whole ownership units. The plan may allow an administrative amendment review for the conversion of whole ownership units to fractional units. G. An architectural character plan showing the character and materials of proposed buildings. This may be a model, digital model, detailed elevations, or renderings. Representations of view will include the view up the ski corridor from Lift One, from the ski azea down towazd Lift One, and up Aspen St. from Deane St. A form of 3-D model is recommended. H. A landscape plan that includes a description of the green roof system and operations/maintenance associated therewith. A formal vegetation protection plan shall be required with building permit application. An approved tree permit will be required before any demolition or access infrastructure work takes place. A detailed excavation plan may be required for work in the vicinity of certain lazge trees. Further review and detail of excavation distances is necessary. All right-of way improvements shall meet city codes. Final layout of the plantings and pazk designs require Pazk Department approval. Additional detailed comments are included in the Development Review Committee minutes of April 11, 2007. I. A drainage report and grading & drainage plan developed using the criteria and specifications of the City Engineer. This analysis must account for critical uphill off site basins and must consider downstream facilities and whether these facilities are sized appropriately. Attention should be paid to the design of surface drainage from the snowmelt system where it transitions to Durant Avenue to avoid any water runoff to non-snow melted surfaces at the intersection of Durant and Aspen Streets. J. A detailed civil plan showing the geometric design for grading improvements to Lift lA and South Aspen Street, including an accessible path to primary lodging, commercial and restaurant uses, and the snow surface, vehicle fuming radii, garage entrances, shuttle staging and skier drop-off areas. City Council Reso No. 52, Series of 2009. Page 7 of 13 K. An operations plan for the public pazking garage including ownership of the facility, ticketing, hours, and fees. L. A service operations plan showing truck delivery routes, expected demand, and expected scheduling. M. The Applicant shall comply with the City of Aspen Water System Standazds, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Deparhnent. Utility placement and design shall meet adopted City of Aspen standazds. Special consideration for utilities in relation to snowmelt shall be considered prior to final approval as indicated in the Development Review Committee minutes of April 11, 2007. N. A draft construction schedule and Construction Mitigation Plan. Section 3: Financial Assurance The final application shall include a proposal to secure the landowner's performance on a final approval and conditions thereon and remediation costs where appropriate. The Applicant shall work with the Community Development Director and the City Attorney to develop the draft plan prior to submission. Final approvals shall be granted upon a finding by the City Council that the public interest is protected against possible financial burdens of completing public infrastructure, public amenities, project amenities where a significant public interest exists, and costs for safety and aesthetic remediation of an incomplete or abandoned development site, which shall include authorization for accessing the property. This proposal shall include definitions of these terms, a process for monitoring performance and releases of performance securities, and remedies for the City and the Landowner. Upon final approval, the amended proposal shall be incorporated into a Development Agreement between the City and the landowner and appended to the Subdivision/PUD Agreement. Section 4: Public Restaurants and Aares Ski Deck The final application shall provide assurances that public access to restaurant and apres ski deck aze maintained and that any change in use would require approval by City Council. Section 5: East Lodge Setbacks The final application should evaluate the feasibility of a greater than required by Code setback of the lodge's east wing location in relation to the eastern property line and the Cazibou and Silver Shadow Condominiums for skier access to the condominiums by potentially allowing a zero lot line along Lift 1 Pazk to provide a greater setback adjacent to the property line shared with the Cazibou Condominiums. Section 6: Willoughbv Park Willoughby Park should be an active pazk. The museum location should be evaluated to consider a transit drop-off/group gathering area neaz the museum. The final application should address how the existing volleyball courts will be accommodated and timing of court City Council Reso No. 52, Series of 2009. Page 8 of 13 replacement. Off-site replacement courts shall be coordinated with and obtain approval from the Parks Department. Parks staff requests that the Applicant consider the feasibility of a dedicated maintenance/storage facility for the use by the Department in the Willoughby parking gazage design. The purpose of this facility will be for the storage of maintenance vehicles used for maintenance of Pazks Facilities located within the Core of Aspen. The final application shall include a proposed operating plan for ski area operations on City of Aspen park land that has been reviewed and approved by the Pazks Department. The plan shall include a requirement that Aspen Skiing Company, its successors or assigns ("ASC"), through and by agreement, license, and/or easement with the Projects' owners and the City of Aspen, regularly groom and maintain the snow conditions in the surface lift corridor from Willoughby Park to the Lift lA Base Area Development Envelope. Typically the maintained snow base and surfaces in the corridor shall consist of natural snow accumulation and at all times during the ski season shall be subject to ASC's operational management, controls and closures at ASC's sole discretion for safety, functional and related reasons. However, subject to the physical limitations of weather, temperature, and technical or mechanical constraints normally associated with artificial snowmaking, grooming and snow management, ASC shall make, move, spread, groom and prepare a base of artificial snow in the surface lift corridor at the beginning of each ski season in accord with its annual snowmaking and terrain opening plan. Section 8: Deep Powder Cabins Community Development staff request the Applicant and the Aspen Skiing Company continue to evaluate off-site options for rehabilitating and relocating the Deep Powder cabins pursuant to the October 7, 2008, letter provided by the Aspen Skiing Company, attached as Exhibit C. Section 9: Skiers Chalet Steakhouse and Lodge Buildin¢s Prior to redevelopment, the Skiers Chalet Steakhouse (a designated historic landmazk) and the Skiers Chalet Lodge (an "Ordinance 48" property) shall be maintained in a reasonable state of repair by its owner. Periodic access shall be afforded the City's Historic Preservation staff to view the condition of the buildings and to conduct follow up visits to ensure that the resources aze not becoming damaged through neglect. Section 10: Aspen Winternational-Alpine World Cun The final application shall include a plan that accommodates the annual Winternational event operations during and after construction that is acceptable to the local FIS event coordinator and the Aspen Skiing Company. Section 11: Energy The final application shall provide specific commitments to reduce cazbon-based energy demand and a commitment to measurements and verification of implementation of energy reduction strategies. The final application shall address reporting of energy demand after the third and fifth years of operation. The final application shall include additional information regazding the City Council Reso No. 52, Series of 2009. Page 9 of 13 energy requirements for the snowmelt proposal for South Aspen Street and strategies to mitigate such energy usage. The Applicant shall present an analysis of options ranging from snowmelting S. Aspen Street to utilization of mechanical maintenance and removal. hi the event the City of Aspen forms a renewable energy district, which can be reasonably expected to provide service prior to the recordation of the Development Agreement the Lift One Lodge Project shall agree to join such district. Section 12: Special Improvement District The final application shall include additional information regarding the potential creation of a Special Improvement District. To the extent the owners of the Lift One Lodge Project area elect to form a Special District to fund, construct, operate and/or maintain certain of these subdivision improvements and amenities, the details thereof shall be set forth in the Master Development Agreement. The Agreement shall provide that in the event either the Lift One Lodge Project or another project in the neighborhood is ready to proceed with its development ahead of the other Project, then that Project shall have the right to proceed on its own to form the Special District with the requirement that the other Project will join the Special District when it is ready to do so. If the Special District chooses to issue bonds for purposes of constructing improvements, and if the Special District has sold bonds sufficient in amount to cover the approved estimated cost of accomplishing the improvements undertaken by the Special District, the City agrees that such Special District funding shall be deemed adequate financial assurance from the Project owners for such subdivision improvements. In establishing the boundaries of and the real property interest to be included within the Special District, Lots 1 and 2 shall be included and all publicly- owned property and facilities, including publicly owned underground public parking, and owner occupied affordable housing units, shall be excluded Section 13: Measurements Height Due to the nature of this site and consistent with the approach taken in the review of this project, the maximum height for development within this project, shall be calculated and depicted in the final application as the maximum distance possible measured vertically from interpolated natural grade to the highest point or structure within a vertical plane. Architectural and mechanical appurtenances including but not limited to elevator overruns, mechanical equipment, antennas, chimneys, flues, vents, trellises; flag poles or similaz structures shall be separately depicted and not extend over ten (10) feet above the specified maximum height limit and be limited to areas fifteen (15) or more feet from exterior wall edge or parapet. Floor azea Due to the nature of this site and consistent with the approach taken in the review of this project, floor azea shall be calculated as that floor space within the surrounding exterior walls as measured from the outside face of structural sheathing. For any story that is partially above and partially below interpolated natural grade, only the floor space above the point at which interpolated natural grade crosses the subfloor elevation of that story shall be counted towards floor area. The tabulation shall include a separate measurement for decks, balconies, exterior stairways, gazebos, porches, landscape terraces and similar features. Section 14: Reconstruction Credits The following reconstruction credits have been verified by the City of Aspen and shall be credited towards the Growth Management Quota System allotment and affordable housing requirements of the Lift One Lodge Project. City Council Reso No. 52, Series of 2009. Page 10 of 13 A. A total of 38 lodging reconstruction credits consisting of 20 lodge units in the former Holland House Lodge; 101odge units in the former Skiers Chalet Lodge; and 8 lodge units in the former Skiers Chalet Steak House shall be credited against the Lift One Lodge Project's lodging GMQS allotment requirement. The 38 reconstruction credits shall equate to 76 lodging pillows for allotment purposes. B. One free market residential reconstruction credit located in the former Holland House Lodge shall be credited against the Lift One Lodge Project's free market residential GMQS allotment requirement. C. A commercial reconstruction credit of 3,374 squaze feet of net leasable area consisting of 2,429 square feet in the Skiers Chalet Steak House and 945 square feet in the Lift lA base structure shall be credited against the Lift One Lodge Project's commercial GMQS allotment requirement. The proposal exceeds the requirements for affordable housing mitigation based on proposed type and intensity of uses. A recommendation from the Housing Board is required during final review. Housing staff recommends that the affordable units at the lodge have assigned pazking. The Lift One Lodge Project will generate approximately 65 employees. The Project has committed to provide affordable housing mitigation for 100 percent of the net additional employees generated by the project. This exceeds the 60% requirement. The Project's employee generation is as follows. Lodge Bedrooms. The development of lodge units within the Lodge zone 34.5 Employees district generates 0.5 employees per bedroom. The Lift One Lodge Project contains 107 lodge bedrooms and has a lodge GMQS reconstruction credit of 38 bedrooms. The Project's 69 net new lodge bedrooms, therefore, will generate 34.Semployees. The Project's new net leasable commercial space of 5,613 squaze feet generates 18.4 Employees 18.4 employees The Aspen Skiing Company's new net leasable commercial space of 1,574 4.9 Employees squaze feet within the Project generates 4.9 employees. The Project's net new four free mazket residential units will generate 7.0 7.0 Employees employees Total Em loyees Generated 64.8 Em to ees Mitigation required at 100% 64.8 Employees The Lifr One Lodge Project's affordable housing mitigation shall be met with at least 40% of the requirement on site. The remaining affordable housing shall be provided with mitigation units within the Aspen Urban Growth Boundary. The Applicant reserves the right to submit an Employee Staffing Plan to the City to develop accurate employee generation calculations. Otherwise, amendments to the project prior to final approval shall use the above methodology for City Council Reso No. 52, Series of 2009. Page 11 of 13 calculating the affordable housing requirements. The final application shall include an agreement to an employee generation audit two years after operations have commence and an agreement to mitigate any shortage of employees or to obtain credits for any employee housing mitigation that is in excess of the actual generated employees. Section 16: Ground Stability Monitorint? An inclinometer shall be installed within 6 months of the conceptual approval (dependent upon ski area operation and weather limitations) and bi-monthly readings shall be provided to the City through the review of a final application to analyze any slope movement. The final approval may require continuation of the monitoring until or past issuance of a Certificate of Occupancy. The Final application shall include additional information and evaluation on uphill conditions including: off-site drainage, geo hazazds, stability issues and groundwater mitigation. Additional detailed comments aze included in the Development Review Committee minutes of April 11, 2007. Section 17: Sanitation District Requirements Service is contingent upon compliance with the District's rules, regulations, and specifications, which aze on file at the District office. An upgraded main sanitazy sewer line is necessazy to serve the proposed development; therefore a "Collection System Agreement" is required. Section 18: Environmental Health Deaartment The state of Colorado mandates specific mitigation requirements with regazd to asbestos. Additionally, code requirements to be awaze of when filing a building permit include: a prohibition on engine idling, regulation of fireplaces, fugitive dust requirements, noise abatement and pool designs. Additional detail is provided in the Development Review Committee minutes of April 11, 2007. Section 19: Scbool Lands Dedication and Impact Fees The Applicant shall pay all impact fees and the school lands dedication assessed at the time of building permit application submittal and paid at building permit issuance. Section 20: Conceptual Approval Approval of this conceptual development plan does not constitute final approval or permission to proceed with any aspect of the development. Approval of this conceptual development plan authorizes the Applicant to submit an application for a final PUD development plan in accordance with the City Council Resolution granting conceptual PUD approval. A final PUD application shall be submitted within two yeazs of the adoption of this resolution, unless otherwise extended or exempted. The Historic Preservation Commission previously granted Conceptual Approval for the relocation of the Skiers Chalet Lodge and the Skiers Chalet Steak House. The Lift One Lodge Project shall require final approval from the Historic Preservation Commission for both City Council Reso No. 52, Series of 2009. Page 12 of 13 relocations, limited to the extent of their purview, which shall be processed separately in accordance with the provisions of Chapter 26.415 of the City of Aspen Land Use Code. The one- yeaz limitation on submission of a final development plan to the Historic Preservation Commission and expiration of the Conceptual approval is hereby waived. Section 21: This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 22: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, adopted, passed and approved this day of , 2009. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor. Approved as to form: John P. Worcester, City Attorney Exhibit A - Property Descriptions Exhibit B - Summary of Conceptual Approval Exhibit C- October 7, 2008, Letter from Aspen Skiing Company regarding Deep Powder Cabins Ciry Council Reso No. 52, Series of 2009. Page 13 of 13 Exhibit B to Resolution No. 52, Series 2009 Summary of Conceptual Approval -Uses Lot 1, Lift One Lodge. The Lift One Lodge Project is a mixed use membership lodge/whole ownership project consisting of 27 lodge units, 5 free mazket residential units, affordable housing components, a maximum of 9,500 square feet of net leasable commercial space and a maximum of 250 sub-grade parking spaces. The Project's lodge component consists of one-bedroom, two-bedroom, three- bedroom and four-bedroom suites. Each bedroom within the lodge component will be separately keyed as a "lock-off' unit. For Growth Management Quota System purposes, the Project's lodge component will contain a total of 107 keys or sepazately rentable divisions. The Project's commercial component consists of a public restaurant, kitchen and bar; and various facilities for the Aspen Skiing Company, including, but not limited to, a ticket sales area, public/employee locker rooms, ski equipment sales, servicing, and rental, other skier servicing facilities, etc. The public restaurant, bar and kitchen will contain a maximum of 7,000 square feet of net leasable commercial azea. The Aspen Skiing Company's facilities will contain a maximum of 2,500 square feet of net leasable commercial area. The lodge will also include other guest service areas, facilities and ancillazy spaces and uses which aze not considered net leasable azea for Growth Management Quota System purposes. Lot 2, Skiers Chalet Steak House. The Skiers Chalet Steak House is a mixed use commerciaUaffordable housing building which will contain approximately 1,050 square feet of net leasable commercial space on its ground floor and a total of 5 dormitory affordable housing rooms on its second and third floors housing ten employees. An outdoor seating area will be provided adjacent to the building. The commercial space's net leasable area shall be identified in the Lift One Lodge Final Plan and individual Development Agreement. The Lift One Lodge Development Agreement shall also include a list of permitted uses for the commercial space, which list shall be derived from those uses permitted within the (NC), Neighborhood Commercial, zone district. Lot 3, Lift One Park. The utilization of the Lift One Pazk for skiing and open spaces purposes with the allowance for below grade pazking as a part of the Lift One Lodge. Lot 4, Willougbbv Park. The relocation of the Skiers Chalet Lodge to Willoughby Park as depicted in the site plan, and the use of the building for community purposes including, but not limited to, a historical museum and ancillary affordable housing or commercial space. There shall also be an entrance to the 50 public parking spaces that aze being provided within Lot 1. Lift lA Base Area Development Envelope The Lift lA Base Area Development Envelope for the uses, activities and improvements necessary, ancillary and incidental to the development, function, operation and maintenance of winter and summer recreation and a ski azea base, including, but not limited to the following: 1. Skiing, snowboazding, and other winter and summer recreational sports and activities; 2. Ski and snow sports racing, competitions, demonstrations, other special events, including supporting activities, facilities, improvements and infrastructure; 3. Ski lifts and mechanized uphill transportation, including all related improvements and equipment, such as lift terminals, towers, platforms, supporting or retaining walls and foundations, stairs, elevators, plaza spaces, lift mating, housings, roofs, and similaz structures, operator houses or lifr shacks and storage; 4. Ticketing sales and all necessary and incidental commercial skier services functions, facilities and equipment, including, but not limited to ski and equipment rental, lockers, public restrooms, offices, ski school facilities, emergency medical caze, and related activities and uses; 5. Making, clearing, removing, sculpting, grooming and maintaining snow and snow surfaces, together with all the infrastructure, deep and shallow utilities, and equipment and machinery necessary for performing the same, whether fixed or mobile; 6. Motorized vehicle access, use, and pazking, including snow grooming equipment as described above, as well as snowmobiles, emergency vehicles, wheeled vehicles, automobiles, service and support trucks and other vehicles routinely used in the conduct and performance of mountain recreation, operations, services, construction, supply, events and the permitted uses described herein or as permitted by this Ordinance in the adjacent Projects and properties; 7. Operational, commercial, interpretive, and informational signage reasonably necessary and/or incidental to the performance of other activities and functions described herein; 8. Any and all customary activities, equipment, housings, structures, and functions which may be necessazy, appropriate, ancillazy and/or incidental to the full use, practice and enjoyment of skiing and other recreational sports and activities, mechanized uphill transportation, and related business purposes and activities; and 9. Installation, staging, construction, maintenance, alteration, repair, operation, servicing, and replacement of all of improvements, structures, materials, landscaping and/or equipment described or contemplated herein. Parkin¢ Spaces and Parkin¢ Garaee The Lift One Lodge Project parking gazage shall be considered an approved commercial parking facility. Minimum pazking spaces to serve the Project shall be identified in the Development Agreement. Allocated spaces shall be identified on the Development Agreement (or the Final PUD Development Plans attached thereto). Allocated spaces shall not be sold or leased separate from the portion of the project to which they are allocated. Unallocated spaces may be leased by the owners thereof on a daily or longer- term basis, or may be sold to third parties. The parking spaces in the parking gazage shall be used for parking vehicles and accessory storage (such as ski storage at the head of a pazking space), and shall not be principally used for storage, trash containers, mechanical equipment, or other non-automobile related purposes. SNOWMASS ASPEN MOUNTAIN ASPEN HIGHLANDS BUTTERMILK A S P E N C~ S N O W M A S SA ASPEN SKIING COMPANY October 7, 2008 City of Aspen Historic Preservation Commission Via PDF f~ ~~ ~ ~d~ ~Xk+bt{~ G Re: Deep Powder Cabins Dear Commissioners: Thank you for your work and deliberations related to the Lift lA COWOP process. It has been an exciting endeavor with an important outcome. I am the Senior Vice President of Aspen Skiing Company ("ASC") and authorized to make the commitments set forth in this letter. In connection with the redevelopment of the 1 A area, it will be necessary to relocate the Deep Powder cabins which have been temporarily stored on the site. The Deep Powder cabins aze not currently designated historic structures. ASC is willing strictly as an accommodation, to endeavor to utilize one of the cabins as a lift shack at the bottom of the relocated 1 A lift provided that necessary mechanical and electrical equipment for the lifr will fit in the structure. ASC is also willing to attempt to locate one other Deep Powder cabin somewhere within the boundary of Aspen Mountain Ski Area as a picnic and warnting structure, in a location to be determined. Both of these uses are subject to review and approval by local jurisdictions and potentially the United States Forest Service. ASC will not accept the Deep Powder cabins if they are historically designated. If the proposed uses are approved by governmental units having jurisdiction, ASC will utilize the cabins for approved uses and maintain them in serviceable condition. In the event ASC, in the future, determines to either significantly modify or demolish either of the cabins then in use, ASC will give the Historic Preservation Commission staff at least ninety days advance notice of such plans. ASC will give the City of Aspen the opportunity to remove and relocate the cabins within such ninety day period, at the sole expense of the City. If the City does not exercise such right to remove the subject cabin then ASC shall have the right to modify, relocate or demolish the subject cabin in its sole discretion. If the terms of this proposal are accepted by the Historic Preservation Commission and the City, ASC will relocate the cabins in the Spring or Summer of 2009. Please feel free to call with questions or for further discussion. Very tru urs, - __~ Davi . Be Senior Vice President P.0. Box 1246 Aspen, CO 81612.1248 970.925-1220 www.asp ensnowmass.com ® vnmea m varxa rca. SNOWMAS5 ASPEN MOUNTAIN ASPEN HIGHLANDS BUTTERMILK General Counsel cc: Bob Daniel John Sarpa Peter King David Corbin P.O. box 1248 Aspen, CO 81612-1248 970-925.1220 www.asp ensoowma ss.tom ASPENC~SNOWMASSn ASPEN SKIIN6 COMPANY ® vNaw v~ uauee r.os. MEMORANDUM ~' -' ~~ ~:;' TO: Chris Bendon, Community Development Director Mayor Ireland and Aspen City Council Members FROM: Bob Daniel, Roaring Fork Lodging Company RE: October 26 Aspen City Council Meeting -Lift One Lodge DATE: October 19, 2009 Baclcaround At the July 27 Aspen City Council meeting, we presented the Lift One Lodge Conceptual PUD plan and provided a brief overview of the differences in outcomes generated by the COWOP citizen planning process for the east side of South Aspen Street. After reviewing master planning goals from our neighborhood-based work and the larger COWOP effort, City Council directed our team to work toward updating the Lift One Lodge PUD application in order to incorporate aspects of the COWOP plan. At the August 11 Aspen City Council meeting, we discussed the thinking behind the COWOP plan and the importance of the green corridor and lift from Willoughby Park to the ski area in that plan. We asked the Council to identify any fatal flaws in those trade- offs prior to revising our plan for detailed review. At the September 14 Aspen City Council meeting, we presented the amended Lifr One Lodge proposal. At that meeting we presented the uses proposed in each of the five buildings in the master plan and the number of floors and general height information using absolute heights. We also explained access to and from the site, parking, and the use plan and lock-off design than has been developed in order to optimize occupancy. At the September 22 Aspen City Council Meeting, we took a walking tour to the site. The open space/green corridor was walked through the site while noting the footprints of the buildings and heights. At the September 28`h meeting we went through the architectural components of the project and the modifications that have been made since City Council and the community have seen the Lift One Lodge. At the October 13 meeting we presented the lodge's sustainability approach with regards to the environmental, social, and economic spheres. Included in the discussion was a commitment to pursuing LEED Gold certification, measuring and verifying energy reduction measures during operations, transportation benefits and impacts, and our approach to creating aeconomically-viable lodging product with hot beds under the City of Aspen Timeshare regulations. Lift One Lodge Memo to Aspen Ciry Council October 26, 2009 Given the number of items planned for the October 26th agenda, we are not expected to make a formal presentation. The submittals for this meeting have been provided to staff and address the issues that we had planned to present: dimensional standards, zoning and additional council issues. Timeshare standards and financial assurances were discussed at our October 13 meeting and are addressed in the language incorporated into the staff prepared Resolution for the Conceptual PUD Application. The Conceptual Approval Resolution would usually include a list of requirements for submission in the final application. Given our previous experience, with the previous Council, to crafr language that met Council requirements, we are including limited portions of the COWOP Ordinance 34 of 2008 in the Resolution in order to memorialize those efforts. Additional language from that Ordinance is expected to be used in the final application, particularly related to financial assurances. At the October 26 meeting: ° City staff will introduce a Drafr Resolution to approve the Conceptual PUD and associated actions. Number of Kevs Our original PUD application included the living rooms as separately rentable lock-offs (much like a studio unit) in order to allow the greatest flexibility and diversity in keys. We viewed these keys as a method to offer additional public rooms when our members were not using the suites. Our COWOP-based proposal dropped those keys for no particular reason. The rooms were still designed and laid out as to allow the living room to serve as a free standing key with separate access and a bathroom. Given the discussion at the October 13th meeting with Council regarding diversity of product and the desire to maximize rental rooms on the site, we are proposing to restore those keys to our overall proposal for the Lifr One Lodge. This inclusion increases the total number of keys from 80 to 107 and offers yet more diversity relative to the combinations of accommodations that can be offered to owners as well as the general public. The employee generation and related affordable housing requirements have been increased in our submittals to reflect this increase in keys. Lod¢in¢ Availability and Occupancy One of the discussion points with Council has been our desire to rent rooms when not in use by owners. Council members sought assurance that we would not avoid public access by pricing rooms in a manner that was not in alignment with the market for similar rooms. A second Council discussion topic related to reporting on the occupancy of the units so that in the future, the City would be able to assess the success of fractional ownership units in achieving high occupancy goals. In consultation with staff, we have proposed the following language in the Resolution to address this: Lifl One Lodge Memo to Aspen City Council October 26, 2009 The final application shall include representations regarding efforts that will be made to optimize occupancy and to report occupancy rates after the third and fifth years of operation. The final application shall include implementation agreements that assure the City that lodge rooms will not be priced in a manner that prevents rental to the general public. Visual Representations Councilman Torre has requested visual representations up Aspen St. and down Aspen St. from the ski area. In consultation with staff, we have proposed the following language in the Resolution to address this: An architectural character plan showing the character and materials of proposed buildings. This may be a model, digital model, detailed elevations, or renderings. Representations of view will include the view up the ski corridor from Lift One, from the ski area down toward Lifr One, and up Aspen St. from Deane St. Public Access Councilman Skadron has stated that maintaining accessibility and assuring follow through on representations are important to successful implementation of the master plan. While most of these issues are addressed in the final application, we wanted to call out one particular issue that has yet to arise, in order to assure Council of our intent to follow through on representations and maintain community accessibility. In consultation with staff, we have proposed the following language in the Resolution to address this: The final application will provide assurances that public access to restaurant and apres ski deck is maintained and that any change in use would require approval by City Council. Conclusion In 2006, we submitted acode-compliant lodge for our property that was based upon what we needed to create a successful project. That project received Conceptual Approval from the Historic Preservation Commission and Planning and Zoning Commission. The unique opportunity to Zook at a master plan along with the property across the street led us into the COWOP process with the City and Centurion Partners in 2008. A split vote led to no action on that proposal and ultimately termination of the COWOP plan. We reactivated our PUD plan and returned to Council this year seeking direction as to whether to continue with review of the PUD plan or to amend the plan to incorporate some of the innovations from the COWOP plan. Council directed our team to incorporate COWOP elements and did not identify any deal-killers in the trade-offs required to implement those elements. The amended application is largely the COWOP plan on the Lift One Lodge Memo to Aspen Ciry Council October 26, 2009 east side of S. Aspen Street, inclusive of all of the public benefits being provided by the Lift One Lodge. Approval of the Conceptual PUD would allow our team to develop the detailed technical information and agreements required for final application. Developing that information will require significant investment of human and financial resources. There will be many issues to address and agreements to create. At this point, we are all asked to assess whether this is the right plan to work towards. Our team is committed to the successful implementation of the COWOP master plan for the east side of S. Aspen St. We look forward to final direction on the Conceptual PUD from City Council. Lift One Lodge Memo [o Aspen City Council Oc[ober 26, 2009 MEMORANDUM TO: FROM: SUBJECT: DATE: Chris 13endon, Director Aspen Community Development Department Sunny Vann, AICP ~~~~ ~ ~ ~ p~ -~ Amended Lift One Lodge Conceptual PUDlTimesharc Application October 16, 2009 Attached hereto for your information is the revised Development Data table for the Lift One Lodge conceptual PUD/Timesharc application. I have also attached copies of the Parcel Identification Map, Proposed Lotting and Zoning Plan, Cotceptual Development Plan, Conceptual Landscape Plan, Roof Height Plan, and Conceptual Elevations of the project's upper lodge, lower lodge and east lodge components. While the number of lodge units remains unchanged, the key count has increased from 80 to 107. The increase is due to the Applicant's proposed inclusion of the units' living areas as separately rentable rooms. This approach is consistent with the original application and is intended to address the City Council's desire to maximize the general public's rental opportu- nities. We will discuss this approach in more detail at the October 26 Council meeting. The proposed increase in the project's key count will also increase the lodge's employee genera- tion and associated mitigation requirement by 13.5 employees. The project's revised employee generation, therefore, is approximately 65 employees (i.e., SI.3 employees + 13.5 employees). The project's 27 lodge suites and 107 keys comply with the "incentive Lodge" provisions of the L, Lodge, zone district and the City's growth managemem regulations. The 27 suites will contain a total floor area of approximately 58,378 square feet which results in an average unit size per key or separately rentable division of approximately 545 square feet. The lodge will also contain one key or separately rentable division per 467 square feet of "Lot Aren ". As a result, the proposed lodge compiles with the Lodge zone district's minimum density requircttxnt of one unit per 550 square feet of lot area and its maximum average size limitation of 550 square feet per unit for incenive lodge development. Planning and Zoning Commission approval, however, will be required to increase the average unit size from 500 square feet per unit to 550 square feet as provided for in the Regulations. As the attached table indicates, the revised lodge also complies with all of the floor area limitations for an Incentive Lodge with the exception of non-unit space. The lodge's non- unit space exceeds the maximum allowed by approximately 6,543 square feet. The addition- al square footage can be attributed primarily to the enclosed elevated walkways that connect the various lodge components and to the increased circulation required to provide separate access to the lodge suite's lockout rooms. Variations form the underlying zone district will also be required to accommodate some of the lodge's setbacks, its height at various points and, as currently configured, its on-site affordable housing units. The zone district regulations in effect at the time the original conceptual application was submitted required a minimum of 3,000 square feet of lot area per dwelling unit. As a result, the lodge's 24 on-site affordable housing units would require a minimum lot area of 72,000 square fat which exceeds Lot 1's lot area of 49,916 square feet. It should be noted, that this requirement was subsequently eliminated from the Lodge zone district for affordable housing units and is arguably, therefore, tw longer applicable. With respect to Lot 2, the relocated Skiers Chalet Steakhouse complies with all of the dimensional requirements of the NC, Neighborhood Commercial, zone district with the exception of its affordable housing floor area limitation. A maximum of 1,440 square feet of affordable housing floor area is allowed while approximately 2,594 square feet is proposed. Please note, however, that the total floor area proposed on Lot 2 is less than the maximum allowed. J: \olJc\bus\Mncs\menfi0506.cb~ Table 2 DEVELOPMENT DATA Lift One Lodge 1. Site Area (Sq. Ft.) 128,994 2. Parcels' Parcel A Parcel B Parcel C Parcel D Parcel E Parcel F Parcel G Parcel H Right-of--Ways Summit Street' Hill Street' Gilbert Street= South Aspen Street= Existing Zoning 100,286 10,917 11,914 11,983 7,700 9,756 5,383 6,823 35,810 3,652 9,265 4,891 10,900 C, Conservation L, Lodge P(H), Park, Historic C, Conservation L, Lodge L, Lodge C, Conservation, L, Lodge, and P(H), Park, Historic Parcels A, B and C Parcels D, E and F Parcels G and H Summit Street Hill Street Gilbert Street South Aspen Strcet 3. Existing Reconstruction Credits Lodge Units Parcel D Parcel E Parcel F Dwelling Units Parcel D Net Leasable Commercial Area (Sq. Ft.) Parcels B and C Parcel F 38 20 10 8 1 3,374 945 2,429 4. Minimum Required Lot Siu (Sq. FtJ L, Lodge, Zone District 3,~ NC, Neighborhood Commercial No Requirement PUB, Public, Zorte District Established via PUD 5. Proposed Lot Siu (Sq. Ft.) Lot 12 83,481 Lot 2= 2,880 Lot 3 6,823 Lot4 35,810 6. Proposed Zoning Lot 1 L(PUD), Lodge, Planned Unit Development Lot 2 NC(H)(PUD), Neighborhood Commercial, Historic, Planned Unit Development Lot 3 PUB(H)(PUD), Public, Historic, Planted Unit Development Lot 4 PUB(H)(PUD), Public, Historic, Planned Uttit Development 7. Proposed Lot Area (Sq. Ft.~ For Density Purposes Lot 1 49,916 Lot 2 2,880 For Floor Area Purposes Lot 1 50,360 Lot 2 2,880 8. Minimum Required Lot Width (Fat) L, Lodge, Zone District 30 NC, Neighborhood Commercial No Requirement PUB, Public, Zone District Established via PUD 9. Proposed Lot Width (Feet)` Lot 1 500 Lot 2 80 2 Lot 3 51.9 Lot 4 250 10. Minimum Required Lot Area/Dwelling Unit (Sq. Ft.) L, Lodge, Zone District Multi-Family Residential 3,000 Lodge No Requirement NC, Neighborhood Commercial, Zone No Requirement District 11. Minimum Required Lot Area (Sq. Ft.) Lot 1 24 Affordable Housing Units ~ 72,000 3,000 Sq. Ft./Unit Lot 2 S Affordable Housing Units ~ 15,000 3,000 Sq. Ft./Unit 12. Minimum Required Setbacks (Fat) L, Lodge, Zone District Front Yard 5 Side Yards 5 Rear Yard 5 NC, Neighborhood Commercial, Zone District Front Yard 5 Side Yards 5 Reaz Yazd 5 PUB, Public, Zone District Established via PUD 13. Proposed Setbacks (Feet)S Lot 1 Front Yard 0 North Side Yard 5 South Side Yard 0 Rear Yard 14 3 14. 15 16. 17. Lot 2 Front Yard North Side Yard South Side Yard Rear Yard Lot 3 Lot 4 Front Yard East Side Yard West Side Yard Rear Yard Maximum Allowable Height (Feet Lot 1 Sloped Roofs Flat Roofs Lot 2 Proposed Height (Feet) Lot 1 Lot 2' Lot 3 l.ot 4' Minimum Required Pedestrian Amenity Spaces Maximum Allowable Floor Area Ratio L, Lodge, Zotte District9 Lodge Units° Commercial Uses° Affordable Housing Units° Non-Unit Spaceb Free Market Residential Unitsb NC, Neighborhood Commercial Commercial Uses Affordable Housing Units 4 6 9 8 0 Not Applicable 53 19 3 0 38 42 32 See Height Plan 32 Not Applicable 32 None 2.5:1 2:1 0.25:1 0.25:1 0.5:1 25 Percent 1.5:1 1:1 0.5:1 PUB, Public, Zone District 18. Maximum Allowable Floor Area (Sq. Ft.) Lot 1 Lot 2 Lodge Units Commercial Uses Affordable Housing Units Non-Unit Space Free Market Residential Units Commercial Uses Affordable Housing Units 19. Proposed Floor Area (Sq. Ft.)10 Lots 1 Lodge Units Cotnmereial Uses Affordable Housing Units Non-Unit Space Free Market Residential Units Lot 2 Lot 4 Commercial Uses Affordable Housing Units Museum 20. Minimum Required Parking Spaces" Lodge Units ~ 0.5 Spaces/Unit12 Commercial Uses ~ 1 Space/1,000 Sq. Ft. Net Leasable Affordable Housing Units ~ 1 Space/Unit Free Market Residential Uses (~ 1 Space/ Unit 21. Proposed Parking Spaces Lodge Units Commercial Uses Established via PUD 125,900 100,720 12,590 12,590 25,180 31,475 4,320 2,880 1,440 116,779 58,378 2,634 3,649 31,723 20,395 2,594 None 2,594 4,320 98 54 10 29 5 250 54 10 S Affordable Housing Units 29 Willoughby Park/On-Street Replacement 50 Lodge Members 107 ' Based on the Improvement Surveys prepared by Sopris Engineers, LLC, dated October 16, 2006. = Based on preliminary takeoffs prepared by Poss Architecture and Planning. ' Excludes vacated alleys on proposed Lots 1 and 2. Calculated pursuant to the definition of lot area contained in Section 26.575.020.0. of the Regulations. ` Measured congruent with the front yard setback line. ' Measured to the face of the closest building facade to the applicable property line. b For timeshare lodge projects with one or more lodge units per 500 square feet of lot area and an average lodge unit size of 500 square fat or less. Measured to the ridge of the roof. The project site is located outside of the area in which the pedestrian amenity standard applies. For parcels greater than 27,000 square feet. 10 Calculated pursuant to the definition of floor area contained in City Council Resolution No. ', Series of 2009 granting conceptual PUD and timeshare approval to the Lift One Lodge project. For parcels located within the Aspen Infill Area. 1z Pursuant to Section 26.590.E.1. of the Regulations, the parking requiremem for timeshare lodge developtent is calculated based on the underlying zone district's parking standard for lodge uses and the maximum mtmber of lock-out rooms in the development. d: \oldclbus4i \y. app\nls5(1506. ~b2 6 W W 1' N v z \ \ llwwns 133a1S IIIH 6 133a1S 1x38119 :z ~ a :: ~.. ;:i:j'' H i i i i <~<:<~: ~:~ y s :::::9::: ::: .i::: :::y'~i W a i~ ~{ 4 i i i . :. i 12- i. i 133a1s Nvnr!>; 4 i i 4 F i 4 4 • O .~G 173i1ti NRI' ~o ~ 0 E n ~ }TTT~ d o, L' ~ O ~a Wp fW O~ GJ Wu C 6 ~: OQ ee - :r ;{ ~n ~E NC: d- 1332115 Ntl34 t f ' t , i 9 ' 4 ` \ ` t O (./ / C J ~/~~ / I J L ~ O /~ ~~ .o ~ ` d~ ~"- o ~ ~a =RA ~ ~R t7 . Z O O O 0 ~. W~ :? 3• - ji e: ` t ~. e k~ \ ~ 9 ~ ~el9 ~--85~ i~ ^~ 1 3 i. ~.` ~~ f f~ ~~ i 9 .~.~ .Y: ~r.Y„- ,. :l~_'/f o~ ~e J i ~ C J ~- 4 ~~ 6~ i Wn ~~ W~ P~ W ~Im ~~ $~ ~~ i= N •;N 1: 1 ~s ~r ~' ~~ ~' .. ~ . ~~~~~ ~~ ~~ ^o t= ~A v gp ~~ F s P r y ~ R ~ ~Q$ O SO. i 7 ~~ I ~_ooo aop a~r 0 I f iQ a \\ ~o ~~ ~~ ~ ~~ 0 _, ~g N= W~ QO J t 6 W V Z u f: ~o~ .~ .: ~_ 6 d 0 J ~~ N ~4 .~ z ~_ N W J t f s W V 0 V ri u G ~:1 J ~'i~n !:'V'~r '? I '..'~~,* ~~1..~ i. ~t'.r-. _t. _a~ .. r.. ~. ~~5.'~.C'! yG i ... ~ ~~ a ~~ d J ~s ~~ ~a• R J J H s W V V 7 :~~ ,~., ~~ ,; ,; s: ''i 4 t 0 m 9 ti C r •O paQlm 12 r ~~ ~ 8~ ~ o }~ ~a°a vt~ e MEMORANDUM TO: Mayor Ireland and City Council FROM: Sara Adams, Historic Preservation Planner THRU: Chris Bendon, Community Development Director ~~~~ RE: The Wheeler Opera House Expansion (320 East Hyman Street) -Conceptual Planned Unit Development -Resolution No. 78, Series 2009 -Public Hearing (continued from September 28t"~ MEETING DATE: October 26, 2009 SPECIAL NOTE: This staff report is a supplement to the September 28`h memo. It contains the following: • Staff recommendation & motion. • Three new iterations for the facade, Exhibit E. • Wheeler Staff submitted a cost analysis, Exhibit F. The September 28th memo is included for reference at the end of this update. SUMMARY: At the September 28`h hearing for the addition to the Wheeler Opera House, Council expressed concern over financial aspects of the proposed project and the architectural direction of the addition and its relationship to the historic Wheeler Opera House. The applicant submitted three new facade iterations for the addition in an effort to illustrate three different architectural avenues for the project. Council is asked to approve a Conceptual PUD plan that vazies the allowed height in the Commercial Core Zone District from the allowable 42' to 51'2" to construct an access stairway for the sole purpose of maintaining the green roof and solaz panels proposed for the rooftop. STAFF RECOMMENDATION: In reviewing the three new iterations for the addition, Staff finds that the massing is appropriate for the site, but questions if the architectural direction enhances the existing Wheeler. Whether through replicating the punched window openings on the facade (Scheme 3), creating a horizontal emphasis with materials to mimic the banding courses of the historic Wheeler (Scheme 2), or breaking up the facade into three vertical sections similar to the historic Wheeler (Scheme 1), the different proposals attempt to create a relationship between the historic building and the new addition; however Staff finds that these azchitectural relationships need to be further developed to fit into the context of the historic Wheeler. The Civic Master Plan finds that October 26, 2009 Wheeler Concept. PUD Page 1 of 8 "as a signature building, the Wheeler Opera House engages people by creating a powerful sense of character that reflects Aspen's roots and history. As the city's focal point for arts and culture, the Wheeler conveys an equal sense that the community is alive and evolving, and continues to celebrate its core identity as a center for arts and culture." The resolution included with this is written in the affirmative, approving the Conceptual PUD plan, as presented on September 29`h, with a variation in height for an access stairway for the sole purpose of maintaining the green roof and solaz panels proposed for the rooftop. During the September 29`h meeting, Staff recommended approval of the Conceptual PUD plan based on the finding that the mass, scale and height aze appropriate while also recognizing that the azchitectural details, materials, fenestration and design, among other crucial issues, were not resolved and needed to be addressed in detail by HPC, P & Z and Council during the Final Review processes. The design team clearly illustrates how the same massing can be transformed with material, architectural detail and fenestration changes to create different relationships to the historic Wheeler and its context. Council will need to determine whether the direction of the proposal(s) as presented is acceptable at this point in the process. RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMATIVE: "I move to approve Resolution No. 78, Series of 2009, approving with conditions, the Conceptual PUD plan for an addition to the Wheeler Opera House." CITY MANAGER COMMENTS: ATTACHMENTS: Staff Memo, September 28, 2009 Resolution 78, Series of 2009 A -Conceptual PUD Review Criteria, [provided in September 28, 2009 packet.] B -Planning and Zoning Commission Resolution 12, Series of 2009, [provided in September 28, 2009 packet.] C -Planning and Zoning Commission and Historic Preservation Commission meeting minutes dated June 24, 2009, July 8, 2009 and August 4, 2009, [provided in September 28, 2009 packet.] D - DRC comment, September 28, 2009, [provided in September 28, 2009 packet.] E -Proposed Drawings October 15, 2009 F -Cost Analvsis October 26, 2009 Wheeler Concept. PUD Page 2 of 8 MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Sara Adams, Historic Preservation Planner THRU: Chris Bendon, Community Development Director DATE OF MEMO: September 17, 2009 MEETING DATE: September 28, 2009 RE: 320 East Hyman Avenue, aka The Wheeler Opera House - Conceptual PUD Review APPLICANT (OWNER: City of Aspen REPRESENTATIVE: Wheeler Opera House, 320 East Hyman Avenue, Aspen, CO represented by Gram Slaton, Executive Director, Wheeler Opera House; Farewell Mills Gatsch Architects, LLC; and Rowland + Broughton Architecture and Urban Design. LOCATION: Lots P, Q, R and S, Block 81 City and Townsite of Aspen, CO, commonly known as Wheeler Opera House. CURRENT ZONING & USE Located in the Commercial Core (CC) Historic District, a National Register Historic and local landmazk containing a four story arts and cultural facility with commercial spaces on the ground floor. PROPOSED LAND USE: The applicant requests approval to construct an addition to the western side of the Wheeler Opera House to expand the existing arts and cultural facility. PLANNING AND ZONING COMMISSION RECOMMENDATION: The Planning and Zoning Commission recommended Conceptual PUD approval. STAFF RECOMMENDATION: Staff recommends that the City Council grant Conceptual PUD approval with conditions for Final PUD Review. REQUEST OF CITY COUNCIL: The Applicant requests of the City Council Conceptual PUD approval. October 26, 2009 Wheeler Concept. PUD Page 3 of 8 BACKGROUND: • Project Summary: The applicant proposes an addition to the historic Wheeler Opera House to expand its current Arts, Cultural, and Civic use, add administrative offices and meeting rooms, and to construct one affordable housing unit for an onsite employee. Five iterations were presented to the Planning and Zoning Commission (P&Z) concurrent with the Historic Preservation Commission (HPC) reviews during the last few months. The Commissions recommend that City Council adopt a Conceptual PUD plan that varies the allowed height in the Commercial Core Zone District from the allowable 42' to 51'2" to construct an access stairway for the sole purpose of maintaining the green roof and solar panels proposed for the rooftop. The proposed FAR is below that allowed in the Commercial Core Zone District for Arts, Cultural and Civic Uses; furthermore, the application meets all required setbacks. The proposal includes: ^ Basement space: 2 subgrade levels for new performance space and associated uses. The existing basement spaces converted to storage/tenant. ^ ls` floor: Loading dock and utilities on the alley, new lobby, box office and circulation. The existing lobby converted to tenant commercial space. Historic grand staircase preserved. ^ 2"a floor: Lobby space, multi-purpose room, bathrooms, mechanical. The existing lobby remains largely the same. ^ 3`a floor: 1 bedroom (585 sq. ft.) affordable housing unit for employee, offices, lobby. The existing Opera house stage and theatre remain largely the same. ^ Rooftop: Green roof and/or photovoltaic panels. Table 1: Dimensional Table: grey highlight indicates a requested variation from the CC requirements. CC Zone District Existing Proaosed Maximum Development Development Re uirements Lot Size 12,000 s . ft. No change pro osed No requirement Front Yard (south/ 0 4' for the addition No requirement H man Setback y ) 0' for existing bld . Front Yard (east/ Mill) 0' no change proposed No requirement Setback West Setback 60' 0' No requirement October 26, 2009 Wheeler Concept. PUD Page 4 of 8 CC Zone District Existing Proposed Maximum Development Development Re uirements Rear Yard Setback 0' 0' No requirement > : ,> ~~ ~~ ~ 55' 7" to the cornice, ~ ~-~ stux ~ ' Height about 71' to highest ~ ' ~ 42 point ~ scrlt~. 2.75: 1 or 1.72:1 or 2.67: 1 or 000 sq. ft. 33 Total , 20,655 sq. ft. 32,094 sq. fr. cumulative maximum Floor Commercial 1.28:1 or 1.65:1 or 2:1 or 24,000 sq. fr. Area Use 15,386 s . ft. 19,816 sq. ft. Ratio Affordable n/a 0.21:1 or 2,521 s q• No requirement. Housing ft• Arts, Cultural 0.44:1 or 5,269 sq. 0.81:1 or 9,757 sq. 2.75:1 and Civic Use ft. fr. Approved by HPC and P&Z via Commercial Design Standard Public Amenity Space Review. The Commissions found that the entire building is a Public Amenit , ursuant to Section 26.575.030.0.4. Established through Special Review during Final Review processes Off Street Parking at HPC, 0 arking spaces are ro osed. Lot History: The Wheeler Opera House is arguably Aspen's premiere iconic building. It was financed by prominent businessman Jerome Wheeler in 1889 and has withstood Aspen's Quiet Years, a few significant internal fires, a rebirth by the Paepcke's with an interior remodel by famed Modern architect Herbert Bayer and an interior historic restoration and modern update in the early 1980s. perseverance and renaissance that define Aspen's history. The subject parcel is a 12,000 square foot lot that comprises four (4) traditional city lots located within the Commercial Core Historic District. The existing historic Wheeler Opera House is located on the eastern 6,000 square feet of the lot. To the west of the Wheeler October 26, 2009 Wheeler Concept. PUD Page 5 of 8 This building embodies the grandeur, parcel is the historic Motherlode building that contains a recently constructed three story addition on the alley. • Previous Actions: P & Z and HPC, acting as one review board, granted Conceptual Commercial Design Standard Review which is binding upon the Commissions in regards to the location and form of the envelope of the addition, including its height, scale, massing and proportions. The Commissions found that the entire building is a public amenity space in lieu of the traditional public amenity space defined by the Land Use Code (i.e. open to the sky, no walls or enclosures, etc.) During the Commercial Design Review, Planning Staff recommended public access to the roof because there are very few, if any, rooftop spaces downtown that are accessible to the public and provide an unobstructed view of the environment that the viewplane regulations protect. Staff found that capitalizing on the rooftop space contributes and enhances the downtown experience and meets both the Civic Master Plan and the AACP. After multiple meetings and iterations, P & Z and HPC decided that the visual impact of the infrastructure required for rooftop access outweighed the need for a community space/fourth floor, and approved a Conceptual plan with a green roof/solar panels on the roof and no public access. • Public Outreach: The applicant has engaged the public in one informational session on Monday, April b, 2009. An open house was held at the Rowland + Broughton office on July 29, 2009 and a phone survey about the project was conducted in August. Staff strongly recommends that the applicant continue to involve the public during the development and refinement of the project through informational sessions, hand outs, and other various forms of public outreach. DISCUSSION: Conceptual Planned Unit Development (PUD) for the development of a site specific plan: City Council is asked to grant Conceptual PUD approval, pursuant to Land Use Code Chapter 26.445, after considering a recommendation from the Planning and Zoning Commission. Conceptual PUD review before the City Council is the second step in a four step review process. Once heard by the Commission, the City Council reviews the application and recommendations of the Commission at a public hearing. If approved by City Council, the Applicant may then make an application for Final PUD review before the Planning and Zoning Commission (step three). City Council will then consider the Final PUD application as the fourth and final step in the review. Additional land use approvals necessary for this project include: Certificate of Appropriateness for an addition to a historic landmark (HPC), Commercial Design Standard Final Review (joint review by HPC and P&Z), Growth Management Review for an Essential Public Facility (CC) and Growth Management Review for the Development of Affordable Housing (P&Z.) As represented in the application, there is a lot of program proposed for the expansion. The Civic Master Plan (CMP) recommends that "Future uses at the Wheeler Parcel should: • Accommodate as many additional needs of the local arts community as possible • Improve the operational function of the Wheeler Opera House • Contribute to improvements in the daytime administrative office and box office October 26, 2009 Wheeler Concept. PUD Page 6 of 8 • Contribute to the Wheeler's ability to present more live performances and to improvements in production capabilities." Staff finds that the CMP is largely met with the proposed program, which conforms to the floor area requirements for Arts, Cultural and Civic development in the Commercial Core. The Aspen Area Community Plan (AACP) states that the "City of Aspen will continue to be an innovative leader in arts, culture, and education" and will "make educational, cultural, and artistic experiences more accessible for all valley residents." Developing an Arts, Cultural and Civic building in downtown Aspen is integral to this mission statement. The Wheeler expansion and proposed versatile interior spaces will foster a diversified arts and cultural experience in the downtown core. The requested height variation for a maintenance stairway provides access to the solar panels and green roof that are proposed to help off-set the environmental impacts of both the proposed addition and the existing building. Staff finds that the Conceptual PUD plan demonstrates consistency with the CMP and AACP Transportation: The applicant suggests a list of steps to mitigate for the projected impact of the new venue including: staggered start times when two events are planned, advertising parking and alternate transportation options, discount parking vouchers for the Rio Grande parking garage, etc. A detailed Transportation Plan is required to be submitted with the Final PUD application that studies pedestrian and traffic circulation. Pazking requirements will be established by HPC through the Special Review during Final HPC Review. Housing: One single bedroom affordable housing unit is proposed onsite. The applicant is working with the Housing Department regarding employee generation rates and mitigation. Employee generation rates for an Essential Public Facility will be established by the Planning and Zoning Commission and mitigation will be approved by City Council after Conceptual PUD approval is granted. Historic Preservation: HPC found that the proposal, at a conceptual level (mass, scale, proportion), met the Historic Preservation Design Guidelines for an addition to a landmark. Concerns were raised about the relocation of the primary entrance into the addition and the impact of the entrance on the prominence of the historic Wheeler Opera House. The original entrance is the faz western double doors on the Hyman Street elevation, which aze currently used as an exit from the theatre. Staff consulted with the Building Department about egress requirements to determine if there were alternate solutions. Basically, it boiled down to a decision between using the original historic entrance as a secondary entrance/exit or removing the historic grand stairway to meet Building Code requirements. HPC, P&Z and Staff found that preserving the historic grand stairway outweighed trying to utilize the historic entrance as a primary portal to the performance spaces. REFERRAL AGENCY COMMENTS: The City Engineer, Zoning Officer, Building Department, Aspen Sanitation District, Housing Department, Utilities, Transportation Department, Pazking Department, Environmental Health Department, Fire Department and the Parks Department have all reviewed the proposed October 26, 2009 Wheeler Concept. PUD Page 7 of 8 application and their requirements have been included as conditions of approval when appropriate. RECOMMENDED ACTION: "In reviewing the proposal, Staff finds that the project meets the applicable review criteria for approval of a Conceptual PUD plan. The proposal is consistent with the goals of the AACP and the CMP by designing an addition that meets programmatic needs of the Wheeler and community arts groups while preserving the prominence of the historic Wheeler Opera House. Staff recommends approval of the Conceptual PUD request with conditions." PROPOSED MOTION: "I move to approve Resolution #~, Series of 2009." October 26, 2009 Wheeler Concept. PUD Page 8 of 8 RESOLUTION N0. 78 (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING CONCEPTUAL PLANNED UNIT DEVELOPMENT FOR THE PROPERTY LOCATED AT 320 EAST HYMAN AVENUE LOTS P, Q, R, AND S, BLOCK 81, CITY AND TOWNSITE OF ASPEN, COLORADO, COMMONLY KNOWN AS THE WHEELER OPERA HOUSE. Parcel ID.• 2737-073-38-851. WHEREAS, the Community Development Department received and application from the Wheeler Opera House, 320 East Hyman Avenue, Aspen, CO represented by Gram Slaton, Executive Director, Wheeler Opera House; Farewell Mills Gatsch Architects, LLC; and Rowland + Broughton Architecture and Urban Design requesting Conceptual approval for a Planned Unit Development (PUD) plan for an addition to the existing Wheeler Opera House; and, WHEREAS, the subject property, the Wheeler Opera House is a local landmark located in the CC, Commercial Core Historic District; and, WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire Protection District, Envirortmental Health Department, Parks Department, Parking Department , Aspen/Pitkin County Housing Authority, Public Works Department and Transportation Department as a result of the Development Review Committee meeting; and, WHEREAS, said referral agencies and the Aspen Community Development Department reviewed the proposed Conceptual PUD and recommended approval with conditions; and, WHEREAS, pursuant to Section 26.445 of the Land Use Code, Conceptual PUD approval may be granted by the City Council at a duly noticed public heazing after considering recommendations by the Planning and Zoning Commission, the Community Development Director, and relevant referral agencies; and, WHEREAS, Conceptual PUD review by the Planning and Zoning Commission requires a public heazing and this application was reviewed at a public hearing on August 4, 2009 where the recommendations of the Community Development Director, the Aspen Historic Preservation Commission and comments from the public were heard; and, WHEREAS, during a regular meeting on August 4, 2009, the Planning and Zoning Commission opened a duly noticed public hearing to consider the project and recommended City Council approve the Conceptual Planned Unit Development by a five to one (5-1) vote, with the findings and conditions listed hereinafter; and, WHEREAS, the Aspen City Council has reviewed and considered the Conceptual Planned Unit Development during a duly noticed public heazing on September 28, 2009 continued to October 26, 2009, according to the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Development Director and the recommendation of the Planning and Zoning Commission, and has taken and considered public comment at a public hearing; and, City Council Resolution No. 78,Series 2009. Page I of 4 WHEREAS, the Council finds that the development review standards for a Conceptual PUD have been met, which includes height variation of 51' 2" measured to the top of the stairway corridor that provides rooftop access solely for maintenance purposes as long as certain conditions are implemented; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council approves the Conceptual Planned Unit Development for an addition to the western elevation of the Wheeler Opera House, subject to the conditions listed herein. Section 1: The approval is subject to the following conditions: 1. The Final PUD application shall include: l) An application for Final PUD application and the proposed development is further subject to Final PUD Review, GMQS Review, Commercial Design Standard Final Review, and Major Development Final Review for a Historic Landmark pursuant to the Municipal Code. Apre-application conference with a member of the Community Development Department is required prior to submitting an application. 2) Delineation of all dimensional provisions to become requirements of the PUD 3) A proposed PUD plan. 2. Prior to submitting an application for a Final PUD, the applicant shall make the following revisions to the development proposal: 1) Historic Preservation. Additional locations for the existing mechanical equipment on top of the Wheeler Opera House will be submitted as part of the Final PUD application. 2) Pedestrian/Public Use, Connections/Experience. Include a study of Pedestrian and Bike circulation and movement in the area to be provided. 3) Parking. A trip generation study and traffic impact study of the area with American Association of State of Highway Transportation Officials (AASHTO) numbers to be provided. Section 2: Building The final design shall meet adopted building codes and requirements if and when a building permit is submitted. Section 3: Engineering Final design shall be compliant with all sections of the City of Aspen Municipal Code, Title 21 and all construction and excavation standards published by the Engineering Department. Detailed plans of drainage and utilities must be submitted as part of the Final PUD application. Section 4: Housing The final design shall be compliant with all section of the City of Aspen Municipal Code, Title 21. The Applicant commits to working with APCHA regarding employee generation rates and City Council Resolution No. 78,Series 2009. Page 2 of 4 employee mitigation to be reviewed and approved during the Growth Management for an Essential Public Facility public hearings. Section 5: Fire Mitigation All codes adopted by the Aspen Fire Protection District shall be met. This includes but is not limited to access (International Fire Code (IFC), 2003 Edition, Section 503), approved fire sprinkler and fire alarm systems (IFC, as amended, Section 903 and 907). Section 6: Transportation A detailed Transportation Plan shall be submitted as part of the final PUD application. The operation plan should include the information listed in the Development Review Committee minutes and comments from July 22, 2009. Section 7: Public Works The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Utility placement and design shall meet adopted City of Aspen standards. Existing building connections may need to be abandoned and/or updated to meet current standards. Section S: Sanitation District Requirements Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. Section 9: Environmental Health The state of Colorado mandates specific mitigation requirements with regard to asbestos. Additionally, code requirements to be aware of when filing a building permit include: a prohibition on engine idling, regulation of fireplaces, fugitive dust requirements, noise abatement and pool designs. Trip generation rates must be calculated pursuant to the standard Institute of Traffic Engineers Trip Generation rates and submitted as part of the Final PUD application. Additional detail is provided in the Development Review Committee minutes of July 22, 2009. Section 10: Exterior Lighting All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor lighting. Section 11 • School Lands Dedication and Imaact Fees The Applicant shall pay all impact fees and the school lands dedication, if applicable, assessed at the time of building permit application submittal and paid at building permit issuance. Section 12: Parks A formal vegetation protection plan shall be required with the building permit application. An approved tree permit will be required before any demolition or access infrastructure work takes place. Further review and detail of excavation distances is necessary. All right-of way improvements shall meet city codes. Final layout of the plantings require Park Department approval. Additional detailed comments are included in the Development Review Committee minutes of July 22, 2009. Section 13: This Resolution shall not affect any existing litigation and shall not operate as an abatement of City Council Resolution No. 78,Series 2009. Page 3 of 4 any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 14• If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, adopted, passed and approved this 26`h day of October, 2009. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor. Approved as to form: John P. Worcester, City Attorney Exhibit A -Elevations and site plan. City Council Resolution No. 78,Series 2009. Page 4 of 4 Cx~;~iit ~ TO: Mayor Ireland and Council FROM: Gram Slaton, Executive Director THROUGH: Randy Ready, Assistant City Manager DATE: 12 October 21x19 RE: Summary of Wheeler Opera House Needs Assessments and Expansion Studies SUMMARY: The purpose of this memo is [o present in a single document a summary of known Needs Assessments related to [he Wheeler Opera House. As indicated below, there are many well- documented facility and space needs that can be met by expanding the Wheeler and providing a better working theatre building that will accommodate the Aspen-area arts community. DISCUSSION: Expansion of the Wheeler Opera House has been a subject of discussion since at least 1974. The reasons for an expanded Wheeler can be roughly divided into two categories, which are interrelated: To provide the venue with sufficient square footage in order to have a full inventory of theatre usage, storage, and office space, as well as leasable space that could be used to support the cost of operations, and To provide afull-service venue for the Aspen arts community, with sufficient space and facilities to fully realize their work. In chronological order, these reports include: "The WJteeler Plus An Aooroach To The Development Of Performing Arts Facilities For Ads en And The Roarinu Fork Valley. " Arts Development Associates (Minneapolis). October 1979. This master planning document was the culmination of nine months of investigation by the authors into the entire north-valley arts scene during 1978 and 1979. At 113 pages, it examines the case for a renovated and expanded Wheeler in the context of a multi-venue plan that also includes development of the Galena Street Mall area with a 900-seat theatre. Within the context of these two possible venues, [he Wheeler was seen as the more active one, with ayear- round presence, but also secondary to the proposed 900-seat theatre. According to the summary note at the beginning of the report, the authors conducted 135 meetings with city representatives, arts groups, and general public in Aspen, the Roaring Fork Valley, and elsewhere in the state, to determine the need and possible usage of old and new facilities in Aspen. A further poll was taken of ski-season guests through a 2,264-piece mailing conducted over the winter months, with a 32% return rate. Upon development of some facility expansion options, five public workshops were held in July 1979, with a consensus of opinion measured at the end of the fifth meeting session, divided into two recommendations: • A need for asmall-to-medium sized facility that would service the needs of a variety of community arts, educational, and cultural organizations, estimating approximately 200 nights of usage per annum; • A need for amedium-to-large sized facility that would allow the creation of impressive series of events for the winter and summer peak season, as well as a home for an Aspen-based dance company and a possible conference center. Plans for the Wheeler, based on these meetings and consensus opinion, were that the Wheeler should follow one of two possible courses in what would become the 1983-1984 renovation: • Option 1: The Wheeler should be restored and remodeled with athree-story addition on the two adjacent lots (now known as the Wheeler parcel), plus development of a 1,200-seat facility for summer-only usage; or • Option 2: The Wheeler should be minimally restored and remodeled without additions, plus a new 900-seat year-round theatre should be developed elsewhere. • A caveat to this plan was that if the additional theatre did not prove feasible, then the concentration should be on expanding the Wheeler with athree-story addition. • A further caveat as an immediate course of action recommended that the Wheeler be restored as soon as possible, with a 6,000 square foot two-story basement addition, above-ground combined passenger/freight elevator, and the rest of the parcel restored as green space and terrace for the Mother-ode Restaurant. If a decision was made not to construct the 900-seat theatre, the plan for athree-story addition to the Wheeler should be revived. After study of financial pro-formas for the various scenarios, the group participating in the fifth meeting (where consensus was formed) "had no sentiment" for Option 1 and clearly favored Option 2; however, they also seriously questioned the ability to raise the funds required for a new theatre's construction and operation, and therefore ultimately chose Option 1 without the development of a 1,200 summer-only facility. A restored Wheeler with athree-story addition became the consensus choice. It is significant to note that of the participants in the five workshops, fully one-half of the attendees were arts or arts-related people. [A list of participants is included in the report. } "Master Plan Parameters Far The Historic Restoration And Renovation Of The Wheeler Block Aspen. Colorado. "Ham Weese & Associates (Chicagol. October 1979. Appazendy working at the behest of Aspen City Council, this sister report to the Arts Development Associates report provided a thorough study of the existing Wheeler and the authors' architectural recommendations for an approach to its renovation and expansion. Much of the report covers Wheeler history and recommends architectural standards for historic-theatre renovation. The significant portion of this report is a paragraph found on Page 57: • ... A three-floor addition should be constructed to accommodate the new demands [from user groups]. It can be built on the 30' x 100' vacant lot fortuitously adjacent to the west. This area has already been targeted by the Wheeler Task Force for the expansion, and the building itself was designed to accommodate a structure on its west elevation. (Two lots are available here, but to acquire both would not only be expensive, but luxuriously out of proportion with the scale of the 450-seat opera [house].) "Wheeler Opera House Program Analvsis "William Kessler And Associates. Inc.. Mav 1980. This report was done as part of a final needs analysis prior to the renovation. It engaged an eleven-person Renovation Commission composed of Aspenites including Richard Cohen, Howell Mallory, Tom Isaac, and Jon Busch. The program for the renovated Wheeler included a restored 500-seat historic theatre and a 150- seat multi-purpose room. The plans show a very roughed-out series of drawings that intend to use half of the Wheeler Parcel for an expanded facility that includes a basement level, space uses appropriate for a producing theatre, and an apartment. The height of the proposed Wheeler expansion at this juncture has it topping out just below the eave of the roof, indicating afour- story structure. The report contained a letter memo from theatre consulting firm Roger Morgan Studio, which served as the theatre and systems designer for the project. In the letter Mc Morgan states: "Additional space on the adjoining property must be acquired to provide the additional square feet which will be necessary to complete the design. I do not see any way in which the theatre can be brought up to an adequate operational level without this addition. " The report also contained a letter memo from acoustician Gerald Marshall of Klepper Marshall King, also on board for the renovation project, which states: "Finally, the shortage of ancillary theatre-support space represents a serlous deficiency (not acoustical), and we strongly encourage an addition to the building to create such space. " "Wheeler Opera House Schematic Design "William Kessler And Associates. Inc., Aueust 1980. A follow-up report to the above gives a more detailed approach to its plans for the 1983-94 Wheeler renovation. On Page 2, it states: "An addition to the existing building has been designed for the adjacent lot which contains critical building and theatre services. An open space has been provided in front of this addition in order to maintain the visual prominence of the existing Opera Hause fafade. " "Needs Assessment -Wheeler Opera House "Rebecca Reynolds Consultine. January 2000. This needs assessment was executed as a result of the renovated Wheeler having been in operation for fifteen years and questions regarding how well it was performing and what improvements were needed. The concentration was on the existing structure and not in pursuit of information that would support a Wheeler expansion; still, a number of the comments from users, staff, and board circled back to the need for an expanded building that would provide much needed space. Its purpose was `Yo better understand and quantify the needs of the renters, their perceptions of the facility's effectiveness, their use of its space and equipment, as well as their dreams and desires for the future. "This was the first critical study done of the facility since 1979. Thirty representatives of groups currently using the Wheeler were interviewed to provide information for the survey, as well as Wheeler staff and board. 27 organizations were engaged, representing 69% of the total number of organizations that used the Wheeler at that time. Interviews took place in October and November 1999, with a final report to the Wheeler board in December 1999. Specific findings of the report include the following: • Wheeler box office: °Generally comments reflect that this space is too small, too much is going in it, and that it is a confusing presentation to the public ... the box office function, the patron lobby function and the Visitor's Center function are all compromised by each other. Traffic flow, pre-opening of house, and public perception are all a problem in this overcrowded space. " • Wheeler 2°d floor lobby: "Due to the Wheeler's general space limitations, respondems would like this space available for other purposes (meetings, rehearsal, etc.), but feel current fees for this are prohibitive. Staff/board comments note that space is not large enough to accommodate a full house of patrons during intermission. " • Concessions bar: "Comments indicate a concern over the size of the bar, that it is not big enough to handle patron demand .... " • Rehearsal space: "Thirty-five percent had extreme interest in rehearsal space and another 17% expressed same interest, for a majority of 52% expressing interest at some level. " • Storage space: "Fifty-six percent expressed some interest in additional storage space, with 16% of these expressing extreme interest and 19% moderate interest .... Comments agree that the storage that is needed on-site is for 'stuff needed during a remer's run, but that large-scale storage ... is not needed. " • Parking: °The majority of respondents (63%) expressed interest in a parking garage of some kind, with 35% of these expressing extreme interest. " • Marquee: "Sixty-six percent of respondents expressed interest in a marquee of some sort, with 35% of them expressing extreme interest. " • Flexible space: "Twenty-eight percent expressed extreme interest in a multi- purpose space, and an additional 30% expressed interest, for a majority of 58% interested .... Like parking, comments reflected a multitude of ideas and needs for this space, from saying there was no need for it on-site to saying the Wheeler ought to start planning a west wall expansion immediately. " In her summary comments, the author wrote "The largest single concern of respondents regarding the Wheeler was an issue that the survey did not directly address: there is not enough space .... Of the 27 interviewee responses to what their top priority issue was, IS of them involved more space .... Although the ratings indicate overall satisfaction with the Wheeler as a venue, the commems suggest that the Wheeler's ability to be the primary venue for such a wide array of users may not in fact be working so well. The question is, with actual and current use growing all the time, for haw much longer will this situation work?" Four choices were then suggested for a future direction concerning these pressures: a) Do nothing, b) limit use of the Wheeler, c) expand the Wheeler, and d) construct a new venue off-site. 2000 Aspen Area Community Plan City OfAsoen Staff February 2000. The 2000 plan makes direct mention of the importance of the arts in the fabric of Aspen life, and establishes Arts & Culture (along with Education) as deserving of its own independent section of the planning document In the vision statement for the 20(10 plan, it states "The arts and culture of our valley should continue to encourage local creators as well as to import celebrity talent. " The philosophy expressed by the writers of the 2000 plan towards arts and culture included a desire to a) develop and cultivate local artists, b) foster artistic, cultural, and educational experiences where artists and audiences interact, and c) recognize the extent to which arts, culture, and education strengthen and stabilize our year-round economy. Arts Community Surveys Wheeler staff 2004. After the defeat of the 2004 ballot issue regarding the Wheeler's possible purchase of the Motherlode property, the Aspen City Council charged Wheeler staff with the creation of a 21s' Century Master Plan, in order to once again assess the venue's viability as an existing theatre for its user groups and measure whether or not a Wheeler expansion was warranted. While no formal document was ever assembled, the interview notes show that nearly all of Aspen's community-based arts groups were included in an interview process that was conducted by Wheeler staff and board members. As part of this process, Tom Baker of Baker & Associates was hired [o facilitate public Process Meetings. Because the Endowment Fund, created two years before in 2002, was considered by the board at that time to not be appropriate to use for a Wheeler expansion, the conversation from staff side towazds user groups was focused on needed changes in the historic venue. A Wheeler expansion at that time was thought to only be desirable and achievable through a capital campaign that funded the project entirely with contributions and other outside moneys. According to a memo dated May 15, 2004, From Wheeler executive director Nida Tautvydas to Mr. Baker, "Since before the 1984 renovation and restoration, plans and discussions have included the need for a Wheeler Annex .... The 2000 Needs Assessment (surveying 27 local arts organizations) as well as direct feedback I have received from community members, arts organizations and staff focused mainly on the need for more space in general. " The memo then lists 41 desired improvements, with fourteen of these points being items that could only be satisfied by a Wheeler expansion. Thus, even with the conversation aimed primarily towards the 1889 venue, user groups and staff could not make a thorough list without including primary-need items that required a Wheeler expansion: • Additional small performance space(s) • Additional dressing rooms • Scene shop or expanded facility shop space • Storage for technical gear, soft goods, materials, renters needs, facility archives, etc. • Public meeting spaces • Larger and/or additional lobby space(s) and exhibit space • Production offices • More staff office space • Staff meeting space • More restrooms • Catering facilities • Expanded box office facilities and lobby • Multi-purpose space • Rehearsal space Wheeler Opera House Or¢anizational Audit Genovese Vanderhoof & Associates. Julv 2005. Upon the resignation of the Wheeler's Executive Director in March 2005, the 21s` Century Master Plan interviews quickly came to a halt. Dory Vanderhoof of Genovese Vanderhoof & Associates (GVA) was hired at the direction of City Council to conduct an organizational audit, in order to achieve a deeper understanding about how the Wheeler was performing for its user groups and what actions might be taken to help correct existing problems. User groups were invited to participate in interviews with Mr. Vanderhoof, in order to help define a better working organization, particularly in terms of governance, access, and community partnerships. Old issues that had been raised in many previous reports, such as the limited availability of dates, uncomfortable patron amenities, and dysfunctional support systems (such as box office software and phone lines) were underscored again. Much of the report is focused on the need for a restructuring of the senior administration, in order to clear the logjam that prevented the stafF from working on anything other than immediate needs. While mention of a Wheeler expansion was not a part of this report, it is clear that the shortcomings highlighted in the two previous reports as well as this one showed a lack of ability by Wheeler staff to create a fully-working facility, let alone take on the responsibility of accommodating additional artistic and community needs. Arts Sector Facilities Survev~ Summary Of Responses Citv of Aspen Community Development Department. February 2006. Steered by Ben Gagnon of City ComDev, the purpose of this survey and summary was to determine the need for a new arts and presentation facility in Aspen, as part of preparatory work for the City's "Civic Master Plan" (see below). The survey was sent only to major arts group producing events in Aspen, with nine organizations participating. Venues were subjectively assessed on a variety of criteria (size, availability, affordability, comfort, etc.). While the information that can be mined from this snapshot from three-plus years ago may or may not be applicable to venue improvements today (i.e., complaints about the Wheeler's seating have since been rectified), the solid information for our purposes comes in the form of this summary statement regarding "Space Needs:" "The survey asked Local arts groups which type of space they need the most. The greatest need was for performance/presentation space (40%), followed by educational programming (36%), pre-event staging and preparatory space (19%) and administratdve space (S%). " It is also significant to note that of the fifteen venues cited for consideration in this survey, the Wheeler far exceeded all others in terms of use over the past ten years, and current or future user of venues in Aspen. "The Arts In Aspen.• Do We Need More Space? "Michael Stronr. AuQUSt 2006 At the request of the Assistant City Manager and the Wheeler board of directors, an independent arts consultant was brought to Aspen for six days in June 2006 to conduct further interviews with members of the arts community to again test the need for additional space for their purposes as well as to determine the viability of a Wheeler expansion. Nearly all of the executive directors or general managers of active arts groups in Aspen were interviewed in this process. The Strong report was broken down into the following areas: • Program Expansion [for arts groups] • Can Present Facilities Be Improved? • The Future Of The Aspen Arts Scene • Synergistic Relationships • Does Aspen Need A New Live Performance Facility? In the author's conclusion, he states "The Wheeler Opera House ... should continue to develop relationships with all users and improve the current services it provides to those users .... I feel any attempt to develop the adjacent site purely for Wheeler-promoted programming and without consideration for the needs of other arts organizations ... would be perceived as primarily self- serving. Any plans to expand the Wheeler into the 'Wheeler Parcel' should only be done in conjunction with a comprehensive plan for exploring all possible redesign and expansion of the existing facility, and with an eye towards partnerships that will severely limit or eliminate the threat of significant dark periods for all of its performances and usage spaces. " Civic Master Plan Citv Of Asoen. 2007. This report, which is the result of six years' work, repeatedly included the Wheeler and its parcel as part of a desired plan for focusing efforts in the upcoming years. As stated in the document's preamble, "... we can explore the possibilities for the Wheeler Parcel that show the community is alive and evolving -and conrinuing to celebrate its core identity as a center for arts and culture. " The 24-member Civic Master Plan Advisory Group included six arts professionals, including five executive directors of Aspen arts groups (including the Wheeler). The report notes that in 2005, "the CMPAG recommended an information-gathering effort entitled the Arts Sector Facilities Analysis to help answer the question.• Is a new shared-use arts facility needed in Aspen?" An entire portion of Section II of the report is dedicated to exploring possibilities for the future of the Wheeler parcel, with the following statement "The CMPAG recommended that the development of the Wheeler Parcel should: • Accommodate as many additional needs of the local arts community as possible. • Improve the operational function of the Wheeler Opera House. • Contribute to improvements in the daytime administrative office and box office • Contribution to the Wheeler's ability to present more live performances and to improvements in production capabilities. The CMPAG found that, 'Future development at the Wheeler Parcel may increase operational flexibility and the number of annual productions at the Wheeler Opera House. /ncreased production capability could add a new element to the upcoming Arts Sector Facility Analysis. "' It is significant to point out that the CMPAG's expression of interest in a Wheeler expansion is often couched in terms of how it would support many of the eight Civic Master Plan Core Principles, especially the first ("Civic & Arts/Cultural uses belong in the heart of town") and last ("Arts and Culture is an intrinsic asset"). Meetings With Arts And General Community Robert Schultz and Wheeler Staff March and Aoril 2008. As an additional effort to gather community input on a Wheeler expansion, the Wheeler engaged consultant Robert Schultz to assist in three public meetings in the spring of 2008. Wheeler staff presented a history of the 21" Century Master Plan effort to-date, and Mc Schultz led a discussion with those in attendance. Approximately ninety members of the public came to these three meetings, with Aspen's arts leadership well represented. Vazious elements of a possible Wheeler expansion were presented, and out of the public input Wheeler staff took several new directions on the preliminary assessment of spatial needs for the possible expansion. Summary points from these meetings would include: • General consensus about the theatre and spatial needs direction, in agreement with the direction that Wheeler staff was taking • Mixed opinion on the inclusion of housing for staff or resident artists. Some felt strongly that housing should be included, while other felt strongly that it should not. • General consensus that the street-level space where the box office is presently located should become high-traffic commercial space, whether for afor-profit business or for a combined gifr shop or other arts-benefitting retail purpose Concern about the green space at the south end of the Wheeler parcel, and preservation of public amenity space Meetin s With Arts Communi Farewell Mills Gatsc Februa 2009. Shortly after they were selected and put under contract as the Wheeler's architectural team for the Pre-Design & Planning stage of development for the 2151 Century Master Plan, a team from Farewell Mills Gatsch Architects LLC came to Aspen to continue the dialogue with the Aspen arts community, including measuring their needs and compiling "wish list" items to put in the possible expansion building. Six arts groups managers, one professional promoter, and one independent artist met with Alison Baxter of FMG over the course of three group meetings towards the end of January 2009. The direction of [he conversations was to achieve each group's best sense of needs that would go into the limited footprint available, if possible. It was through these conversations that Wheeler management as well as the FMG had a better sense of how some spaces needed to work together, and also how to better define certain spaces that had been planned conceptually but were in need of better fleshing-out. Throughout these meetings, FMG staff endeavored to make certain that arts groups understood that the prospective Wheeler expansion was intended to serve local arts groups' needs to the maximum extent possible. Comparison With Other Venues. Wheeler Staff September 2009. In an overview for City Council for consideration at its September 29 meeting to consider conceptual approval for the Wheeler expansion, the following overview of other venues in Aspen was presented, as evidence that, despite there being a significant number of public-meeting venues in Aspen, those venues did not offer the availability or facilities of the Wheeler Opera House. In sum, the venues were: • Harris Hall (approx. S00 seats) and the Aspen Music Festival Tent (approx 2,000 seats). Owned and operated by the Music Associates of Aspen, Harris Hall and the Festival Tent are used primazily by the Aspen Music Festival and School, and only recently have they made the venue available during the ten weeks of summer for partnership situations with other area not-for-profits. In the winter, the Festival Tent is closed and Harris Hall is available as a four-wall rental, but without any support staff (technicians, box office, front of house) and only on a limited basis. Built with classical music rehearsal and performance in mind, and later retrofitted with a movie screen for film exhibition, Harris Hall does not lend itself well to theatrical or amplified music uses. Winter usage is impacted by Harris Hall's remote location relative to the downtown core, and parking requires that a lot be plowed and kept open, which often requires an additional fee. • Paepcke Auditorium (approx 300 seats). Owned and operated by the Aspen Institute, Paepcke Auditorium is another limited-use four-wall situation without support staff or flexible technology for true performance-venue purposes. It offers a convenient seating size for most Aspen arts groups' smaller-hall needs, but offers no wing space or variety of technology for much beyond lecture or film exhibition programming. Paepcke also is removed from the downtown core, which can cause traffic and parking problems in the West End. Paepcke does not have its own box office. • The Given Institute (190 seats). The Given Institute is owned by the Regents of the University of Colorado and operated under the supervision and direction of the School of Medicine. Its auditorium is "in the round" and limited to speaker/lecture presentations and private events; it would not serve as a theatrical or concert space easily. It also features a library that can seat 30 at a long boardroom type table, and three breakout rooms that can accommodate up to 30 people in each space. It has limited technical support and no box office facility. • The District Theatre (approx 500 seats) and Black Box (99 seats). Owned and operated by the Aspen School District, these facilities are primarily for educational purposes, with a fair amount of access for arts group usage especially in the summertime. Neither space offers true backstage amenities (particularly dressing rooms), and both come as four-wall rentals without support staff other than a resident technician. Scheduling for outside groups is secondazy to school purposes, which are increasing. The 500-seat District Theatre is an excellent stage for dance and musical theatre, with acceptable wing space, depth, and a fly loft. The Black Box is as fundamental as the name implies, and its seating is limited at 99. These theatres are located well outside the downtown core, although they do have the benefit of a large parking lot for users and patrons. Neither space offers its own box office services. • Belly Up Aspen (approx 400 standing capacity). The Belly Up is a privately owned and operated nightclub with a very small stage, without height, width, or depth, or formal seating area. While it is an excellent venue for live music (mostly amplified), it is a difficult venue for theatre, film (video) exhibition, or dance. The Belly Up is programmed by its owner for well over 300 days of the year, making usage by outside groups difficult to acquire. It does feature its own box office services and a full support staff. It is located in the heart of the downtown core, which is a major positive. • The flexible-use space at the Red Brick. Truly afour-wall space, the flexible-use room at the Red Brick holds classes, reheazsals, and occasionally serves as a screening room for various not-for-profits. It is in constant high demand, making increased availability unlikely. It offers no resident technology or support staff. While it could be used as a theatrical or concert venue, the lack of acoustical treatment in the space means that a user would need to bring in significant sound baffling and support. It also lacks seating and has no box office services. It is located in the downtown core, which is seen as a strong plus. City Council asked Wheeler staff to prepare a more in-depth analysis of the venues, and that work is underway; however, it is not ready for presentation at this time. The work so far does confirm that the above statements are reflective of information being received from venue management. SUMMARY AND RECOMMENDATION: Throughout the course of thirty-five years, there have been ongoing discussions among staff, planners and user groups about the need for improved and expanded performing arts space. At times, that conversation focused on improvements to the existing 1889 structure. At other times, the focus was on how best to use additional space. But throughout the discussion, the single constant refrain has been that the Wheeler is the entity that the community and most of the arts groups look to in order to fulfill their mission and present high-quality performances in the heart of Aspen. Wheeler staff recommends that City Council consider the extensive length, breadth and depth of conversations, needs assessments and facility analyses over the past three and a half decades as evidence that there continues to be the need fora Wheeler expansion to create the kind of arts crucible that will better satisfy the broad array of Aspen-based arts groups, as well as further distinguish Aspen as the nation's most unique resort community. In [he end, the most persuasive quote is perhaps the simplest, written at the very beginning of this process in January 1975, in a letter from Christopher Jaffe of Jaffe Acoustics to Edgar Stem, We president of the Music Associates of Aspen board of directors. It is as true today as it was 34 years ago: ... We are of the opinion that a renovation program that does not include the construction of new ancillary facilities in a tower core or underground, will not increase production capabilities to meet the communities' desire for expanded usage. " TO: Mayor Ireland and Council FROM: Gram Slaton, Executive Director THROUGH: Randy Ready, Assistant City Manager DATE: 7 October 2009 RE: Financial Pro Forma -Impact of Wheeler Expansion SUMMARY: The purpose of this memo is to present the anticipated financial impacts of the possible Wheeler expansion, apart from the operations of the 1889 historic venue. Numbers from this operating pro forma can then be included in the long-range plan for the Wheeler Fund for financial planning purposes. DISCUSSION: Wheeler staff has been asked to do pro-forma illustrations of the financial impact of a possible Wheeler expansion, based on anticipated usage as well as possible ranges on either side of that anticipated usage, which is attached to this memo. Unlike other industries, it is impossible to gauge industry standards for entertainment or public- benefit venue usage. Public demand, production and venue costs, and potential revenues vary widely depending on a multitude of variables, including venue size, home mazke[, competing venues with a 50-mile radius, cos[ of media advertising, union or non-union hometown, etc. Each situation is unique, and Aspen is arguably one of the most unique cultural destinations in the United States, considering its disproportionately high ratio of cultural life to the number of full- and part-time residents, and seasonal guests. Towns of approximately 6,000 permanent residents do not have assets such as the Aspen Music Festival or the Aspen Institute as primary cultural drivers that create a fostering environment for still other arts groups such as Aspen Santa Fe Ballet, Jazz Aspen Snowmass, Theatre Aspen, The Aspen Center for Physics, or the myriad other arts and cultural groups in our vicinity. Therefore, the numbers included herein are based on actual historical data from past yeazs in the 1889 venue whenever possible, and do not rely on parallel situations or comparables from outside of Aspen. In order to provide an outside-the-valley perspective, however, the Wheeler will eventually engage the services of a longstanding theatre professional or professionals with direct experience in start-up venues as well as an understanding of a Western/Itocky Mountains-based destination town to vet these scenarios and numbers. Wheeler staff feels that it is essential to utilize a theatre professional or professionals with real, in-the-field experience, versus the services of a consulting firm that does not have the benefit of daily administrative and operational experience over an extended period of time. It should be noted that these numbers are limited to impacts only to the expansion venue and affected areas in the historic Wheeler (specifically, those areas vacated as functions move into new space), and do not reflect changes in programming and the additional capacity for revenue- generating performances in dhe historic theatre that would be created by transitioning certain events and movies to the expansion venue. Staff will continue to work with arts groups representatives to further develop programming expectations for the freed-up capacity in the historic venue. Future iterations of the operating pro forma will include a realistic estimate of additional revenue that can be anticipated. Overall, the operating pro forma is based on a very conservative estimated level of usage of the new theatre. Total new billable venue usage includes: • 30 events presented by the Wheeler • 50 events presented by local arts groups • 100 movie screenings • 20 rehearsal days associated with the above events In addition to those estimated 200 event days, the new theatre will be available to rent the remaining days of the year, and/or additional movie screenings can be presented if there is sufficient audience demand. The numbers from the operating pro forma are applied to the Long Range Plan for the Wheeler Fund as part of the holistic view of the Wheeler's financial situation over the next twenty years in the attached spreadsheets. REVENUE ASSUMPTIONS: Venue size -The new theatre is presently designed to accommodate flexible seating arrangements for up to 265 seated patrons. Ticket Sales (revenue) -Anticipated ticket sales are based on Wheeler-presented events only, which are deemed to be minimal as the majority use of the expansion venue is expected to be by locally-based arts groups or other outside parties. In all three cases (Anticipated, Worst Case, and Best Case), the Wheeler's total usage of the expansion facility is limited to thirty performance days. These days are broken out between "one-off' concert events, and events that would be part of our two ongoing festivals (Rooftop Comedy and MountainSummit). "One-off' dates are engagements for touring artists that work at a low guarantee (contract) price, can support a ticket price that averages $25, and would draw an average audience of 160 patrons. These artists would include certain artists that the Wheeler has long experience in booking (such as Tom Rush, Karl Denson, Alex DeGrassi, et. al.), as well as artists that the Wheeler currently passes on booking because the anticipated audience for the artist would looks disproportionately small in the 503- seat historic venue. Festival events would be for more intimate or modest audience events that either would transition from the 503-seat Wheeler or be added as secondary programming to the larger festival, such as a stage for local comedians, improvisational comedy, specialty speakers, break-out groups, etc. Processing Fees (revenue) -This revenue line is applicable to all ticket sale types (in-house presented events and rental events) for the expansion venue, based on thirty sales transactions per event at $4 per transaction (transaction size averages at two-plus tickets per transaction). Processing fees are assessed for all phone and Internet sales; walk-up sales are completed without a processing fee. Rental Percentage/Other Box Office Charees (revenue) -These are fixed rates applicable to all Wheeler rentals (historic venue and expansion venue), based on the current fee structure which has not been increased since 2007. The Wheeler collects 5% of the gross box office sales for rental events, plus recovery of hours for ticket sellers, and credit card and ticket stock expenses. The assumption is predicated on fifty performance rentals at $100 per rental, plus $50 per rental for recovery costs. Additional Bar Sales (revenue) -These sales figures are for [he expansion venue only, and represent an average $60 per performance on sale of food and beverage items. While this may seem artificially low, the amount of bar revenue that the Wheeler takes in is directly related to the age and type of audience an event will draw, as well as time of day and other factors. Also, some Wheeler users, such as the Aspen Center for Physics, are allowed to provide their own concessions for their patrons at no cost (and thus no sales), further affecting an average figure for this line. Flexible Slice Usaee (revenue) -This number is figured a[ an average of forty rentals at $200 per rental It is important to note that we do not anticipate that the usage of this room would be limited to forty instances; only that the Wheeler would charge for forty such instances (particularly to private or corporate users), while many users of the space would be area not-for- profits that may not be able to secure this space if a fee is required. Suace Rental - Theatre/1'echnical Rental Services/Clean Up (all revenue) -This number is projected from an anticipated base rental fee of $150. The 503-seat Wheeler currently rents for $450 to for-profit entities and for $250 to not-for-profit entities. Because of the small seating number of the new space, a higher price for for-profit users could be prohibitive and fail to draw bookings. The anticipated number is based on fifty paid days of rental situations, with a factor of 1.25 to indicate the likelihood that some of these will be multiple-day rentals that are awarded a discount rate for second and other additional days. [The Wheeler often shows generosity to user groups [hat need additional non-performance days but cannot easily pay for additional rental-day fees.] The line also includes a recovery for stagehands expense at an hourly rate plus a recovery for clean-up at a flat rate, both in line with current rental charges that the Wheeler uses for rentals. It is important to note that private engagements and other commercial-use applications are not anticipated in these projections. Such engagements would likely be assessed at afar-higher rental rate, comparable to other venues in the Aspen area; however, the Wheeler has experienced very little in the way of such inquiries in the past two years and felt it best to consider such usage speculative and not appropriate for inclusion here at this time. Snace Rental -Second Floor Lobbv (revenue) -Because the expanded second-floor theatre lobby is anticipated to become a highly desirable location for non-theatre usage such as private parties, wedding receptions, corporate meetings, etc., it is anticipated that the space will be rented for approximately forty such situations per year, which can be done with or without linkage into the existing Wheeler second-floor lobby (and thus can be independent of usage of the existing Wheeler for events occurring in its theatre). The $200 rental figure is below commercial market rates in Aspen; however, it is important to understand that this would be alower-priority business for us and only available in the absence of other needs. We do anticipate that the commanding view of Aspen Mountain can serve as a premium attraction for use of the space. Movie Percentaee (revenue) -These numbers are based on recent history with the Wheeler Film Society, using the formulas associated with that contractual-services arrangement. It is anticipated that the new venue would not only provide a location for the Wheeler Film Society or other contractual user to exhibit films when not in use for live or other needs, but in instances where both theatres are not booked for live or other needs, a contractual user could in fact have two screens available, helping to make up for the deficit in available screens in the downtown core caused by the demise of the Stage III and loss of a screen at the Isis. These figures aze predicated on there being 100 movie screenings at $60 per screening ($25 set-up fee, $25 royalty, and $]0 of recoverable costs). Additional Lease Revenue (revenue) - If the expansion is completed as expected, the present box office space and basement administrative space will be vacated and available for outside leased rental. Rates are based on $75 per square foot for approximately 1,400 square feet of street-level space (consistent with the initial present rate for Valley Fine Art) and $30 per square foot for the approximately 1,800 square feet of basement space. Additional lease revenue would come from the Category 2one-bedroom apartment made available for rental to first-response Wheeler staff, assuming a $1,000 per month rate by 2013. EXPENSE ASSUMPTIONS: Artist/Companv Fees (expense) -This line reflects the contract cost for talent for Wheeler- presented events only, limited to thirty days total per year. These days are projected as ten days for acts averaging $2,000 artist/company fees, and twenty events associated with Wheeler- produced festivals (such as the present Rooftop Comedy and MountainSummit festivals), at $1,500 artist/company fees. ArtisUCom~y Additional (expense) -This line represents the additional costs of the Wheeler presenting talent on 30 occasions in the new space, including travel, hotel, catering, additional equipment and possible other charges outside of the agreed-upon guarantee (contract) costs for the artist. The figure here is based on representative experiences as detailed above under Ticket Sales & Artist/Company Fees, but is variable with each booking experience. Box Office Expenses/Bank Char es (expense) -Averaged at $65 per event, this figure represents the average combined cost of non-salaried box office personnel, credit card expense that the Wheeler pays per transaction and ticket stock and other small expenses (mailing, envelopes, etc). Additional Full Time Technician (expense) - An expanded Wheeler is anticipated to require two additional full-time positions, one of which is a Theatre Technician II-classification employee whose primary purpose will be to service the expansion venue. The rate is based on the midpoint of the current range for this position as an hourly employee, plus standard benefits for full-time City of Aspen staff. Sta¢ehands/Other Tech (expense) -Because events typically require not less than three technical personnel to operate, additional part-time stagehands will be necessary to calculate into the use of an expanded Wheeler for an average of 2 hands x $23.00/hr x 4 hours x 50 event usages . This calculation is based on current usage for small-scale Wheeler events, averaged over several usage types that likely could transition to the new space. The billable rate is reflective of the actual cost of hourly wages paid to part-time technical staff, thus recovering all expense associated with this other than employer taxes. Electric/Gas/Water (expense) -Resource Engineering Group, which is part of the creative team for the Wheeler expansion, has charged itself with making a combined Wheeler (expansion plus historic building) perform without any additional carbon or energy footprint. However, for the purposes of this pro forma, we have incorporated utility expenses that are proportionate to existing expenses for the 1889 venue into the "worst case" scenario. The "best case" is factored at zero, assuming that the REG can hit its mark, and the "Anticipated" scenario uses a number that represented the midpoint in between. Because half of the Wheeler expansion would be underground, and therefore in a situation where the surrounding environment stays at a consistent 55 degrees, the heating and cooling performance of the new building should besignificantly more controllable and predictable. Waste Removal (expense) -This figure is based on current actual numbers, and takes into account having additional lease-space users. Custodial Supplies (expense) -This figure takes into account additional custodial needs for the expansion venue only; lease-space users would be expected to cover the cost of their own custodial duties. Maintenance And Repair (expense) -This figure takes into account an additional average figure of $200 per month for small touch-up and repair needs for the Wheeler expansion only. Additional Full Time Buildine Tech (expense) -This is the second of two additional full-time positions that an expanded Wheeler is anticipated to require. The figure is based on current actual expense for a Building Tech I, plus benefits. It is reasonable to expect that this position would service the entire Wheeler venue, but with a concentration on needs created by the expansion venue. Front Of House Supplies/Cost Of Sales (expense) -This figure represents the cost of all food and beverage stock, as well as ancillary costs such as cups, napkins, garnishes, bar-specific cleaning supplies, measured at 40% of the historic Wheeler's budgeted amount. Additional Bar Personnel (expense) - It is anticipated that through careful scheduling, atwo- venue Wheeler will be able to deploy full-time and hourly personnel between venues at times necessary for the twin operation of the theatres. This would apply to a majority of bar personnel as well, but the figure quoted here is for two additional personnel for two hours at each expanded Wheeler event. In sum, Wheeler staff feels confident that these scenarios are fairly representative, and that the anticipated expected case numbers which we intend to use for long-range planning purposes remain very conservative, thus better ensuring that the overall financial figures for long-range planning are sound and will stand up over time. COMMUNITY-WIDE ECONOMIC IMPACT OF THE EXPANSION: The Wheeler currently serves as the host venue for a majority of the community's ticketing needs, including most of Aspen's arts organizations. As demonstrated by historic data on the two sheets included as Attachment A, ticket sales that come through the Wheeler's Aspen Show Tickets box office generate in excess of $1.5 million per year. [The Wheeler has an additional dollar impact in ticket sales as one of three sites for Aspen Music Festival $1.7 million in ticket sales, providing a further service to the overall arts community.] As demonstrated on Page 2 of Addendum A, however, the receipts retained by the Wheeler come [o a considerably smaller amount of approximately $360,000 per year, which includes all receipts for Wheeler-sponsored events, of which the Wheeler retains 100%. [The Wheeler receives no dollar benefit from its ticketing location for the Aspen Music Festival.] Thus, the benefit to the entire arts, tourism, and home communities via a centralized ticketing location is a tremendous value-added to the overall Wheeler operation, and by virtue of expanding [he historic Wheeler and providing another full-time performance venue (or venues), the ticketing impact would appropriately be expected to show an upswing and further cement the importance of the Wheeler as an essential provider for all the arts in Aspen. While somewhat measurable in dollars and cents, the true impact of this addition through an expanded Wheeler is a true intangible where the entire community reaps a benefit. FINANCIAL REVIEW PROCESS: The attached operating pro forma and resulting Long Range Plan scenazios should be considered by City Council and members of the public as works in progress, subject to further review and refinement as the project undergoes final design and as local arts groups further develop their programming plans. Over the next several months, the expansion is proposed to be undergoing final design, engineering, and cost estimating, resulting in the presentation of a Guaranteed Maximum Price next summer as part of the Integrated Project Development model. Ongoing review of projected operating expenses and revenues is proposed to be conducted using the following process outline: Staff Review Public Review and Comment Wheeler Board Review Financial Advisory Board Review ongoing ongoing November 18 December 9 February 10 March 10 April 14 November 18-December 9 March 2010 Arts Group Representatives Review Januazy-February 2010 Peer Review January-February 2010 (Involves thorough review and comment by 3-5 nationally-recognized performing arts center executive directors.) Wheeler Financial Work Shop March 2010 (Public presentation of Wheeler capital and operating cost and revenue projections, assumptions, and financing options, followed by Q&A and opportunity for further public comment.) City Council Financial Work Sessions March-April 2010 FINANCIAL IMPACT PROJECTION WHEELER OPERA HOUSE EXPANSION 21 October 2009 Draft Worst Best Anticipated Case Case REVENUES Ticket Sales Processing Fees Rental Percentage/Other Box Office Charges Additional Bar Sales Flexible Space Rental Space Rental -Theatre Space Rental - 2nd Floor Lobby Technical Rental Services Clean-Up/Other Movie Percentage Credit Card/Ticket Stock Reimbursement Additional Lease Revenue $80,000 $20,000 $110,000 $12,000 $4,800 $19,200 $7,500 $4,500 $11,250 $6,000 $3,600 $7,200 $3,750 $0 $5,625 $9,375 $4,500 $16,875 $8,000 $2,000 $12,500 $30,000 $9,000 $45,000 $2,500 $1,500 $3,750 $5,000 $7,500 $3,000 $1,000 $1,500 $600 $171,000 $109,000 $187,000 $336,125 $167,900 $422,000 EXPENSES ArtisUCompany Fees ArtisUCompany Additional Box Office Expenses/Bank Charges Additional F/T Technician Stagehands/Other Tech Electric Gas Water Waste Removal Custodial Supplies Maintenance and Repair Additional FR Building Tech Front Of House Supplies/Cost of Sales Additional Bar Personnel ($50,000) ($50,000) ($50,000) ($11,000) ($11,000) ($11,000) ($6,500) ($3,900) ($7,800) ($62,400) ($62,400) ($62,400) ($9,700) ($1,940) ($13,580) ($12,000) ($24,000) $0 ($3,000) ($6,000) $0 ($4,800) ($4,800) ($4,800) ($1,200) ($1,200) ($1,200) ($2,400) ($2,400) ($2,400) ($46,176) ($46,176) ($46,176) ($2,400) ($1,440) ($2,880) ($3,000) ($1,800) ($3,600) ($220,576) ($223,056) ($211,836) NET -REVENUES OVER EXPENSES $115,549 ($55,156) $210,164 AVERAGE OF THREE SCENARIOS: $90,186 WHEELER OPERA HOUSE EXPANSION BUDGET DETAIL WORKSHEET FISCAL PROJECTION WORST BEST DEPT: BOX OFFICE ANTICIPATED CASE CASE REVENUES Processing Fees $12,000.00 $4,800.00 $19,200.00 Rental Percentage/Other Box OiFce Charges $7,500.00 $4,500.00 $11,250.00 EXPENSES Box Office Expenses/Bank Charges ($8,500.00) ($3,800.00) ($7,800.00) TOTAL: $13.000.00 5400.00 $22.850.00 NOTES: ANTICIPATED Processing Fees figured a130 ortlers per show @ $4/ea x 100 shows Rental Percentage Flgured on 50 rentals x $100 per rental Other Box Office Charges Flgured on 50 rentals x $50 per rental Box Office Expenses/Bank Charges figured on 100 shows x $65 per show, and includes the cost of box office labor, stock and pooling, and MCNisa WORST CASE Processing Fees figured at 20 orders per show ~ $4/ea x 60 shows Rental Percentage figuretl on 30 rentals x $100 per rental Other Box Office Charges figured on 30 rentals x $50 per rental Box Office Expenses/Bank Charges figured on 60 shows x $65 per show, and includes the cest of box office labor, stock and printing, antl MCNisa BEST CASE Processing Fees figured at 40 orders per show ~ S4/ea x 120 shows Rental Percentage figured on 75 rentals x $100 per rental Other Box Office Charges (igured on 75 rentals x $50 per rental Box Office Expenses/Bank Charges figured on 120 shows x $65 per show, and includes the cost of box office labor, stock and printing, antl MCNisa WHEELER OPERA HOUSE EXPANSION BUDGET DETAIL WORKSHEET WORST BEST DEPT: FRONT OF HOUSE ANTICIPATED CASE CASE REVENUES Additional Bar Sales $8,000.00 $3,600.00 $7,200.00 Space Rental - 2nd Floor Lobby $8,000.00 $2,000.00 $12,500.00 Front Of House Supplies/Cost of Sales ($2,400.00) ($1,440.00) ($2,880.00) Atltlilional Bar Personnel ($3,000.00) ($1,800.00) ($3,600.00) TOTAL: 8600.00 2 60.00 $13.220.00 153.7% NOTES: ANTICIPATED Additional Bar Sales figured at 100 events x $60 per event Space Rental - 2nd Floor Lobby figured at 40 rentals at $200 Cost of Sales/Supplies figured at 40 % of Additional Bar Sales Additional Bar Personnel figuretl at $15/hr x 2 by x 100 events WORST CASE Additional Bar Sales figured at 80 events x $60 per event Space Rental - 2nd Floor Lobby figured al 10 rentals at $200 Cost of Sales/Supplies figuretl at 40Yo of Atltlitional Bar Sales Additional Bar Personnel figured at $15/hr x 2 by x 60 events BEST CASE Additional Bar Sales figured at 120 events x $6D per event Space Rental - 2nd Floor Lobby figured at 50 rentals at $250 (increase in rate due to high demand) Cost of Sales/Supplies figured at 40% of Additional Bar Sales Additional Bar Personnel figuretl at $15/hr x 2 by x 120 events WHEELER OPERA HOUSE EXPANSION BUDGET DETAIL WORKSHEET FISCAL PROJECTION WORST BEST DEPT: TECH ANTICIPATED CASE CASE REVENUES [None] EXPENSES Additional Full-Time Technician/Salary ($52,000.00) ($52,000.00) ($52,000.00) Additional Full-Time Technician/TaxeS & Benefits ($10,400.00) ($10,400.00) ($10,400.00) Houdy Stagehands ($9,200.00) ($1,640.00) ($12,680.00) Materials and Reimbursables ($500.00) ($100.00) ($700.00) TOTAL: ($72.100.00) ($64.340.001 ($75.960.00) 105.4% NOTES'. ANTICIPATED Atltl'I FT Tech figured at $25/hr x 2080 hrs Taxes d Benefits figured at 20% of Add'I FT Tech Salary Hourly stagehands figured at 2 add'I x $23.00/hr x 4hrs x 50 events Materials and Reimbursables figured at $10/rental x 50 rentals WORST CASE Add'I FT Tech figured at $25/hr x 2060 hrs Taxes 6 Benefits figured at 20 % of Add'I FT Tech Salary Hourly stagehands figuretl at 2 add'I x $23.00/hr x 4hrs x 10 events Materials and Reimbursables figured at $10/rental x 10 rentals BEST CASE Add'I FT Tech Flgured al $25/hr x 2060 hrs Taxes 8 Benefits figured at 20 % of Atld'I FT Tech Salary Hourly stagehands figured at 2 add9 z $23.00/hr x 4hrs x 70 events Materials and Reimbursables figured at $10/rental x 70 rentals WHEELER OPERA HOUSE EXPANSION BUDGET DETAIL WORKSHEET FISCAL PROJECTION WORST BEST DEPT: BUILDING ANTICIPATED CASE CASE REVENUES [None] EXPENSES Electric ($12,000.00) ($24,000.00) $0.00 Gas ($3,000.00) ($6,000.00) $0.00 Water ($4,800.00) ($4,800.00) ($4,800.00) Waste Removal ($6,000.00) ($8,000.00) ($6,000.00) Custotlial Supplies ($1,200.00) ($1,200.00) ($1,200.00) Maintenance and Repair ($2,400.00) ($2,400.00) ($2,400.00) Additional FR Building Tech/Salary ($38,480.00) ($38,480.00) ($38,480.00) Atltlitional FR Building Tech/Taxes 8 Benefits ($7,698.00) ($7,696.00) ($7,696.00) TOTAL: ($75.576.001 ($90.576.001 ($60.576.00) 80.2% NOTES: Electric figuretl at an additional $2,000/mo' Gas figured at an additional $500/mo' Water fguretl at an atltlitional $400/mo' Waste removal figured at an additional $500/mo Custodial supplies tiguretl at an additional $100/mo Maintenance antl Repair figured at an additional $200/mo Atld'I FT Bldg Tech figuretl al $18.50/hr x 2080 hrs Taxes & BenefRS figured at 20 % o! Add'i FT Tech Salary "'NOTE "` Project architects have been charged with making the expansion a zero-sum additional carbon footprint for the overall Wheeler These numbers reflect bestcase impact of zero, worst-case impact ofnumbers parallel to cunent Wheeler usage, and a middle position o/hallway in between. WHEELER OPERA HOUSE EXPANSION BUDGET DETAIL WORKSHEET WORST BEST PROGRAMMING ANTICIPATED CASE CASE UES Ticket Sales l' $40,000.00 $10,000.00 $50,000.00 Ticket Sales 2" $40,000.00 $10,000.00 $60,000.00 ArtisVCompany Fees 1 ($20,000.00) ($20,000.00) ($20,000.00) ArtisVCompany Fees 2 ($30,000.00) ($30,000.00) ($30,000.00) ArtisVCompany Atltlitionall ($5,000.00) ($5,000.00) ($5,000.00) ArtisVCompany Additional2 ($0,000.00) ($6,000.00) ($6,000.00) TOTAL: $18.000.00 ($41.000.001 $49.000.00 257.9% NOTES: ANTICIPATED ' Basetl on 10 Tom Rush-type events ($2,000 fee+ $500 atld'I; $4,000 box office "Based on 20 festival events (Rooftop; MountainSummit) at $1,500 fee + $300 atltl'I{ $2,000 box office WORST CASE ' Based on 10 Tom Rush-type events ($2,000 fee+ $500 add'I; $1,000 box office "Basetl on 20 festival events (Rooftop; MountainSummit) at $1,500 fee+ $300 add'I; $500 box office BEST CASE ' Based on 10 Tom Rush-type events ($2,000 fee + $500 atltl'I; $5,000 box office "Basetl on 20 festival events (Rooftop; MountainSummit) at $1,500 fee+ $300 add'I; $3,000 box office WHEELER OPERA HOUSE EXPANSION BUDGET DETAIL WORKSHEET FISCAL PROJECTION WORST BEST DEPT. MOVIE SCREENINGS (WFS/OTHER) ANTICIPATED CASE CASE REVENUES Ticket Percentage antl Set-Up Fees $5,000.00 $7,500.00 $3,000.00 Credit Card Reimbursement $1,000.00 $1,500.00 $800.00 EXPENSES [None] TOTAL: 6 000.00 9 000.00 3$ .800.00 60.0% NOTES: ANTICIPATED Ticket Percentage and Set-Up Fees based on 100 screenings ~ $25/set-up antl $25/fee per screening Creoit Cartl Reimbursement figured at $10 screening x 100 screenings WORST CASE Ticket Percentage and Set-Up Fees based on 150 screenings (rg $25/set-up antl $25/fee per screening Cretlil Cartl Reimbursement figured at $10 screening x 150 screenings BEST CASE Ticket Percentage and Set-Up Fees basetl on 60 screenings ~ $25/set-up and $25/fee per screening Credit Cartl Reimbursement figured at $10 screening x 60 screenings "'NOTE: Movie bookings are always /allback for non-live usage tlays; there/ore run counter ro other assumptions in Worst Case or Best Case consideration WHEELER OPERA HOUSE EXPANSION BUDGET DETAIL WORKSHEET WORST BEST RENTALS ANTICIPATED CASE CASE ~~ Space Rental-Theatre $9,375.00 $4,500.00 $16,675.00 Flexible Space Rental $3,750.00 $0.00 $5,625.00 Technical Rental Services $30,000.00 $9,000.00 $45,000.00 Clean-Up/Other $2,500.00 $1,500.00 $3,750.00 [NOne~ TOTAL: $45.825.00 $15.000.00 $71.250.00 1 NOTES: ANTICIPATED Space Rental fgured at 50 rentals x $150/fental x 1.25 for multiple rentals Tech Rental Services figured at 4 hands x $25/hr x fi hrs x 50 rentals Clean-up/Other figured at $50/cleaning x 50 rentals WORST CASE Space Rental figuretl at 30 rentals x $150/rental x 1.0 for multiple rentals Tech Rental Services figured at 2 hands x $25/hr x 8 hrs x 30 rentals Clean-up/Other figured at $50/cleaning x 30 rentals BEST CASE Space Rental fgured a175 rentals x $150/rental x 1.5 for multiple rentals Tech Rental Services figured at 4 hands x $25/hr x 6 hrs x 75 rentals Clean-up/Other figured at $50/cleaning x 75 rentals WHEELER OPERA HOUSE EXPANSION BUDGET DETAIL WORKSHEET WORST BEST OTHER (LEASE SPACES) ANTICIPATED CASE CASE UES Additional Lease Space-Street Level $105,000.00 $70,000.00 $112,000.00 _ Atltlitional Lease Space-Basement Level $54,000.00 $27,000.00 $63,000.00 One-Bedroom Unit- Employee Housing $12,000.00 $12,000.00 $12,000.00 SES [None] TOTAL: 5171.000.00 $109.000.00 $187.000.00 1 NOTES. 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N N r, C '~ a ... .,. .,.m8~8888885 .~°~ ~°&^'88m 8 N N 881 88J8 ~ ~ ~ ~ e Y ~ ~ ~ ~ e » ~ ~ ~ ~ .~ ~ .,. ~ ,,. » $ N N ~ nS d Y C a v ~ _ _ ~ 2 ~ LL ~ zx - ~ p S c E . ~, _a ~ - H ~ O m ` L a W ° `~ ` ~ ~ S _ u ~ n ` ^ ~ u"i n ui Y a V u ~ N 6 c - i 3 v ~~ Fi 9~ E ` F - i ` O v ~ c ~ c e _ $ C m °a by c .~. c v v ¢ . " 9 .. r y @ u ~ F - E E i'_ o c z q ' '~ ^ o: ~ ~ r n W ~ o ~~ 3 ~- E C ~ c '~' '~^ c ~ E c`$ V_~~ E o s n En' LL u¢ .. u 9 y E c 'c ~ ¢ `o `~' d t ~ m d c F E ~ 9: g a ~ p a- ~~ & n o - ° - - n = - e ° F C~ 0 5- - .°. F b c t C t o ' E c ~ } ~ o e ~ o ~ _ n Y _ 3 ~ c 3 x 0 L N m U N E ~ °' ~ ° y ° > "~ ° o° : c" ^ ' a p Q Q Q 4 a 4 4 0 8 °m ° ~ c ~ ` 8 'o ~ 'o $ 4 ~ ? ~ c` ~ ~ R ` ~ 3~ H¢ rc¢ f m¢ r¢~ O N E o E r¢ x¢ O ¢ S¢ m m~ w¢ w m¢~ °m m o m u'~ O n ~ N ~ u O m F '~ - p O Yllla MEMORANDUM TO: FROM: THRU: DATE OF MEMO: MEETING DATE: RE: Mayorand City Council April Barker, Stormwater Manager, Engineering Scott Miller, Capital Asset Director Trish Aragon, P.E., City Engineer October 19, 2009 October 26, 2009 Aspen Institute's Request for Waiver from Stormwater System Development Fee REQUEST OF COUNCIL: Staff requests that Council not approve The Aspen Institute's (Institute) request for waiver from the Stormwater system development fees applied to two Institute projects this year, totaling $139,253.42. BACKGROUND: The Stormwater system development fee is defined and codified in the City of Aspen Land Use Code Chapter 25.18 (Attachment A -Land Use Code Chapter 25.18). A system development fee of $2.88 per square foot of total impervious azea is assessed against all properties that develop or redevelop more than 500 squaze feet of impervious azea. This fee was implemented in 2007. The Aspen Institute is required to pay a total of $139,253.42 in 2009 for development/redevelopment of two hlsdtute projects -Greenwald Pavilion Tent, $62,475.50, and Paepcke Building Renovation, $76,777.92. The work on the Greenwald Tent permit consisted of 21,693 squaze feet of impervious azea. The work on the Paepcke Building permit consisted 26,659 square feet of impervious area. The City Attorney researched City Code for a previous request for appeal and determined there is no appeal process in place for the Stormwater System Development Fee section of the Code. Therefore in August 2009, the Institute sent a memo to the City Council requesting a waiver from the system development fee (Attachment B -Institute Request for YYaiver). DISCUSSION: Staff feels that the Institute should not be relieved from this fee for the following reasons: 1. Section 25.18.010 of the Code states that the Stormwater system development fee is assessed against all properties at the time of development or redevelopment of at least 500 squaze feet. Approximately 21,693 squaze feet of impervious azea was disturbed and/or added in development of the Greenwald Tent. Approximately 600 square feet of Page t of 3 impervious azea was added to the existing Paepcke Building along with new walkways, patios, and a pond, which meets the criteria set forth in the Code. 2. The current stormwater system is undersized for the amount of development currently in the city and is not meeting the water quality goals of the stormwater program. The system development fee is the means for upgrading and improving that system. 3. The City has not offered relief or an appeal process to any other developments that have paid a stormwater system development fee. The Institute azgues the following points (staffs response is in italics): 1. They were not awaze of the fee when they planned and budgeted for the projects. The Institute was informed of the fee in Development Review Committee (DRC) comments provided by staff. 2. The Institute is a significant stimulus to the economy, contributing to sales tax revenues for the City. The stormwater program, projects, and infrastructure are not funded by the General Fund, which receives the revenue from sales tax -they are funded through the stormwater fund which is comprised of a dedicated property tax and system development fees. 3. The Paepcke Building is mostly existing impervious azea with only a small amount of additional impervious area. Section 25.18.010 of the Code states that the stormwater system development fee is assessed against all properties at the time of development or redevelopment of at least 500 square feet, and that the fee is assessed against the total impervious area of the site, not just the new impervious area. FINANCIALBUDGET IMPACTS: The Institute is requesting a waiver of $139,253.42 in stormwater system development fees. This amount would be removed from the Stormwater Capital Budget for 2009. This impact to the budget will be realized in the capital projects planned for improving the quantity and quality of the stormwater system. ENVIItONMENTAL IMPACTS: Waiving $139,253.42 from the stormwater Capital Projects budget will decrease the funding available for system upgrades and Clean River Initiative projects planned to improve discharges to the Roaring Fork River. Decreasing funding for these projects can potentially decrease the City's ability to remove pollutants from stormwater and therefore increasing the pollution in the Roaring Fork River. RECOMMENDED ACTION: Staff requests that Council does not approve the Institute's request for waiver from the $139,253.42 stormwater system development fee that is owed for work done on the Greenwald Tent project and the Paepcke Building project. PROPOSED MOTION: Move to not approve the Institute's request for waiver from the $139,253.42 stormwater system development fee that is owed for work done on the Greenwald Tent project and the Paepcke Building project. CITY MANAGER COMMENTS: Page 2 of 3 ATTACHMENTS: Attachment A -Land Use Code Chapter 25.18 Attachment B -Aspen Institute Request for Waiver Page 3 of 3 /~~,u111'v1 cn7 n (b) Subject to the approval of the utilities Director based on previous credit history with the City utilities, the owner of the premises on which the water is used may approve waiver of their tenant's deposit requirement by completing an application which informs the owner of the possibility of a lien upon the premises for unpaid bills, pursuant to Section 25.04.090 above. (c) These deposits will be held by the utilities Director until service is discontinued and final service bills are paid and will accrue interest at five percent (5%) per annum starting thirty (30) days after receipt of the monies until the date of disconnection. Retum of the unused portion of the deposit plus interest will be made within forty-five (45) days from date the final billing is issued. (Code 1971, §23-110; Ord. No. 27-1985, §1; Ord. No. 68-1994, §15; Ord. No. 57-2000, §8) Chapter 25.18 STORMWATER SYSTEMS Sec. 25.18.010. Definitions. For the purposes of this Title, certain words or phrases aze defined as follows: Development. The proposed development creates at least five hundred (500) square feet of new impervious azea. Redevelopment. The proposed development disturbs at least five hundred (500) square feet of the existing impervious area. (Ord. No. 22, 2007, § 1) Sec. 25.18.020. Stormwater system development fee. (a) A stormwater system development fee shall be assessed against all properties at the time of development or redevelopment of the property. The fee shall be assessed against the total impervious azea of the development, not simply the increased impervious azea, minus the amount of any stormwater system development fee actually previously paid by the landowner or the predecessor of the landowner for connection to the stormwater system. The system development fee shall be two dollazs and eighty-eight cents ($2.88) per squaze foot of total impervious area. (b) The calculation for the credit to be given for property on which the structures aze substantially remodeled or rebuilt shall take into account the amount actually paid for stormwater system development fees in the records as maintained by the City. (Ord. No. 22, 2007, § I ) Chapter 25.20 MISCELLANEOUS PROVISIONS Sec. 25.20.010. Tampering with meter prohibited. It shall be unlawful for any person to tamper with any water meter installed on any service connection on the water mains of the City or to place, install or put on or near any such meter any instrument of device which will affect the operafion thereof or the reading thereof. It is further declazed to be unlawful to interfere with or prevent the Superintendent or any employee of the City from examining and reading any such meter. (Code 1971, §23-150; Ord. No. 27-1985, §1) Sec. 25.20.020. Wasting of water prohibited. ~-a~,vpre~acvl~ ~ ~ nsri'a]']iivsrtzvr>: Aan MAxcrsua+ Execvdve Via PraWen4 TO: opemdoM cow seaetary laoo r~onn Third suer Aspen, 0081611 rn 970.644.796b nc s~o.6~l.rsos amym•aspeninatlmte.org nwr+.aepeninadate.org MEMORANDUM Aspen City Council Chris Bendon, Community Deve. Director Tricia Aragon, City Engineer I Amy Margerum, Executive V.P., Aspen InstituteC~,lV Jim Curtis, Owner Representative From: August 5, 2009 Date: Re: Request for Stormwater System Deve. Fee Waiver The Aspen Institute Paepcke Bldg. Renovation, Permit #0005.2009. ACBK Greenwald Pavilion Tent, Permit #0012.2009. ACBU The Aspen Institute, a 501(0)(3) non-profit, respectfully requests a waiver of the stormwater system development fee for two (2) Institute projects as given below: Paepcke Building Renovation Greenwald Pavilion Tent $ 76,777.92 stormwater fee $ 62.475.50 stormwater fee $ 139,253.42 total fee The stormwater system development fee was only recently adopted in 2007 and results in a significant added cost to the Aspen Institute in trying to upgrade its facilities. This fee is in addition to the other Planning Office, Historic Preservation and Building Permit fees charged by the City and doesn't include the additional significant time and cost to go through the City's lengthy land use review process. For example, the City fees for the Paepcke Building Renovation (which is only adding 614 sf. to the building,) are outlined below: Planning Office/HPC Fees Building Permit Fees Stormwater Sys. Deve. Fee Water Dept. Tap Fee Sewer Dist. Tap Fee $ 17,283 61,434 76,778 25,704 3 32 (non-City) 184,331 Memorandum August 5, 2009 Page 2 The Aspen Institute feels the stormwater fee should be waived because it places a significant added cost for anon-profit trying to upgrade its community facilities. We were unaware of the large fee when we planned and budgeted for our projects and now it is difficult to fundraise to cover such a fee. We believe the Aspen Institute is a significant stimulus to the economy of the town, contributing greatly to the sales tax revenues of the City. It is for this reason, and our extensive community outreach efforts throughout the year, that the Aspen Institute has qualified as an "essential public facility" under the land use code in the past. We are asking you to continue this precedent. It is also interesting that the stormwater fee is based on $2.88 per square foot of total impervious area including both existing & new incremental impervious area. Again, the Paepcke Building Renovation is only adding 614 sf. of "new" construction to the building, yet its storm water fee is $76,777.92. Virtually all of this fee results from the impervious area of the existing building, patios, sidewalks, and parking which have been in existence since the Paepcke Building was constructed circa 1961f. The Aspen Institute wishes to thank the City Council for its consideration of this request. vnl b MEMORANDUM TO: Mayor Ireland and City Council THRU: Chris Bendon, Community Development Director lam' FROM: Jennifer Phelan, Community Development Deputy Director RE: MDl, LLC Appeal (980 Gibson) MEETING DATE: October 26, 2009 (continue to 11/23/09) GENERAL BACKGROUND: On August 19`" of 2009, the Community Development Director issued and administrative Interpretation (Exhibit 1) with regard to land that was gained by MD1, LLC through a Quiet Title decree (MDI LLC, et al. v. the City of Aspen). The Applicant is appealing staffs Interpretation; however, the Applicant has agreed to continue the Appeal to November 23`d in light of October 26`h'S large agenda. RECOMMENDATION: Staff recommends continuing the appeal to November 23rd. CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all mOt10DS mUSt be made In the pOS1tIVe) "I move to continue the Appeal submitted by MDI, LLC, to November 23, 2009" VII ~ c MEMORANDUM TO: Mayor Ireland and Aspen City Council COPY: John Worcester, City Attorney /~~ FROM: Chris Bendon, Community Development Director I II~A,I,~^ RE: Appeal of Land Use Code Interpretation -Lot Area and Man-Made Landforms DATE: October 26, 2009 SUMMARY: One of the jobs assigned to the Community Development Director is to provide interpretations of the text of the City's Land Use Code. This is a formal process in which an applicant requests a written interpretation and, if they don't agree with the interpretation, affords the applicant the right to appeal the decision to the City Council. There are three criteria upon which the City Council has to decide an appeal of a code interpretation. Based solely upon the record established by the original decision, the City Council shall consider whether: 1) There was a denial of due process; 2) The administrative body exceeded its jurisdiction; or, 3) The administrative body abused its discretion. These standards ask whether the Director's actions were ethical. The City's code states that the decision or determination made by the administrative officer shall not be reversed or modified unless there is a positive finding on one of these criteria. (Please see Exhibit C for the entire code section.) In this case, the interpretation rendered by the Director addresses how man-made landfonns contribute to a property's development rights. (The City reduces the Floor Area of a property when steep slopes exist.) The interpretation azose during the review of 219 South Third Street and the neighbor's concern about the extent of potential development on the site. The City has not allowed property owners to modify the topography of their parcel to increase development rights. For example, one cannot level-out a sloped site and increase the property's Floor Area. One the other hand, the City has allowed property owners to use a pre-development topography in examples where the site has clearly been modified in the past. Properties do have long histories of development activities and some discretion is necessary in analyzing the reliability of the information provided and the conditions of the site. 1 The City's Land Use Code does not define the term "slope." This requires the Director use some discretion. The City's Land Use Code does define "berm" as a type of "structure" that is constructed and not part of the natural pre-development condition of a site. Lastly, if the City did not look at natural pre-development conditions and only considered the topography of a site just prior to development, property owners could modify their land to increase their development rights. Roughly 1,000 parcels in the City fall into this category and would be able to modify their properties and increase their Floor Area. STAPIDARDS OF REVIEW: 1. Due Process -The review of 219 South Third Street was very contentious. The neighbor raised concerns over the potential development that could occur on the site. The property owner and the neighbor disagreed about how an old railroad bed should be counted towards development rights and the way staff had traditionally treated such modified topography. Staff asked both parties to request the interpretation, allowing either party to appeal the findings. Certain timeframes affect when interpretations must be provided after a request and when appeals need to be scheduled. Those timeframes have been met. As required by the Land Use Code, the appellant was provided notice of tonight's meeting via registered mail and all other affected parties were noticed by publication in the newspaper, as required. (Please see Exhibit D.) Assuming tonight's meeting does not contain any procedural flaws, staff believes that proper due process has been provided. 2. Jurisdiction -The Director's jurisdiction to interpret the Land Use Code is established in Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the jurisdiction, authority, and duties allocated to the Community Development Director. One of the Director's duties outlined in the Chapter reads: "To render interpretations of this Title or the boundaries of the Official Zone District Map pursuant to Chapter 26.306. " Staff believes this language is clear and it does not appear that the applicant is questioning this provision of the code. 3. Discretion -With respect to abuse of the Director's discretion, the Director did need to use his discretion in rendering the interpretation. The question is whether the Director abused that discretion or acted unethically. In analyzing the code, it was clear to the Director that the term "slope" is not a defined term. However, "berm" is used in the definition of a "structure" as something that is constructed on a site. This implies a difference between natural conditions and man-made conditions. Staff tends to approach these sorts of tasks with a very pragmatic and realistic administration of development limitations. The Land Use Code does not predict every type of circumstance. Staff considers the text of the code as well as the effects that would be expected with different interpretations. In this particular example, allowing man-made topography to affect a property's development rights would apply to many properties in 2 town and represent a significant policy change to the traditional administration of Floor Area. The Director believes that his discretion was applied appropriately and that the interpretation was rendered ethically. CODE INTERPRETATION AND CODE AMENDMENT: The question in a code interpretation is what does the code say? On occasion, applicants seek a code interpretation because they believe the code should say something else. The code amendment process is the proper venue for the question what should the code say? TWO RESOLUTIONS: Attached are two Resolutions. One finds that the Director acted correctly and affirms the interpretation. The second finds that the Director exceeded his jurisdiction, abused his authority, or failed to provide due process and reverses the interpretation. RECOMMENDATION: Staff believes the Director's interpretation was rendered ethically and that no abuse of authority or exceeding of jurisdiction occurred. Staff recommends City Council uphold the Director's interpretation by adopting the proposed Resolution affirming the interpretation. CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all mOtIOrIS must be made lri the pOSitlVe) "I move to approve Resolution No. ~, Series of 200'8, [affirming or reversing] the Community Development Director's interpretation of the Land Use Code regarding Man- made topography and Floor Area." ATTACHMENTS: Exhibit A -Interpretation dated August 28, 2009, with attachments Exhibit B -Appeal letter from Jody Edwards Exhibit C -Land Use Code Section Regarding Appeals Exhibit D - Affidavit of notice 3 RESOLUTION N0. (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING MAN-MADE TOPOGRAPHY AND THE CALCULATION OF FLOOR AREA. WHEREAS, the Community Development Director received a request for a interpretation of the Land Use Code regarding man-made topography and the calculation of Floor Area from the owners of 413 West Hopkins represented by Jody Edwazds, attorney; and, WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of the Director or modify or reverse the Interpretation upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and verbal testimony from the appellant, the Community Development Director, and has found that the Director provided due process and neither exceeded his jurisdiction or abused his authority in rendering the Interpretation; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community Development Director's Interpretation of the Land Use Code regazding man-made slope and the calculation of Floor Area. This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the Aspen City Council at its regulaz meeting on , 2009. ATTEST: Kathryn S. Koch, City Clerk APPROVED AS TO FORM: John Worcester, City Attorney Michael C. Ireland, Mayor Resolution No. , Series of 2009. Page 1 RESOLUTION N0. (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REVERSING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING MAN-MADE TOPOGRAPHY AND THE CALCULATION OF FLOOR AREA. WHEREAS, the Community Development Director received a request for a interpretation of the Land Use Code regarding man-made topography and the calculation of Floor Area from the owners of 413 West Hopkins represented by Jody Edwazds, attorney; and, WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of the Director or modify or reverse the Interpretation upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and verbal testimony from the appellant, the Community Development Director, and has found that the Director did not provide due process or either exceeded his jurisdiction or abused his authority in rendering the Interpretation; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfaze. NOW, THEREFORE BE IT RESOLVED that the City Council reverses the Community Development Director's Interpretation of the Land Use Code regarding man-made slope and the calculation of Floor Area. A property's development rights shall be derived from the topographic conditions of the site, as may be modifted from time to time. This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the Aspen City Council at its regulaz meeting on , 2009. ATTEST: Kathryn S. Koch, City Clerk APPROVED AS TO FORM: John Worcester, City Attorney Michael C. Ireland, Mayor Resolution No. ~ Series of 2009. Page 1 CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: APPLICABLE CODE SECTION: EFFECTIVE DATE: WRITTEN BY: City of Aspen 26.575.020.0-Lot Area August 28, 2009 /-~ Wt ~~ ~k~ Chris Bendon, Community Development Director APPROVED BY: Chris Bendon, Community Development Director SUMMARY: This Land Use Code interpretation clazifies how man-made grades are considered in determining Lot Area and Floor Area for development pazcels. Staff interprets the Land Use Code to not prohibit the consideration and acceptance of an estimated natural, pre- development topography in the calculation of Lot Area. BACKGROUND: The property at 219 South Third Street has been the subject of an ongoing land use review for an historic lot split and other reviews. There has been discussion about the grading of the lot and whether there should be a reduction in Lot Area (and a consequent reduction in allowable Floor Area) due to the current grading of the property. The interpretation request has been submitted by Paul and Angela Young, the owners of 413 West Hopkins Avenue, represented by Attorney Jody Edwards; and, Suzanne Foster, owner of 219 South Third Street, represented by Attorney Bart Johnson. DISCUSSION AND INTERPRETATION: The calculation of Floor Area relies on the calculation of Lot Area. The City's Land Use Code includes a section titled "Calculations and Measurements." This section describes how the City measures building heights, floor area, etc, and includes a section on measuring Lot Area, which reads as follows: Lot area. Except in the R-15B Zone District, when calculating floor area ratio, lot azeas shall include only areas with a slope of less than twenty percent (20%). In addition, half (.50) of lot areas with a slope of twenty to thirty percent (20-30%) may be counted towazds floor area ratio; areas with slopes of greater than thirty percent (30%) shall be excluded. The total reduction in FAR attributable to slope reduction for a given site shall not exceed twenty-five percent (25%). Also excluded from total lot area for the purpose of floor area calculations in all zone districts is that area beneath the high water line of a body of water and that azea within a vacated right-of--way or within an existing or proposed dedicated right-of--way or surface easement. Lot area shall include any lands dedicated to the City or County for the public trail system, any open irrigation ditch or any lands subject to an above ground or below ground surface easement such as utilities that do not coincide with road easements. When calculating density, lot azea shall have the same exclusions and inclusions as for calculating floor area ratio except for exclusion of areas of greater than twenty percent (20%) slope. The Land Use Code does not define "slope." However, there is a definition of "Structure," which reads as follows: Structure. Anything constructed, installed or erected which requires location on the ground or is attached supported by something on the ground, inclusive of buildings, signs, roads, walkways, berms, fences and/or walls greater than six feet (6') in height, tennis courts, swimming pools and the like, but excluding poles, lines, cables or similar devices used in the transmission or distribution of public utilities. The Land Use Code does not define "berm." Given the context of how the term is used in the above definition, staff believes a berm is a man-made landform that can be constructed on a property. Webster's dictionary defines berm as a narrow shelf, path, or ledge. It is reasonable to consider the rail bed a berm that was built on the land. The City's planning office has accepted an applicant's interpolation of natural topography in cases where evidence of unnatural topography exists. A project under construction in the east end neighborhood is the most-recent example. This parcel is located at the corner of East Hopkins Avenue and Midland Avenue. Midland Avenue is a former railroad right- of-way. The parcel (prior to construction) had evidence of re-grading to create a flat azea. The result was a portion of the lot being very steep and retained with a constructed embankment (a boulder wall). There was also some evidence of the rail bed itself being a man-made elevated form along and partially within this site. The owner of the east end property asked staff to consider an interpolated natural pre- development grade and submitted a grading plan estimating a natural, prior to development condition. The City's Community Development Engineer evaluated the site and determined that the landscape had been altered from it original condition. He also considered the interpolated grading plan a reasonable estimate of the site's pre- development condition. This grading plan was accepted as the basis for determining Lot Area and Floor Area and a permit was issued. The request letter from Attorney Edwazds questions whether the rail bed through the 219 South Third Street property is in-fact man-made. A site visit performed by the City's Development Engineer confirmed that the rail bed is not likely a natural landform. (see attached email.) The Community Development Director also walked the site and agrees that the landscape has been altered at some point in it history and is not likely a natural condition. If the Lot Area of a parcel only assumes the current grades of a site just prior to development and as may be altered over time, a property owner could re-grade the steep portions of the parcel to increase their development rights. For example, the steep portions of a pazcel could be "benched" or "terraced" to create a series of flat areas with retaining walls. This would reduce the total area of steep slope and increase the property's development rights. The picture at right helps demonstrate this possibility. The area in the foreground and right side of the picture has been terraced and would give a property more Floor Area than the azea in the upper left side of the picture. While this could take a lot of work for a property owner, an owner could be motivated to terrace their parcel to achieve a higher Floor Area. There aze roughly 2,436 parcels within the City of Aspen. 1,028 of these pazcels include slopes of 20% or more, the threshold above which reductions in development rights are effective. Staff does not believe that motivating property owners to terrace their properties could have been the intention of the code drafters. City Council meeting minutes from the code amendment hearings when this provision was added to the code do not reference slope. Staff believes that by "slope," the drafters meant the natural terrain prior to being affected by development. Otherwise, the "slope" could be altered to enhance the development rights and circumvent the purpose of the reduction. Staff does not believe the drafters intentionally created a loophole. Furthermore, staff believes that a community interest exists in recognizing legitimate pre-development conditions rather than encouraging unnecessary and disruptful re-grading of properties to augment development rights. Staff interprets the Land Use Code to not prohibit the consideration and acceptance of an estimated natural, pre-development topography in the calculation of Lot Area. Similar approaches can be found in the Land Use Code. The Code does not allow for an increase in development rights for other similar actions a property owner could do to their property. For example, the City prohibits one from artificially elevating their site in order to build a taller structure. Otherwise, a property owner would be awarded with increased heights by mounding-up their site. The City does not allow vacated rights-of--ways to add to a property's development rights. Otherwise, property owners would be encouraged to vacate alleyways or other rights-of--way in town to achieve larger buildings. In a similaz vein, the City does not discourage a property owner from dedicating a trail or pedestrian easement. These sorts of public easements do not reduce a property's development rights. These examples seem to point to a concerted effort by the City to promote good land stewardship in light of high property values and strong desire to increase development rights. LIMITATIONS OF DECISION: This interpretation relies on the City's Land Use Code and zoning regulations currently in effect, which are subject to change. The interpretation is subject to being reversed or altered by City Council upon appeal. This interpretation shall be valid until such time as the Land Use Code or zoning regulations are amended. This interpretation does not create a vested right. This interpretation will be maintained in the official record of all interpretations asprovided under Section 26.306.O10.E. APPEAL OF DECISION: Any person who has requested an interpretation may initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director within fourteen (14) days of the date of the decision being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights to appeal the decision. EXHIBITS: A -Edwards letter B -Johnson letter C -Permit Information for 1215 East Hopkins Development D -Email from Larry Doble. GL^'~~. aoo9o ASLIB, KLEIN, COTE & EDWARDS, LLC .~ I-IERBEAT S. KLEIN hskQkcelaw.net LANCE R. COTS, PC* IrcQkcelaw.net JOSEPH E.EDWARDS, III, LLC jee n(Jccelaw.net COREY T. ZURBUCH ctz rLJkcelaw net EBEN P. CLARK epc n kcelaw.net MAD}i0 B. KRISFINAMlJRT1 mbken kcelaw.net DAVID C. UHI,IG dcuQkcelaw.net • also admitted in Celifomia HAND DELIVERY Chris Bendon City of Aspen Community Development Department 130 S. Galena St., 3`d Floor Aspen, CO 81611 ATTORNEYS AT LAW August 5, 2009 ~~ STREET. STE. 203 FACSMIILE: (970) 925-397 ~ www kcelaw.net ~~/~i~ ~„~ ~JN~ Re: Request for Interpretation Pursuant to Section 26.306.010, City Code; 219 South Third Street, Aspen, CO (the "Property") Dear Chris: On behalf of our clients, Angela and Paul Young, I request Code interpretations pursuant to Section 26.306.010, City Code. As you are aware the Youngs are the owners of property known as 413 West Hopkins, Aspen, CO which is across the alley from the Property. The Owner of the Property has filed a development application with the City under Ordinance 48 for Historic Landmark Designation and negotiation of certain benefits. One of those benefits relates to the developable Floor Area for the Property. There are two sepazate interpretations we need from you concerning Floor Area, the first relates to steep slopes and the second relates to a deck. Steep Slopes. The Property contains significant steep slopes. Based on the development application for the Property, approximately 25% of the Property is steep slopes in excess of thirty percent. Originally the applicant and staff agreed that the slopes needed to be deducted from the Lot Area for purposes of calculating allowable Floor Area. On July 2~L, 2009, we received an email f om Amy Guthrie which indicated that staff had determined, contrary to prior representations to both the Historic Preservation Commission and the City Council, that the steep slopes on the Property would not be deducted from the Lot Area for purposes of calculating allowable Floor Area because such steep slopes appeazed to be man-made, not natural grade. That issue was discussed with HPC that evening. This is contrary to the cleaz language of the Code Section 26.575.020.0., which states as follows (emphasis added): Chris Bendon City of Aspen Community Development Department August 5, 2009 Page 2 Lot area Except in the R-15B Zone District, when calculating floor azea ratio, lot areas shall include only areas with a slope of less than twenty percent (20%). In addition, half (.50) of lot areas with a slope of twenty to thirty percent (20-30%) may be counted towazds floor azea ratio; areas with slopes of greater than thirty percent (30%) shall be excluded. The total reduction in FAR attributable to slope reduction for a given site shall not exceed twenty-five percent (25%). There is nothing in the Code language above which provides an exception for man-made grades. The steep slopes, if they are man-made, date back to 1887 when the railroad arrived in Aspen. Consequently, assuming the steep slopes in question are man-made, they were in existence many decades before the Land Use Code was adopted with the above language. The drafters of the Code were awaze of the slopes existing in the City when the Code was adopted. While the Code does not provide a rationale for deducting steep slopes from Lot Area, it seems likely that slope stability is the likely reason. And if slope stability is the justification for exempting steep slopes from Lot Area then man-made slopes which are generally less stable should provide more (not less) justification for reduction of Lot Area. I understand the rationale for using historical grade for measuring height. And there may be some justification for waiving the deduction from Lot Area for very small man-made anomalies such as landscaping berms which will not be affected by or which will be entirely removed by development. But that is not the case here. In this case there is a significant land form which has existed for many decades and passes through numerous properties in the City. In the event that the City makes a determination that the steep slopes associated with the railroad right of way are not to be deducted from Lot Area, I suspect many land owners will seek to increase the floor area developed on their property. The Code is plain and clear that slopes in excess of 30% are to be deducted from Lot Area For purposes of calculating Floor Area. As the United States Supreme Court has held, the fundamental rule of statutory interpretation is that if the law is cleaz as written, then no interpretation is necessary. "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut National Bank v. Germain, 503 U.S. 249, 253-254 (1992). Indeed, "[w]hen the words of a statute are unambiguous, then this first canon is also the last: 'judicial inquiry is complete."' Id at 254. Since this Code section is clear and unambiguous, no interpretation is necessary and all slopes in excess of 30% are excluded from Lot Area for purposes of calculation of Floor Area. Chris Bendon City of Aspen Community Development Department August 5, 2009 Page 3 Deck Area. We also received an email from Amy Guthrie dated July 28, 2009, in which Amy states that staff has reviewed the area underneath the wooden deck on the south side of the Property and determined that it is not a "loggia." Consequently, staff concluded that such azea below the wooden deck is not subject to inclusion in the calculation of whether the deck azea exceeds 15% and must be counted as Floor Area to the extent it exceeds 15% of the maximum allowable Floor Area for the building pursuant to §26.575.020.A.2, City Code. This misses the point. That azea is a concrete, sunken azea attached to (appended to) the structure and covered by the upstairs deck. While maybe not a loggia, the azea below the wooden deck is also a deck, as defined by the Code. Section 26.104.100 defines a deck as: "Deck. An outdoor, unheated area appended to a living space but not intended for living." This exactly describes the space below the wooden deck. As a deck this area below the wooden deck must be included in the deck azea for purposes of Section 26.575.020.A.2. Consequently, we request your interpretation of (1) the above-quoted portion of Section 26.575.020.0., City Code, as it applies to properties with a significant portion of the lot consisting of steep slopes and which steep slopes (whether man-made or natural) pre-date the enactment of the Code, and (2) Section 26.575.020.A.2 as it relates to the area below the wooden deck on the Property. Enclosed is our Code Interpretation fee in the amount $50.00. If there is anything in addition to this letter and fee that is required in order to pursue this interpretation or if you need additional information from me, please contact me. Sincerely, KLEIN, C & EDWARDS, LLC Edwards III cc: Paul and Angela Young young\I Bendon interpretation request.doc ~~~~~ .~. OTTENJOHNSON ROBINSON NEFF+RAGONETTIa August 28, 2009 Chris Bendon, Director Aspen Community Development Department 130 South Galena Strcet Aspen, CO 81611 J. SART JOHNSON ' 97 0 911 1095 6ARTQOTTENJONNSON.COM Re: Request for Interpretation Submitted by Klein, Cote 8c Edwards, LLC on behalf of Angela and Paul Young Dear Chris: This fum represents T. Foster and Company ("Foster'. By letter dated August 5, 2009, Klein, Cote & Edwards, LLC submitted to your office a request for interpretation pursuant to Section 26.306.010 of the Aspen Land Use Code (the "Regcest'7. Foster owns the property implicated by the Request and therefore has standing to oppose the Request. By this letter, I am requesting that Foster be recognized as a party to the Request and that the interpretations of the Aspen Land Use Code advocated in the Request be rejected and denied. Sloce Ar ment. The arguments in the Request concerning the meaning and application of Section 26.575.020.0 should be rejected. Your department has already considered this issue with respect to other land use applications and has determined that man-made slopes should not be excluded from the Lot Area calculation for the purposes of determining the permitted Floor Area for a Lot. This treatment of man-made slopes has been the policy of your department for years. I am enclosing with this letter application and building permit materials for the project located at 1215 East Hopkins Avenue, which is currently under construction. These materials clearly demonstrate your department's position in response to a prior request for interpretation on this precise issue. It would be both unfair and improper to treat T. Foster and Company's property any differently. Contrary to the contention in the Request, the language of Section 26.575.020.0 is not plain and clear. The term "slope" is-not defined in the Aspen Land Use Code. There is clearly a question about whether it is intended to apply to natural slopes, man-made slopes, combinations of the two or all types of slopes.l This ambiguity has I By way of comparison, consider the Aspen Land Use Code's treatment of "grade." It clearly states in the provisions governing building heights that they are to be measured from "natural or finished grads, whichever is lower." The specification of both natural and finished grade eliminates ambiguity. The slope language in the Lot Area provisions does not include clarifying language of this type. 420 EAST MAIN STREET SUITE 210 ASPEN COLORADO 81611 D 970 644 4637 F 970 666 6632 W OTTENIONNSON.COM DENVER ASPEN STEAMBOAT SDRINOS Chris Bendon, Director August 28, 2009 Page 2 been recognized for some time and your departrnent has been confronted with this issue before. As the person charged by the City with administering the Aspen Land Use Code, you have well-established authority under Colorado law to interpret the Code, and the interpretations you provide are to be given deference. Given that you have already established a policy of interpreting the Lot Area exclusion language as not applying to man- made slopes, we believe you are bound to remain consistent. Deck Area Argument. The deck area argument in the Request is not really a request for an interpretation at all. It is actually a question about how the Aspen Land Use Code should be applied to given facts. Given that no final decision has been reached on Foster's pending application, it is premature for the Youngs to be mounting challenges about how the Code is being applied. But, in any event, the position advocated in the Request pushes the notion of a "deck" to the extreme and is essentially an argument for the idea that every second story deck should be double counted because it has outdoor space under it that is appended to a home but is not intended for living. For that matter, under the broad defmition of deck espoused by the Request, the entire yard of a home could be considered a deck. In this regard, it is important to point out that under Section 26.575.020.A.2, landscaped terraces are not treated as Floor Area for any purpose. The term "landscaped terrace" is not defined. But we submit that the area in question, with the addition of some planters, could just as easily be considered a landscaped terrace. By necessity, yow department is required to make judgment calls about how definitions and language are applied. We wntend that it is clearly within yow sound judgment to determine that the area in question is not a deck for the purposes of Section 26.575.020.A.2. Sincerely, J. Bart John; for the Firm Enclosure 911165 1 ca Su~nne Foster Jody Edwards To Whom It May Concern: Adam Rothberg (Project Manager and Owner Representative) and John G. Mattin (Architect of project) repreceatiog the owner Stephen Rattner, met with James Lindt and Todd Grange, City of Aspen Community Development Department Planners, for sere-application cmference at 10:00 am November 6, 2006. We discussed the newconsuuction development project of a singlyfamily borne at the property located at 1215 Fiat Hopkins Avenue (Lot 4, Promontory Subdivisiast). As a resuh of issues discussed at that meeting, we respectfully submit this request for staff interpretation tegarding existing contour grades at the subject property. The folktwiag is m arcerpt from 26.10100- Ctdctdations and Massanwentr - Gy1y sjAspen Land Ure Coda: C. Lot Ana Except in the RI3-B zone dutrkt, what ealealatingjloor any ratio, lot rotas shd! include only areas with a slope ojless than 2096 In addition, halj(.SOJ ojlot areas with aslope oj20-3076 stay be counted taNnrdsJloor area ratio; mans with slopes ofgrmter than 3071 shall be exdttded The rota! reduction y FAR arnibutabk to slops redaction for a given site steal! rat ereted 1J% Also ezdudad from rotal lot area for the purpose ojjloar ano calculations in all zone dislric7s is that area beraarh the high water line ~'a body of water and that area within a vacated rightof--way, or within an existing or proposed de~mted rigJtt-of-way or wrfate easonent Lot arm shall inchrde any fonds dedicated to the Crry ojAspen or Pitkirr County for the public nail system, any open irrigation ditch, or arty lands subject to an aboveground or below grotoul surface easement such as utilities that do not croincuk with road easanantr. What calculating density, lot arm shall have the same exchtrions and fnchtriora as jar ealeulattngjloornrm ratio except jar ezchrsion ofanat ojgrmter than 20%slope. Raliooale for tTrantlne contoar interoolaflon: The Cotner lot is small sad actually aoo-coafotming is Minimum Lot Width in R-6 Zoning. The contouts have been scraped in m un-natural way m create a flat area for the existing house oa the lot Sinx the bt tees been flattened on the northern side, the conmurs are very steep ae they climb back up m meet the natutal grade of the street along Midland Avenue. This creates as unaaaual bowl effect in the lot which is made worse by the use of a steep anti tall aoa-confotmiag boulder wall along a good portion of lot edge near the comer of Midland and Hopkins Avenues. The unaamral nun-made grading is causing a large reduction in the amomt of lot aces that we can use for F.A.R calculatiena. This is causing what we determine m be as unfair reduction of FA.R based on arbitrary grade Lines which do not reflect the actual gentle sbpes that would have been present ~ this lot prior m the previous development We feel that if we could have the grades imerpolated m match what would have been a more nattual and gradual grading of the site, we would have F.AR available m us that would more closely match the other Iota on this street and the neighborhood in general. The arohitect has provided two existing sine phms es reference for this argument. 1'he existing she plea shows the existing contours sad hatching representing a large area of grade over 20%. The existing site plan with intapdated grade still shows some areas of hatching rcprwenting grades over 20°/., but there is not early as much allowing us m increase, in a equitable way, the F.A.R that should be associated with this lot The grades are shown as more tutttral and sloping gently, matdting the slopes of tite street. Therefore, we respectfully request that an approval regarding conmur interpolation as it applies m the umahual and arbitary grading of the previous development on this particular site, be granted. Sincerely. fld-~w~ John G. Marlin ~~ ~ Q $ 20uo Requt~st for statlf fnterprtstatbn - Inbtpolat~d 8iM Contours ~, ~w~•,~ ~Y!~RVYri7SR1 6~ 9916x1 ~. meora ~~~~$ ..~ ~ b,W +a~ >~ #rJ JT11'~1W~9['D~f ~1~9 ~4~VY +~x~t C C ~~ 2 ~ 9 9 ~Q 5 ~R S'~f €f ~~F t ~~ ~~ ~S ~~~~6 ~F i~ 1 j~' ~ ~~ ~~f~If~j~~ ~if ~3~~~a~1~3~~ m.. ~„ i9N8AY SNfpd011 ,lSyg "~--- ,, I ~~ I~ ~ ~ ~ ~' ~ ~ ~~-i+- I y S I I i ~ I ~ t ~ II I n I, 989 I I c l 1 ~_ J ._. --- ---._ ._. c t c jf e )~ G ~~ . ~ C R ~~ ~ ~ ~ ~`s ~ ~ i~ ~ ~ m~ i °z~ o_$ 3 >,b ~ ~ .,w,w,.,r -~n,~.r4nu Z 7 ~ ..a+. ~iI~QP~~S . C A ~~ :~ R a k A ^ C 1~~~='~ ~ fit.€t~~ ~ ~~~~~,3~~ ~~;~i~~~ ~$g ~< < ~ A `~ ~' ~ 3 ~ s a ~~ ~ ~ i ~a ~ ~ i~ ~ ~ c C ~, ~~ :; ~~s ~~~ 1 ~ ~,~~~ $ ~ a ~~ d i~ . ~' ~~ K g~ s~ z ~, a~ ~~~~~~~ 1 r '~ / n ~~ ~~ F ~ ~~ it II L. ~ ._. ._. -~..__ -_.._ ~~ o~ ci 's anNanr~aaoy +sra `. ,~ ~ z$ w< • i~ o€ z: ~~ ., ; o . UJ 6ELa~ F~VE~1 EL ON lWTH EWNDi aAdr s~oo=lA1d AV$Nbe .~ I. ATTACHMENTS DIMENSIONAL REQUIREMENTS FORM Project: _ _ ~a. T-tti;~ RC'F S l tir-__>.!L.E Applicant: ppry,,, 42an+gr-Pf Location: Itt'S ~. F~•,~P Wi)5 AJt".~u_'F 4y P!I.~~ituTVef ~i ZDlllSro wt) Zone District: ;4s[~~vta ti~.r_)S1`r~{ ICYS1rR.srrn~t_ (il'-(n~ Lot Size: ~ I~ {^ . LOtArea: +•I .Q1.Q. CJ~St•. OVtF~i RY Ciervlfl'snac ~Jac~cc~.t~-~ Itor me purposes o[ calculating rloar Area, La Area may oe retlucetl for areas within the high rater mark, easements, and stcep slopes. Please refer to [he definiliun of Lot Area in the Municipal Code.) Commercial net leasable: bxJsting:~ 1`l•4 Pruposed.• Number of residential units: F_risting{_1_ _, I°roposed.• l _ Number of bedrooms: Existing:~_-~ Proposed.•_ Proposed % of demolition (Historic properties only):~i A DIMENSIONS: Ploor Area: Etisting: `_ I ~~l A~Allowah/e: r [~ 1'roposed.• <'(yp ~-(o ~ Tf TI4u5+tE p Principal bldg. height: F,xisltng:.~ -Gor .'K Allowable: 25 r Proposed: 2$ Access. bldg. height: FsLstirtg: Q,+, _Allowable: Proposed.••_____ _ _ On-Siuparhing: Existing: 1'!p2 Required.-, 2 ~M%.S Proposed.•~~S Site co~~emge: Existing: I ~'~ Required: SO'd Proposed: ?~ %Open Space: Ex1.rlfng: _~C? .._Required.- CO ~ Proposed.• rJ no Front Setback: Execling: IJ.C • Reyuired:_ _ID ~ __ . Proposrd:_ G~ Rear Setback: Existing: nl•C Required.• _~G r• Proposrd• tD CnmbinedFllt: Pxirting: sJ-e Required•_ _~1~. Proposed.• %!% Side Setback: Fxisting:_ _N t __Required.• Ca . ~ Po•opared.• ~ • i Side Setback: Existirrg: _lu~t,Required.- r7 ' _Proposed: I, ~ _ Combined Sides: Existing: ~•G Rrquirrd: i ~I 7 Prnpared:~ • 7 DistanCC BCtwcC11 Gristins _ AIA. Rrquirrd:_ _Proposed:__ Buildings Existing non-conformities or Variationsrcquested: J 6A•R/s.Gtf ~5.1{~5E +v+,~i`Ff ~dNL- Ct~'N~ 1 a1lI,SF7.~L~ Z. eE 'S Gr.[rut, w1rlL~wS is SE?arJ Sr-r~rErr,.1 °i' -.a 121, NOV U S Zii06 h ~`;=~r1 .,~a: ... -.rj~gT ASPEN * PITION COMMUNITY DEVELOPMENT DEPARTMENT PERMIT APPLICATION _~ PITKIN COUNTY ^ CfTY OF ASPEN ^ .0 South Galena 970 / 920-5526 970 / 920-5090 QOyQ, Zn,~T~~g~eneral .aspen,ec0 8161~~970 / 920-5532 1nspection Line 970 / 920-5448 Inspection Line PERMR NO. permit A79 ADDR~1 ,, = 1• 12l ~' C dG1,.1 S C.o g t l O i 2 I.m.L OFBCRiTIOK ' rto~fZ L I L-0T: pE- ovmw MNLADpREES DP R1WIE 3' ~ ~ s ~ Pbu~S Lt.G- 246`1 2ov~-GE C.t (2. 'TOrJ ~- FN OWIBMSAlf1110R®MENf LWLADWIF85 PNOIff NO 4. MH DDNRIACTOR '"`-ADDRF9e MS 5. 3t~t~.rif3 cti./s1; Orsv..7enea~aTAr~ A;L~.vEsl~p~} ~t'61l .. Q~?''~0~`'1 ~b~ RF -ARCwrEeroR EKON~n of AEeao NLLLADpRE$5 L'I-to9KGrEy~. ~ps~No 6. \AM~J~ rM ~tA~ ~O~Xr~"f ~.n Zf~1/~~Iw! L'~/J ~w~ d1{/J1 I SN 7• ~OFWOIK ilNEw ^ ADDmON ^ ALTERgnoN D REPAIR o ENERGY CODE Fg/ 1 ~. l• UGETAif CENSUS CODE G.I.S Ff# C[+ ~h /J ~ V Z a• USEDFBUIUJND SINGLE FAMILY MULTI-FAMILY ^ CO ESI ^ COMMERCWL ^ OTHER PIAN GNEOt T11-d' A~ p0yp~FEE ~pRWG~ O a EIDeiW080 FCOTAGF 80UARE FODDIGE fYJD ~c ~ s. l 954 Sao. o0 . 10. ~2~p '"~ c ~! o~ IatAnr m 11. la there food serWce in this building ^ YES Rio ~ a I ~• a~ ~ ~ s O 12. Is LPCa used? O vES f-TJO ~~ I W/~• r ~ m 13. ParcellD#~ca11920-5160 '1'3 NaaF eEalooNG Ewsnro ~o U. // RFGPlM..RgAgl w Ono 14 D 4j ~ ~~"~~ O w Ola . escTi lion Na aDwlnp UNb pFFSTREET (Wil(ING SINGES {1 / Cvw~e Unmwirl t [t\ (~ ~~y ~ ~ ~./ Kf~/~//aLl~ ~aJ~ /1/FtAJ CIaI III/I ~ MR11011®T' DAIi~ / 2z P16UBYRTAL i APAIGDQlAMAIED i WI~I~ i AppRDhpFM eeLVlCE „, ~f y 1 BV eY MTE~ DIEE GVF ^2Z Y' CJ MTE ~' ~~ NOTICE SEPARATE PERMITS ARE REOUpED FOR ELECTRON., PLUMBWG. HEATNG. VBdTILATWG OR AIR CONDnONING. THIS PERMR BECOMES NULL AND VOID F WORK OTt CONSTRUCTION AUIHOq® L4 NDT COMMENCED WIRBN 12 MDNR/.4, OR IF ~ OR WC1RK Si SUSPENDED OR ABANDONED PoRA PERIOD OF 1BpMYSATANY TWE AFTER WORK ISCOMMENCED. I HEREBY CERTIFY THAT I f1AVE READ AND E%MfNED 7111$ APPLN,ATTON AND KNOW THE SAME TO BE TRUE AND COFFECL ALL PROV510N8 OF UW8 AND ORpNANCE6 GOV- ERNWO TM6 TYPE OF WORK WILL BE COMPLED WfTH MI/ETHER 9PEdF~ FQ~W OR NOT. THE GRANTING OF A PERMIT GOES NOT PRESUME TO GIVE AUTFiORRY TO VOUTE OR CANCEL 7FE PRDV{SION$ OP ANY OT}IB7 SLATE OR LOCAL UW fea3lRATING CON- STRUCTgN OR THE PERFORMANCE OF CONSTRUCTON. n E MY RG4PCNSIBILITY TO • ~ EVIEW TYE APPROVED PLANS AND ANY COMMENTS THAT ARE CONTNNED THEREIXJ ND SEE THAT THE 8TRU~IURE~ANDVR ECT 5 BIAT IN COMPLIANCE WfIH ALL Y - ~"i~{ ~tJ '~ MHNI ~t TsTTI" wur NAMC - L 14PC. PARCDEgCRgN MMR0. HFADN BIGINEBIIIK PARI(8 NAIIXNLRBSOURCE3 FlRE MWBINL WATER rAP ASPEN CONSOL SNJ. DIET. oTNel T? su. ~ d ~r PAYMENT OF PITKIN COUNTY USE TAX ~MONTHLYOR Ol14RT@iLY RETURJS WILL BE SUBMRT®. O DEP06R METHOD S%aF 25%OFTIIE PERMR VALUaOF1 PAID AT 13911ANCE. A FINAL R~ORTON TOLLLACTWLCOST MUST ElE Ftl.ED WITH N>q DAYS OF SUBSTANTIAL COMPLETON OF WORK AND / OR ISSUANCE OFTHE CERTFlCATE OF OCCUPANCY. O E>EMPC EIEMPTORGgNQA7X)N ^ RESALE: SWTEetATKW COUNTFTY RESALE NO. THE DEPOSIT MET}ICO WAl REASSUMED lA'AESS OTH8iN7SE NOTED. ANYDNE WHO USES AND/OR CONSUMES BULDWG MATEFtlALSAND FIXTURES N PmW COUNTY B SUBIECTT07HE S%USETAX PROPERTY LIENS MAY BE PLACED ON THE OWNER'S AND /OFT THE CONTRACTOR'S PROPERTY WHEN USE TAXIS NOT PAID THIS FORM IS A P91MR ONLY WHEN VALIDATED WORK STARTED WITHOUT PERMIT WILL BE DOUBLE FEE Rnan,Gy Coda FAS Plan CMpk Fw xallkly Fse 018 Fr PermR Fes Use TsK Depeaft Fae OdNK Fass l182•S'6 7GSL. Sy ° lvyypo x"00 ~19,AiS.gC ~' ~s76 ',~-t~ wHn ~oPV caNARY-aPPLICANr V V A ZONING CHECKLIST Daze: Owner's Name 2iS (;Art Not~l+~ LLC permit Contact Persoa_ : 2. W ~..` ~ eta Phone Legal Zone PLANNING APPROVALS: O HPC Conditional Use Design Review 8040 Greenline Stream Margin View Plane GMQS Special Review Bd of Adjust PUD TYPE OF WORK ew Construction RemodeUAddition Demolition/Relocation Sin a-Fam,l ~ Duplex Accessory Structure Commercial Multi-Family - # of units Employee House - # of units LOT SIZE: (p; (7 ~ LOT AREA: _ SETBACKS Allowed rinci Acc Pro sed ci aVAcc Froar ~ b Rear p ~ O Combined Front/Rear / Side ,jU Combined Side S Distance btw buildin Comer Lot HEIGHT (PrincipaUAccessory): Allowed: ~-~ Proposed:~_ ~'" FLOOR AREA: Allowed: .~,? Proposed:~~~` Exempt Space (s.f.) Garage ~ ~U~ Subgrade / 7 ~ 7iDecks~~Z ~ '~3S NET LEASEABLE SF Existing: Proposed: -' OPEN SPACE % Required: Proposed: BEDROOMS Existing: Proposed: S STTE COVERAGE Allowed: Proposed:~t ON-SITE PARKING Required: ?~- Proposed:"" 2 FEES: School: y, ~~'ark Dedication: ~ Cash-in-lieu:_ g~/~ Planning ees paid: "[~m ,Xiy!'~ {~- it,lvl, (1'~ D lS~f. o'er 7. A~i2.BK - ~ - l 3 ~.Y _.. ,~ I .~, n ,/07, ,ss, RESIDENTIAL DESIGN STANDARDS SITE DESIGN Building Orientation: ~'~- Build-to-Lines: ~L Fence: f~'" PARKING, GAR Access (i.e. alley): Garage width: Garage location: Driveway cut: Entrance width: Single stall doors? CONTEXT Materials: Inflection: NT~~ 3 f 25/ ry~il~N,` •j ~~- AGES~/&4~"ARPORTS . OGL -~ ~~ BUII..DING FORM Secondary Mass: /~~/^- BUII,DING ELEI windows: Door: Porch: Principal window: One story element: Lightwells: ~DTTIONAL NQ L, aC u,!' k ~. .'~~,. .' C ~(:~ft /~, '' /~.%, ~`t :.ass f4~yt11.i-.{oY `, 1-.>>f+JL~2 ,/~PS- C~~e.- W i W r.~W ~t~'3~ ~~ t~t~c~ f ~ F ~' l3~~ u.«.,- 9 ~~ ~~' ~Dh-~ , .~ -, ,~ _- ¢aas_ 3i.. ~.gs ~e,SB y28c 3ot.~} t2tg1••• rZ~of.G{' 1~---~_____.+ (~.5 ~`~/ ~.) r ~ Gx.~ ~,,, tie o~'k.~(z:~ Page 1 of 1 Chris Bendon From: Larry Doble Sent: Thursday, August 27, 2009 7:57 AM To: Chris Bendon ___ __--_-~~i ~~~o~ ~~~~~~ Subject: RE: 219 So. 3rd Street Good morning, It is very unlikely that the RR would have laid their tracks on natural ground. Some form of fill or excavation and then fill would be the norm. In my opinion it is man-made; but, the only way to be sure is do borings or some other invasive soils analysis. Larry From: Chris Bendon Sent: Wednesday, August 26, 2009 6:01 PM To: Larry Doble Subject: 219 So. 3rd Street Larry: We spoke briefly the other day about this property. I assume you've had a chance to visit the trail along the south side of the 219 property that is roughly along the former midland railroad alignment. In your opinion as a civil engineer and the City's Development Engineer, do you think that area is a natural landform or one that is man-made? Thanks. Cheers, Chris Bendon, A/CP Community Development Director City of Aspen ~ 970.429.2765 www. aspenpitkin. com/ 8/28/2009 KLEIN, COTE &EDWARDS, LLC ATTORNEYS AT LAW Y•~ ~CG` r 1r'~"~ I-IERBERT S. KI.EIN hsk <D :celaw.net LANCER. COTE, PC" Irc@kcelaw.nel JOSEPH E. EDWARDS, llI, LLC jeeQkcelaw.net COREY T. ZURBUCH ctzQkcelaw.net EBEN P. CLARK epcQl:celaw.net MP.DI-]U B. KRISHNAM[JRTI mbk(a~kcelaw.net DAVID C. UHLIG dcu a~ccelaw.net 201 NORTH IvIlLl STREET, STE. 203 ASPEN, COLORADO 81611 TELEPHONE: (970) 925-3700 FACSINQLE: (970) 925-3977 www.kcelaw.net also admitreA in Califomis September 9, 2009 RECEIVEC~ Chris Bandon City of Aspen ~~~ 0 y ?nQ9 Community Development Department CI I Y OF HSPEN 130 S. Galena St., 3`d Floor OMMUNITY DEVUELOPMENT Aspen, CO 81611 Re: Notice of Appeal concerning Land Use Code Interpretations of "Lot Area" and "Decks"; 219 South Third Street, Aspen, CO (the "Property") Dear Chris: This letter constitutes a Notice of Appeal pursuant to Section 26.316.030 of the Aspen Municipal Code. This office represents Angela and Paul Young, the owners of property known as 413 West Hopkins, Aspen, CO which is within 300 feet of the Property. On August 30, 2009, Code interpretations concerning the definitions of Lot Area and Decks (the "Interpretation" or "Interpretations") were issued in response to my letter of August 5, 2009. The purpose of this letter is to appeal those Interpretations to the City Council pursuant to Code Chapter 26.316. The basis for the appeal is that the Interpretation were issued based on an abuse of discretion. A copy of my letter of August 5, 2009 is attached hereto and the arguments presented therein are incorporated herein by this reference. Additionally, please consider the following. Lot Area. In the Interpretation concerning Lot Area, staff expresses concern that a property owner could re-grade steep slopes in a "benched" or "ten•aced" fashion and thereby increase the allowable floor area on the site. Re-grading is defined as development in the Code and therefore requires a development permit (or exemption) under the Code. Any such permit could very easily be granted with a notation which requires an acknowledgement by the ]ot owner that the granting of such grading permit will not create additional allowable floor area on the lot by virtue of the elimination of steep slopes. RECEIVED Chris Bendon SEP ~ 9 2009 City of Aspen Community Development Department CITY UI- HSPEN September 9, 2009 ~~NITY DEI~L~PMENT Page 2 The Interpretation states: "Staff believes that by "slope," the drafters meant the natural terrain prior to being affected by development." As stated in the August 5, 20091etter (and as has been reiterated by both the Colorado Courts and the U.S. Supreme Court), there is no "interpretation" to be made when the language as written is clear and unambiguous. There is nothing ambiguous about the definition of Lot Area as written; it is only that "staff believes" the drafters of the code meant something other than what was written. Nowhere in the definition of Lot Area do the words "natural terrain prior to being affected by development" appear. This phrase is something staff has added to the definition. Instead, the Code clearly states: "areas with slopes of greater than thirty percent (30%) shall be excluded." This is a clear, declazative statement which leaves no room for making a distinction based on natural or man-made terrain. If this language results in hazdships, land owners can appeal to the Board of Adjustment or the Council can amend the Code. But it is an abuse of discretion for staff to "interpret" the Code different from the cleaz language of the Code. Both staff and Mr. Bart Johnson (on behalf of the owner of the Property) assert that staff has previously interpreted the term steep slopes to not include man-made slopes. While this provides a course of conduct and demonstrates that staff is not showing the applicant for this Property any favoritism, it does not justify the Interpretation. Two wrongs do not make a right. The fact that there have been prior un-appealed staff determinations that man-made steep slopes aze to be excluded from the deductions from Lot Area does not justify further errors in the application of cleaz language. At the bottom of page three of the Interpretation, staff points out that other provisions of the Code do not allow a property owner to artificially elevate the land to increase heights or to add a vacated right of way to lot azea in order to increase floor azea; and the Code does not penalize a land owner by reducing lot azea for dedicated public trials. Each of these assertions is correct. And, more importantly, each of these provisions is specifically and cleazly provided in the existing language of the Code. None of these provisions aze based on an interpretation of the Code by staff. For example, the Code specifically provides that height is to be measured "from natural or finished grade (whichever is lower) at any point around the perimeter of the building." The definition of Lot Area specifically excludes azeas which aze vacated rights of way and specifically includes dedicated public trails. This is very different from the instant case where there is clear and unambiguous language that states steep slopes aze to be excluded from Lot Area, and staff believes that this language should mean "natural terrain prior to being affected by development." The drafters of the Code cleazly had the ability (as demonstrated with regard to the definition of height) to limit the slopes to be deducted from Lot Area to "natural" slopes, not man-made slopes. The fact the drafters of the Code provided that the measurement of height should be made from the lower of natural or finished grade but did not limit the steep slope deduction to naturally occurring steep slopes, in fact, indicates an intent that all steep slopes (man-made or natural) should be excluded from Lot Area. Chris Bendon City of Aspen Community Development Department September 9, 2009 Page 3 Deck. ~cF~~ C.~ ~~~' ~ y ~~ ~MON/~ h,~ JN009 ~~ry In the Interpretation of Decks, staff ignores the word "appended" in the definition of a deck. Staff asserts that under our interpretation of decks all decks would be double counted because all areas under a deck (and even yards along the sides of buildings). In this case the area below the wooden deck is a concrete deck which is "appended" to the house by a concrete slab and by block walls. This is not to be counted because it is azea beneath a wooden deck, but because it is area "appended" to the house and is therefore a deck under the Code definition of a deck. If it is not a deck, then it is a "loggia" as defined by the code, because it would be a porch "attached" to a living space under a roof as an integral part of the building. Enclosed are our (1) Land Use Application Fonn, (2) Agreement to Pay Fees and (3) the fee in the amount $735.00. If there is anything additional required in order to pursue this Appeal of these interpretations or if you need additional information from me, please contact me. It is my understanding that the City will be responsible for publishing Notice of the Appeal heazing date. Sincerely, KLEIN, COT~~EDWARDS, LLC cc: Paul and Angela Young young\l Bendon appeal code interpetations.doc G Chapter 26.306 'V+ / J,~ I-'~'~ INTERPRETATIONS OF TITLE Sections: 26.306.010 Interpretation. 26.306.010 Interpretation. A. Authority. The Community Development Director shall have the authority to make all interpretations of the text of this Title and the boundaries of the zone district map. B. Initiation. An interpretation may be requested by any affected person, any resident or real property owner in the City of Aspen, or any person having a contractual interest in real property in the City of Aspen. The Community Development Director shall have the authority to initiate interpretations of Title 26. C. Procedures. 1. Submission of request for interpretation. Before an interpretation shall be provided by the Community Development Director, a request for interpretation shall be submitted to the Community Development Director. 2. Determination of completeness. Within fifteen (15) days after a request for interpretation has been received, the Community Development Director shall determine whether the request is complete. If the Community Development Director determines the request is not complete, he shall serve a written notice on the applicant specifying the deficiencies. The Community Development Director shall take no further action on the request for interpretation until the deficiencies are remedied. 3. Rendering of interpretation. After the request for interpretation has been determined complete, the Community Development Director shall render an interpretation within fifteen (15) days. The Community Development Director may consult with the City Attorney and review this Title and the zone district map, whichever is applicable, before rendering an interpretation. D. Form. The interpretation shall be in writing and shall be sent to the applicant by certified mail. E. Official record The Community Development Director shall maintain an official record of all interpretations in the Community Development Department, which shall be available for public inspection during normal business hours. Once an interpretation is rendered, public notice describing the interpretation shall be published in the legal notice section of an official paper or a paper of genera] circulation in the City of Aspen. Such notice shall be provided within fifteen (15) days of the interpretation being rendered, and shall be substantially in the following form: "A code interpretation to City of Aspen Land Use Code. August, 2007. Part 300, Page 17 Section 26.xx.xx of the City of Aspen Land Use Code , requested by xx, was rendered on xx/xx/xx and is available for public inspection in the Community Development Department." F. AppeaG Any person who has made a request for interpretation may appeal the interpretation o£the Community Development Director to the City Council in accordance with the appeal procedures set forth at Chapter 26.316. (Ord. No. 12-2007) City of Aspen Land Use Code. August, 2007 Part 300, Page 18 Chapter 26.316 APPEALS Sections: 26.316.010 Appeals, purpose statement. 26.316.020 Authority. 26.316.030 Appeal procedures. 26.316.010 Appeals, purpose statement. The purpose of this Chapter is to establish the authority of the Board of Adjustment, Growth Management Commission, the Planning and Zoning Commission, and City Council to hear and decide certain appeals and to set forth the procedures for said appeals. (Ord. No. 17-2002 § 2 (part), 2002) 26.316.020 Authority. A. Board of Adjustment. The Board of Adjustment shall have the authority to hear and decide the following appeals: 1. The denial of a vaziance pursuant to Chapter 26.314 by the Planning and Zoning Commission or Historic Preservation Commission. B. City Council. The City Council shall have the authority to heaz and decide the following appeals: 1. An interpretation to the text of this title or the boundazies of the zone district map by the Community Development Director in accordance with Chapter 26.306. An appeal ofthis nature shall be a public meeting. 2. Any action by the Historic Preservation Commission in approving, approving with conditions, or disapproving a development application for development in an "H,", Historic Overlay District pursuant to Chapter 26.415. An appeal of this nature shall be a public meeting. 3. The scoring determination of the Community Development Director pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting. 4. The allocation of Growth Management Allotments by the Planning and Zoning Commission pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting. 5. Any other appeal for which specific authority is not granted to another boazd or commission as established by this title. An appeal of this nature shall be a public meeting. C. Planning and Zoning Commission. The Planning and Zoning Commission shall have the authority to heaz and decide an appeal from an adverse determination by the Community Development Director on an application for exemption pursuant to the growth management quota system in accordance with Section 26.470.060(D). City of Aspen Land Use Code. August, 2007. Part 300, Page 35 D. Administrative Hearing Officer. The Administrative Hearing Officer shall have the authority to heaz an appeal from any decision or determination made by an administrative official unless otherwise specifically stated in this title. (Ord. No. 17-2002 § 2 (part), 2002; Ord. No. 27-2002 § 23, Ord. No. 12-2007; 2002) 26.316.030 Appeal procedures. A. Initiation. Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the city office or department rendering the decision or determination within fourteen (14) days of the date of the decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this title to appeal any decision or determination. B. Effect of filing an appeal The filing of a notice of appeal shall stay any proceedings in fiirtherance of the action appealed from unless the Community Development Director certifies in writing to the chairperson of the decision-making body authorized to heaz the appeal that a stay poses an imminent peril to life or property, in which case the appeal shall not stay further proceedings. The chairperson of the decision making body with authority to heaz the appeal may review such certification and grant or deny a stay of the proceedings. C. Timing of appeal. The decision-making body authorized to heaz the appeal shall consider the appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is practical under the circumstances. D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by publication to all other affected parties. (See section 26.304.060(E)). E. Standard of review. Unless otherwise specifically stated in this title, the decision-making body authorized to hear the appeal shall decide the appeal based solely upon the record established by the body from which the appeal is taken. A decision or determination shall be not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. F. Action by the decision-making body hearing the appeal The decision-making body hearing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, ifthe decision is modified, shall be deemed to have all the powers of the officer, boazd or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision-making body may also elect to remand an appeal to the body that originally heazd the matter for further proceedings consistent with that body's jurisdiction and directions given, if any, by the body heazing the appeal. The decision shall be approved by written resolution. All appeals shall be public meetings. (Ord. No. 55-2000, §§ 4, 5; Ord. No. 27-2002 § 24, Ord. No. 12-2007, 2002) City of Aspen Land Use Code. August, 2007 Part 300, Page 36 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: ~'~'~ ~'`~ ^ ~~'~ r? n !".TI,T,r ~,~~- ,Aspen, CO SCHEDULED UBLIC HEARING DATE: h4enrcc.t^ QL~ rJ (o Co' `~: 00~ , 200 ~'I STATE OF COLORADO ) ss. County of Pitkin ) I ~ ~~ ~ ~ G CT~ -eti) (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing and was continuously visible from the _ day of , 200_, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested, to affected mineral estate owners by at least thirty (30) days prior to the date scheduled for the.initial public hearing on the application of development. The names and addresses of mineral estate owners shall be those on the current tax records of Pit~Ciri County. Af a minimum, Subdivisions that create more than one lot, Planned Unit Developments, Specially Planned Areas, and COWAPs are subject to this notice requirement. Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. ~_ Signature The foregoing "Affidavit of Notice" was acknowledged before me this ~ day of ~C~"t , 200; by ~yt,~, -e~ ~. S c c~~1 WITNESS MY HAND AND OFFICIAL SEAL My commission expires: (~ ~t 0 ~~ t ~ Notary Public t.AURA Mc'YER ATTACHMENTS AS APPLICABLE: ~;•._ • COPYOFTHEPUBLICATION "FpF • PHOTOGRAPH OF THE POSTED NOTICE (SIGN) • LIST OF THE OWNERSAND GOVERNMENTAL AGENCIES~L°~'~XF'~e" 0811Ut2010 BYMAIL • APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE AS REQUIRED BYC.R.S. §24-65.5-103.3 4e20~9e(40 2 eZispen Times Weekly on Odooer v~ud MEMORANDUM TO: Mayor Ireland and Aspen City Council COPY: John Worcester, City Attorney /~~ FROM: Chris Bendon, Community Development Director ~ ~y~~~„ RE: Appeal of Land Use Code Interpretation -Decks and Floor Area DATE: October 26, 2009 SUMMARY: One of the jobs assigned to the Community Development Director is to provide interpretations of the text of the City's Land Use Code. This is a formal process in which an applicant requests a written interpretation and, if they don't agree with the interpretation, affords the applicant the right to appeal the decision to the City Council. There are three criteria upon which the City Council has to decide an appeal of a code interpretation. Based solely upon the record established by the original decision, the City Council shall consider whether: 1) There was a denial of due process; 2) The administrative body exceeded its jurisdiction; or, 3) The administrative body abused its discretion. These standards ask whether the Director's actions were ethical. The City's code states that the decision or determination made by the administrative officer shall not be reversed or modified unless there is a positive finding on one of these criteria. (Please see Exhibit C for the entire code section.) In this case, the interpretation rendered by the Director addresses how areas underneath decks are assessed against a property's development rights. The interpretation arose during the review of 219 South Third Street and a neighbor's concern about the extent of potential development on the site. The City counts deck space towards a property's Floor Area after a certain amount of "free" deck space. The City has never counted space underneath decks as additional "deck" space. The definition of a deck is somewhat all-encompassing. "An outdoor, unheated area appended to a living space but not intended for living." The City's code uses the same language to describe a "balcony." The definition does not state the extent to which this space is appended, functional, covered, accessible, etc. The code does not define the term "landscape terrace," but these features are not counted towards Floor Area meaning they aze different somehow. In rendering the interpretation, staff had to determine .the difference between adeck/balcony and a landscaped terrace. Staff decided the difference centered around the feature's elevation above grade -decks and balconies being elevated and terraces being at grade level. STANDARDS OF REVIEW: 1. Due Process -The review of 219 South Third Street was very contentious. The neighbor raised concerns over the potential development that could occur on the site. The property owner and the neighbor disagreed about the calculation of space underneath the deck along the southern fagade. Staff asked both parties to request the interpretation, allowing either party to appeal the findings. Certain timeframes affect when interpretations must be provided after a request and when appeals need to be scheduled. Those timeframes have been met. As required by the Land Use Code, the appellant was provided notice of tonight's meeting via registered mail and al] other affected parties were noticed by publication in the newspaper, as required. (Please see Exhibit D.) Assuming tonight's meeting does not contain any procedural flaws, staff believes that proper due process has been provided. 2. Jurisdiction -The Director's jurisdiction to interpret the Land Use Code is established in Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the jurisdiction, authority, and duties allocated to the Community Development Director. One of the Director's duties outlined in the Chapter reads: "To render interpretations of this Title or the boundaries of the Official Zone District Map pursuant to Chapter 26.306. " Staff believes this language is clear and it does not appear that the applicant is questioning this provision of the code. 3. Discretion -With respect to abuse of the Director's discretion, the Director did need to use his discretion in rendering the interpretation. The question is whether the Director abused that discretion or acted unethically. In analyzing the code, it was cleaz that the Code differentiated how decks and balconies were to be treated separate and apart from landscaped terraces. Neither of these terms are defined in the Code, requiring the Director use some discretion. The Director did look to the building code for some direction as well as common understandings of these terms. The Director believes that his discretion was applied appropriately and that the interpretation was rendered ethically. TWO RESOLUTIONS: Attached are two Resolutions. One finds that the Director acted correctly and affirms the interpretation. The second finds that the Director exceeded his jurisdiction, abused his authority, or failed to provide due process and reverses the interpretation. RECOMMENDATION: Staff believes the Director's interpretation was rendered ethically and that no abuse of authority or exceeding of jurisdiction occurred. Staff recommends City Council uphold the Director's interpretation by adopting the proposed Resolution affirming the interpretation. 2 CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all mOt1011S mUSt be made lri the pOS1t1Ve~ "I move to approve Resolution No. ~, Series of 200, [affirming or reversing] the Community Development Director's interpretation of the Land Use Code regarding decks." ATTACHMENTS: Exhibit A -Interpretation dated August 28, 2009, with attachments Exhibit B -Appeal letter from Jody Edwards Exhibit C -Land Use Code Section Regarding Appeals Exhibit D -Affidavit of notice RESOLUTION N0. (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING DECKS AND THE CALCULATION OF FLOOR AREA. WHEREAS, the Community Development Director received a request for a interpretation of the Land Use Code regarding Decks and the calculation of Floor Area from the owners of 413 West Hopkins represented by Jody Edwazds, attorney; and, WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of the Director or modify or reverse the Interpretation upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and verbal testimony from the appellant, the Community Development Director, and has found that the Director provided due process and neither exceeded his jurisdiction or abused his authority in rendering the Interpretation; and, WHEREAS, the City of Aspen City Council fmds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community Development Director's Interpretation of the Land Use Code regazding Decks and the calculation of Floor Area. This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the Aspen City Council at its regulaz meeting on , 2009. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor APPROVED AS TO FORM: John Worcester, City Attorney Resolution No. ,Series of 2009. Page 1 RESOLUTION N0. ~D (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REVERSING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING DECKS AND THE CALCULATION OF FLOOR AREA. WHEREAS, the Community Development Director received a request for a interpretation of the Land Use Code regazding Decks and the calculation of Floor Area from the owners of 413 West Hopkins represented by Jody Edwards, attorney; and, WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of the Director or modify or reverse the Interpretation upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and verbal testimony from the appellant, the Community Development Director, and has found that the Director provided due process and neither exceeded his jurisdiction or abused his authority in rendering the Interpretation; and, WHEREAS, the City of Aspen City Council fords that this Resolution furthers and is necessary for the promotion of public health, safety, and welfaze. NOW, THEREFORE BE IT RESOLVED that the City Council reverses the Community Development Director's Interpretation of the Land Use Code regarding Decks and the calculation of Floor Area. Spaces underneath decks that are similar in function to a deck shall be considered deck space and counted towards Floor Area accordingly. This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the Aspen City Council at its regulaz meeting on , 2009. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor APPROVED AS TO FORM: John Worcester, City Attorney Resolution No. ,Series of 2009. Page 1 CITY OF ASPEN '~~~ ~~ COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: City of Aspen APPLICABLE CODE SECTION: 26.104.100 -Deck EFFECTIVE DATE: August 28, 2009 WRITTEN BY: Chris Bendon, Community Development Director APPROVED B Chris Bendon, Community Development Director SUMMARY: This Land Use Code interpretation clarifies the application of the term deck to a property at 219 South Third Street. Staff believes this area underneath the existing deck is not an additional deck. BACKGROUND: The property at 219 South Third Street has been the subject of an ongoing land use review for an historic lot split and other reviews. There has been discussion about an at-grade area on the south side of the existing building and whether that area is a "deck" and should be counted towards allowable Floor Area. The interpretation request has been submitted by Paul and Angela Young, the owners of 413 West Hopkins Avenue, represented by Attorney Jody Edwards, and Suzanne Foster, owner of 219 South Third Street, represented by Attorney Bart Johnson. ~~ , ~ ,.,~,a; a.-. r~ x ... ~ j ~ .::a DISCUSSION AND INTERPRETATION: The City exempts decks from the calculation of Floor Area up to a certain amount of total deck space. Decks in excess of this amount are then attributed to a property's total Floor Area. Below is an expert from the calculation section of the Land Use Code for Floor Area. Decks, balconies, porches, loggias and stairways. The calculation of the floor area of a building or a portion thereof shall not include decks, balconies, exterior stairways, gazebos and similaz features, unless the azea of these features is greater than fifteen percent (15%) of the maximum allowable floor area of the building (the excess of the fifteen percent [15%] shall be included). Porches and landscaped terraces shall not be counted towards FAR. The term "deck" is defined in the Land Use Code as follows: Deck. An outdoor, unheated area appended to a living space but not intended for living. Given this definition, nearly anything could be considered a "deck." In fact the azea along the sides of this building could potentially be considered "decks." The definition of "balcony" refers to the same definition -deck is synonymous with balcony. The International Residential Code defines a deck as "an exterior floor system supported on at least two opposing sides by an adjoining structure and/or posts, piers, or other independent supports." Staff does not believe that azeas underneath decks must automatically be called decks. This would require all decks to be counted twice -once for the actual deck and once for the azea under the deck. The deck definition does not limit or require the space to be accessible or have any specific function. If the second story deck were not a part of this building, staff would consider this azea to be a patio or a landscaped terrace, not a deck. There is no effect on the perceived size of the structure and no meaningful reason the attribute this space to the allowable Floor Area for the parcel. Staff considers the area underneath the second floor deck to be area underneath the deck and not a second deck. LIMITATIONS OF DECISION: This interpretation relies on the City's Land Use Code and zoning regulations currently in effect, which are subject to change. The interpretation is subject to being reversed or altered by City Council upon appeal. This interpretation shall be valid until such time as the Land Use Code or zoning regulations aze amended. This interpretation does not create a vested right. This interpretation will be maintained in the official record of all interpretations as provided under Section 26.306.O10.E. APPEAL OF DECISION: Any person who has requested an interpretation may initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director within fourteen (14) days of the date of the decision being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights to appeal the decision. EXHIBITS: A -Edwards letter B -Johnson letter G~''t~. ~2009~ A SLID, . ~ ~ KLEIN, COTE & EDWARDS, LLC K ~ ATTORNEYS AT LAW /\/ `_ _ '/' L / HERBERT S. KLEQ9 hsk n(~Jccelaw.net 2 1 ORTH bIILL STREET, STE .203 LANCE R. COTE, PC' UcQkcelaw net JOSEPH E. EDWARDS, III, LLC jeecn kcelaw.net TELEPHOTIE: (970) 925-3700 COREY T. ZUABUCH c[zQkcelaw.net FACSMfILE'. (970) 92i-3977 EBEN P. CLARK epcQkcelaw.net www.kcelaw.nel MADHU B. KRISHNAMl7RTI mbkQkcelaw.net DAVIDGUHLIG dcuUN CCelaw net • also admined in California ~~,~ August 5, 2009 HAND DELIVERY Ci 4l~r , ~~ Chris Bendon ,: ~~~Jrr~ ,. City of Aspen Community Development Department -~~~ 130 S. Galena St., 3`d Floor Aspen, CO 81611 Re: Request for Interpretation Pursuant to Section 26.306.010, City Code; 219 South Third Street, Aspen, CO (the "Property") Deaz Chris: On behalf of our clients, Angela and Paul Young, I request Code interpretations pursuant to Section 26.306.010, City Code. As you aze awaze the Youngs are the owners of property known as 413 West Hopkins, Aspen, CO which is across the alley from the Property. The Owner of the Property has filed a development application with the City under Ordinance 48 for Historic Landmazk Designation and negotiation of certain benefits. One of those benefits relates to the developable Floor Area for the Property. There are two separate interpretations we need from you concerning Floor Area, the first relates to steep slopes and the second relates to a deck. Steep Slopes. The Property contains significant steep slopes. Based on the development application for the Property, approximately 25% of the Property is steep slopes in excess of thirty percent. Originally the applicant and staff agreed that the slopes needed to be deducted from the Lot Area for purposes of calculating allowable Floor Area. On July 2`L, 2009, we received an email from Amy Guthrie which indicated that staff had determined, contrary to prior representations to both the Historic Preservation Commission and the City Council, that the steep slopes on the Property would not be deducted from the Lot Area for purposes of calculating allowable Floor Area because such steep slopes appeazed to be man-made, not natural grade. That issue was discussed with HPC that evening. This is contrary to the clear language of the Code Section 26.575.020.0., which states as follows (emphasis added): Chris Bendon City of Aspen Community Development Department August 5, 2009 Page 2 Lot azea. Except in the R-15B Zone District, when calculating floor area ratio, lot azeas shall include only areas with a slope of less than twenty percent (20%). In addition, half (.50) of lot azeas with a slope of twenty to thirty percent (20-30%) may be counted towards floor area ratio; azeas with slopes of Qreater than thirty percent (30%) shall be excluded. The total reduction in FAR attributable to slope reduction for a given site shall not exceed twenty-five percent (25%). There is nothing in the Code language above which provides an exception for man-made grades. The steep slopes, if they aze man-made, date back to 1887 when the railroad arrived in Aspen. Consequently, assuming the steep slopes in question are man-made, they were in existence many decades before the Land Use Code was adopted with the above language. The drafrers of the Code were awaze of the slopes existing in the City when the Code was adopted. While the Code does not provide a rationale for deducting steep slopes from Lot Area, it seems likely that slope stability is the likely reason. And if slope stability is the justification for exempting steep slopes from Lot Area then man-made slopes which aze generally less stable should provide more (not less) justification for reduction of Lot Area. I understand the rationale for using historical grade for measuring height. And there may be some justification for waiving the deduction from Lot Area for very small man-made anomalies such as landscaping berms which will not be affected by or which will be entirely removed by development. But that is not the case here. In this case there is a significant land form which has existed for many decades and passes through numerous properties in the City. In the event that the City makes a determination that the steep slopes associated with the railroad right of way are not to be deducted from Lot Area, I suspect many land owners will seek to increase the floor azea developed on their property. The Code is plain and cleaz that slopes in excess of 30%aze to be deducted from Lot Area for purposes of calculating Floor Area. As the United States Supreme Court has held, the fundamental rule of statutory interpretation is that if the law is cleaz as written, then no interpretation is necessary. "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut National Bank v. Germain, 503 U.S. 249, 253-254 (1992). Indeed, "[w]hen the words of a statute aze unambiguous, then this first canon is also the last: 'judicial inquiry is complete."' Id at 254. Since this Code section is cleaz and unambiguous, no interpretation is necessary and all slopes in excess of 30% are excluded from Lot Area for purposes of calculation of Floor Area. Chris Bendon City of Aspen Community Development Department August 5, 2009 Page 3 Deck Area. We also received an email from Amy Guthrie dated July 28, 2009, in which Amy states that staff has reviewed the area underneath the wooden deck on the south side of the Property and determined that it is not a "loggia." Consequently, staff concluded that such azea below the wooden deck is not subject to inclusion in the calculation of whether the deck azea exceeds 15% and must be counted as Floor Area to the extent it exceeds 15% of the maximum allowable Floor Area for the building pursuant to §26.575.020.A.2, City Code. This misses the point. That area is a concrete, sunken azea attached to (appended to) the structure and covered by the upstairs deck. While maybe not a loggia, the area below the wooden deck is also a deck, as defined by the Code. Section 26.104.100 defines a deck as: "Deck. An outdoor, unheated azea appended to a living space but not intended for living." This exactly describes the space below the wooden deck. As a deck this azea below the wooden deck must be included in the deck azea for purposes of Section 26.575.020.A.2. Consequently, we request your interpretation of (1) the above-quoted portion of Section 26.575.020.0., City Code, as it applies to properties with a significant portion of the lot consisting of steep slopes and which steep slopes (whether man-made or natural) pre-date the enactment of the Code, and (2) Section 26.575.020.A.2 as it relates to the area below the wooden deck on the Property. Enclosed is our Code Interpretation fee in the amount $50.00. If there is anything in addition to this letter and fee that is required in order to pursue this interpretation or if you need additional information from me, please contact me. Sincerely, KLEIN, C & EDWARDS, LLC Edwards III cc: Paul and Angela Young young\I Bendon interpretation requesCdoc ~~~~~ ;~j~ ®TTEIVJ®HiVS®f~ ROBINSON NEFF+RAGONETTIa~ August 28, 2009 Chris Bendon, Director Aspen Community Development Department 130 South Galena Street Aspen, CO 81611 J. BART JONNSON 970 544 4638 BART®OTTENJOMN30N.COM Re: Request for Interpretation Submitted by Klein, Cote Bc Edwards, LLC on behalf of Angela and Paul Young Deaz Chris: This firm represents T. Foster and Company ("Foster'. By letter dated August 5, 2009, Klein, Cote & Edwards, LLC submitted to your office a request for interpretation pursuant to Section 26.306.010 of the Aspen Land Use Code (the "Request"). Foster owns the property implicated by the Request and therefore has standing to oppose the Request. By this letter, I am requesting that Foster be recognized as a party to the Request and that the interpretations of the Aspen Land Use Code advocated in the Request be rejected and denied. Slope Argument. The arguments in the Request concerning the meaning and application of Section 26.575.020.0 should be rejected. Yow department has already considered this issue with respect to other land use applications and has determined that man-made slopes should not be excluded from the Lot Area calculation for the purposes of determining the permitted Floor Area for a Lot. This treatment of man-made slopes has been the policy of your deparpnent for years. I am enclosing with this letter application and building permit materials for the project located at 1215 East Hopkins Avenue, which is currently under construction. These materials clearly demonstrate your departrnent's position in response to a prior request for interpretation on this precise issue. It would be both unfair and improper to treat T. Foster and Company's properly any differently. Contrary to the contention in the Request, the language of Section 26.575.020.0 is not plain and clear. The term "slope" is not defined in the Aspen Land Use Code. There is clearly a question about whether it is intended to apply to natural slopes, man-made slopes, combinations of the two or all types of slopes.) This ambiguity has 1 By way of comparison, consider the Aspen Land Use Code's treatment of "grade." It cleazty states in the provisions governing building heights that they arc to be measwed from "natural or finished grade, whichever is lower." The specification of both natural and finished grade eliminates ambiguity. The slope language in the Lot Area provisions does not include clarifying language of this type. 420 EAST MAIN STREET SUITE 210 ASPEN COLORADO 81611 P 970 644 4637 F 970 544 4632 W OTTE NIOHNSON.COM DENVER ASPEN STEAMBOAT SPRINGS Chris Bendon, Director August 28, 2009 Page 2 been recognized for some time and your department has been confronted with this issue before. As the person chazged by the City with administering the Aspen Land Use Code, you have well-established authority under Colorado law to interpret the Code, and the interpretations you provide aze to be given deference. Given that you have already established a policy of interpreting the Lot Area exclusion language as not applying to man- made slopes, we believe you are bound to remain consistent. Deck Area Areument. The deck area argument in the Request is not really a request for an interpretation at all. It is actually a question about how the Aspen Land Use Code should be applied to given facts. Given that no final decision has been reached on Foster's pending application, it is premature for the Youngs to be mounting challenges about how the Code is being applied. But, in any event, the position advocated in the Request pushes the notion of a "deck" to the extreme and is essentially an argument for the idea that every second story deck should be double counted because it has outdoor space under it that is appended to a home but is not intended for living. For that matter, under the broad definition of deck espoused by the Request, the entire yard of a home could be considered a deck. In this regard, it is important to point out that under Section 26.575.020.A.2, landscaped terraces are not treated as Floor Area for any purpose. The term "landscaped terrace" is not defined. But we submit that the area in question, with the addition of some planters, could just as easily be considered a landscaped terrace. By necessity, your department is required to make judgment calls about how definitions and language are applied. We contend that it is clearly within your sound judgment to determine that the area in question is not a deck for the purposes of Section 26.575.020.A.2. Sincerely, J. Bart Johal for the Firm Enclosure 91]1651 cc: Suzanne Foster Jody Edwards KLEIN, COTE & EDWARDS, LLC ~~~ ATTORNEYS AT LAW HERBERT S. KLEIN hsk()a kcelaw.net LANCER. COTE, PC' trc~celaw.net JOSEPH E, EDWARDS, III, LLC jeeQkcelaw.net COREY T. ZURBUCH ctz(rJccelaw.net EBEN P. CLARK epcQl:celaw.nei MADHU B. KRISHNAMURTI mbkQkcelawnet DAVID G LIHLIG dcu(a3kcelaw.nec 201 NORTH Mn,L STREET, STE. 203 ASPEN, COLORADO 81611 TELEPHONE: (970) 925-3700 FACSIMILE: (970) 925-3977 www.kcelaw.net * also edmittod in California September 9, 2009 RECEIVEC~ Chris Bendon City of Aspen 5~~ ~ ~ ZnQ9 Community Development Department GI I Y Uf• HSPEN 130 S. Galena St., 3`d Floor ".OMMUNIIY DEVELOPMENT Aspen, CO 81611 Re: Notice of Appeal concerning Land Use Code Interpretations of "Lot Area" and "Decks"; 219 South Third Street, Aspen, CO (the "Property") Dear Chris: This letter constitutes a Notice of Appeal pursuant to Section 26.316.030 of the Aspen Municipal Code. This office represents Angela and Paul Young, the owners of property known as 413 West Hopkins, Aspen, CO which is within 300 feet of the Property. On August 30, 2009, Code interpretations concerning the definitions of Lot Area and Decks (the "Interpretation" or "Interpretations") were issued in response to my letter of August 5, 2009. The purpose of this letter is to appeal those Interpretations to the City Council pursuant to Code Chapter 26.316. The basis for the appeal is that the Interpretation were issued based on an abuse of discretion. A copy of my letter of August 5, 2009 is attached hereto and the arguments presented therein are incorporated herein by this reference. Additionally, please consider the following. Lot Area. In the Interpretation concerning Lot Area, staff expresses concern that a property owner could re-grade steep slopes in a "benched" or "terraced" fashion and thereby increase the allowable floor area on the site. Re-grading is defined as development in the Code and therefore requires a development permit (or exemption) under the Code. Any such permit could very easily be granted with a notation which requires an acknowledgement by the lot owner that the granting of such grading permit will not create additional allowable floor area on the ]ot by virtue of the elimination of steep slopes. RECEIVED Chris Bendon SEP ~ 9 2009 City of Aspen Community Development Department CITY Ut- HSPEN September 9, 2009 ~~gNITY DE't~LOPMENT Page 2 The Interpretation states: "Staff believes that by "slope," the drafters meant the natural terrain prior to being affected by development." As stated in the August 5, 20091etter (and as has been reiterated by both the Colorado Courts and the U. S. Supreme Court), there is no "interpretation" to be made when the language as written is cleaz and unambiguous. There is nothing ambiguous about the definition of Lot Area as written; it is only that "staff believes" the drafters of the code meant something other than what was written. Nowhere in the definition of Lot Area do the words "natural terrain prior to being affected by development" appear. This phrase is something staff has added to the definition. Instead, the Code clearly states: "areas with slopes of greater than thirty percent (30%) shall be excluded." This is a clear, declarative statement which leaves no room for making a distinction based on natural or man-made terrain. If this language results in hazdships, land owners can appeal to the Boazd of Adjustment or the Council can amend the Code. But it is an abuse of discretion for staff to "interpret" the Code different from the clear language of the Code. Both staff and Mr. Bart Johnson (on behalf of the owner of the Property) assert that staff has previously interpreted the term steep slopes to not include man-made slopes. While this provides a course of conduct and demonstrates that staff is not showing the applicant for this Property any favoritism, it does not justify the Interpretation. Two wrongs do not make a right. The fact that there have been prior un-appealed staff determinations that man-made steep slopes are to be excluded from the deductions from Lot Area does not justify further errors in the application of cleaz language. At the bottom of page three of the Interpretation, staff points out that other provisions of the Code do not allow a property owner to artificially elevate the land to increase heights or to add a vacated right of way to lot azea in order to increase floor azea; and the Code does not penalize a land owner by reducing lot area for dedicated public trials. Each of these assertions is correct. And, more importantly, each of these provisions is specifically and clearly provided in the existing language of the Code. None of these provisions are based on an interpretation of the Code by staff. For example, the Code specifically provides that height is to be measured "from natural or finished grade (whichever is lower) at any point around the perimeter of the building." The definition of Lot Area specifically excludes azeas which aze vacated rights of way and specifically includes dedicated public trails. This is very different from the instant case where there is clear and unambiguous language that states steep slopes aze to be excluded from Lot Area, and staff believes that this language should mean "natural terrain prior to being affected by development." The drafters of the Code clearly had the ability (as demonstrated with regard to the definition of height) to limit the slopes to be deducted from Lot Area to "natural" slopes, not man-made slopes. The fact the drafters of the Code provided that the measurement of height should be made from the lower of natural or finished grade but did not limit the steep slope deduction to naturally occurring steep slopes, in fact, indicates an intent that all steep slopes (man-made or natural) should be excluded from Lot Area. Chris Bendon ~C^ City of Aspen ~rcc/~~ Community Development Department ~Cr' , September 9, 2009 i'~i t `~ `~ Page 3 ~'~UN~n~'_ ,y~ N~ Deck. In the Interpretation of Decks, staff ignores the word "appended" in the definition of a deck. Staff asserts that under our interpretation of decks all decks would be double counted because all areas under a deck (and even yards along the sides of buildings). In this case the area below the wooden deck is a concrete deck which is "appended" to the house by a concrete slab and by block walls. This is not to be counted because it is area beneath a wooden deck, but because it is area "appended" to the house and is therefore a deck under the Code definition of a deck. If it is not a deck, then it is a "loggia" as defined by the code, because it would be a porch "attached" to a living space under a roof as an integral part of the building. Enclosed are our (1) Land Use Application Form, (2) Agreement to Pay Fees and (3) the fee in the amount $735.00. If there is anything additional required in order to pursue this Appeal of these interpretations or if you need additional information from me, please contact me. It is my understanding that the City will be responsible for publishing Notice of the Appeal hearing date. Sincerely, ~ KLEIN, COT~~ EDWARDS, LLC Edwazds cc: Paul and Angela Young young\l Bendon appeal code interpetations.doc G Chapter 26.306 _ ~-~i `~~°y~ INTERPRETATIONS OF TITLE Sections: 26.306.010 Interpretation. 26.306.010 Interpretation. A. Authority. The Community Development Director shall have the authority to make all interpretations of the text of this Title and the boundaries of the zone district map. B. Initiation. An interpretation may be requested by any affected person, any resident or real property owner in the City of Aspen, or any person having a contractual interest in real property in the City of Aspen. The Community Development Director shall have the authority to initiate interpretations of Title 26. C. Procedures. 1. Submission of request for interpretation. Before an interpretation shall be provided by the Community Development Director, a request for interpretation shall be submitted to the Community Development Director. 2. Determination of completeness. Within fifteen (15) days after a request for interpretation has been received, the Community Development Director shall determine whether the request is complete. If the Community Development Director determines the request is not complete, he shall serve a written notice on the applicant specifying the deficiencies. The Community Development Director shall take no further action on the request for interpretation until the deficiencies are remedied. 3. Rendering of interpretation. After the request for interpretation has been determined complete, the Community Development Director shall render an interpretation within fifteen (15) days. The Community Development Director may consult with the City Attorney and review this Tit]e and the zone district map, whichever is applicable, before rendering an interpretation. D. Form. The interpretation shall be in writing and shall be sent to the applicant by certified mail. E. Official record The Community Development Director shall maintain an official record of all interpretations in the Community Development Department, which shall be available for public inspection during normal business hours. Once an interpretation is rendered, public notice describing the interpretation shall be published in the legal notice section of an official paper or a paper of general circulatiori in the City of Aspen. Such notice shall be provided within fifteen (15) days of the interpretation being rendered, and shall be substantially in the following form: "A code interpretation to City of Aspen Land Use Code. August, 2007. Part 300, Page 17 Section 26.xx.xx of the City of Aspen Land Use Code , requested by xx, was rendered on xx/xx/xx and is available for public inspection in the Community Development Department." F. Appeal. Any person who has made a request for interpretation may appeal the interpretation o£the Community Development Director to the City Council in accordance with the appeal procedures set forth at Chapter 26.316. (Ord. No. 12-2007) City of Aspen Land Use Code. August, 2007 Part 300, Page 18 Chapter 26.316 APPEALS Sections: 26.316.010 Appeals, purpose statement. 26.316.020 Authority. 26.316.030 Appeal procedures. 26.316.010 Appeals, purpose statement. The purpose of this Chapter is to establish the authority of the Board of Adjustment, Growth Management Commission, the Planning and Zoning Commission, and City Council to heaz and decide certain appeals and to set forth the procedures for said appeals. (Ord. No. 17-2002 § 2 (part), 2002) 26.316.020 Authority. A. Board of Adjustment. The Board of Adjustment shall have the authority to hear and decide the following appeals: 1. The denial of a vaziance pursuant to Chapter 26.314 by the Planning and Zoning Commission or Historic Preservation Commission. B. Ciry Council. The City Council shall have the authority to heaz and decide the following appeals: 1. An interpretation to the text of this title or the boundazies of the zone district map by the Community Development Director in accordance with Chapter 26.306. An appeal ofthis nature shall be a public meeting. 2. Any action by the Historic Preservation Commission in approving, approving with conditions, or disapproving a development application for development in an "H,", Historic Overlay District pursuant to Chapter 26.415. An appeal of this nature shall be a public meeting. 3. The scoring determination of the Community Development Director pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting. 4. The allocation of Growth Management Allotments by the Planning and Zoning Commission pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting. 5. Any other appeal for which specific authority is not granted to another boazd or commission as established by this title. An appeal of this nature shall be a public meeting. C. Planning and Zoning Commission. The Planning and Zoning Commission shall have the authority to hear and decide an appeal from an adverse determination by the Community Development Director on an application for exemption pursuant to the growth management quota system in accordance with Section 26.470.060(D). City of Aspen Land Use Code. August, 2007. Part 300, Page 35 D. Administrative Hearing Officer. The Administrative Hearing Officer shall have the authority to heaz an appeal from any decision or determination made by an administrative official unless otherwise specifically stated in this title. (Ord. No. 17-2002 § 2 (part), 2002; Ord. No. 27-2002 § 23, Ord. No. 12-2007; 2002) 26.316.030 Appeal procedures. A. Initiation. Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the city office or department rendering the decision or determination within fourteen (14) days of the date of the decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this title to appeal any decision or determination. B. Effect of filing an appeal. The filing of a notice of appeal shall stay any proceedings in furtherance of the action appea]ed from unless the Community Development Director certifies in writing to the chairperson of the decision-making body authorized to heaz the appeal that a stay poses an imminent peril to life or property, in which case the appeal shall not stay further proceedings. The chairperson of the decision making body with authority to heaz the appeal may review such certification and grant or deny a stay of the proceedings. C. Timing of appeal. The decision-making body authorized to hear the appeal shall consider the appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is practical under the circumstances. D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by publication to all other affected parties. (See section 26.304.060(E)). E. Standard of review. Unless otherwise specifically stated in this title, the decision-making body authorized to heaz the appeal shall decide the appeal based solely upon the record established by the body from which the appeal is taken. A decision or determination shall be not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. F. Action by the decision-making body hearing the appeal The decision-making body heazing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, if the decision is modified, shall be deemed to have all the powers of the officer, board or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision-making body may also elect to remand an appeal to the body that originally heard the matter for further proceedings consistent with that body's jurisdiction and directions given, if any, by the body hearing the appeal. The decision shall be approved by written resolution. All appeals shall be public meetings. (Ord. No. 55-2000, §§ 4, 5; Ord. No. 27-2002 § 24, Ord. No. 12-2007, 2002) City of Aspen Land Use Code. August, 2007 Part 300, Page 36 AFFIDAVIT OF PUBLIC NOTICE """k ~~~ REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: ~- ~~;~~• ~~ Aspen, CO SCHEDULED PUBLIC HEARING DATE: Nrnihn~y~ T S~ O/YJ , 200 9 STATE OF COLORADO ) ss. County of Pitkin ) I ~yt~,,~,(h JCO~-eNf (name, please print) being r eo rr presen mg an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public heazing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public heazing and was continuously visible from the day of , 200_, to and including the date and time of the public heazing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (1 S) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public heazing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested, to affected mineral estate owners by at least thirty (30) days prior to the date scheduled for the initial public hearing on the application of development. The names. and addresses of mineral estate owners shall be those on the current tax recortis•of Pitkin Cquntyr At•aminimum, Subdivisions that create more than one lot, Planned Unit Developments, Specially Planned Areas, and COWAPs are subject to this notice requirement. Rezoning or text amendment: Whenever the official zoning district map is in , any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. Signature The foregoing "Affidavit of Notice" was acknowledged before me this ~ day of © -.r , 2008, by ~v~~-,e(ot SCV./'~_ 4, 2009 • Aspen Times Weekly PUBLIC NOTICE RE: APPEAL OF AN INTERPRETATION OF THE LANG USE CODE -DEFINITION OF A DECK AND CALCULATION OF DECK AREA. ~. meaning of the tlefine0 term otl (or calculating decks antl: tlecks in allowable floor err Aspen Community 130 S Galena St, Publishetl in the Aspen limes Weekly on October 4, 2009. I4092233~ BYMAIL WITNESS MY HAND AND OFFICIAL SEAL My commission expires: Ug{ LO ~ afJl b ~c~'~rv~-~-- Notary Public tAy,y, ATTACHMENTS AS APPLICABLE: '~ 1~1EYER ,;;~- PHE PUBLICATION fAPH OF THE POSTED NOTICE (SIGN) 'IIE OWNERSAND GOVERNMENTALAGENC'~,§~IW~°l~~iEF1~D08/t0/i014 • APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE AS REQUIRED BY C.R.S. §24-65.5-103.3