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HomeMy WebLinkAboutcoa.lu.tu.401 E Hyman Ave.0058.2016.ASLU0 PATH: G/DRIVE / MASTER FILES/ADMINISTRATIVE/ADMIN/LANDUSE CASE DOCS THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0058.2016.ASLU PARCEL ID NUMBERS 2737 182 160 01 PROJECT ADDRESS 401 E HYMAN AVE PLANNER BEN ANDERSON CASE DESCRIPTION APPLICATION FOR TEMP OUTDOOR FOOD VENDING -RED FOX FROZEN YOGURT REPRESENTATIVE VIRGINIA HAMILTON DATE OF FINAL ACTION 06.15.2016 CLOSED BY KARLA HENRICHON 7.20.2016 2'7 3 -7 l 8 21 boo l Permits lam_ File Edit Record Navigate Form Reports Format Tab Help >x J J_•JAJump _ � 11Main Custom Fields Routing Status Fee Summary Actions Routing History '��aslu A.scen Land Us — - Permit .-11 _r- D�S"�•2o►b•�� m A 401 E HY61 !IA'JE ApVSUKiJ o Cky ASPEN State I"` I Zip 81611-2903 v Permit UdormaUm o Master permit Routing queue aslul5 Ap*d 06'10'2016 ii x Project Staters oending Approved Z o i W Issued Description ' PLIATIOf! FOR TE1.1F OUTDOOR FOOD VENDING -RED FOX FROZEN YOGURT Closed/Final Submitted IMILTON 970 3219 8745 Cbdr Running pay. F Egires 0E-05 2011 Submitted via II Owner Last name 1DY POINT HOLDINGS LLC First name IRED FOX FROZEN YOGUR 401 E HYMAN AVE PEN CO 81611-2903 Fhone (910! 319-8145 Address Applicant Owner is applicant? ❑ Contractor is applicant? Last name JVVINDY POINT HOLDINGS L First name RED FOX FROZEN YOGUR 01 E HYhWA1 AVE SPEN CO 81611-2903 Phone (970) 319A745 Cust t 30392 Address Email Lender Last name First name Phone ( I Address itnumber c.k � AspenGold5 (server: angelas -1 of 1 NOTICE OF APPROVAL OUTDOOR FOOD/BEVERAGE VENDING LICENSE TO ALLOW A FOOD VENDING OPERATION ON THE PROPERTY LOCATED AT 401 E. HYMAN AVE, LOT A, BLOCK 89, CITY AND TOWNSITE OF ASPEN Parcel ID No. 273718216001 APPLICANT: Virginia Hamilton 134 Maple Lane, Aspen, CO 81611 SUBJECT & Private outdoor space located at 401 E. Hyman Ave., SITE OF APPROVAL involving the approval of Outdoor Temporary Food Vending. The business is operating as Windy Point Holdings, LLC, and is commonly known as Red Fox Frozen Yogurt. SUMMARY: The Applicant has requested the renewal of an outdoor food/beverage vending license for the purpose of operating a frozen yogurt stand on the private outdoor space at 401 E. Hyman Ave., in the area in front of the Art Tee Gallery. The temporary approval will permit operations for a period of one year from the date of the approval. This use was first established in 2013 for a 6 month period with Case No. 0039- 2013.ASLU. Subsequent annual renewals have been granted with Case No. 0083-2013.ASLU and Case No. 0059-2015.ASLU. STAFF EVALUATION: Pursuant to section 26.470.060 (9), Outdoor food/beverage vending license, of the City of Aspen Land Use Code, Outdoor food/beverage vending is permitted in the Commercial Core (CC), Commercial (C 1), Neighborhood Commercial (NC) and Commercial Lodge (CL) zone districts when specific review criteria are met. Per the review criteria/operational requirements, the applicant is proposing the following: Requirement Proposal Location CC, C1, NC or CL zone district CC Duration 12 months 12 months Hours of operation 11 am— 11 pm 7 days a week Frozen yogurt with self -serve List of products toppings, bottled water, assorted canned beverages Area of vending site 50ft.2 49.5ft.2 Lesser of 50% of surface area of Signage cart front or 6 square feet Approx. 5.67 ft.2 One sandwich board permitted Page 1 of 2 The applicant has provided verification from the building owner to operate at this location. Also the Applicant has received approval from the City's Environmental Health Department for the proposed operation, possesses a valid City of Aspen Business License, and has presented a valid food vending license from the State of Colorado Dept. of Public Health and Environment for 2016. DECISION: Staff finds that the proposal for an outdoor food/beverage license meets the design, location, and operation requirements of Section 26.470.060 (9) of the Land Use Code and grants APPROVAL for a one year term beginning on June 30, 2016. This is approval is subject to the following condition: The Applicant shall provide a new lease or approval letter from the property owner when the current lease expires in December of 2016. APPROVED BY: Jssica Garr Community Development Director Attachments: Exhibit A — Review Criteria (in file) Exhibit B — Application (in file) -sl)flC Date: Page 2 of 2 • 0 26.470.606.9 Exhibit A Review Criteria Outdoor food/beverage vending license. Outdoor food/beverage vending shall be approved, approved with conditions or denied by the Community Development Director based on the following criteria: a. Location. All outdoor food/beverage vending must be on private property and may be located in the Commercial Core (CC), Commercial (C 1), Neighborhood Commercial (NC), or Commercial Lodge (CL) zone districts. Outdoor Food Vending may occur on public property that is subject to an approved mall lease. Additional location criteria: Staff Response: This is a renewal request for an operating frozen yogurt food stand at 401 E. Hyman Ave. The business is entirely located on private property within the CC zone district. Staff finds this criterion to be met. 1) The operation shall be in a consistent location as is practically reasonable and not intended to move on a daily basis throughout the duration of the permit. Staff Response: The business shall remain in the same location on the site during the duration of this permit. Staff finds this criterion to be met. 2) Normal operation, including line queues, shall not inhibit the movement of pedestrian or vehicular traffic along the public right-of-way. Staff Response: Line queues will be directed to form on the concrete pad that is part of the private property at this location and will not interfere with pedestrian movement along Mill St. or Hyman Malls. Staff finds this criterion to be met. 3) The operation shall not interfere with required emergency egress or pose a threat to public health, safety and welfare. A minimum of six (6) foot ingress/egress shall be maintained for building entrances and exits. Staff Responses: The Applicant will maintain a minimum of 6' ingress/egress to the building entrances and exits, and will not pose a threat to public health, safety and welfare. Staff finds this criterion to be met. b. Size. The area of outdoor food/beverage vending activities shall not exceed fifty (50) square feet per operation. The area of activity shall be defined as a counter area, equipment needed for the food vending activities (e.g. cooler with drinks, snow cone machine, popcorn machine, etc.), and the space needed by employees to work the food vending activity. Staff Response: The structure measures 5.5x 9' for a total size of 49.5 ft. Staff finds this criteria to be met. Page 1 of 4 Signage. Signage for outdoor food/beverage vending carts shall be exempt from those requirements found within Land Use Code Section 26.510, Signs, but not excluding Prohibited Signs. The total amount of signage shall be the lesser of fifty percent (50%) of the surface area of the front of the cart, or six (6) square feet. Sign(s) shall be painted on or affixed to the cart. Any logos, lettering, or signage on umbrellas or canopies counts towards this calculation. Food carts may have a sandwich board sign in accordance with the regulations found within Chapter 26.510. Staff Response: Signage for this business does not exceed the allowable 6ft.1 in size. According to previously issued permits, the sign is approximately 5.67ft.2 This business does not employ the use of a sandwich board at this time. Staff finds this criterion to be met. d. Environmental Health Approval. Approval of a food service plan from the Environmental Health Department is required. The area of outdoor food vending activities shall include recycling bins and a waste disposal container that shall be emptied daily and stored inside at night and when the outdoor food vending activities are not in operation. Additionally, no outdoor, open -flame char -broiling shall be permitted pursuant to Municipal Code Section 13.08.100, Restaurant Grills. Staff Response: The Applicant has received approval from the Environmental Health Dept. and has presented a currentfood vending license from the State of Colorado Dept. of Public Health and Environment for the year 2016 (Renewed April 2016). Staff finds the criterion to be met. Building and Fire Code Compliance. All outdoor food/beverage vending operations must comply with adopted building and fire codes. Applicants are encouraged to meet with the City's Building Department to discuss the vending cart/stand. Staff Response: The business has met all necessary adopted building and fire codes and previously met with these departments prior to the first year of opening this stand. Staff finds the criterion to be met. f. Application Contents. An application for a food/beverage vending license shall include the standard information required in 26.304.030.B, plus the following: 1) Copy of a lease or approval letter from the property owner. Staff Response: The Applicant has provided a copy of the lease to operate the business on this site from the property owners (expires at the end of the summer season, September 30, 2016). The Applicant has also submitted a letter from the property owners approving of use through December of 2016. Staff finds this criterion to be met. 2) A description of the operation including days/hours of operation, types of food and beverage to be offered, a picture or drawing of the vending cart/stand, and proposed signage. Staff Response: The Applicant has provided a description of the hours of operation, types of Page 2 of 4 • 0 food and beverage to be offered, and an image of the vending stand, including signage and size dimensions. Staff finds this criterion to be met. 3) The property survey requirement shall be waived if the applicant can demonstrate how the operation will be contained on private property. Staff Response: The Applicant has provided a detailed image of the location of the business. Staff has found it to be contained on private property. Staff finds this criterion to be met. g. License Duration. Outdoor food/beverage vending licenses shall be valid for a one (1) year period beginning on the same the date that the Notice of Approval is signed by the Community Development Director. This one (1) year period may not be separated into non-consecutive periods. Staff Response: The Applicant understands this license is good for a period of one year from the date of approval Staff finds this criterion to be met. h. License Renewal. Outdoor food/beverage vending licenses may be renewed. Upon renewal the Community Development Director shall consider the returning vendor's past performance. This shall include, but shall not be limited to, input from the Environmental Health Department, Chief of Police, special event staff, and feedback from adjacent businesses. Unresolved complaints may result in denial of a renewal request. Staff Response: The Applicant has reviewed and indicates understanding and compliance with this criterion. Staff finds this criterion to be met. i. Business License. The vending operator must obtain a business license. Staff Response: The Applicant has an active business license with The City of Aspen as of 619116. Staff finds this criterion to be met. j. Affordable Housing and Impact Fees Waived. The Community Development Director shall waive affordable housing mitigation fees and impact fees associated with outdoor food/beverage vending activities. Staff Response: The Applicant has reviewed and indicates understanding and compliance with this criteria. Staff finds this criterion to be met. k. Maintenance and public safety. Outdoor food/beverage vending activities shall not diminish the general public health, safety or welfare and shall abide by applicable City regulations, including but not limited to building codes, health safety codes, fire codes, liquor laws, sign and lighting codes, and sales tax license regulations. Staff Response: The Applicant has reviewed and indicates understanding and compliance ivith this criteria. Staff finds this criterion to be met. Page 3 of 4 0 0 Abandonment. The City of Aspen may remove an abandoned food/beverage vending operation, or components thereof, in order protect public health, safety, and welfare. Costs of such remediation shall be the sole burden of the property owner. Staff Response: The Applicant has reviewed and indicates understanding and compliance with this criteria. Staff finds this criterion to be met. m. Temporary Cessation. The Community Development Director may require a temporary cancelation of operations to accommodate special events, holidays, or similar large public gatherings. Such action will be taken if it is determined that the food/beverage cart will create a public safety issue or create an excessive burden on the event activities. Staff Response: The Applicant has reviewed and indicates understanding and compliance with this criteria. Staff finds this criterion to be met n. License Revocation. The Community Development Director may deny renewal or revoke the license and cause removal of the food/beverage vending operation if the vendor fails to operate consistent with these criteria. An outdoor food/beverage vending license shall not constitute nor be interpreted by any property owner, developer, vendor, or court as a site specific development plan entitled to vesting under Article 68 of Title 24 of the Colorado Revised Statutes or Chapter 26.308 of this Title. Licenses granted in this subsection are subject to revocation by the City Manager or Community Development Director without requiring prior notice. Staff Response: The Applicant has reviewed and indicates understanding and compliance with this criteria. Staff finds this criterion to be met. Page 4 of 4 Proposal I am applying to renew an outdoor vending permit to sell frozen yogurt and refreshments on the South East corner of Hyman Ave E. and South Mill St. The frozen yogurt is self serve with four different flavors of frozen yogurt and 18 toppings. We also serve cold beverages. Our frozen yogurt is all natural Colorado yogurt with no artificial colors, sweeteners or preservatives. Our operating hours are typically 11 AM - 11 PM. The structure is a 5.5' by 9' wood food cart that was built specifically for the space. : Point of Sale Window Signage 30 in x 10.75 in Stand 5.5 ft x 8 ft 0 t FRONT Signage 38 in x 13 in Stand 9ftx8ft r_ - ",'As I4 0 HA t, i. I Iv Gale 4 ve Sucm n meow mere , um ra ter+- 6* nma b to mW. Guca wheew Fiirn Socwty One Love Aspen SmokesSop i Wneeln Opera F~ LMm Berea Fiq it tr,n u, As{im � v; Aspen Fxw - An Gallery PAya{ Amen f FI Gwim _ A Otfte Aapj tO'� 1, VY Monder � AS(>e't SntM'[IaSS r [ne yptlliAfle!'t J6 C(tk�uV.e,M�i M Salt b soft rtrfs tannl F4why f H} n 4 . "'1 ve Awen t�gyage Kn!uy f F�yran A� � KOfv F" An 1 c e. Ptsrdence Wtnd RrM Ask ln� � EsW Cos Bx of Aspen dh o Atpen _ Mop AaEatMUOoo/a- loft 6413 4:25 PM How Red Fox Complies With the Review Standards for Outdoor Food/Beverage Vending License Section 26.470.060.8 a. Location. We are located on private property in the Commercial Core 1) Red Fox Frozen Yogurt will be in the same location and will not move on a daily basis 2) Normal operation will not inhibit pedestrians as we have room for a line queue on the concrete pad that is part of the property we lease 3) Operation will not interfere with "emergency egress or pose a threat to public health, safety or welfare." b. Size. Our structure is 5.5' x 9' and houses all necessary equipment and employess and does not exceed 50 sq/ft c. Signage. Our signage follows all guidelines as set forth. d. Environmental Health Approval. Our food service plan has been approved and we are in good standing with Environmental Health Dept. We have recycling bins and garbage cans that get emptied daily and are stored inside at night. e. Building and Fire Code Compliance. Red Fox met with the building department and fire department prior to opening. We comply with all necessary codes. f. Application Contents. 1) Lease - on file with original application 2) Description - included 3) Property Survey - all operations are contained to private property g, h, i, j, k, I, m, n - understood • DR 0001 (08 1412) COLORADO DEPARTMENTOF REVENUE 0 RENEWAL APPLICATION FOR LICENSE TO CONDUCT A RETAIL FOOD ESTABLISHMENT RED FOX FROZEN YOGURT 550 S RIVERSIDE AVE UNIT 2 ASPEN CO 81611 • Send application and payment to the 130 S Galena Street, Aspen, CO 81611 • Make checks payable to City of Aspen • If you have any questions regarding your retail food establishment license fees, please contact the City of Aspen Environmental Health Department at 970-920-5039 • DO NOT USE THIS FORM IF THERE HAS BEEN CHANGE N OWNERSHIP. • Contact the health agency noted below for an original application form and approval. • This apploation for license will be rejected unless proper payment is attached. Taxpayer Name WINDY POINT HOLDINGS LLC DBA RED FOX FROZEN YOGURT ACCOUNT NUMBER LIABILITY INFORMATION LICENSE DUE DATE Use for all reference COUNTY I CITY NDUST .TYPE LIABLITYDATE YEAR MO DAY YEAR 30047775-0000 PITKIN ASPEN Service 1/1/2014 2016 12/31/15 LOCATION 401 E HYMAN AVE ASPEN CO 81611 KEEP THIS C ADDRESS DPY Inconsideration thereof. I do hereby certify that I have complied with all the items of sanitation as listed in the Colorado State Retail Food Establishment Code, and that I have complied with all orders given me by authorized inspectors of the Colorado Department of Public Health and Environment. I do hereby agree that in the event that the items of sanitation are not complied with. I will discontinue serving food until such time as reauirements are met. Authorized Signature Title Date Code 3277 ----A.MRLML QWed.-......_. 'Do,,ot—temspacebebw I $ 115 __00 Cut Here and send only the portion below. RENEWAL APPLICATION FOR LICENSE TO COLORADO DEPARTMENT of REVENUE CONDUCT A RETAIL FOOD ESTABLISHMENT 18 Taxpayer Name WINDY POINT HOLDINGS LLC DBA RED FOX FROZEN YOGURT ACCOUNT NUMBER LIABILITY INFORMATION LICENSE DUE DATE Use for all reference COUNTY I CITY INDUST TYPE LIABILITYDATE YEAR MO DA" YEAR 30047775-0000 PITKIN ASPEN SFooservice 1/1/2014 2016 12/31/15 LOCATION 401 E HYMAN AVE ASPEN CO 81611 ADDRESS RETURN THIS COPY Inconsideration thereof,ldo hereby certify that I have complied with all the items of sanitation as listed in the Colorado State Retail Food Establishment Code. and that I have complied with all orders given me by authorized inspectors of the Colorado Department of Public Health and Environment. I do hereby agree that in the event that the Items of sanitation are not complied with, I will discontinue serving food until such time as requirements are met. Authorized Signature TNe Date Code 3277 MAIL THIS PORTION OF APPLICATION AND MAKE CHECK OR MONEY ORDER PAYABLE TO. City of Aspen 130 S Galena Street Amount Owed Aspen, CO 81611 ....... Dorawrite mspace below $ 115 _00 May 15, 2016 To Whom It May Concern, I, Virginia Hamilton, am applying to renew an Outdoor/Food Vending permit for Red Fox Frozen Yogurt, Red Fox is a small stand that sells frozen yogurt and refreshments on the corner of E. Hyman Ave and South Mill St on property owned by Ruby Lindner, of Lindner Properties LLC. The current tenant for the adjacent space is Robert D Bosselli, Manager of O'bos Enterprises, LLC owners of Art Tee Gallery. The business is operated by Windy Point Holdings LLC and is doing business as Red Fox Frozen Yogurt. The stand is located at 401 E. Hyman Ave, Aspen, CO 81611. The authorized representative will be Virginia Hamilton. Please find the following contact information: Mailing Address: 134 Maple Lane, Aspen CO 81611 Phone: (970) 319-8745 Email: redfoxfroyoC@-gmail.com Sincerely, Virginia Hamilton Owner Red Fox Frozen Yogurt ACUI. A Mutual Insurance Company Amended Declarations First Named Insured and Address: WINDY POINT HOLDINGS LLC DBA RED FOX FROZEN YOGURT 134 MAPLE LN ASPEN CO 81611 In return for the payment of the premium and subject to all the terms of the policy, we agree to provide the insurance coverage as stated in the same. BIS-PAK COVERAGE PART Agency Name and Number: NEIL-GARING AGENCY INC 7115-A L Policy Number: Z22955 Policy Period: Effective Date: Expiration Date 06-12-16 06-12-17 12:01 A.M. standard time at your mailing address shown in the declarations COVERAGE FORMS AND ENDORSEMENTS APPLICABLE TO THIS COVERAGE PART Form Number Form Title Premium CB-0006 (12-12) Bis-Pak Business Liability and Medical Expenses Coverage Form ...... $ CB-0009 (09-04) Bis-Pak Common Policy Conditions ............................. . CB-1416 (01-10) Snow Plow Products -Completed Operations Hazard Coverage ........ CB-1504 (05-14) Exclusion -Access of Confidential or Personal Info/Data with Limited BI........................................................ CB-0002 (09-14) Deluxe Bis-Pak Property Coverage Form ......................... CB-0181F (11-13) Colorado Changes ........................................... CB-0402 (01-87) Additional Insured - Managers or Lessors of Premises .............. . CB-0417 (07-02) Employment -Related Practices Exclusion ......................... CB-0564 (01-15) Conditional Exclusion of Terrorism (Relating to Disposition of Federal Act) ................................................ CB-0577 (04-10) Fungi or Bacteria Exclusion (Liability) ............................ CB-0601 R (01-07) Exclusion of Loss Due to Virus or Bacteria ........................ CB-1004 (01-07) Exclusion of Certain Computer -Related Losses ..................... CB-7262 (04-10) ACUITY Advantages - Property Coverages ........................ CB-7264 (04-10) ACUITY Advantages - Liability Coverages ......................... IL-7012 (03-14) Asbestos Exclusion .......................................... CB-7296 (01-15) Cap on Losses from Certified Acts of Terrorism - Property ............ 12.00 CB-7298 (01-15) Exclusion of Punitive Damages Related to a Certified Act of Terrorism .................................................. CB-7299 (01-15) Cap on Losses from Certified Acts of Terrorism - Liability ............. 2.00 IL-7082 (01-15) Disclosure Pursuant to Terrorism Risk Insurance Act ................ Advance Endorsement Premium ...........................................$ 14.00 Page 2 Policy Number: Z22955 Effective Date: 06-12-16 PREMIUM SUMMARY Advance Premium........................................................$ 683.00 Advance Endorsement Premium ............................................. 14.00 Total Advance Premium ..................................................$ 697.00 The Total Advance Premium shown above is based on the exposures you anticipated at the time this coverage part began. We will audit this coverage part in accordance with the Bis-Pak Liability and Medical Expenses General Condition entitled Premium Audit - Business Liability at the close of the audit period. PROPERTY COVERAGES PROVIDED Form: Deluxe Coverage Premises Building Item Number Number Business Personal Property 001 Deductible: $500 DESCRIPTION OF PREMISES Premises Building Number Number 001 001 MORTGAGEHOLDER NAME AND ADDRESS NONE LIABILITY COVERAGES PROVIDED Na Valuation Basis Replacement Cost $ Construction, Occupancy and Location Limit of Automatic Insurance Increase Percentage FRAME FROZEN YOGURT SHACK (IMMOBILE) 401 E HYMAN AVE ASPEN CO 50,000 N/A Coverage Item Limit of Insurance Liability and Medical Expenses (Each Occurrence) ...................................$ 1,000,000 Medical Expenses (Any One Person) .............................................. 5,000 Damage to Premises Rented to You .............................................. 100,000 Products -Completed Operations Aggregate Limit .................................... 2,000,000 General Aggregate Limit (Other Than Products -Completed Operations) ................... 2,000,000 Additional Interest Information • • 5/16/16, 8:34 PM Additional Interest Information Policy: Z22955 - WINDY POINT HOLDINGS LLC -Acc-9- v-1o}iC oi= 1 NS�V4 vcc bn r cesSed . NV aA\ al k aF- b Please select from the foll(ming: b,p �,S is YMOF pP Bis-Pak "Uw�dv\cx �►ro��S to Le,r•d10� 53 - Bis-Pal: Premises 001, Building 001, Liability Class 14401 401 E HYMAN AVE, ASPEN, CO 81611 LINDNER PROPERTIES LLC 17017 SE 26TH ST BELLEVUE WA 98008 Type:Addl Insured/Interest Click to Return to Top New Policy: I Search https://polinfo.acuity.com/BEWINQ05?POLNUM=Z22955 Page 1 of 1 Lindner Properties. I I.(* 17017 SI 1-6 Street Bellevue. WA 98008 .Icnnv I lamilton. James Foerster and Noah Annex Windv Point Iloldings. 1.1.(' 114 Maple Lane :Aspen. ( *0 R 1611 May 10. 2010 Dear .Icnny..lames. and Noah. WC krlo« how much your stand has conic to be appreciated and anticipated on the corner by locals as well as tourists \ isiting :aspen. so we arc \ery pleased that \ou wish to remain as our tenants operating Red Fov We are also very happ\ \\ ith the nc\\ ok\ nership and operating structure that y ou Ila\c put together and couldn't he more enthusiastic about havnlg : SPcIl natives \Kith such strong tics to the comnLill it\ running the stand. It seems to he an ideal tit for your operations and 1-or the to\%n. do we wish \ou all continued success %pith the summer and sinter business going, 10mard. Attachcd is the ne\� lease \\ ith commencement date ot' Decenlbcr 2010 for the outside corner space at Mill and I Iynlan. Please rc\ ick\ and advise us it'vou have an\ questions or concerns. If you do not have am questions oil the lease. siun and limc notarized whcrc indicated and return the original to tile at \our soonest cony enicnce. retaining a cop\ for \our records. I will counter -sign and notan/c oil this end and send (m a fully executed cop\ ol'thc Icasc lhcreatter lilr your permanent records. Jeffand I will he looking li►r\\ard to our next visit and to seeing you then. For nw o. here's to a fabulous summer season. — S' cerek. Ruby indner V Fncl: Commercial lease dated 2016 0 • FIRST AMENDMENT TO COMMERCIAL LEASE AGREEMENT jai THIS First Amendme to Commercial Lease Agreement (this "First Addendum") is executed this �j _ day of , 2013 ("Effective Date") by and between Erika Lindner, Trustee of the Fritz and Erika Lindner Revocable Family Trust ("Landlord') and SnoYo LLC (-Tenant"). WHEREAS, Landlord and Tenant entered into that certain Commercial Lease Agreement dated June 3'd, 2013 for the leased premises described as approximately 240 square feet of street level rental area at 401 East Hyman Avenue, Aspen, Colorado 81611, ("Leased Space"). NOW THEREFORE, in consideration of the foregoing premises, the mutual covenants herein contained and each act performed hereunder by the parties, Landlord and Tenant hereby agree as follows: Incorporation of Recitals. The ahove recitals are hereby incorporated into this First Addendum as if fully set forth herein. 2. Amendments to the Lease. The 1.eaze i- hereby amended to include the following provisions: a) TERM: The Lease Term shall be amended to include a four -month (4-month) Summer Lease Term and a four -and -one-half month (4 %Z-month) Winter Lease Term. The Summer Lease Term shall commence on June Vt (the "Summer Commencement Date") and terminate on September 30"~ (the "Summer Expiration Date"). The final Summer Lease Term will expire on September 30`h, 2016. The first Winter Lease Term shall commence on December 1st, 2013 (the "Winter Commencement Date") and terminate on April 15t°, 2014 (the "Winter Expiration Date). The final Winter Lease Term will expire on April 15`t', 2016. b) RE -IT: Commencing on the Summer Commencement Date and continuing through the Summer Term, Tenant agrees to pay Landlord, at 66966 Ten Peaks Court, Bend, Oregon 97701 or at such other place as Landlord may from time to time designate in writing to Tenant, a Base Rent rate of $10,100.00 for the four -month Sumner Lease Term for the Leased Premises payable in full in advance on the Commencement Date. Commencing on the Winter Commencement Date and continuing through the Winter Term, Tenant agrees to pay Landlord, at 66966 Ten Peaks Court, Bend, Oregon 97701 or at such other place as Landlord may from time to time designate in writing to Tenant, a Base Rent rate of $9,112.50 for the four -and -one -half -month Winter Lease Term for the Leased Premises payable monthly at a rate of $2,025.00 per month on the first day of the month, with a final half-month's rent payment of $1,012.50 due on April. c); SECUR"execution SIT: $5,009.88:""The Security J)eposit shall be delivered Landlor upo of t>tris ' Lease by Tenant 'and shall be held _by .andlord out v , 'r ka�ility for interest except to the, extent required by I WS) as secutxt`y for the pertormaryce of Tenant's obligations under this Lease. `The Security Deposit is not an , Page 1 of 6 0 0 advance payment ofRent or a measur of Tenant's liabilities or damages. Landlord y, fmm time to time while an event of default remains u red, without prejudit o any other remedy, use all or a psirKion of the Security De�iisit to satisfy past du ent, cure am uncared default by Tenant, or Lease or resu;iKng from Tenant's brea of this Lease. `r If Landlord uses the '<ecurit} Deposit, TU&t shall on demand r ore the Security - DePnsit to its original amount and such usts by Landlord of the Sec ty Deposit shall not constitute a cure of the existing e%=Cof default until such iih6'e as the entire amount i owing to the Landlord is paid in>ulf and the Security Dep� is fully restored. Provided that Tenant has performed all of its obligations heretzder, Landlord shall return y unapplied portion of the Security Deposit to Tenant w,(tthin thirty (30) days after a later to occur of: (1) the date Tenant surrenders possession of the Leased Premises Landlord thi in accordance with Uslease, or (ii) the Expiraon Date. If Landlord ers its interest in the Leased Premises, landlord shall assi the Security Deposit e transferee and, following the assignment and the delive yy to Tenant of an knowledgement of the transferees responsibility for the Security Deposit if requir by Laws, Landlord shall have no further liability for the return of the Security Deposit. d) ADDITIONAL RENT: A relerred to in Section d) UTILITIES below, Tenant shall pay to Landlord as Additional Rent at the beginning of the Winter Lease Term the cost of equipnent, labor and 1 electric line to provide electricity. Installation shall be pro ided ') it lircnsed and bonded electrician and all work shall be full,. permitted b% and meet ill lrg. , rcquircments of the City of Aspen. e) USE: Tenant shall use the Leased Premises for the Winter Term only of the purpose of operating a warm beverage and food sales kiosk. Tenant shall maintain Tenant's operating facilities structure at tce site in goud order and repair throughout the Term of this Lease. Tenant may mairttdn Ten:mt's operating facilities structure at the Premises during the interim periods between the Winter Lease Term and the Summer Lease Term for the duration of the Lease provided that there is no other requirement by Law to vacate the structure from the Premises and provided further that Landlord does not request Tenant vacate the structure from Premises for any other reason. If Tenant is requested to vacate the Premises during the interim period between the Winter Lease Term and the Summer Lease Term, Tenant shall remove Tenant's operating facilities structure at Tenant's expense within five (5) days of notification to vacate. f) UTILITIES: Tenant shall have access to electricity at the Leased Premises. Landlord agrees to install and pay for, subject to Tenant's reimbursement as Additional Rent, separate electrical access for Tenant's use, with all costs for permitting, equipment, installation, and any other required expenses to be paid by Tenant with the first monthly rent payment for the first Winter Lease Term. Tenant shalt establish a permanent sub - meter on the premises to track Tenant's electric usage at the beginning and at the end of the City of Aspen Utilities monthly billing cycle to determine actual kilowatt hour usage for the billing period and shall pay their portion of the total electric bill on a percent of kilowatt hour used basis. Tenant shall allow the owner of the Art Tee Gallery or any other future Tenant occupying the inside building space at 401 East Hyman Avenue access to the sub -meter to verify electric usage. Tenant agrees that Tenant will not install any equipment which will exceed or overload the capacity of any utility facilities, and that if any equipment installed by Tenant shall require additional utility facilities, they shall be installed and maintained at Tenant's sole cost and expense in accordance with plans and Page 2 of 6 • 0 sp<-citications which have recei,,ed prior written approval of Landlord and any additional facilities or improvements shall be permitted by the City of Aspen. Landlord's approval of an,, plans and specifications shall be at its judgment and discretion. g) S1 RORDINATION; ATTORN-MENT; ESTOPPEL CERTIFICATE: This Lease, including the covenant of quiet enjoyment, may, at Landlords option, be subject and subordinate to the lien of any trust deed or deeds, mortgages, or liens resulting from any other method of financing or refinancing before or hereafter placed upon the Leased Premises, and to all other amounts advanced thereunder or consolidations and extensions thereof; provided. however, that in the event of any foreclosure or other suit, sale or proceeding thereunder, Tenant, if not then in default hereunder, will not be made a party to any such suit or proceeding, and the same shall not affect the rights of Tenant under this Lease. This Article VII is self -operative and no further instrument of subordination shall be required in order to effectuate it. Nevertheless, Tenant agrees to execute such instruments as may reasonably he requested by any beneficiary or mortgagee to evidence and make a record of the fact that this Lease is to be inferior to any such deed of trust or mortgage. If requested by a successor -in -interest to all or a part of Landlord's interest in this Lease, Tenant shall, without charge, at -tom to the successor -in -interest. Tenant shall, within ten (10) days after receipt of written request from Landlord, execute and deliver an estoppel certificate to those par,ies ,as are reasonably requested by Landlord (including a mortgagee or prospective purchaser;. T'he- estoppel certificate shall include a statement certifying that this Lease is wimno?i cu (except as identified in the estoppel certificate) and in full force and effect, describin t the dates to which Rent and other charges have been paid, representing that, to the best of l enant's knowledge, there is no default (or stating with specificit} the nature of the alleged default) and certifying other matters with respect to this Lease that may reasonably be requested. h) INSURANCE: Tenant shall carry liability insurance, covering its use of the Leased Space and, if applicable, all-risk insurance covering Tenant's property stored thereon, and shall add Landlord as an additional insured on any such insurance policy. Tenant shall provide Landlord with proof of insurance prior to taking occupancy and shall provide Landlord with proof of annual renewal of insurance coverage throughout the full term of the Lease and at any time during the lease term within five (5) days of Landlord's written request. i) REPAIR AND MAINTENANCE: Tenants shall keep the Leased Premises in good condition and repair, ordinary wear and tear excepted. Tenant's obligations include, without limitation, repairs to i) electrical wiring and connections to Tenant's kiosk; ii) alterations performed by contractors retained by Tenant; and iii) snow and ice removal at the Leased Premises. j) OPTION TO EXTEND: Upon expiration of the final Summer Lease Term, should Landlord at its sole discretion offer the property for Lease, and if "Tenant is not in default under any terms of the Lease, Tenant shall have first right of refusal to extend the Lease on the Lease Premises for two additional four -and -one-half month (4 1/2-month) Winter Lease Terms and two additional four -month (4-month) Summer Lease Terms, at then current market rental rate and lease terms and conditions. Tenant shall provide Landlord with written notification of intention to exercise the option to extend no later than September 1 ", 2016. Notice shall be sent to landlord by registered or certified mail, postage Page 3of6 • prepaid and return receipt requested or sent by overnight courier service. k) MLTL AL REPRESENTATIONS AND WARRASITIFS: Each party hereby represents and warrants to the other party that (i) it is duly organized, validly existing and in good standing in accordance with the laws of the state under which it was organized and if such state is not the state in which the Premises is located, that it is authorized to do business in such state; (ii) all action necessary to authorize the execution of this First Addendum has been taken by it; and (iii) the individual executing and delivering this First Addendum on behalf of it has been authorized to do so, and such execution and delivery shall bind it. Each party, at the other parry's request, shall provide evidence of such authority. 1) INCORPORATION: This First Addendum shall be incorporated into and made a part of the Lease, and all provisions of the Lease not expressly modified or amended hereby shall remain in full force and effect and are hereby ratified and confirmed by Lessor and Lessee. m) APPLICABLE LAW: This First Addendum shall be governed by and construed and enforced in accordance with the laws <,f the State in which the Premises is located without reference to any provision of Colorado law that would select the laws of another jurisdiction. Page 4 of 6 0 \.xwithstanding the foregoing, all other terms. condition, and guarantees of the Lease will continue to apply . IN %%I1 Nt SS Ill- kl-_OF, I andlord. Tenant and Guarantors h i\< <recutod this Commercial I eas, ', ar, , t Ei .- ,e. 1 :rni: or, the day and year first aho�e �krit%m. LANDLORD: The Fritz and Erika Lindner Revocable Family- trust and the Erika L. Lindner Trust Erika Lindner, Trustee TENANT SnoYo LLC, a Colorado Limited Liability Company I Rom Bower Hirss, Member / Owner By,t Noah Armes, Member / Owner GUARANTOR(S): Rom Bower Hirss C � Noah Annes Page 5of6 ST AT F. OF OREGO N ss. COUNTY OF DFSCHUTES ) O,n % - S 2013, before me, the undersigned, a Notary Public in and for said State, p---rxmaily appeared ERIKA L. LiNDNLR, as Trustee of the Fritz and Erika Lindner Revocable Family Trust and Trustee of the Erika L. Lindner Trust and that by her signature on the instrument, executed the instrument. WITNF,SS my hand and official seal. Notary Public OFFICIAL SEAL A.LLEN D PEARCE 'OTA.: PUBLIC• OREGON h COYF+ISSION NO. 463138 COMMISS.O.'i EXPIRES OCTOBER 27 2015 STATE OF COLORADO, ss. COUNTY OF PITKIN ) On TN•_L _:ii; 2013, before tne, the undersigned, a Notary Public in and for said State, personally appeared Rom Bower Huss, as Co-owner of SnoYo LLC, a Colorado Limited Liability Company, and that by his signature on the instrument, executed the instrument. WITNESS my hand and official seal. r By P Notary Public s a' STATE OF COLORADO �,�'�re of Cotat���o��1v Ss. •�O4 EYp�ros pZ1 COUNTY Of PITKIN ) On h:�_.� nx :.(t 2013, before me, the undersigned, a Notary Public in and for said State, personally appeared Noah Annes, as Cc -Owner of SnoYo LLC, a Colorado Limited Liability Company, and that by his signature on the instrument, executed the instrument. WITNESS my hand and official seal. By �,�ni F, _ery o; ,,Notary Public Pene►op � Smith Page 6 of 6 Colot� 0 a� °n EApIro• �q\ R L. i Vicinity Map -Red Fox Frozen Yogurt Aspen Community Untitled layer United Methodist Church s C;5 1% 7 Red Fox Frozen Yogurt E B/eeker St i z � Untitled layer 2 Hotel Jerome :t. RHO Gra Aspen Chamber Resort Association Park Aspen Brewing a2 7 E NOpkins q ve ( Peach s Carmen Cafe s Whitman Fine Properties C/) EHOPkin s q ve s Royal. Street Fine Art E Nyman Ave Wheeler Opera House m CLimelight ENy)�ar)4ve r c The Red: Onion n1 U' r 1 a A�agnrx Park E DLrant Ave Ceara Ct E CUran � tgve ECean St Pitkin Count E NOpki 6 2 E Nyrr, Aspen Art A E COOPer q `�,er 1:tcurr i-EDOr, Asper Outfitting Ski ;es::rt spec St Juanita St Snark St cn Cl) • • Map data 02015 Google Street Address and Legal Description Street Address: 401 E. Hyman Ave Aspen, CO 81611 Legal Description: City and Town Site of Aspen Lot A, Block 89 Parcel#273718216001 JUN 032016 To . ct p F kren Atka* 3fty4tx U �� rc d �toX �rov�o A� IPA" • c�w� P dMer IOW% Y\a44e- VJCn Svio",W-A and 8l %Q\d bt OYN ve ;r 2 age .4 Vjp 4,A ATTACHMENT 2 — LAND USE APPLICATION � .20c6 P&r PROJECT: -`�, Name: K Syutpx\ `-I oc, ►i- � lw) ?n� r1d� LLCM Location: `Aoi C, AarYtan PN& , Pnef 1. 1151 ($2\ to W N Parcel ID # (REQUIRED) APPLICANT: Name: Address: ma Ir, Ian 6->�n 8) loll Phone#: 9—�,1q5 REPRESENTIVATIVE: Name: NI Address: Phone#: GMQS Exemption GMQS Allotment Special Review ESA — 8040 Greenline, Stream Margin, Hallam Lake Bluff, Mountain View Plane Commercial Design Review Residential Design Variance Conditional Use Conceptual PUD Final PUD (& PUD Amendment) Subdivision Subdivision Exemption (includes Condominiumization) Lot Split Lot Line Adjustment " Temporary Use Conceptual SPA Final SPA (&SPA Amendment) Small Lodge Conversion/ Expansion Other: XISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) _1t [4$ a renw,v a\ �'r S ,7e4 '_IID54,r} A')::3Ak 20P_­�� all uuc-A (-At as "ILea Tru* 'Gyjgn `iosu%► .' CAlb') PKUPUSAL: (uescription of proposea Duuaings, uses, moamcations, etc.) No rF bvili,r-iA cr f)"Tn1r\nn,- Have you attached the following? FEES DUE: $ bI , OU L_ Pre -Application Conference Summary L_ Attachment #1, Signed Fee Agreement Response to Attachment #3, Dimensional Requirements Form Response to Attachment #4, Submittal Requirements — including Written Responses to Review Standards 3-D Model for large project All plans that are larger than 8.5" X 11" must be folded. A disk with an electric copy of all written text (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre -application conference summary will indicate if you must submit a 3-D model. ATTACHMENT 3 DIMENSIONAL REQUIREMENTS FORM Project: Qp-ck �PoX TY-V VA � '�o�4LY- - Applicant: Location: ►-1U1 Ai ,�A nar) tfV Zone District: ( r7mmztc-, AA re., Lot Size: j 9 Q, 0 5q I Ft Lot Area: (For the purpose bf calculating Floor Area, Lot Area may be reduced for areas within the high-water mark, easement, and steep slopes. Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: Proposed: Number of residential units: Existing: Proposed: Number of bedrooms: Existing: Proposed: Proposed % of demolition (Historic properties only): DIMENSIONS: 44 Floor Area: Existing: Allowable: �50 Proposed Principal bldg. height: Existing: g Allowable: Proposed. Access. Bldg. height: Existing: Allowable: Proposed_ On -Site parking: Existing: Required: Proposed_ Site coverage: Existing: Required: Proposed_ Open Space: Existing: Required: Proposed_ Front Setback: Existing: Required Proposed Rear Setback: Existing: Required: Proposed Combined F/F: Existing: Required Proposed _ Side Setback: Existing: Required: Proposed _ Side Setback: Existing: Required Proposed _ Combined Sides: Existing: Required Proposed _ Distance between Bldgs. Existing: Required: Proposed _ Existing: Required: Proposed:_ Existing non -conformities or encroachments: Variations requested: 0 9 Homeowner Association Compliance Policy All land use applications within the City of Aspen are required to include a Homeowner Association Compliance Form (this form) certifying the scope of work included in the land use application complies with all applicable covenants and homeowner association policies. The certification must be signed by the property owner or Attorney representing the property owner. Property Name:%r Nn%0. Penn kWAY\\1'CDY1 Owner ("I" ): Email: 0 Phone No.: red%x� o m«-�� Address of Property: (subject of application) I ceZs follows: (pick one) property is not subject to a homeowners association or other form of private covenant. This property is subject to a homeowners association or private covenant and the improvements proposed in this land use application do not require approval by the homeowners association or covenant beneficiary. This property is subject to a homeowners association or private covenant and the improvements proposed in this land use application have been approved by the homeowners association or covenant beneficiary. I understand this policy and I understand the City of Aspen does not interpret, enforce, or manage the applicability, meaning or effect of private covenants or homeowner association rules or bylaws. I understand that this document is a public document. Owner signature: date: Owner printed name or, Attorney signature: Attorney printed name: MM MOM■ i al t. date: Agreement to Pay Application Fees a An agreement between the City of Aspen ("City")and �0�� • 20�6• � Property Phone No.: CnC - 3i `1 - $-7` -S Owner ("I"): I �rC�1vl�Gl0.��`I�'1 Email: �eclFbxA"C"!�>P o,ma-t 1 •� Address of �pt � • Billing 0 i" l.o"� Property: Address: 1 3'1 (Subject of (send bills here) Co E^1(o 11 application) I understand that the City has adopted, via Ordinance No., Series of 2011, review fees for Land Use applications and payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated non-refundable. flat fee for A flat fee for $. flat fee for $. flat fee for I understand that these flat fees are For Deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. I understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for no -payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render and application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $ deposit for hours of Community Development Department staff time. Additional time above the deposit amount will be billed at $325.00 per hour. $ deposit for hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $325.00 per hour. City of Aspen: Jessica Garrow, AICP Community Development Director City Use: Fees Due: $ Received $ Property Owner: Name: Title: CITYOASPEN 0 PRE -APPLICATION CONFERENCE SUMMARY PLANNER: Sara Nadolny, 970.429.2739 DATE: 4/28/16 PROJECT: 401 E. Hyman Ave. REPRESENTATIVE: James & Jenny REQUEST: Outdoor Food/Beverage Vending License DESCRIPTION: The applicant is requesting an Outdoor Food/Beverage Vending license renewal approval to maintain a food vending business on private property located on the southeast corner of Mill St. and Hyman Ave. The applicant's business is Red Fox Frozen Yogurt. An outdoor vending approval is valid for one year of operation, and will need to be updated yearly, as needed. Any changes to food or operation plan from the previous year will need to be reviewed by the Environmental Health Dept. The applicant will need to respond to the criteria as found in Subsection 26.470.060.9 (see links below). Below are links to the Land Use Application form and Land Use Code for your convenience: Land Use App: http://www.aspenpitkin.com/Portals/0/docs/City/Comdev/Apps%20and%2OFees/2013%201and%20use%20a pp%20form.pdf Land Use Code: http://www asoenpitkin.com/Departments/Community-Development/Planning-and-Zoning/Title-26-Land-Use- Code/ Land Use Code Section(s 26.304 Common Development Review Procedures c.) 26.470.060.9 Outdoor food/beverage vending license Review by: Staff for complete application Public Hearing: None aD Planning Fees: $81.00 flat fee v� r Total Deposit: $81.00 Z To apply, submit the following information: 2-1*'Completed Land Use Application and signed fee agreement. 12 Pre -application Conference Summary (this document). 10 Street address and legal description of the parcel on which development is proposed to occur, consisting of a current (no older than 6 months) certificate from a title insurance company, an ownership and encumbrance report, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ASLU Outdoor Food Vending 401 E. Hyman Ave. 273718216001 Applicant's name, address Oad telephone number in a letter signedTy the applicant that states the name, address and telephone number of the representative authorized to act on behalf of the applicant. 5/HOA Compliance form (Attached) Qf A written description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application and relevant land use approvals associated with the property. A site improvement survey (no older than a year from submittal) including topography and vegetation showing the current status of the parcel certified by a registered land surveyor by licensed in the State of Colorado. %,AI, be. wautieA 4 AI kt (an AtmonfrtrA�C Vow c��araho^ W (OAA-Xk'WA on fnV4'tIL Written responses to all review criteria. J VAn 8 1/2" by 11" vicinity map locating the parcel within the City of Aspen. 0/1 Complete copy of all land use application materials. © Total deposit for review of the application. n A digital copy of the application provided in pdf file format. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. THE CITY OF ASPEN Land Use Application Determination of Completeness Date: May 23, 2016 •2P r �O • p� / (,� Dear City of Aspen Land Use Review Applicant, We have received your land use application for the Red Fox Yogurt — Outdoor Food Vending and reviewed it for completeness. Your Land Use Application is incomplete: C" lC f 6 I� PI ase submit the following missing submission it E� Provide a copy of the lease -- TYV\A A-<,k (e C� A description of the operation including days/hours, food being served dSite plan showing locatioOn on site as well as a picture or drawing of the stand. Proposed signage. (^/((j Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2759 if you have any questions. Thank You, JXAAWA--,— fifer elan, Deputy Planning Director City of Aspen, Community Development Department For Office Use Only: Mineral Rights Notice Required Yes Now GMQS Allotments Yes No7;?!-- Qualifying Applications: New PD Subdivision, or PD (creating more than 1 additional lot) Residential Affordable Housing Commercial E.P.F. Lodging