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HomeMy WebLinkAboutminutes.council.19920713Regular Meeting Aspen City Council July 13, 1992 Mayor Bennett called the meeting to order at 4:10 p.m. in the City Manager's office; Councilmembers Peters, Richards, Pendleton and Reno present. Councilman Peters moved to go into executive session for the purpose of discussing litigation and real property acquisition; seconded by Councilman Reno. All in favor, motion carried. Councilman Peters moved to come out of executive session at 4:57 p.m.; seconded by Councilwoman Pendleton. All in favor, motion carried. Councilman Peters moved to adjourn at 4:58 p.m.; seconded by Councilwoman Richards. All in favor, motion carried. COUNCIL MEETING Mayor Bennett called the meeting to order at 5:10 p.m. with Councilmembers Peters, Richards, Reno and Pendleton present. COMMENDATION - Linda McCausland Mayor Bennett said approximately 5 years ago Linda McCausland approached the city with an idea of planting wildflowers in and around the golf course. Ms. McCausland raised the funds and organized volunteers for their efforts. Mayor Bennett and Council presented Ms. McCausland with a commendation for the wildflower program. Ms. McCausland told Council there should be more efforts to get the private sector involved with the city. Ms. McCausland said she often felt like she was competing with the city. Ms. McCausland suggested the city have a liaison for this type of programs. CITIZEN COMMENTS 1. Harriet Kelly, 745 Mead ows Road, told Council some residents on Meadows Road would like to find a way of giving recognition to Charlie Marquese for all the help in solving the Meadows orad and trail. Amy Margerum, city manager, suggested a bench located near the trail and dedicated to the Marqueses. These benches cost $1500. Ms. Margerum also suggested a sign on the Meadows trail explaining the part the Marqueses had in this. Council agreed. COUNCILMEMBER COMMENTS 1. Councilman Reno said people have contacted him about projects not being represented by banners on Main street because some banners are up for a great length of time. This will be discussed 1 Regular Meeting Aspen City Council July 13, 1992 under Manager's comments. 2. Councilwoman Richards said the Theatre in the P ark is operating full swing. There seems to be a lot of traffic around the tent. Amy Margerum, city manager, said there is to be a turnaround and no parking around the tent. Ms. Margerum said staff will make some no parking arrangements. 3. Amy Margeru m, city manager, told Council staff, too, has received a lot of complaints about the lack of banner space over Main street. Some alternatives are (1) leave it as is with first come first serve; (2) put up another string for banners somewhere on Main street, and (3) not allow people to reserve space that far in advance. People currently pay $50 to have a banner hung on Main street. Ms. Margerum said she will come back with recommendations to amend the banner policy. Council agreed they did not want to see any more strings for banners. 4. Amy Margerum, city manager, told Council there have been a lot of power outages. Staff is writing a letter to the restaurant association explaining the problem and how the city is addressing it. 5. Amy Margerum, city m anager, said the Wheeler Opera House Board would like a work session with Council. Councilwoman Richards suggested this be held at the Wheeler and have a tour of the facility. Council scheduled this for August 17 at 5:30 p.m. at the Wheeler. Ms. Margerum said the Wheeler staff asked whether they should proceed getting bids this year for the ladies bathroom at the Wheeler. Council said this should be looked at during the budget. 6. Amy Margerum, city manager, said Council needs to schedule a water policy work session. Council agreed this should be on a regular meeting agenda and scheduled it for August 24th. 7. Amy Margerum, city manager, pointed out the city is not going to spend any money on the Billings stub outs at this time. Council agreed. CONSENT AGENDA Councilwoman Pendleton said the RFTA service agreement should be withdrawn. Councilman Peters moved to approve the consent agenda as amended; seconded by Councilwoman Pendleton. The consent agenda is: I . Minutes - June 22, 1992 II . Resolution #37, 1992 - Bob Johnson Hockey Contract 2 Regular Meeting Aspen City Council July 13, 1992 III . Resolution #36, 1992 - Temporary Municipal Court Judge/Hecht IV . Golf Photo Vending Agreement Councilwoman Richards said there may be some negative feedback on the vending agreement at the golf course as being too commercial. Bill Efting, assistant city manager, told Council this was reviewed by the new golf advisory committee who agreed to look at this as a new source of revenue and on an experimental basis. All in favor, motion carried. LIQUOR LICENSE TRANSFER - ZG Councilwoman Richards moved to approve the transfer of Bender Fain license to ZG; seconded by Councilwoman Pendleton. All in favor, motion carried. MANAGER CHANGE - Hotel Jerome Councilman Peters moved to approve the manager change; seconded by Councilwoman Richards. All in favor, motion carried. RENEWALS Councilwoman Pendleton moved to approve the renewals for Aspen Art Museum, Syzygy; Downtown Sports Center; Aspen Mine Co.; seconded by Councilman Peters. All in favor, motion carried. SPECIAL EVENT PERMITS Councilman Peters moved to approve the special event permits for Aspen Filmfest and Rotary Club; seconded by Councilwoman Richards. All in favor, motion carried. ORDINANCE #40, SERIES OF 1992 - Aspen Institute Subdivision Kim Johnson, planning office, told Council this is an application to subdivide the Institute parcel, known as lot 1 of the Aspen Meadows subdivision into 2 lots. At first reading, Council was requested staff work further with the applicant to reach a better understanding of the tax requirements that necessitate the subdivision request. Ms. Johnson told Council staff met with Institute and discussed the tax implica tions. Staff feels this request is firmly based on those implications. Ms. Johnson recommended adoption of Ordinance #40. Ms. Johnson pointed out the city engineer has continued his request for an easement for storm water drainage retention on lot 1 as was discussed in the original Meadows approval. Ms. Johnson said staff does not feel there are any new conditions to involve a fresh 3 Regular Meeting Aspen City Council July 13, 1992 discussion of the retention. Ms. Johnson told Council the applicants are willing to provide language on the plat and subdivision agreement which would perpetually join ownership of lot 1 and the newly created lot 1A. This may alleviate the city's concern that these lots stay in one ownership. New condition #2 regards the historic use of the lodge units; that the lodge rooms have been historically used for non- profit use in the summer and for-profit use to make the lodge improvements financial ly viable was discussed in the SPA approval. Condition #2 says this use was approved. Councilman Peters asked if there is approval from the other non- profit users. Councilwoman Richards said the original SPA asked that there be signatories between all 3 parties. Councilman Reno said there was an oversight with staff on that requirement. Gideon Kaufman, representing the applicant, presented a letter signed by all 3 parties. David McLaughlin, Aspen Institute, told Council he was informed late this afternoon that the application from all 3 parties had to be in writing. It is very compressed but not without consultation between all 3 parties. Kaufman told Council the retention pond was discussed in great detail between all parties. It was decided that spending all that time and energy to preserve the race track, it did not make good sense to give the city an easement for a major retention pond in the race track. Kaufman said he hopes Council agrees to leave it at that. Kaufman brought up condition #2. It is the applicant's understand- ing that the intent of this is to preserve the existing uses out at the Meadows. Kaufman suggested language changes more in line with what has traditionally happened, "This requires non-profit use of the property during the summer months and allows profit use of the lodge facility during the winter months". Kaufman told Council what has traditionally happened at the Meadows is predominantly non-profit uses of the property and no restrictions of the uses during the fall, winter and spring. Kaufman said there is also time when a small number of rooms are rented out in the summer to help with cash flow. Mayor Bennett opened the public hearing. Councilman Peters requested the letter from the 3 property owners be put in the record. Councilman Peters asked if there was a joint meeting or discussion on this application. Michael Turner, president of the Aspen Center for Physics, told Council they support the Aspen Institute and understand in generality that they would like to split off the Meadows to prevent the Meadows from 4 Regular Meeting Aspen City Council July 13, 1992 poisoning the non-profit status of the other land. Turner said in the future he hopes there would be more time to discuss these issues. Turner said the Physics Institute is assuming there will be appropriate protection and that the hotel will be run in a proper way. Turner told Council he signed the letter in his capacity as president of Aspen Center for Physics. Turner said they would not like to see the hotel sold to a private individual who would run it on a year round profit basis. Turner said the Physics Center is concerned about any future building or develop- ment at the Meadows. Councilwoman Pendleton said she thought that if anything was done at the Meadows, everyone had to sign off on it, a process like the consortium arrived at in the first place. Councilwoman Pendleton said during the process the city knew there was going to be a for- profit lodge and the Institute was going to hire someone to run it. Councilwom an Pendleton said she is trying to figure out exactly what appropriate protection means. Mayor Bennett asked what assurances already exist in the SPA document that bind the Institute's activities in the commercial half of the property. Jed Caswall, city attorney, said the only thing outside the SPA agreement would by the underlying zoning. Caswall said if the city believes the Institute is violating either the SPA agreement or the underlying zoning, they can be petitioned in front of Council for a hearing to determine if there is a violation of the SPA. There is an administrative procedure set up which provides for a public hearing. Council has the authority to revoke approvals, suspend approvals or impose other types of sanctions. Caswall said if there is a violation of the underlying zoning, the city can enforce corrective action through a district court action or bring them through the administrative process in front of Council. Councilwoman Richards said she is concerned that the different parties to this agreement have not had a chance to review the agreement and think about what implications it may or may not be. Robert Harth, M.A.A., told Council their understanding is that everything from what all parties agreed to after all the many months of work remains in tact. The only thing this does is to separate a portion of Institute land for tax purposes. This will not affect the operation of the hotel or operation of the facili- ties. This will protect the non-profit status. David McLaughlin, Aspen Institute, said this entire effort is not to change the nature of what has been agreed to and what histori- cally has been true on this property. McLaughlin said it has always been recognized from the first of the hearings that there needed to be some commercial use in order to provide the revenue to 5 Regular Meeting Aspen City Council July 13, 1992 defend the not-for-profit use, which is the predominant goal. McLaughlin told Council on the basis of the agreements that were reached, the Institute has gone out and raised significant sums of money, almost $11 million, towards renovating so that can be a not- for-profit center and so the Institute can do what it historically was meant to do in this community. McLaughlin said this applica- tion was to preserve the status quo by keeping it not-for-profit and off the tax roles that part which is off today, and then agreeing to bind the two properties so they never could be separated. Councilwoman Richards said she endorses the concept of what the Institute is asking for. Councilwoman Richards pointed out when Council reviewed the SPA there was to be a process that required whenever there is an alteration or change that all the parties of the property come together and talk about the change first. Councilwoman Richards said she is concerned these discus sions were had without enough time to look at all the implica tions. McLaughlin said perhaps all the formalities that should have been done were not. McLaughlin told Council he cannot conceive that by the city's requirement and also by their own moral obligation that Music would build a new building without the sanction of the Physics or the Institute or the Institute would do something that changed the character of physical appearance of the property without consultation. Councilman Peters said he would like to require that the 3 groups get together and talk about this. Councilman Peters said the new condition #2 ratifies unlimited commercial use for 3 seasons and partial commercial use in the summer. Councilman Peters said he feels this is a new element, which seems to be significant. Council man Peters asked why this is being pushed ahead to protect the Institute from losing non-profit status subsequent to activi- ties they will undertake next winter. Kaufman told Council since 1979 one parcel has existed at the Institute that has been exempt from taxes. This request is a lot split to recreate that existing parcel with it's tax exempt status, called lot 1A and call the other lot 1. These lots can never be separated. Use are not changing. Kaufman said the applicants are asking to be able to preserve the status quo and not to have to undertake an expensive fight with the state on preserving the not- for-profit status. Kaufman said the only change is to draw a line on the way this land has existed so that the state will not tax the Institute. Kaufman said the applicants are asking for the uses to be the same as has traditionally happened on the property. Kaufman said he does not feel paragraph 2 is necessary; the Institute is bound by the commitments made in the SPA. 6 Regular Meeting Aspen City Council July 13, 1992 Mayor Bennett said the final SPA document is rather vague about the uses. Mayor Bennett said to find out what is going on one has to go back through a number of document and old minutes. Mayor Bennett said the clearest statement is in the Meadows master plan, conducted and written by the city, which stated, non-profit use almost exclusively in the summer. Councilwoman Pendleton asked if this allows for-profit use in the lodge facilities during the winter months. Mayor Bennett said yes, there is no question about that. Kaufman said the first sentence of condition #2 says, "The use of the two Institute lots shall be as originally approved under the Aspen Meadows final SPA development plan". Kaufman said the applicants can live with just that sentence. McLaughlin told Council historic usage of the property has a major portion used commercially over the year. At one time there was a full restaurant at the Meadows. Commercial use of the property is not particularly new. McLaughlin told Council the Institute has made a strong commitment to return this Institute, it's programs, it's meetings, back to this community. The initiation of that was to regain the property to a point where they could reinvest in the property to make it viable for Institute's purposes. The Institute, with the city's help, got conveyance of the property and in turn conveyed to the M.A.A. and Physics the land that they needed. McLaughlin told Council over the years the Institute has been losing rather considerable sums of money trying to keep a presence in Aspen. These funds came from other parts of the Institute. The Board was doing this because they had a commitment to this community and the purpose and history of what the Institute is. The plan that was devised was to renovate 110 rooms at the Meadows. This was judged to be the minimal size for conducting the kind of programs the Institute conducts on a year-round basis and also the minimum size to keep financial viability of the property. McLaughlin told Council in the beginning Savanah Limited offered to hold the Institute harmless for loss if there was intense develop- ment of the property. This was not approved. Savanah took away the safety net of the Institute. The Institute stands for its own losses out of their operation. The Institute needs some balance of commercial usage as well as not-for-profit usage in order to achieve a place to break even and hopefully generate surplus funds for programmatic purposes. This was not done to create a profit center; it was done to create a program center; it was done to give the Institute year-round viability to conduct programs in the fall, winter and spring as well as in the summer, to still intensively 7 Regular Meeting Aspen City Council July 13, 1992 use the campus in the summer for not-for-profit purposes and to also earn their way and progressively build programs in the fall, spring and winter that would bring intellec tual vitality to the community. McLaughlin told Council the Institute has gone to almost 85 donors who have contributed almost $11 million. They were not doing this to create a commercial entity at the Institute. People donated because they believe that the Institute has a purpose in Aspen and they could serve the community and a broader society in the kind of things the Institute does. McLaughlin said the Institute needs the right to use that property for some commercial purposes to balance out the financial viability of it when they are not using it in the fall, the spring and the winter. McLaughlin told Council the Institute will bring support staff back to Aspen as they work towards a year round basis. It is the intent to make this the center of the Aspen Institute programs, activities and their future. Mayor Bennett brought up the statement in the master plan, "develop ment which occurs on the property should directly support the non-profit institutions and should not be a commercial venture in it's own right" and asked if this is something the Institute can still live with. McLaughlin said the Institute did not design the property to optimize commercial uses; they designed it with rooms that are not over stated but are large enough for people to come for one and two week seminars. The health center is not going to be full of a lot of equipment that will compete with other health clubs. McLaughlin said this will be one of the finest conference center facilities, not to compete with other hotels but to create a first class center for the Aspen Institute and to be a very viable partner with music and physics on the campus. McLaughlin told Council the Institute selected an operator for the property and structured an operating agreement which gives the operator relatively little return and no ownership and no commit- ment to the future. McLaughlin said the Institute wanted an operator who would join with the Institute to build a not-for- profit usage as fast as possible. McLaughlin told Council the Institute will be bringing program people to Aspen probably this fall in order to conduct Aspen programs. McLaughlin said there will always be some time when the Institute needs commercial uses in order to balance out the financial viability. McLaughlin said it would be foolish to put the investment in the property unless the Institute intends to be using it fully and to make the Institute what Walter Paepcke thought it would be when he went into it. McLaughlin told Council the only time in the summer that this 8 Regular Meeting Aspen City Council July 13, 1992 property is used commercially is when there are cancellations or a program has fallen through, they try and fill in those rooms. McLaughlin pointed out the whole intent of the campus is to reinforce it with Institute programs. It is not helpful to participants to have a lot of outside interferences. McLaughlin said this is a very small percentage. Councilman Peters asked if the 501C3 issue and the Colorado statute governing non-profit are related. McLaughlin said to maintain a 501C3 status one cannot have more than 10 percent income from unrelated business purposes. McLaughlin said the Institute set up a for-profit subsidiary so that the did not jeopardize their 501C3 status. McLaughlin said it would be the end of the Aspen Institute if they lost their 501C3 status. McLaughlin said they will set up this for-profit subsidiary if this ordinance is not approved. The fundamental purpose of what they are trying to do is keep the academic portion out of the tax roles. Councilman Peters asked what the long term strategy of the Institute is. Kaufman told Council for almost 15 years the Institute operated with negative cash flow that R. O. Anderson paid out of his own pocket. Anderson was told that he needed a hotel of a certain size that could run in an economic fashion. That was first proposed to Council; they were not willing to live with that density. The Institute compromised an accepted a facility of 110 rooms that has some economic questions. Kaufman said the Institute is not willing, in addition, to commit to any kind of permanent not-for-profit operation. The Institute is going to attempt to incorporate more Institute facilities and to try to encourage not- for-profit groups to use the facility. Kaufman said the Institute needs the ability to have rentals on a commercial basis to give support to this operation. Kaufman said if the Institute can make enough money out of the not-for-profit, this would work better for their philosophy. Kaufman said the Institute cannot commit this will ultimately happen. Kaufman said the goal is to create more Institute programs in the summer and in the winter. Councilman Peters asked how the Institute will know when they are at their goal. McLaughlin said they would always like to generate enough surplus to go the kind of programs that are important to this community. McLaughlin said the Institute is not trying to optimize that; they would rather create good programs than a surplus. In Institute's success is not measured by how they grow each year but rather by the quality of the programs introduced. Kaufman said this is a goal, not a condition for the lot line adjustment. Councilwoman Richards pointed out the city has a huge interest in the amount of affordable housing that was waived for the commercial 9 Regular Meeting Aspen City Council July 13, 1992 element. If this is used in a commercial sense 40 weeks of the year, the city will have struck a lousy bargain. A commitment is that in the summer commercial use will be incidental to non-profit use. Councilman Peters said the reason this has become an issue is not to have long discussions about not-for-profit but because the non- profit status was the premise for which everything was done. Councilman Peters said the Council was most aggressive in providing legislative benefits, exemption from growth management plan. There was substantial public investment in the Institute's future as non- profit, which was done based on the knowledge that the Institute was non-profit. Councilman Peters said he does not want the Institute to lose money on its operations or to lose money with expensive hotel sitting there that could be used to mitigate these loses. Councilman Peters said he would like the commercial use to be minimal and that the hotel facility to be used to the greatest extent practicable for non-profit uses. The city has less than categoric commitments for that. Mayor Bennett said raising $11 million is more than a vague commitment. Mayor Bennett said this comes down to trust. Mayor Bennett said he feels the city has obtained some significant commitments and has heard that the Institute is moving toward less commercial and more non-profit use of the facilities. Councilman Peters said a lot of the money being raised is going to build the lodging facility debt-free. McLaughlin said that is the deterio- rated part of the campus and without competitive places to put people, programs cannot be run. Mayor Bennett said he prefers leaving the language about the uses of the facility as originally approved and as discussed at this meeting. Councilwoman Pendleton said she has a good comfort level of the uses and never thought the Institute was going to be completely non-profit. Councilwoman Pendleton said she has always pictured for-profit as part of the operation at the Institute. Councilwoman Richards said she, too, always considered a for-profit element at the Institute. The independent consultant noted this was part of the working pro forma. Councilwoman Richards said she would not want the entire property to become for-profit and the original intentions lost. Councilman Peters brought up the GMQS exemption; under Section 8- 104.c.1.b Council is not allowed to exempt commercial facilities. Councilman Peters said he would like assurance Council is not doing anything illegal. Jed Caswall, city attorney, said if anything was done illegally, it was done when Ordinance #14, 1991 was adopted. Caswall opined nothing was done improperly or illegally at that time. Caswall said if in the future Council feels operations are 10 Regular Meeting Aspen City Council July 13, 1992 turning more to for-profit, the city would be within its rights to have the owner appear before Council to address this. Caswall said he feels the code and SPA agreement provide the city with enough protection and tools available that if Council has information to believe this is turning into a for-profit venture they can have a hearing on this. Councilwoman Pendleton moved to adopt Ordinance #40, Series of 1992, allowing the subdivision approval granting two lots from lot 1 of the Aspen Meadows subdivision into lot 1 and lot 1A; seconded by Councilman Reno. Councilman Reno said he would like in Section 2 #2 to reflect the Council discussion about the uses. Mayor Bennett pointed out #3 states "all material representations made by the applicant in application and during public meeting with City Council should be adhered to and considered conditions of approval". Diane Moore, planning director, suggested the language in #2 be stricken or the commercial use be quantified. Councilman Reno suggested "The use of the two Institute lots shall be as originally approved in the Aspen Meadows Final Development SPA plan". Councilwoman Pendleton amended her motion to have #2 read, "the use of the two Institute lots shall be as originally approved in the Aspen Meadows Final Development SPA plan"; seconded by Councilman Reno. Councilman Peters said he will vote for this because of comments from the Physics center and from the Institute that they will make every effort to move in a for-profit use of the facility as best they can. Roll call vote; Councilmembers Reno, yes; Richards, ye; Peters, yes; Pendleton, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #18, SERIES OF 1991 - Institutional Controls Councilman Reno moved to continue this to the first meeting in October; seconded by Councilwoman Pendleton. All in favor, motion carried. ORDINANCE #12, SERIES OF 1992 - Aspen Winter Garden Ice Rink Diane Moore, planning director, reminded Council there were several questions for staff from the last meeting; these were on the proposed fees structure and the procedure for future landscaping in city rights-of-way. Ms. Moore said staff surveyed other resorts with ice rinks about their fee structures. Ms. Moore pointed out there are other variables that affect price, like whether the 11 Regular Meeting Aspen City Council July 13, 1992 facility is indoor or outdoor, refrigerated versus a natural system, municipally versus private operation. Ms. Moore said the prices vary from $4 to $10. Savanah provided the city a letter proposing a first year admission fee of $6.50 to anyone with a valid Pitkin County identification. The applicant requests the price of admission be increased cumulatively no more than 4 percent or the amount of the Colorado cpi, whichever is greater. Ms. Moore told Council an encroachment license would not be required for the landscaping on Mill or Durant. The past policy is that any landscaping in public right-of-way must receive an excavation permit. Ms. Moore recommended the landscaping be extended 8 feet from the face of the curb on Durant street and approximately 15 feet on Mill street. Ms. Moore recommended the sidewalks remain in their present location. This would provide for separation of pedestrians and traffic. Ms. Moore pointed out she has amended the conditions of approval to include the fee structure and landscaping in the public right-of- way as well as that the operator should utilize cfcs in refrigera- tion in the ice rink. Perry Harvey said he does not know the condition of the rental skates from dust, cinders etc. The skates may not last an entire season. This does not address skate rental. Council requested the applicant set admission for one time skating for a local in order to give Council a comfort level about the affordability of the rink. Councilwoman Richards asked if there will be a children's rate. Harvey said there will be; however, he has not been able to set all the rates. Mayor Bennett asked if Council has the right to approve the operating plan or is it just information. Ms. Moore said this is for information only. Jed Caswall, city attorney, said if the operating plan comes in and it is so unacceptable that it renders the ice rink not available to the public, the city could use that as a starting point to initiate a hearing before Council on whether they are violating the terms of their agreement. Harvey said they will have a local's punch pass. Councilman Reno said there are probably kids in the hockey and skating program that do not live in Pitkin county. Harvey said maybe a student id will be acceptable for those kids. Councilwoman Richards said she feels a simple way to track this is to have the fee a percentage of that charged at the city's ice rink. Councilman Peters said he can accept the $6.50 starting fee but is not sure about the escalation clause, "whichever is greater". Councilman Peters said he would like the fees for locals to track 12 Regular Meeting Aspen City Council July 13, 1992 well with the local economy. The lack of revenue can be made up by the fees charged to tourists. Mayor Bennett agreed cumulative could be a steep increase in the local's fee. Harvey said they put in cumulative so that if they do not raise the fees every year they will not lose the option to catch up with the market. Harvey told Council he has looked at the costs of the rink by category, including real estate taxes, utilities, insurance costs, labor costs, etc. These costs have increased more than 4 percent annually. Harvey said he is trying to keep his revenue in balance with these costs. Councilman Peters said he would like to see the skate rentals specified and the escalator by "whichever is less" and be annual rather than cumulative. Councilwoman Richards agreed she does not favor a cumulative income. Councilwoman Richards pointed out this park was an amenity in a trade of the PUD agreement. The community has accepted high levels of density and development for this project. Councilwoman Richards said she feels $6.50 plus skate rental is not affordable for children. Harvey said he will do the increases annually if that will satisfy Council. Mayor Bennett said Council does not have the ability to force the applicant to accept a rate structure. Mayor Bennett suggested striking all the language about specific prices and rely on language on page 5 that says, "It is the intent of the operator and the city that the public use of the ice rink/park should be encouraged and that the facility be accessible to the general public at reasonable times at reasonable rates". Mayor Bennett said this ice rink will have reasonable rates for locals as PR for the ice rink, and they will make money from the tourists. Mayor Bennett said the word "reasonable" will allow Council to bring this up again if the rates get out of control. Councilwoman Richards said her concern is that "general public" sounds like the guest industry as well as locals. Council agreed to put Pitkin County residents at reasonable rates. Councilmembers Richards and Peters agreed. Councilman Peters said the public will let Council know when the rates are unreasonable. Harvey requested the date be September 1 rather than October 1st. Councilwoman Richards requested that "children's rates" be added. Harvey said the ice rink is to be open 10 a.m. to 10 p.m. seven days a week. Harvey asked how Council feels about earlier hours in the a.m. Ms. Moore said the adjacent property owners have to be taken into account in the operating hours. Harvey said he may come back with an operating plan change after one or two years of operation. 13 Regular Meeting Aspen City Council July 13, 1992 Harvey said for food service he would like to "in case of special events" in allowing areas for food to be served. Harvey said this concession will need P & Z conditional use review. Harvey asked if the conditional use is not approved by P & Z, can he put vending machines in this area. Ms. Moore said she feels if the applica tion does not get conditional use approval, to put in vending machines would not require any additional approvals. Harvey showed landscaping plans with an 8 foot extension into Durant street and a 15 foot extension into Mill. Harvey said the applicants are willing to do this landscaping and to do an irrigation system but then it should be the city's responsibility. Harvey said he would like to know what kind of landscaping Council would find acceptable. Caswall said there are existing utilities which will have to be moved before they can be planted upon. Harvey told Council the applicant just installed these utilities. Councilman Peters said the city can assume the responsibility for moving all the utilities. Councilman Reno suggested moving the sidewalk and not moving the utilities. Councilwoman Richards suggested this extra area be looked at with the designers to come up with an total area plan. Councilwoman Pendleton said if the city moves the utilities, the applicant should maintain the landscaping. Council agreed. Harvey brought up the conditions that the applicant shall provide a guarantee for 125 percent of the estimated cost of the landscap ing. In the PUD section of the code, the city is required to make the applicants guarantee 100 percent of public improvements and that the city may request 125 percent of the landscape costs. Harvey requested Council waive the 125 percent of the cost of the landscaping because so much of the project is landscaping. This is a financial commitment. Councilman Peters said the $700,000 guarantee for the rink has been in a bank somewhere. Harvey said that money is totally separate. Harvey said the 25 percent does not come back for two years. Harvey said he is willing to put up 100 percent and it can be used to draw down. Ms. Moore said the reason for the 125 percent is that the extra 25 percent is retained until the landscaping has been maintained for two years. Councilman Peters suggested 100 percent guarantee allowed to be drawn down to 25 percent and retain that amount for two years. Council agreed. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilwoman Pendleton moved to adopt Ordinance #12, Series of 1992, on second reading as amended; seconded by Councilwoman Richards. Roll call vote; Councilmembers Peters, yes; Richards, 14 Regular Meeting Aspen City Council July 13, 1992 yes; Pendleton, yes; Reno, yes; Mayor Bennett, yes. Motion carried. ASPEN MOUNTAIN PUD SECTION M AMENDMENT Diane Moore, planning director, told Council the Section M amendment authorizes changes to the construction schedule. Savanah is seeking an extension for the date of issuance for the certifi- cate of occupancy from October 1, 1992, to October 1, 1993. Ms. Moore pointed out the petitioner must convince Council there is just cause to grant this extension. Ms. Moore entered into the record 3 exhibits (1) Savanah petition requesting a Section M amendment; (2) staff memorandum setting forth the history and delay in getting the rink approved due to the Wagner park proposal and (3) the staff memorandum prepared for this meeting on the section M amendment. Jed Caswall, city attorney, reminded Council the applicant has the burden of making a showing. In addition to the testimony and materials, the packet material is part of the record. Bob Hughes, representing the applicant, had no objections to the items entered into the record. City Clerk Kathryn Koch swore in Perry Harvey and Diane Moore. Perry Harvey, representing the applicant, reminded Council the final PUD amendment was submitted September 25, 1991. At that time the applicants felt they had adequate time to October 1992 to go through the final approval process, construct the rink and meet the deadline. Harvey said P & Z granted final approval to the plan in January, after which Council review began. During that time Koch announced plans for a park in Wagner park. The Council felt this plan merited further attention. Harvey said during the review of the applicant's rink and an informal look at Koch's rink, it came out that no one wants two outdoor rinks in the downtown area. The applicants looked at an alternative if Koch's rink is approved. On April 27th, Council authorized an application for an ice rink on city owned land. The applicant offered a plan with two parts; a passive park if the Koch rink is approved with the savings donated to an operating endowment for the ice rink, or if the Koch rink is not approved, the applicants will build their rink. The applicants are requesting a one year extension to allow the city to process the Koch rink extension. Councilman Peters asked if the transfer of the $700,000 should be made to the Koch ice rink before it is determined that it will be in place for years. Councilman Peters asked if the option for the Savanah should be held in place for several years. Councilman Reno 15 Regular Meeting Aspen City Council July 13, 1992 said this is a decision Council will be making in the future and does not have anything to do with this amendment. If the city goes with the Koch rink, they had best be sure they are making the right decision to make a rink work. Mayor Bennett said if the city comes back to the applicant in 2 or 3 years and wants to put an ice rink on the Savanah property, this would have to be a condemnation. Harvey said he would be concerned about what would end up on the property. Hughes said the rink should not cost them any more in this circumstance. Harvey said the applicants like this rink. The applicants would like to get something done in this area. Harvey said if the Koch rink works, it is a win/win for this community. Councilman Peters asked if there are only two conditions in which the money can be spent; the Savanah ice rink or the Koch ice rink. Caswall said yes; once the city get the $700,000, the developer does not care what the money is spent on. Harvey said the applicants would like to see an ice rink somewhere. Councilman Reno moved to approve the Section M amendment to the Aspen Mountain subdivision; seconded by Councilwoman Pendleton. Roll call vote; Councilmembers Richards, yes; Pendleton, yes; Reno, yes; Peters, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #42, SERIES OF 1992 - Code Amendment PUD Requirements Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilman Reno moved to adopt Ordinance #42, Series of 1992, on second reading; seconded by Councilman Peters. Roll call vote; Councilmembers Peters, yes; Pendleton, yes; Reno, yes; Richards, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #43, SERIES OF 1992 - Aspen Savings and Loan Condominium- ization Kim Johnson, planning office, told Council this is a condominiumiz- ation of an existing structure. Staff recommends approval. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilman Peters moved to adopt Ordinance #43, Series of 1992, on second reading; seconded by Councilman Reno. Roll call vote; Councilmembers Pendleton, yes; Reno, yes; Pendleton, yes; Richards, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #47, SERIES OF 1992 - Unclaimed City Property Act 16 Regular Meeting Aspen City Council July 13, 1992 Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilman Peters moved to adopt Ordinance #47, Series of 1992, on second reading; seconded by Councilwoman Pendleton. Roll call vote; Councilmembers Richards, yes; Reno, yes; Pendleton, yes; Peters, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #44, SERIES OF 1992 - Patterson Duplex Kim Johnson, planning office, told Council this is the last duplex they will have to approve under the PUD requirements. Staff recommends approval. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilman Reno moved to adopt Ordinance #44, Series of 1992, on second reading; seconded by Councilwoman Pendleton. Roll call vote; Councilmembers Peters, yes; Pendleton, yes; Reno, yes; Richards, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #45, SERIES OF 1992 - Smuggler Lot Line Adjustment Leslie Lamont, planning office, told Council the Smuggler homeown- ers would like to convey 2664 square feet to their adjacent landowner, Ann Peterson. The homeowners are also asking to extend their filing date for the PUD, which was amended in 1990. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilwoman Pendleton moved to adopt Ordinance #45, Series of 1992, on second reading; seconded by Councilman Reno. Roll call vote; Councilmembers Reno, yes; Pendleton, yes; Peters, yes; Richards, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #48, SERIES OF 1992 - Aspen Mountain Section M Amendment Councilwoman Pendleton moved to read Ordinance #48, Series of 1992; seconded by Councilman Peters. All in favor, motion carried. ORDINANCE #48 (Series of 1992) AN ORDINANCE RATIFYING AND APPROVING A SECTION M AMEND- MENT TO THE FIRST AMENDED AND RESTATED PLANNED UNIT SUBDIVISION DEVELOPMENT AGREEMENT FOR THE ASPEN MOUNTAIN 17 Regular Meeting Aspen City Council July 13, 1992 SUBDIVISION was read by the city clerk Jed Caswall, city attorney, stated this ordinance ratifies the quasi-judicial decision made earlier by Council. The original PUD was adopted by an ordinance and should be amended by another ordinance. Councilwoman Pendleton moved to adopt Ordinance #48, Series of 1992, on first reading; seconded by Councilwoman Richards. Roll call vote; Councilmembers Peters, yes; Reno, yes; Pendleton, yes; Richards, yes; Mayor Bennett, yes. Motion carried. 18 Regular Meeting Aspen City Council July 13, 1992 ORDINANCE #23, SERIES OF 1992 - Berger Annexation Councilman Peters moved to read Ordinance #23, Series of 1992; seconded by Councilwoman Richards. All in favor, with the exception of Councilwoman Pendleton. Motion carried. ORDINANCE #23 (Series of 1992) AN ORDINAN CE OF THE CITY COUNCIL OF THE CITY OF ASPEN COLORADO APPROVING THE ANNEXATION OF CERTAIN TERRITORY TO THE CITY OF ASPEN, COLORADO TO BE KNOWN AND DESIGNAT- ED AS THE BERGER ANNEX ATION was read by the city clerk Kim Johnson, planning office, reminded Council they first discus sed this April 13. Council was concerned the city had not heard anything definitive from the Department of Transportation regarding whether annexation and the anticipated historic designation request would hinder the highway realignment. Ms. Johnson told Council there have been various conversations with the state, including the state historical department and DOT. The Attorney General's office would not commit in writing as requested. The DOT has indicated verbally that any local land use regulations will not affect the highway project. Staff recommends approval of annex- ation. Jed Caswall, city attorney, told Council his research indicates that a local designation will not trigger all the federal regula- tions regarding historic landmark in construction of a highway wholly or partially funded by federal funds. Caswall said neither the attorney general's office or CDOT would put this in writing. Scott Harper, representing the applicant, told Council he received the same information. The CDOT has no opposition to local designation. Mayor Bennett said the Council is working very hard on a transpor- tation solution that will work for the entire community and to forge a partnership between all entities in the valley. Mayor Bennett said he is loathe to put at risk the relationships developing with the partners. Bruce Berger said he would like to be annexed so that he can vote in city elections. Berger pointed out he is surrounded by city land. Harper said he feels the annexation is in the best interests of the community. The annexation supports two goals of the community; to continue annexation of the metropolitan areas and to develop consistent and fair government. It seems fair this parcel 19 Regular Meeting Aspen City Council July 13, 1992 should be part of the city. Councilman Reno said this seems to be a timing issue. There would be a perception this would be a wrench thrown into the transporta- tion picture. Councilman Reno asked why this annexation request is coming forth right now. Berger told Council he only recently learned that houses under 50 years old could apply for historic designation. When he learned this, he started the annexation process. At that time, he also found about out survey work that had to be done. It has taken 3 years to get that survey work done. Berger said the highway was first proposed in 1969 and this request would have looked as if this was a motive to stop the highway anytime in the past 23 years. Berger said he wants to bring it to everyone's attention that there is a historic structure in this transportation corridor. Councilman Peters said the goal of consistent and fair government is the hardest to live up to. This is a good example. Councilman Peters said the likelihood Berger's house will be declared a federal historic landmark is remote. Councilman Peters said this request is a chance to allow Berger to apply to the HPC and to get some protection from development around him. Councilman Peters said he feels this is a legitimate request that has to be honored no matter how people perceive it. Mayor Bennett said Council has the authority to annex or not annex. Mayor Bennett asked if Council has the same ability to grant or not to grant historic designation. Jed Caswall, city attorney, said if he can fit his property within the established guidelines for designation, Council has limited or no discretion. HPC will conduct hearings to determine whether the property meets the guidelines for being on the inventory. Councilwoman Pendleton said Council has been working with the county and with Snowmass on the transportation plan. This outweighs voting in favor of annexation or doing anything that is perceived to holding up the highway. Councilwoman Pendleton said when transportation issues get decided, that would be the time to be annexed. Councilman Reno agreed about the perception of this and the proposed transportation plan. Councilman Reno requested time for the transportation plan to solidify. Councilwoman Richards said the Council seems to be so afraid of public perception that they will throw someone's rights away. Councilwoman Richards said Council is hiding the human and character costs of the highway from the general public by denying an individual his rights to go through the legal process. Councilwoman Richards said she feels Council is acting arbitrarily and capriciously in order to serve a PR purpose. Councilwoman 20 Regular Meeting Aspen City Council July 13, 1992 Richards said she would like to follow staff's recommendations that the annexation stands on its own merits. Councilman Peters said he feels one thing that will affect the DOT's planning for the four-line will be the clean air standards. One thing that will not affect it very much is the designation of this house. Councilman Peters said Berger is a citizen of Aspen who has contributed a lot to town and he should have a chance to go to the HPC. Harper said if the highway is not going to come to town for the next 5 years, he would urge Council to approve the annexation for that 5 years as there is a community of interest. Councilwoman Richards moved to suspend the rules and extend the meeting to 9:30 p.m.; seconded by Councilman Peters. All in favor, motion carried. Mayor Bennett noted the applicant has stated the point of all this is to obstruct the highway. Mayor Bennett said he publicly opposed the straight shot and voted against it; however, he is committed to the public process, to votes of the people and to the partnership with other entities. Mayor Bennett said there are merits to both sides of this case. The city is in the middle of a transportation plan which should end in the next 60 to 90 days. Mayor Bennett said Aspen has been waiting at least 20 years to find the solution to the transpor tation problems. Mayor Bennett said he is not willing to throw a wrench into this at the last minute. Mayor Bennett said he could support continuing this application until the transportation plan is complete. Councilwoman Richards said she does not see anything to be afraid of in terms of public perception. Les Holst, HPC member, said he would like to have this house on the inventory. Harper suggested Council allow the annexation to go through and have Berger commit not to apply for historic designation for the next 6 months. Sara Garton, P & Z member, said P & Z considers issues from the best planning for the community, and the best planning for the community is annexation of a parcel surrounded on 3 sides by the city. There is a clear directive from the community to annex sites like this. Ms. Garton pointed out this is the city's front yard and the city should be able to have a say about the entrance to town. Councilwoman Pendleton moved to continue the Berger annexation to the first Council meeting in January; seconded by Councilman Reno. Mayor Bennett agreed with continuing the issue but requested it be sooner than 1993. Councilwoman Pendleton amended her motion to the first meeting in December; seconded by Councilman Reno. All in favor, with the exception of Councilmembers Richards and Peters. 21 Regular Meeting Aspen City Council July 13, 1992 Councilman Peters moved to adjourn at 9:34 p.m.; seconded by Councilwoman Richards. All in favor, motion carried. Kathryn S. Koch, City Clerk COUNCIL MEETING 1 ................................ ................ COMMENDATION - Linda McCausland 1 ................................ CITIZEN COMMENTS 1 ................................ ............... COUNCILMEMBER COMMENTS 1 ................................ ......... CONSENT AGENDA 2 ................................ ................. LIQUOR LICENSE TRANSFER - ZG 3 ................................ ... MANAGER CHANGE - Hotel Jerome 3 ................................ .. RENEWALS 3 ................................ ....................... SPECIAL EVENT PERMITS 3 ................................ .......... ORDINANCE #40, SERIES OF 1992 - Aspen Institute Subdivision 3 .... ORDINANCE #18, SERIES OF 1991 - Institutional Controls 11 ......... ORDINANCE #12, SERIES OF 1992 - Aspen Winter Garden Ice Rink 11 ... ASPEN MOUNTAIN PUD SECTION M AMENDMENT 14 ......................... ORDINANCE #42, SERIES OF 1992 - Code Amendment PUD Require- ments 16 ................................ ..................... ORDINANCE #43, SERIES OF 1992 - Aspen Savings and Loan Condominium iza tion 16 ................................ ........ ORDINANCE #47, SERIES OF 1992 - Unclaimed City Property Act 16 .... ORDINANCE #44, SERIES OF 1992 - Patterson Duplex 16 ............... ORDINANCE #45, SERIES OF 1992 - Smuggler Lot Line Adjust ment 17 ... ORDINANCE #48 , SERIES OF 1992 - Aspen Mountain Section M Amendment 17 ................................ ................. ORDINANCE #23, SERIES OF 1992 - Berger Annexation 18 .............. 22