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RESOLUTION NO. ~
(SERIES OF 1989)
ADDENDUM A
RESOL0TIOU OF TIE CITY COUl~CI:' OF THE CITY OF ASPEN, COLOP-i"jJO,
FIi.;D::lG THi--.T S;"?;"i.~;"h LTD. I?ART:lERSHIP IS IN SUESTAU"':'I.;'L
HON-C8i..1PLI';i.iCE W:':'H 7E~ COUDITIONS OF APPROVh.L OF THE AS2EN
HOUNT';:::~: SU3DIVISIOU A.ND PLAHNED mnT DEVEI..OPHENT A.ND ORDE:-'.ING
COHPLIANCE HITHD; THIRTY DAYS, ALI.. AS SPECIFIED II: THE DEVE:'OP-
MENT AGaEEME~T FOR SAID ASPEN MOUNTAIN SUBDIVISION
WHEREAS, the As~en Ci ty Council has reviewed the de'leloc:::ent
approvals fo~ the Aspen Mountain PUD / Subdi vis ion, the re l~':,-n t
regulations, and const~uction undertaken to date by Savanah L~d.
Partne~ship (hereina~ter "Savanah") .
NOW, TliEREFORE, the City Council of the City of Aspen does
find:
Relevant La~d Use a~d Euildina Code P=ovisions
The Ci ty I s P lar.:1ed Uni <.:. De'lelopmen t (PUD) re<;u la t:.ons
re~ui=e that eac~ PUD app~oval conta~n scheduled complet:.on
dates. Section 24-8.9(b)* provides, with respect to the p~e~:.~:.-
nary PUD plan, that:
"The plan shall include a development schedule indicat-
ing the date construction 0: the PUD, and or phases of
the sane, will be begun and cOr:lpleted, including the
sequence of construction and the phasing -9f con-
~truction of public improvement and recreat::.onal, par}~
and common ~pace areas."
Section 24-8.12 recuires the final PUD plan to contain a con-
struction schedule. Section 24-8.20 reads (in par"':):
"I: an applican<.:. does not begin or subs~antially
complete the planned unit development, or any stage of
the planned uni t, i:1 the sequer:ce and wi thin the time
approved by an approved construc~ion schedule, the
plan~i:1g di~ec~or shall review the planned unit and may
rec8~~end to t~e city council t~at the approval 0: the
planned unlt be revoked, or that the planned unit
de'!elo~:r.er:;: be amer:.ded to ac::oI:".moda~e a ne\o/ sequence of
cons....-.'c.....o,.. 0-' t,;""'e scher4ule *1<1<"
1,.._... ...._... -, _....~ ......... . "
'The quota alloca~ion svstem also mandates comoliance wit~ a
construction sched~ le as- a condi tion to maintaining an appr8ved
*All references are to the land use regulations in effect prior
to May 25, 1988.
quota. See ~24-11. 7 (bl .
GMQS applicants timely
120 days of submission
24-11.7(3) :
The allocation system requires that
submit plans, obtain permits within
of plans, and, according to Section
"Hithin one hundred twenty (120) days of the date of
obtaining a building permit, the applicant must initi-
ate construction of the project and continue towards
its completion by meeting the criteria of the Uniform
Building Code."
With respect to the above, an amend~ent to the UEC adopted
by the City of Aspen as Section 7-141(d) of the Aspen Code reads
(in part):
"Sec. 303(d) Expiration.
Every per~it issued by the building of=icial under
the provisions of this code shall expire by limitation
and become null and void if the building or work
authorized by such permit is not commenced within one
hundred twen~y (l20) days from the date of issuance of
such permi t. \vcrk equal to ten (10) per cent 0 f the
valuation of the entire project must be completed in
each si:~ty-day period thereafter until completion of
the project or said project shall be deemed abandoned
and the per:ni t ex;::ired. In the event a permi t shall
expire, the following provisions shall apply, namely:
1. All below grade excavation done in anticipa-
tion 0= construction shall be filled wi thin
thirt~/ (30) days of expiration such as to
bring the site to a condition compa<<:able to
that before permit issuance.
***
4. The provisions of subparagraph 3 to the
contrary notwithstanding, no permit shall
reissue =or any construction or activity
prohibited by law at the time of the applica-
tion for reissuance."
The purposes of the foregoing regu lations are to ensure that
development projects are timely constructed, are not given
unlimited immunity ir~m regui~tory changes, and that owners
timely provide ,these elements of the project which directly
benefit the public and were required as condi~ions ~or develop-
ment approval.
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Method of Review of Co~nliance
The First Amended and Res~ated Planned Unit
ment/ Subdi vi sion A.greement Aspen Mountain Subdi vis ion
af~er "Agreemen~") provides (in Section H) that:
Develop-
(herein-
1. If the City Council determines Savanah is not in
"substantial" cowpliance with the PUD Agreement or one or more of
the construc~ion schedules, the Council may issue and serve an
order specifying the non-compliance and a reasonable time to
remedy the same.
2. Within 20 duys, Savanah can remedy the situation, deny
that it is in non-compliance, or request an extension of time to
comply.
3. Upon receipt of Savanah's
schedule a hear:ng at which it can,
compliance:
response, the Council must
if it finds Savanah not in
a. issue "appropriate" orders; provided that no
order termin.::lting any approval can be issued wi thout
affording Savanah a reasonable time to remedy any
non-compliance; or
b. grant any appropriate variances, extensions
of time or amendments to the PUD.
The Agreement fur~her provides that:
"A final determination of non-compliance which has
not been remedied or for which no varl.ance has been
granted may, at the option of the Ci ty Coun~il, and
upon written notice to the Owner, terminate any of the
approvals contained herein which are reasonably related
to the requiremen~ (s) wi ~h which the Owner has failed
to comply."
PUD Aareement; Areas of Noncomoliance
The Agreement authorizing the amended PUD establishes the
following construc~ion schedule and deadlines (letters in paren-
thesis or page nu~ers refer to sections in the Agreement) :
1. Foundation work for Hotel Phase I was to be completed
on or after March 1, 1989, "subject to climatological con-
ditions." (A2.(a)).
2. The Agreement then reads: "Upon issuance of the next
permit, structural erection above grade shall begin and will take
roughly three months." (A2. (a)). A structural permit (partial)
issued June 14, 1989.
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3. The Agreement then reads: "Thereafter, and in conjunc-
tion with the structural work, the exterior facade erection will
begin, followed by interior finish. These two phases are expect-
ed to take approximately eight months." (A2. (a) ) .
4. The Agreement reads, with respect to Summi t Place,
that: "Construction on this component shall commence on or a::ter
October 1, 1988 with substantial completion to be achieved on or
after October of 1989." (A2. (b) ) .
5. Regarding Lot
construction shall begin
occur on or before and
Certificate of Occupancy
6 (ice rink and park), "demolition and
in the spring of 1989 with completion to
as a condition to the issuance of a
for Hotel Phase I." (A2. (f) ) .
6. Further, with respect to the ice rink and park, Savanah
is required to apply for and diligently pursu~ all necessary
approvals for the ice rink and associated facili ties, including
but not limi ted to a G~1QS exemption or allocation, condi tional
use approval, and PUD approval, and Plat. In addition, Savanah
is required to apply for the rezoning of Lot 6 to P (Park) no
later than Aoril 1, 1989. (G).
The City Council does hereby find that Savanah has failed to
comply with the development schedule and conditions of approval
contained in Sections A2.(a), A2.(b), A2. (f) and G described in
paragraphs 2-6 above, and that such non-compliance is
substantial.
Construction Schedules and Reoorts; Areas of Noncomoliance
As a condition precedent to the issuance of any permit, the
Agreement requires Savanah to submit to the City Engineer (to the
Engineer's satisfaction) a construction schedule; and every
90 days thereafter Savanah is required to file a status report on
the construction schedule identifying work accomplished during
the preceding 90 days and the work anticipated during the next
90 days. (Pp. j-9). Amendments to construction schedules
("which consti tute a substantial deviation") must be processed
according to the procedures in Section M outlined above. Con-
struction schedules were received on November 7, 1988, Febru-
ary 6, 1989, and August 9, 1989. Savanah does not have the Hotel
Phase I structure to grade, as provided in the schedule; nor has
above-grade work commenced in October, as scheduled. Consequent~
ly, the City Council does hereby find that Savanah has failed to
compl~' wi th the Construction Schedule previously approved and
. currently in eff~ct.
Buildinq Code Provisions; Areas of Noncomoliance
Three permits have issued to Savanah:
1.
An excavation issued in April of 1988.
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2. A foundation permit (No. 11910) issued October 4, 1988.
3. A partial abcve-grade superstructure permit (tlo. 11908)
issued June 14, 1989. No roofing, framing, facade or finish work
is included within this permit.
In addition, PCL applied for a plumbing/electrical/mechan-
ical permit at the sa~e time that the superstructure permit was
applied for. By letter dated June 16, 1989, PC:" was advised of
defects in the plans.
The City Council hereby finds that:
1. Savanah has fai led to comp letc work equal to ten (10 )
per cent of the valuation of the entire project in each 60-day
period, and the permits issued have expired.
2 . The partial superstructure permit expired on Octo-
ber 12, 1989 for failure of Savanah to have commenced work
authorized by the per:':1it within 120 days after its date of
issuance.
NOv7, THEREFORE, the City Council of the City of Aspen,
Color.:l.do, does hereby order Savanah Ltd. Partnership to remedy
the above act.s of non-compliance within thirty (30) days of the
mailing (certified) of a copy of this Resolution, all as provided
in Section M of the First Amended and Restated Planned Uni t
Development/Subdivision Agreement Aspen Mount.:l.ln Subdivision
dated October 3, 1989.
Dated: ~u'J ~4 ,
I, Kathryn S. Koc~, duly appointed and acting City Clerk, do
certify that the foregoing is a true and <lccurate copy of that
resolution adoBted by ~~e City Council of the City of Aspen, at a
meeting held ~L.~.....I,(_I.A.j 013' , 1989.
f ct:Z,L~
.Ka thryn S Koch,
~~.
City Clerk
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CERTIFICATE OF HAILING
I hereby certify that on this ~~day of &a~ ,
1989 I have served the foregoing Resolution No. ,~9 , Series of
1989, by placing copies thereof in the United States mail,
certified mai~, postage prepaid, and addressed as follows:
Savanah Ltd. l'artnership
1300 17th Street, Suite 1100
Roslyn, VA 22209
Robert W. Hughes, Esq.
Oates, Hughes & Knezevich, P.C.
533 East Hopkins Avenue, Third Floor
Aspen, CO 81611
Perry A. Harvey
Hadid Aspen Holdings, Inc.
600 East Cooper, Suite 200
Aspen, CO 81G11
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Addendum B
Section M of the First Amended and Restated
planned Unit Development/Subdivision Agreement
Aspen Mountain Subdivision
M. NON-COMPLIANCE AND REQUEST FOR AMENDMENTS OR
EXTENSIONS BY OWNER
In the event that the City Council determines that the
Owner is not acting in substantial compliance with the terms of
this Agreement and/or one or more of the Construction Schedules
submitted to the City Engineering Department in accordance
herewith, the City Council may issue and serve upon the Owner a
written order specifying the alleged non-compliance and requiring
the Owner to remedy the same within such reasonable time as the
City Council may determine. Within twenty (20) days of the
receipt of such order, the Owner may file with the City Council
either a notice advising the City Council that it is in compli-
ance or a written petition requesting a hearing to determine any
one or both of the following matters:
(a) Whether the alleged non-compliance exists or did
exist, or
(b) Whether a variance, extension of time or amendment to
this Agreement should be granted with respect to any such non-
compliance which is determined to exist.
Upon the receipt of such petition, the City Council shall
promptly schedule a hearing to consider the matters set forth in
the cease and desist order and in the petition. The hearing
shall be convened and conducted pursuant to the procedures
normally established by the City Council for other hearings. If
the City Council determines by a preponderance of the evidence
that a non-compliance exists which has not been remedied, it may
issue such orders as may be appropriate; provided, however, no
order terminating any approval granted herein shall be issued
without a finding of the City Council that substantial evidence
warrants such action and affording the Owner a reasonable time to
remedy such non-compliance. A final determination of non-
compliance which has not been remedied or for which no variance
has been granted may, at the option of the City Council, and upon
written notice to the Owner, terminate any of the approvals
contained herein which are reasonably related to the require-
ment(s) with which Owner has failed to comply. Alternatively,
the City Council may grant such variances, extensions of time or
amendments to this Agreement as it may deem appropriate under the
circumstances.
In addition to the foregoing, the Owner or its successors
or assigns may, on its own initiative, petition the City Council
for a variance, an amendment to this Agreement, or an extension
of one or more of the time periods required for performance under
the Construction Schedules or otherwise. The City Council may
grant such variances, amendments to this Agreement, or extensions
of time as it may deem appropriate under the circumstances. The
parties expressly acknowledge and agree that the City Council
shall not unreasonably refuse to extend the time periods for
performance indicated in one or more of the Construction
Schedules if Owner demonstrates by a preponderance of the
evidence that the reasons for the delay(s) which necessitate such
extension(s) are beyond the control of the Owner, despite good
faith efforts on its part to perform in a timely manner.
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Addendum C
Relevant Land Use and Building Code provisions
The City's Planned Unit Development (PUD) regulations
require that each PUD approval contain scheduled completion
dates. Section 24-8.9(b)* provides, with respect to the prelimi-
nary PUD plan, that:
"The plan shall include a development schedule indicat-
ing the date construction of the PUD, and or phases of
the same, will be begun and completed, including the
sequence of construction and the phasing of con-
struction of public improvement and recreational, park
and common space areas."
Section 24-8.12 requires the final PUD plan to contain a con-
struction schedule. Section 24-8.20 reads (in part):
"If an applicant does not begin or substantially
complete the planned unit development, or any stage of
the planned unit, in the sequence and within the time
approved by an approved construction schedule, the
planning director shall review the planned unit and may
recommend to the city council that the approval of the
planned unit be revoked, or that the planned unit
development be amended to accommodate a new sequence of
construction or time schedule.***"
The quota allocation system also mandates compliance with a
construction schedule as a condition to maintaining an approved
quota. See ~24-11. 7 (b) . The allocation system requires that
GMQS applicants timely submit plans, obtain permits within
120 days of submission of plans, and, according to Section
24-11.7(3) :
"wi thin one hundred twenty (120) days of the date of
obtaining a building permit, the applicant must initi-
ate construction of the project and continue towards
its completion by meeting the criteria of the Uniform
Building Code."
with respect to the above, an amendment to the UBC adopted
by the City of Aspen as Section 7-141(d) of the Aspen Code reads
(in part) :
"Sec. 303(d) Expiration.
Every permit issued by the building official under
the provisions of this code shall expire by limitation
*All references are to the land use regulations in effect prior
to May 25, 1988.
and become null and void if the building or work
authorized by such permit is not commenced within one
hundred twenty (120) days from the date of issuance of
such permit. Work equal to ten (10) per cent of the
valuation of the entire project must be completed in
each sixty-day period thereafter until completion of
the project or said project shall be deemed abandoned
and the permit expired. In the event a permit shall
expire, the following provisions shall apply, namely:
1. All below grade excavation done in anticipa-
tion of construction shall be filled wi thin
thirty (30) days of expiration such as to
bring the site to a condition comparable to
that before permit issuance.
***
4.
The provisions of subparagraph 3 to the
contrary notwithstanding, no permit shall
reissue for any construction or activity
prohibited by law at the time of the applica-
tion for reissuance."
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Addendum D
Documents Constituting the Record
1. City Council Resolution 39, Series of 1989 (certified)
2. Three certified mail receipts (Resolution 39, 1989) to
Hughes, Harvey, Savanah Ltd.
3. Notice of Hearing
4. Three certified mail receipts (Notice of Hearing) to Hughes,
Harvey, Savanah Ltd.
5. Response of Savanah Limi ted Partnership to Resolution 39,
Series of 1989 (certified)
6. Excerpt, City Council Minutes, November 13, 1989 (certified)
7. City Council Minutes, September 6, 1989 (certified)
8. Section 7-141, Aspen Municipal Code (certified)
9. City Council Resolution 29, Series of 1988 (certified)
10. Verbatim Transcript, City Council Meeting, September 12,
1988 (certified)
11.
First Amended
ment/Subdivision
(certified)
and Restated Planned Unit Develop-
Agreement Aspen Mountain Subdivision
12. Affidavit of Gary Lyman (with attachments)
13. City Council Resolution 11, Series of 1988 (certified)
14. City Council Minutes, April 10, 1989 (certified)
15. March 27, 1989 memo to City Council from Alan Richman with
March 22, 1989 letter to Alan from Perry Harvey attached
16. Ordinance 46, Series of 1989 (certified)
17. Memorandum Opinion and Order, Motion for Leave to Seek
Reconsideration, Motion for Reconsideration, Minute Order,
all from Fred Smith, et al. v. Hadid Aspen Holdings, et al.,
Pitkin County District Court, Civil Action No. 88 CV 321
18. Extract from Times Daily, November 3, 1989
19. Planned Unit Development/Subdivision
Mountain Subdivision (certified)
Agreement
Aspen
20. Aspen Mountain Subdivision (1988 Modifications)
21. Five photographs of the construction site taken November 28,
1989
22. Memorandum entitled "Aspen Mountain Lodge Project" dated
November 10, 1989
23. December 12, 1989 letter from Jay Hammond to Mayor Stirling
24. 1979 and 1988 editions of the Uniform Building Code (by
reference)
25. Municipal Code of the City of Aspen (by reference)
26. Aspen Land Use Code in existence prior to May 25, 1988 (by
reference)
27. Aspen Land Use Code adopted May 25, 1988 (by reference)
28. Plans, speci fications and correspondence submitted to the
Aspen Building Inspector on which the following permits have
issued: Nos. 11907, 11910, 11908 (by reference)
29.
Record of review of the planned uni t development,
allocation and subdivision applications for the
Mountain PUD/Subdivision and amendments (by reference)
quota
Aspen
30.
Record of hearing on the findings of noncompliance
before the Aspen City Council, November 28,
December 19, 1989, January 4, 17, 1990
held
1989,
31. Letter to Aspen City Council from Robert Hughes, Esq. dated
January 3, 1990
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Addendum E
Summary of Hearing Testimony and Comments
The following are summaries of testimony given and arguments
made at the November 28, 1989 non-compliance hearing held before
the Aspen City Council:
Robert Hughes (Savanah Counsel)
The construction schedu le establi shed in the Amended PUD
Agreement was not intended to be hard and fast so as to accommo.-
date unknowns (agreement with contractor, weather, etc.). At the
time of execution of the Amended PUD Agreement, we expected
opening the hotel in the winter of 1989 and the construction
schedu le is centered around that. The Agreement contemplates
that the legislators are setting up the "big picture" and staff
wi 11 put on the "flesh." The Agreement calls for construction
schedules and 90-day updates; and it is up to the City Engineer,
if he thinks there is a substantial deviation, to report to City
Council. Hadid has supplied updated schedu les, is adhering to
the most recent, and the City Engineer has not advised us that we
are not in compliance. Hadid has spent $10 million, in the face
of litigation, and is serious about pursuing construction.
The original PUD Agreement (1985) had a general "when we get
around to it" approach. This language bothered the City Council
and it required more substance to the schedule. The Amended PUD
shows each sequence of construction and how long each will take.
Hughes
expenditures
ities.
introduced
made both
a
in
November 10, 1989 memo indicating
the construction and related facil-
The Amended PUD Agreement
deviation exists, review must
Director or City Engineer; the
review.
requires that,
be initiated
Ci ty Council
if a substantial
by the Planning
cannot initiate a
Hadid thought the project was being constructed pursuant to
the 1988 edition of the UBC and you cannot take away valuable
rights when things are unclear. The archi tect and lender also
believed the project was being constructed under the 1988 UBC.
'l'he ini tial construction deadline (March 1, 1989) slipped
and everything followed from that.
The City Attorney and Engineer who developed the con-
struction schedules are not here. We could not commit to abso-
lute dates because there were too many variables. We had hoped
to complete construction of the hotel by the winter of 1989 and
the other dates were backed into it. It was our and Jay
Hammond I S understanding that when we "got into the ground," the
schedules could be more precise.
The September 6, 1988 minutes make clear that timing of
construction of the Summit Place and Galena place projects was of
no significance. The reference in the September 12, 1988 minutes
to "firming up" the schedules is to the original PUD Agreement
which was entirely open ended. The intent was to break down the
"overall deadline" (March 1990) into sequences. The hotel was
always intended to be constructed in the winter of 1989-1990.
We agree that we have not had problems with the City admin-
istrators; we have no problem with the staff. Our problems were
in getting a construction loan because of the uncertainties
created by the political situation.
It is not my position that the construction can "go on
forever." There is a built-in remedy; the staff can initiate a
review and bring non-compliance before you. Because of circum-
stances beyond our control (two lawsuits, political hostility),
we cou ld not get a construction lender; if we cou ld have, we
would be much further along. In spite of all the obstacles,
however, Hadid has obtained financing and spent $6 million in
infrastructure improvements and from $6-7 million in hard con-
struction costs.
We, in 1988, established a methodology Ior review and we
would like it respected.
When dealing with what was permitted by the "superstructure
permit," what we are talking about is not work above grade, but
about what \vork was authorized by one of a series of permits
(i.e., the superstructure permit).
Sandy Stuller (City Attorney)
My reading of the Amended PUD Agreement is that the term
construction schedule has two distinct meanings; one pertains to
overall development schedule and the second to construction
logistics. The City Engineer was concerned with only the second.
Our overall premise is that a development schedule is mandated by
our regulations, and it was not complied with here through no
fault of the City of Aspen.
The September 6, 1988 Council meeting minutes make clear
that the Aspen Hountain PUD Subdivision was exempted from the
City's demolition ordinance; it was not an obstacle to proceeding
with Lot 6 development.
The issue here for the Council to decide is whether Hadid
has establi shed that the City has waived compliance by City
Engineers ratifying slippage. I believe, and Bob Gish agrees,
that the City Engineer was concerned only with construction
logistics, and by reviewing Hadid's construction schedules there
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was no intent to waive any required compliance with the overall
construction schedule for the project.
I donlt read the record to say that if anything comes up,
the schedules make no difference. The required flexibility (for
variables) is contained in the schedules as written. Completion
of construction of the hotel in the winter of 1989/1990 was
important as far back as 1985 and still is.
Robert Gish (City Project Manager; former City Engineer)
He authorized use of the 1988 UBC because it contained
higher construction standards (public health and safety con-
cerns). He did not waive compliance with the local amendments to
the UBC. The letter authorizing use of the 1988 UBC was not
intended as a waiver of the local amendments (only the Board of
Appeals can do that) .
Wi th respect to the construction schedu les, he never re-
sponded to them. He reviewed them only with respect to con-
struction logistics (pedestrian protection, snow removal, vehicu-
lar access, excavation/demolition disposal, delivery and storage
of materials, construction equipment access and storage, contrac-
tor vehicle parking, compliance with noise regulations, etc.).
He never waived any of the development schedule deadlines.
It is true that, at the City I S request, Hadid interrupted
street excavation activities. However, none of the delays
affected construction at the hotel site on Lot 1 and Hadid was
granted extensions beyond the November 1st deadline (established
by ordinance) to complete the work in the rights of way.
Gish never received any "status" reports referred to in the
Amended pun Agreement.
In his opinion, all work done to date was work authorized by
the foundation permits. A superstructure permit pertains to work
from the ground up.
The original construction schedules were unrealistic. Gish
was not evaluating the construction schedules with respect to
compliance with the Amended pun Agreement, only with respect to
coordination at the job site. Asked if Hadid is in compliance
with the most recent schedule, Gish answered that he is in
compliance as it relates to construction logistics; Gish has not
reviewed the construction components which are unrealistic, in
his opinion.
Gish does not feel Hadid would come to him to extend any
deadlines under the Amended pun Agreement. E'eels Jay Hammond
took the same approach. He does not know what was meant by Jay
in his February 24, 1988 letter. Any planning issues were
referred by Gish to the Planning Office, including those
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pertaining to development schedules. He handled only his areas
of responsibili tYi and he bases his opinion on his areas of
responsibility on his and Jay's past practice. His and Jay's
understanding was that the City Engineer was responsible for con-
struction logistics.
Gary Lyman (Chief Building Official)
He did a site inspection of the construction on Lot 1 on
November 22, 1989 and as of that date foundation work was not
complete. No work above grade had been started.
rfhe permi t applications indicate $36 million as the total
value of the project. Work equal to ten percent of the valuation
of the entire proj ect clearly has not been accompli shed wi thin
each 60-day period.
Gary denies that there has been inordinate delays in mechan-
ical, electrical or plumbing permit issuance as contended by
Hadid. References to mechanical and electrical permits are in
no such permits have been applied for. A subslab plumbing
was applied for. However, there were no substantial
in its issuance and the turn around time for its issuance
the scale of the project) was reasonable.
errori
permit
delays
(given
The disruption of Hadid's work in the right of ways would
not disrupt construction activities on Lot 1.
The "10% of overall valuation" progress requirement is
equally applicable to fast track projectsi and even more impor-
tant in large projects because these have more impacts on large
numbers of people and, because they occur in commercial areas,
affect well traveled areas of the City.
The UBC deals with national construction standards, whi Ie
the local amendments deal with local community needs (e.g., snow
loading, energy codes, etc.). The Building Inspector cannot
waive amendments to the UBC (this is a serious matter), and, in
his opinion, no one waived the local amendments in this case.
The 1988 UBC has not yet been adopted by the City. What we
have here is merely an agreement that this project would be
constructed according to the 1988 edition, and in none of these
agreements is it stated that the local amendments are waived or
repealed. This dispute does not concern any language in the 1979
edition, only in the local amendments.
Amy Margerum (Planning Director)
and
The
was
Phase II submission was submitted in June of this year
incomplete when filed. The Planning Office requested
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that complete submission be filed and it was received only in
November, after issuance of Resolution 39.
Shaun Yancey (Senior Project Manager)
Shaun worked with Jay Hammond with respect to construction
scheduling. He has submitted supplemental construction schedules
every 90 days. He was never advised that there was a substantial
deviation from a construction schedule. He was told that the
schedules were "unrealistic" and was also told by Gish that he
was not concerned with the construction schedule but only with
construction logistics.
The foundation work has been completed (except for two small
sections). The superstructure permit authorized the parking and
mezzanine slabs and the elevator towers, which have been started.
with respect to the three-month period to complete erection
above grade, this was premised on a Christmas 1989 opening date.
It means three months from the start of this phase to the start
of the next phase~ not three months total time for this phase.
The next phase is the exterior facade phase.
with respect to his conversations with Jay Hammond and the
February 6, 1989 revised construction schedule, Jay Hammond said
he had no trouble with it. Jay said his only concern was how the
construction schedule impacted the City, particularly during the
peak seasons. Jay said he wanted to discuss with Alan Richman
the "slippage," and as a resu 1 t of hi s conversations with Alan
issued the February 24, 1989 letter. Yancey believes that
Hammond, in his response, approved a completion date of one year
later~ and that Gish, in his reviews, was evaluating both overall
construction phasing and construction logistics. The lapse of
time to complete the second phase of construction is reflected in
the current construction schedule.
Yancey acknowledges that he knows there are different permit
expiration timetables in the local amendments to the UBC. He
feels that they have completed, every 60 days, work equal to 10%
of work permitted. Does not believe the 10% rule applies here
because: (a) it would require completion of the entire project
in 20 months, and (b) since the total project cost is
$41 million, it would require $4.1 million dollars of work every
60 days. Feels the 10% requirement is to apply only in the case
of abandonment of projects.
In his opinion, work was commenced under the superstructure
permi t becau se they have started on elevated garage slabs and
these were authorized only by the superstructure permit.
Yancey became familiar with the local amendments to the UBC
when he took his contractor's license exam in early 1988.
Excavation started May 26, 1988.
13/SD2
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Yancey agrees that the project is not 60, 70 or 90% complete
(as would be required by the 10% requirement). The "10% com-
pletion" he was referring to earlier was 10% completion of work
for which permits have issued, not 10% completion of the overall
value of the project.
with respect to the superstructure permit, what is "permit-
ted" is what is on the drawings, and what is shown is not limited
to superstructure improvements.
Anna Goodrich (Director of Design and Construction)
The project was completed "at grade" in October. This is
consistent with the most recent construction schedule. The "at
grade" slab is considered structure above grade. Work above
grade was commenced and all that is required is that it had begun
wi thin 180 days. Foundations were completed in October; above
grade was commenced in August. To apply the 10% completion
requirement to us would mean you want us to construct improve-
ments without permits.
Perry Harvey (Vice President and Director, Aspen Hadid Holdings)
Perry participated in negotiating and drafting the Amended
PUD Agreement and construction schedules. The document doesn't
differentiate between construction and development schedules.
The construction schedules were intended to be nonbinding because
of unforeseen events (for example, the City stopping excavation
in the rights of way this summer). The document anticipates a
multi-year construction period.
The "on or after" language was intentional. The 1985
Agreement was even more loose. One of the things "corrected" in
1988 was dealing with each element of the proj ect and putting
some schedu ling language with respect to each subdi vi sion lot.
The idea was that when you went for a permit, you would submit a
schedule and that permitted activity would be monitored.
It was Perry's understanding that the owner would deal with
logistics and all critical paths with the City Engineer. The
Engineer was the "point man" for all of this; and that applied to
both the original and Amended PUD Agreement.
There are no limitations intended on when Summit Place is to
be started or completed. We have not started it becau se we
decided to go ahead with the Ritz-Carlton and Galena Place and it
would have been foolish to start Summit Place at that time
because of the construction logistics.
Regarding
ities, Perry
However, the
demoli tion and construction
admits that they have not
schedule for Lot 6 is set up
of the Park facil-
begun construction.
to correspond with
13/SD2
-6-
completion of the hotel for Christmas in 1989. The operative
objective is that the rink be ready to go at the time of the
opening of the hotel. It was decided not to demolish the employ-
ee housing in the spring of 1988 when they now have an additional
18 months to complete the hotel. In addition, the City's only
remedy for non-compliance is to rezone the property itself.
Perry discussed the matter of Lots 5 and 6 with Alan in
March. Perry told Alan he was going to submit all of Lot 5 (as
one parcel) and merely rezone the northern part to Park. Conse-
quently, the application was taking more time because he was
required to design all of Lot 5 improvements. Alan agreed to
request from Council a May 1st submission date. This was ap-
proved. Perry submitted one copy of an application in June.
Alan and Perry decided that since there was so much other work in
progress that no one was going to object if this application was
not processed.
Perry is aware that the Land Use Code has construction
scheduling requirements.
In his opinion, under the Amended PUD Agreement, the only
thing that would cause his approvals to lapse is a complete
abandonment (cessation) of work. As long as they submit amended
construction schedules and continue with the work under the
amended schedules, the approvals would never expire.
Frank Peters (Councilman)
Shaun Yancey is aware of the local amendments to the UBC.
Gish I s letter authorizing construction under the 1988 UBC was
issued in May of 1988. Hadid was admittedly working under the
1979 edition prior to that time.
The PUD Agreement could not have been adopted with an
entirely open-ended construction schedule. That would have been
entirely at odds with City land use regulations. If you read it
the way Bob Hughes does, there is no schedule. The City has an
interest in timely construction and minimal disruption.
No administrative official has the right to waive local
amendments. Shaun Yancey was aware of these provisions when he
took his contractor's exam in early 1988.
VJhat Bob Gi sh was looking at,
the use of the 1988 edition, was
changes, not the local amendments.
in issuing his approval for
use of the safety related
There is not, by the Amended PUD Agreement, a permanent and
indefini te right to develop. Assertions of future compliance
have no credibility for him.
13/SD2
-7-
He cannot believe the foundations are complete. Structures
below the level of retaining walls cannot be superstructure. All
the work done to date has been done below grade.
Ci ty has not harassed Hadid or caused any delay. In fact,
his permits have been expedited by fast tracking and use of an
outside reviewing agency.
Nor did Council, in fact, interfere with the issuance of the
superstructure permit in June. It was in fact issued on time and
Hadid, after receiving it, did little or no work under it.
The project is not 60, 70, or 90% complete as would be
required by the "10% completion" requirement in the local amend-
ment. The Code provision refers to 10% of the overall value of
the project (not work permitted). It is the owner's obligation
to obtain permits necessary to meet the requirement.
The delays in this project are cumulative, and the cumula-
tive effect requires Council action.
Steve Crockett (Councilman)
It is not the Council's job to insure that development
projects are capitalized. The project is not above grade, so how
can you argue that work has begun under the superstructure
permit. In order to protect our residents and visitors, we must
insure timely construction and that is not happening here.
Bill Stirling (Mayor)
with respect to the June 1989 permits, the delay caused by
Council action was a couple of hours only. The reason for
imposing time frames is for staging dates and renewals. There
are many reasons we want things to move in a timely way. The
reality is that this project has not moved ahead.
Bill Tuite (Councilman)
No one disagrees that the schedule has been totally "blown
to bits".. .the question is whether staff authorized it. Bill
also questioned whether the 10% completion requirement had been
applied to others.
13/SD2
-8-
Addendum F
Excerpts from Approval Record re: Completion Dates;
Assurances of Financing; Processing of Lot 6 Approvals
City Council Minutes
January 30, 1984: "Doremus said the applicants (Roberts) have
set an objective of starting construction in
May, 1984, which will be demolition; the
entire construction wi 11 take at least
18 months. They would like to be open by
January 1986."
March 25, 1985: "Doremus said if they can get started on
schedu le, the earth moving wi 11 be done in
the off season. Also, if they get started on
time, they will be able to open for the
winter season 1986-87."
November 25, 1985: The Roberts' PUD Agreement is presented in
which "the commencement and substantial
completion dates have been revised to reflect
that the project is behind the original
schedule." Council asked what the City's
remedies wou Id be if the Phase I hotel was
not begun in March of 1986. They were
advised by Taddune and Richman they could
rely on the remedies in the PUD Agreement
(same as those in the Amended Agreement) and
the permit expiration provisions wi thin the
UBC.
March 3, 1987: Roberts' representative requested another GMP
extension because of the foreclosure litiga-
tion. He (Pavisha) assured the Council that
if Roberts were successful in this litiga-
tion, he would be able to start the project
quickly because the plans and foundation
drawings are in to the building department.
September 14, 1987: Perry Harvey, representing Hadid, the new
owner of the project, appeared and requested
another extension to process design changes.
Councilman Isaac asked if the extension was
granted, what would the time frame be.
Harvey said they would like to break ground
next summer and be under construction next
year. Council granted an extension until
March 16, 1988 to get a building permit for
Lot 1 and 700 Galena.
April 27, 1988:
May 5, 1988:
August 8, 1988:
14/SD2
"Sarpa told the Council the applicants and
town are at a critical point. This project
is on the verge of coming out of the ground.
The financing is in place, they have a top
notch operator."
"Sarpa said the applicants hope staff will be
gi ven the direction to work with the appli-
cant so that this project can come to
fruition by Christmas 1989." Peter Krause of
Morgan Stanley (financers) "told Council
Morgan Stanley is ready to select a lender to
proceed on an expedited basis on the develop-
ment of this project. *** Krause said
Morgan Stanley recommends the project be
approved, that it proceed to development on
the quickest possible basis. Krause told
Council hotel financing is fragile and he
would like this to proceed to commitment as
soon as possible." "Sarpa said the
applicants want to work in any way the city
feels appropriate in order to complete
construction of the hotel by Christmas 1989.
They would like to be able to do some exca-
vation work prior to this summer season."
"Richman told the Council when the PUD was
adopted in 1985, it set out a specific
construction schedule for Phase I and II,
which has been extended through the various
extensions of the project. Richman told
Council the PUD Agreement is the best mecha-
nism to apply construction deadlines."
During the discussion of City initiated
rezoning of Lot 6 to Park: "Councilman Isaac
asked how long the applicant has to remove
the existing houses on this site after it is
rezoned. Perry Harvey, representing the
applicant, said they would become
non-conforming. Richman said there is no
abatement provision in the Code so there
would be nothing to require their removal."
Harvey opposed the rezoning: "Harvey said
since opposition has stated they will pursue
a referendum if approval is given by the city
the applicants would like to tie this rezon-
ing to the uninterrupted construction of the
hotel because the park is part of the PUD
approval." "Harvey said his concern is that
nothing happen on the final rezoning of this
parcel until such time as the applicants have
approval, full building permit, and if there
is a referendum action, that repeals the
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August 16, 1988:
August 24, 1988:
14/SD2
approval, the rezoning to park has to be
repealed, too. Harvey said 42,000 square
feet of building is a lot of value. Harvey
said the timing on the rezoning has to be
consistent with the process the applicants
are in the middle of."
Richman brought the rezoning forward so it
could be adopted by September 12, 1988.
Harvey objected: "he is concerned if this
whole plan becomes unraveled, that this
parcel does not stay in the park zone."
"Councilman Tuite asked (re: condition #14 -
rezoning and public facilities on Lot 6) if a
date specific is what the city wants out of
this. The applicant has told the city they
will give the city the park as soon as they
know they have the hotel. Richman said he
wants to avoid the hotel getting near com-
pletion and having the park issue up in the
air. John Sarpa said that is not a problem.
Richman suggested a certain number of days
beyond a full building permit, foundation and
building permit. Councilman Isaac moved to
approve condition # 14 with the addition of
setting a date for rezoning of approximately
90 days after issuance of a building permit
and to instruct that language to be added to
the agreement; seconded by Councilwoman
Fallin. All in favor, motion carried."
Richman said that, regarding the construction
schedule, the different areas of construction
activities were discussed in the original PUD
agreement; "the timing on these issues has
changed but the basic parameters have not."
"Richman said condition #20 makes sure that
all the representations made by the applicant
during the process are included as require-
ments."
"Mayor Stirling asked if the financing is
officially in place. Sarpa said the appli-
cants have not closed the financing; the
applicants are in the final phases of nego-
tiations. Councilwoman Fallin asked when the
permanent financing will come. Sarpa said 45
to 60 days from about now."
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September 6, 1988: "Richman said...commitments and representa-
tions that have been made through the process
are included in the PUD agreement and
adequately represent the requirements that
should be placed on the project."
Richman said starting on page 8 there is
language which tracks from the prior PUD
agreement recognizing all the details of the
construction, like barricades and entrances,
authorizes the city engineer and building
inspector to be in charge of those details.
There is language stating the staff needs to
keep in mind the disruptive activities should
be scheduled to minimize activities on
adjacent property owners. John Sarpa,
representing the applicant, suggested this
page also state October 3 for consistency.
Harvey said this page said he would like to
clarify the last sentence to read "structural
erection above grade".
"Mayor Stirling asked where things stand with
loan commitments. Sarpa said the applicants
are working through selection of a lender
with Morgan Stanley. Specific loan pro-
visions have been offered and the applicants
are negotiating those terms. Sarpa said a
bank will want to know that the official
zoning process is complete before any dis-
bursements are made. Sarpa said it will take
another 3 or 4 months until there is a closed
loan. Sarpa said the applicants are prepared
to move forward immediately. If they can
obtain the foundation permit, they will move
toward the next phase."
Councilman Isaac moved to exempt the Aspen
Mountain PUD from the administrative delay of
Ordinance 31. The motion was adopted.
September 12, 1988: Richman: "On page 7, this is also some
language that I think the Council raised some
questions about the language that seemed to
be very open ended and made the construction
schedule almost meaningless because it's gets
off about the dates not being commitments and
the city attorney again said, well maybe
there really was a point there at the
discussions and so we suggested that there
are much more definitive and the language,
you may look back at the other version, has
all been removed about, I forget the exact
language in there but it was much more
indefinite."
14/SD2 -4-
Planning & zoning Commission Minutes
July 12, 1988:
March 8, 1988:
March 22, 1988:
14/SD2
Harvey re: subdivision and rezoning of Lot 6:
"By going through with this rezoning it also
gives you guys the protection you need in
terms of that being one of the conditions in
the resolution for the Ritz, you've got the
very, you know, at the very least that parcel
of property under underlying zoning will
carry 42,000 square feet of building, it will
carry a half a North of Nell and
lOdge/tourist/residential on the other part
of it. So by going ahead with this rezoning
to park, if you don I t get the ice rink for
some unknown reason, the world blows up or
whatever, it's still park."
Harvey re: construction schedule: "As you
know our timing is critical. We have to pull
a building permit by April 15. We want to
build this spring. *** \ve have a goal to
meet of opening the Ritz-Carlton Hotel for
the 89/90 ski season."
Shaun Yancey: "There are two keys in my mind
to minimize the overall impact and be on
schedule. One is an early start and the
second is our 19 month schedule. We are
proposing to complete this project in 19
months which is an ambitious schedule but
very attainable. And to the extent that we
are delayed and we have to work through more
of the winter trying to get the structure
enclosed, that is going to hurt us."
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ADDENDUM G
ASPEN MOUNTAIN
SUBDMSION
The Ritz-Carlton, Aspen
The Grand Aspen Hotel
700 South Galena
Summit Place
Top of Mill
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1987 Amendments to The Ritz-Carlton, Aspen
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IIAIO. Construction Schedule:
An agreement between Savanah Limited and Ritz-Carlton Hotels
was finalized in August, 1987. It is anticipated that construc-
tion on the Ritz-Carlt~n, Aspen will proceed in the spring
pending resolution of Donald Trump's legal action, but within the
time limits established by the GMP and PUO approvals. Opening is
presently scheduled for the 1989-1990 winter season. Lot 1 has
been cleared of all structures and the required modification of
utilities has been completed in anticipation of construction.
Amendments to 700 Sout~ Galena, Summit Place and the Grand Aspen
Hotel have proceeded a~ead of this submission. It is presently
anticipated that the Top of Mill project will proceed through the
review process following completion of approvals for the
Ritz-Carlton.
With regard to utility relocations and installations, the
undergrounding of virt~ally all electric, telephone and TV cable
lines has been completed throughout the pu~ site. The sanitary
sewer line in Mill Street has also been extended to Galena Street
at the south end of Lot 5. Storm sewer improvements in Galena
will be completed during construction of the 700 South Galena
project. Other utility improvements will be completed as
outlined in the PUO Agreement, except as amended in this
submission.
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Most of the trail systems proposed in the PUD can be constructed
(with some sections of trail on a temporary alignment) with the
completion of the Ritz-Carlton. All streetscape improvements in
the vicinity of Lot 1 outlined in the PUD Agreement will be
completed during construction of the Ritz-Carlton as called for
under the Agreement. Proposed streetscape improvements in the
area of Lot 5 and other residential projects will logically await
the completion of construction at the other sites to avoid
disruption of those improvements.
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Detention structures for temporary storage of runoff water are
still proposed to be located under Mill Street, so it will be
important to accomplish the work to be done under Mill Street as
Guickly as possi~le in order to minimize the inconvenience and
disruption to in-season visitors. Temporary pedestrian and
vehicular access will be provided at the south end of the site if
required.
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Time E'rame
1. April 1988
through
July 1988
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II. August 1988
through
November 1988
III. December 1988
through
~'1arch 1989
IV. April 1989
through
July 1989
v.
.-\ugust 1989
through
November 1989
OJNsrnucrIQ~ SCHEDULE
FOR THE RITZ -CAPL1CN, ASPEN
Site
Shoring and excavation
Rerouting of underground
utilities in construc-
tion area
Foundation work
Below-grade structural
Backfilling
Rerouting of utilities
and storm sewer
Reconstruction of Galena
Street with others'
participation
Above grade structural
work
Completion of exterior
skin and roof
Start of interior work
Start of site work and
landscaping
Completion of site work
and landscaping
Completion of interior
work
December 1989 - Opening of Facility
City Coordination (Items
Mav Be Undertaken Sooner)
Fencing of project site
Development and implementa-
tion of a traffic plan~
Development of a fugi ti ve
dust prevention plan
Traffic rerouting changes
Utilities and street '~rk
scheduling
Provision for staging ar23.;
may l:::e out of to',.m
All streets to t:e reopened
with the possibile excep-
tion of Mill Street
(detoured to Juniata, if
necessary)
Clean-up of site and
streets
*Parking for ',""orkers, flow of truck tra ffic, t:edestrian tra ffic rerouting, etc.
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The following narrative highlights changes which have been made
subsequent to Final PUD Plan approval for the hotel and residen-
tial project on Lot 1 of the Aspen Mountain PUD/ Subdivision
discussed here.
PUD Aoreement
The changes necessary to update the recorded PUD Agreement are
being submitted in draft form under separate cover to the
Planning Director. Following approval of the proposed design
changes by the City, the PUD Agreement can be formally amended to
accurately reflect the approvals.
3ignificant amendments presently anticipated in the PUD Agreement
include:
1. The construction schedule on page 4 will be changed to
reflect a commencement of construction in spring of 1988 and
completion of construction in early 1990.
2. Site improvements for Hotel Phase I (pages 6 and 7) which
have been completed will be noted as such or 8mitted.
3. Recorded landscape plans (page 8) will be amended and
rerecorded to reflect approved changes.
4. The employee housing proposal for Hotel Phase I on page 12
and for Phase II on page 31 will be amended as approved to
reflect the change in one element from Ute City Place to
cash-in-lieu or an alternative acceptable to the City.
137
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ADDENDUM H
E
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ASPEN MOUNTAIN
SUBDIVISION
The Ritz-Carlton, Aspen
The Crand i\spen Hotel
700 South Calella
SUITunit PlacE:
Top of Mill
..
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~Iodific:ltior~s tel t11e
1988 -{~me21ded lodge GlvCr Subnussion
forl:he P.Jtz-Carlton, Aspe11-
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7~e :ollQwi~g na~~3tive h:;~~i~~~s c~anges wh:c~ have ceen ~a~e
S~=3eque~t t~ Fi~al ?UJ ~l~n a~~==va~ E=r t~e ~~o:el ~~=~ec: en
Lot 1 of the Aspen ~1o~~~~in ?UD/ Su~t~~isicn di3=~sse~ ~ere.
?~!) .:-"cree!T1ent
7~e c~anges necessary to uccate t~e ~eco~~ed ?UD Ag~ee~en~ are
oeing suo~itted in c-~:- ferm uncer separate cover to t~e
?lanni~g Di~ect~r.
follo~i~g approval
of
the
:J::::::Josec
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:or~ally 2!T1en8ed
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Sign::ican:: a~er.c~er.ts ~resen:ly an~:c:cated in t~e ?~u Agreement
in=l~de:
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have ~een c=~~le~ec ~~:l ~e n8:2= as suc~ ~~ ~~i:~2=.
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Rec~r~ec lar.~sc~~e ;:ans (page 2) will ~e a~en~ed ana
~2~2C=~=2d t= ~e::e~: =s=~~~ec c~an~es.
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ADDENDUM I
amended to reflect such fact and to lncorporate all condi::ans
and assurances that may reasonably be required by the Ci:~ 1n
connection with such approval; and
WHEREAS, the City has imposed conditions and requirements in
connection with its approval, execution and acceptance for
recordation of the Plat, and such matters are necessary t8 ?ro-
teet, promote and enhance the public health, safety and welfare;
and
WHEREAS, under the authority of Section 20-16(c) and Section
24-3.1 et sea. of the Ascen ~unicipal Code, the City is e~:::led
----- - ...
to assurances that the matters hereinafter agreed to will ~e
faithfully ?erformed by Owner and Owner's successors and 3s31gns;
~
and
WHEREAS, Owner 1S w1lling to enter into such agreements
with, and to provide such assurances to, the City_
NOW, THEREFORE, in consideration of the premises, the ~utual
covenants herein contained, and the approval, execution and
acceptance of the Plat for recordation by the City, it is 3creed
:is follows:
A. PRCJEC~ CONSTRUCT!C~ SCHEDULES
Owner and City mutually acknowledge that exact construction
schedules cannot be submitted at this time.
Owner anticipates
that the several components of the Project will be construc~ed
~enerally in accordance ~ith the falla~lng time frames, which
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'-"J '-_
time frames shall not constitute binding representations or
schedules:
Development Component
Commencement Date Substantial Completion Date
(on or after) (on or after)
March, 1986 February, 1988
March, 1987 December, 1987
March, 1987 December, 1987
March, 1990 December, 1992
Hotel Phase I
Summit Place
700 South Galena
Hotel Phase II
Top of Mill
(Phased Construction)
(Premature - to be established by amendment
to this Agreement)
At the time of application for a Building Permit for a particular
development component of the Project, and as a condition prece-
dent to the issuance thereof, Owner agrees to provide the City
Engineering Department with a detailed Construction Schedule for
that component, to the satisfaction of the City Engineer and
Chief Building Official in the exercise of their reasonable dis-
cretion, which Construction Schedule shall particularly address
how construction phasing and other techniques within each compo-
nent will best accommodate under the circumstances (a)
barricading and provision of pedestrian protection, (b) mainte-
nance of adequate public vehicular access and circulation in the
development area, (c) excavation access and large truck traffic
circulation and staging areas, (d) disposal of demolition and
excavation materials, (e) delivery and storage of major construc-
tion materials, (f) construction equipment access and storage,
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(g) contractor vehicle parking, and (h) compliance with City
noise regulations.
Each of such Construction Schedules shall be
verified by the City Engineer and the Chief Building Official and
(if the City so desires) recorded as a supplementary exhibit
hereto. Every 90 days thereafter until substantial completion of
the related development component, Owner shall provide the City
Engineering Department with a Status Report on that Construction
(-
Schedule which generally describes the accomplishments of the
preceding 90 days and those anticipated during the next 90 days.
Amendments to a particular Construction Schedule which, in the
view of the City Engineer, represent a substantial deviation from
the original Construction Schedu12, shall be processed in accor-
dance with the extension procedures established in Section M
hereof, and shall also be verified by signatures of the City
Engineer and Chief Building Official and (if the City so desires)
recorded as supplementary exhibits hereto.
B. HOTEL PHASE I
The Hotel Phase I component will be comprised of not more
than 300 lodge units and not more than 14 residential units, with
the exact number of such units to be established in the building
permit application for Hotel Phase I. The total F.A.R. floor
area in this component shall not exceed 200,000 square feet, and
the total non-F.A.R. floor area shall not exceed 105,000 square
feet, subject to the understanding that the F.A.R. floor area
ADDENDUH J
WJK 0/4 p~ 787
NOW, THEREFORE, in consideration of the premlses,
the mutual covenants herein contained, and the approval,
execution and acceptance of the plat for recordation by the City
it is agreed as follows:
A. PERMITS AND PROJECT CONSTRUCTION SCHEDULES
1. Permits. As soon following the complete
execution of this First Amended PUD Agreement as in the circum-
stances is practical, but in no event later than October 3, 1988,
Owner shall complete its submission for and shall obtain the next
sequential building permit for the next phase of construction
(~, foundation work) for Hotel Phase I. City shall review and
advise Owner in respect of its permit submission ln the soonest
time possible in the attendant circumstances to the end that
this deadline and the Project Construction Schedules below se~
forth might be better adhered to.
2. Proiect Construction Schedules
(a) Hotel Phase I: On April 15, 1988 Owner
timely obtained a permit authorizing excavation. The excava~ion
and shoring was completed July 31, 1988. Immediately following
recordation of this Agreement and the Plat, Owner shall make
application for and recelve a permit authorizing foundation work.
This shall be obtained on or before October 3, 1988 and founda-
tion work will commence immediately thereon. Foundation work
shall be completed on or after March 1, 1989, subject to
climatological conditions. Upon issuance of the next permit,
structural erection above grade shall begin and will take roughly
E-
6
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three months. Thereafter, and in ccnjunction with the structural
work, the exterior facade erection ~ill begin, followed by inte~ior
finish. These two phases are expected to take approximately eight
months.
The following are the construction schedules for the remal~lng
components of the Project:
(b) Summit Place: Construction on this component
shall commence on or after October 1, 1988 with substantial cODole-
tion to be achieved on or after October of 1989.
(c) Top of Mill: Premature.
(d) Galena Place: Construction on this component
shall commence on or after October 3, 1988, by which time a pe~~it
for construction will be obtained, with substantial completion to
be achieved on or after May of 1989.
(e) Hotel Phase II: This component requlres demoli-
tion of the Grand Aspen Hotel according to the schedule specified
in Paragraph H(3) below. Substantial completion shall be achieved
within two years of the beginning of demolition.
(f) Lot 6 (Proposed Ice Rink and Park): This com-
ponent 1S required to receive a Certificate of Occupancy and be
available for use at the time of issuance of a Certificate of
Occupancy for the Hotel Phase I. Thus, demolition and construc~ion
shall begin in the spring of 1989 with completion to occur on or
before and as a condition to the issuance of a Certificate of
Occupancy for Hotel Phase I.
At the time of application for a Building Permit for a
particular development component of the Project, and as a
cc~dition precedent to the issuance thereof, Owner shall provide
80llK 0' --: ;::'~E '~'.J'
the City En~lneering Department with a detailed Constructic~
Schedule for that component, to the satisfaction of the Citj
Engineer and Chief Building Official in the exercise of the:~
reasonable discretion, keeping in mind that disruptive acti-lities
shall be scheduled to minimize impacts on adjacent properties and
lodge uses. The Construction Schedule shall particularly address
how construction phasing and other techniques within each
component will best accommodate under the circumstances (a)
bar~icading and provision of pedestrian protection, (b) maln-
tenance of adequate public vehicular access and circulation :n
the development area, (c) excavation access and large truck
traffic circulation and staging areas, (d) disposal of demolition
and excavation materials, (e) delivery and storage of major
construction materials, (f) construction equipment access and
storage, (g) contractor vehicle parking, and (h) compliance Nith
city noise regulations.
Each of such Construction Schedules
shall be verified by the city Engineer and the Chief Building
Official and (if the City so desires) recorded as a supplementary
exhibit hereto.
Every 90 days thereafter until substantial completion of
the related development component, Owner shall provide the :ity
Engineering Department with a Status Report on that Construc~ion
Schedule which generally describes the accomplishments of t~e
preceding 90 days and those anticipated during the next 90 days.
Amendments to a particular Construction Schedule which, In ~~e
view of the City Engineer, represent a substantial deviation from
the original Construction Schedule, shall be processed in
8
accordance with the extension procedures established in Section M
hereof, and shall also be verified by signatures of the City
Engineer and Chief Building Official and (if the city so desires)
recorded as supplementary exhibits hereto.
B. HOTEL PHASE I
The Hotel Phase I component shall be comprised of not more
than 292 hotel units and not more than 294 hotel bedrooms and no
residential units as shown on the First Amended Plat recorded In
Book at Pages ___, et seq., of the Records, each of the
drawings and sheets pertaining to which is incorporated by
reference as though fully annexed as an exhibit to this First
Amended PUD Agreement. The total F.A.R. floor area in this
component shall not exceed 190,000 square feet, and the total
non-F.A.R. floor area shall not exceed 95,000 square feet.
1. site IDProvements - Hotel Phase I. Prior to the
issuance of a Certificate of occupancy for Hotel Phase I, and as
a condition precedent thereto, Owner shall have previouslY
accomplished or, if not previously accomplished, hereby agrees to
accomplish the following Section 20-16 improvements in the
Project area:
(a) Owner shall relocate underground all elect=i-
cal, telephone and cable television lines which presently exist
above ground within the Project boundaries and along the portion
of Monarch street which adjoins Lot l, with the possible
excep~~on in Owner's discretion of (i) those lines along vacated
Dean Street between South Galena and Mill streets, and (ii) the
9
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crim wil~on of Ma~ch 20 and March 2l, 1985, respectively, coples
of which memoranda are attached as Schedule 5 and 6, respec-
tively, to this First Amended PUD Agreement.
For its part the
City has issued a written acknowledgement of such fact, attached
hereto as Schedule 7.
15. The following limits shall be placed on the construc-
tion schedule in addition to those proposed by the Owner or
required by the City Engineer:
a. A "tennis" fence material shall be used to screen
all staging areas on the site.
b. All construction (except painting or similar "quiet"
activities) shall be prohibited on the site between
the hours of 10:00 p.m. and 7:00 a.m.
c. Owner shall demonstrate to the City Engineering
Department that permission has been obtained from
adjacent owners for the booms on the tower cranes
to swing over their properties.
d. The Owner shall provide the City Engineer with an
updated construction schedule prior to obtaining any
additional building permits for the Project.
16. The Owner shall commit to meeting the Health Depart-
ment requirements identified by Tom Dunlop in his memo regarding
the Project dated February 18, 1988 and attached hereto as
Exhibit I.
17. The accessory retail uses permitted within the Hotel
Phase I shall be limited to the following and similar uses:
sundry shop; car rental desk; travel desk; ski rental and repair
47