Loading...
HomeMy WebLinkAboutordinance.council.042-06 ORDINANCE NO. 42 (SERIES OF 2006) AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING A PUD AMENDMENT, WITH CONDITIONS, FOR THE PROPERTY AT 330 EAST MAIN STREET, LOTS A-I, AND O-S, AND THE EASTERLY 20' OF LOT NAND THE EASTERLY 170' OF THE VACATED ALLEY, BLOCK 79, CITY OF ASPEN, PITKIN COUNTY, COLORADO. ParcellD: 273707321001 WHEREAS, the Community Development Department received an application from Hotel Jerome Inc., represented by Vann Associates LLC, requesting approval of a PUD Amendment, Growth Management Review and Commercial Design Review for 330 East Main Street; and, WHEREAS, upon review of the application and the applicable code standards, the Community Development Department recommended approval of the proposed PUD Amendment, Growth Management Review and Commercial Design Review; and, WHEREAS, the Aspen Planning and Zoning Commission has reviewed and considered the application under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing; and, WHEREAS, the Aspen Planning and Zoning Commission finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements ofthe Aspen Area Community Plan; and, WHEREAS, at a public hearing, which was legally noticed and held at a regular meeting of the Aspen Planning and Zoning Commission on October 3, 2006, at which time the Commission considered and found the application to meet the review standards, and approved a Commercial Design Review and Growth Management Review, and recommended City Council approval of a PUD Amendment, by a vote of 5-0 to the Hotel Jerome Inc., located at 330 East Main Street, City and Townsite of Aspen; and WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Planning and Zoning Commission, the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing; and, JUlllU lUJ lJlJ J JL0~~;~;;;t:2:14 1 '", WHEREAS, during a duly noticed public hearing on November 27, 2006, the Aspen City Council reviewed the proposal and continued the public hearing until December 11, 2006; and WHEREAS, during a duly noticed public hearing on December 11, 2006, the Aspen City Council reviewed the proposal and approved Ordinance No. 42, Series of 2006, by a 5-0 vote, approving with conditions the PUD Amendment for the Hotel Jerome, located at 330 East Main St., Lots A-I and O-S, and the easterly 20; of Lot N, and the easterly 170' of the vacated alley, Block 79, City and Townsite of Aspen; and, WHEREAS, the City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: ,,;<<,< Section 1: Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the City Council hereby approves with conditions, a PUD Amendment in order to construct additions to the Hotel Jerome, located at 330 East Main St., Lots A-I and O-S, and the easterly 20; of Lot N, and the easterly 170' of the vacated alley, Block 79, City and Townsite of Aspen. ,.. Section 2: Approval of the Development Plans Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the applicant shall record the Hotel Jerome Final PUD Development Plan, subject to the following conditions: 1. A PUD Agreement shall be recorded within 180 days of the final approval by City Council and shall include the following: a. The information required to be included in a PUD Agreement, pursuant to Section 26.445.070(C). b. Dimensional approvals as described in Section 3. 1111111111111I11111111 ~~;~~:;!:2'14 JANICE K VOS CAUDILL PITKIN COUNTY CO R 41.00 0 0.00 . 2 JtJl1t JlU UJJ lJlJIR JJ'00~~;~~;;t:2:14 fi'.'~ Iii"" Section 3: Dimensional Approvals The following dimensional requirements of the PUD as required by Section 26.445.040(c) are approved and shall be printed on the Final PUD Plan: ,,.,.... "'., 47,735 sq. ft. N! A: No Dwelling Units 94 lodge units Per Final PUD Plan Per Final PUD Plan Per Final PUD Plan Per Final PUD Plan Per Final PUD Plan Per existing conditions NI A: One structure Per existing conditions Per existing Conditions TOTAL: 114,934 sq. ft. Commercial: 15,985 sq. ft. Hotel Units: 59,214 sq. ft. Other: 39,735 s . ft. 47 spaces; underground Section 4: BuUdin!! Permit Submittal The following conditions are applicable to this approval. a. The buildil1g permit application shall include the following: b. A copy of the final recorded ordinance c. The conditions of approval printed on the cover page of the building permit set. d. A completed tap permit for service with the Aspen Consolidated Sanitation District. e, A tree removal permit as required by the City Parks Department and any approval from the Parks Department Director for off-site replacement or mitigation of any removed trees. f. A fugitive dust control plan which includes proposed construction fencing, watering of haul roads and disturbed areas, daily cleaning of adjacent paved roads, construction speed limits, and other measures necessary to prevent windblown dust from crossing the property line. 2. Prior to issuance of a building permit: 3 "" The primary contractor shall submit a letter to the Community Development Director stating that the conditions of approval have been read and understood. b. All tap fees, impact fees, housing fees and building permit fees shall be paid. If an alternative agreement to delay payment of the Water Tap and/or Parks Impact fee is finalized, those fees shall be payable according to the agreement. a. 3. The Applicant shall complete (prior to any demolition) the Building Department's asbestos checklist, and if necessary, a person licensed by the State to do asbestos inspections must conduct an inspection. The Building Department cannot sign any building permits until submittal of this report. If there is a finding of no asbestos, the demolition can proceed. If asbestos is present, a licensed asbestos removal contractor must remove it. Section 5: Utility and Service Conditions of Approval The following conditions are applicable to this approval. 1. The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. .,.+, ... 2. The Applicant shall comply with the Aspen Consolidated Sanitation District's rules and regulations. No clear water connections (roof, foundation, perimeter drains) shall be allowed to ACSD lines. 3. The Applicant shall meet the requirements of the Fire Marshal. Section 6: En!!ineerin!! Requirements and Conditions: The following conditions are applicable to this approval. I. The Applicant and contractors are hereby notified that there will be no construction material or dumpsters stored on the public rights-of-way unless a temporary encroachment license is granted by the City Engineer. .- 2. The Applicant shall submit a construction management plan, and shall abide by any additional construction management requirements in effect when application is filed for building permit, as part of the building permit application, and the management plans shall include a noise, dust control, and construction traffic and construction parking management plan which addresses, at a minimum, the following issues: a. Defining the construction debris hauling routes and associated impacts on local streets; and b. Construction parking mitigation, except for essential trade trucks, no other personal trucks are to be parked in the area around the site. The '- 4 ~ - ....",.,~.,......,.,"_...~ -~.,,,, '.,', .-....,_...~~......." '^ city encourages that site workers be shuttled in from the airport parking area. 3. The Applicant shall not track mud onto City streets during construction. A washed rock or other style mud rack must be installed during construction. 4. The Applicant shall submit financial assurance in an amount and form acceptable to the City Engineer and City Water Department Director for excavation in the public right-of-way. The Applicant shall also schedule the abandonment of the existing water tap prior to requesting a new water tap. 5. The Applicant shall abide by all noise ordinances. Construction activity is limited to the hours between 7 a.m. and 7 p.m. on Monday thru Saturday. Section 7: Environmental Health The following conditions are applicable to this approval. 1. Pay City of Aspen Air Quality Impact Fee (if in place by building permit submittal). "" Section 8: Lil!htinl! All exterior lighting shall meet the City of Aspen Lighting Code requirements set forth in Land Use Code Section 26.575.150, as may be amended from time to time. A lighting plan will be submitted for review and approval to the Community Development Department prior to building permit issuance. Section 9: Landscapinl! Improvements The following conditions are applicable to this approval. 1. All landscaping in the public right-of-way shall meet the requirements as set forth in Municipal Code Chapter 21.20, Trees and Landscaping on Public Right-of-Way. Any landscaping in the public right-of-way shall be approved by the City Parks Department prior to installation. The Applicant shall obtain a revocable encroachment license from the City Engineering Department prior to installation of any landscaping or improvements in the public right-of-way. 2. The applicant shall submit a Landscape Plan to be reviewed and accepted by the Parks Department. 3. The Applicant shall install tree saving construction fences around the drip line of any trees to be saved or at other points associated with the limit of the foundation as approved by the Parks Department. ,~ 11\\11\ \\111 \\1111 \\1\ 1\111\ 1\1\ \111\\1 III \\1\1 \111 1\\1 :~~~:;~~0:2: 14 JANICE K VOS CAUDILL PITKIN COUNTY co R 41.00 5 A"~ a. The Parks Department must inspect and approve of the fence location before any construction activities commence. b. No excavation, storage of materials, storage of construction equipment, construction backfill, foot or vehicular traffic shall be allowed within the fenced drip line. '~ Section 10: Emplovee Housinl! The following conditions are applicable to this approval: ,........., 3. -- 4. 1. The Applicant shall renovate the Cortina Lodge to accommodate 21 employees. The applicant shall establish four studio units, ranging from 264 square feet to 299 square feet in the Lodge's one-story structure; four dormitory suites that will each contain two bedrooms with a shared bath and individual closets, with suites ranging from 535 square feet to 659 square feet in the Lodge's two-story structure; a common kitchen dining area and laundry. 2. The units shall be deed restricted to APCHA's Category 1 income and occupancy guidelines. A certificate of occupancy shall be issued for the units prior to or concurrent with the issuance of a certificate of occupancy for the renovated Hotel. The applicant shall mitigate one (1) employee through housing at the Cortina Lodge, and shall mitigate the remaining .42 employee via a cash-in- lieu payment. The applicant shall indemnify and hold harmless the Aspen/Pitkin County Housing Authority and City of Aspen from any claims, liability, fees or similar charges related to ownership in the deed restricted affordable housing units. 5. The applicant shall provide a legal instrument permanently ensuring the affordability of the units in a manner acceptable to the City Attorney. The City shall accept a nominal property interest (1/10 of 1 percent undivided interest) or other reasonable means or assurance. If this standard cannot be met, the units shall be transferred as "for sale" units pursuant to the Aspen Pitkin County Housing Authority Guidelines. Section 11: Historic Landmark Desil!nation Applicant shall submit an application for Historic Landmark Designation for the Cortina Lodge, pursuant to Section 26.415.030.B of the Municipal Code, Criteria for listing on the Aspen Inventory of Historic Landmark Sites and Structures, prior to building permit issuance for Hotel Jerome. "'-. Il((I~J~Itt~11lII1(1~ll)'1(1111(UJIIII 11111111 ~~;~~~;;:2: 14 co R 41.00 0 0.00 6 .." Section 12: Inventorv and Treatment of Interior Features The applicant is required to submit a written inventory of all original features existing within those interior areas of the Hotel Jerome that are customarily open to the public, or where the public is typically invited. This inventory must be accompanied by current photographs, and copies of any photographs of the interior of the Hotel Jerome available from the Aspen Historical Society Archives. The Historic Preservation Office will verify the completeness of the inventory. Any overlooked elements that can be documented as original will be added to the list. Said inventory shall identify proposed treatment of the items that are on the inventory. The inventory shall be reviewed by the City's Historic Preservation Officer. To the extent that there is a disagreement to the proposed treatment, the applicant may appeal to the City Manager. The City Manager's decision in the matter shall be subject to an appeal to the City Council as a de novo review. Once the proposed treatment is agreed to by the City and the applicant, no changes shall be allowed without the consent of the City's Historic Preservation Officer, subject to the appeal provisions set forth above. .- Section 13: Park Development Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a park development impact fee. The City of Aspen Zoning Officer shall calculate the amount due using the calculation methodology and fee schedule in effect at the time of building permit submittal. "'-. Section 14: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 15: This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 16: If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. \oo..u JtJl11 JlU lUJ lJt IJ 11'00~~;~i;;t:2:14 7 '.<- '~. Section 17: A public hearing was held on the 27th day of November, 2006, at 5:00 PM in City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED this 23rd day of October 2006. Attest: FINALLY, adopted, passed and approved by the Aspen City Council this 11th day of December, 2006. Attest: -- - Approved as to form: ~ . ttorney 1111111111111111111111 :~~~~:;;:2: 14 JANICE K vas CAUDILL PITKIN COUNTY CO R 41.00 0 0.00 .--'- - 8 1111111111111111111111 ~~~~~~:~~;: 241 JANICE K VOS CAUDILL PITKIN caUNTT co R 116.00 0 0.00 2007 HOTEL JEROME PUD AGREEMENT THIS 2007 HOTEL JEROME PUD AGREEMENT (the "2007 PUD Agreement") is made and entered into this 3 () day of ,2007, by and between THE CITY OF ASPEN, COLORADO, a municipal co oration (he einafter referred to as "City"), and HOTEL JEROME, INC., a Delaware corporation (hereinafter referred to as "Owner"), WIT N E SSE T H: WHEREAS, Owner has submitted to the City an application (the "Application") for a PUD Amendment to permit the renovation of the Hotel Jerome property located at 330 East Main Street in Aspen, Colorado, said property being more particularly described as Lots A-I and Lots O-S and the Easterly 20 feet of Lot N and the Easterly 170 feet of the vacated alley, all in Block 79, City and Townsite of Aspen, Pitkin County, Colorado (the "Hotel Jerome Property"), and the renovation of the Cortina Lodge property described as Lots P and Q, Block 73, City and Townsite of Aspen, Pitkin County, Colorado (the "Cortina Lodge Property") (collectively, the "Property"), which application requests the approval and recordation of a Hotel Jerome Final PUD Development Plan and related documents (collectively, the "Final PUD Development Plan"); and WHEREAS, City has fully considered the Application, the Final PUD Development Plan, the proposed development and improvement of the Property, and the effects of the proposed development and improvement of said Property on adjoining or neighboring properties and property owners and on the Aspen community; and has determined that the development proposal set forth in the Application meets or exceeds all applicable development standards and that the approval of the Application, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and WHEREAS, City has imposed certain conditions and requirements in connection with its approval of the Application and its approval and recordation of the Final PUD Development Plan, such matters being necessary to protect, promote and enhance the public welfare; and I I I WHEREAS, Owner is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by City in approving the Application and the Final PUD Development Plan; and WHEREAS, under the authority of Sections 26.445.070.C and 26.480.070. C and D of the Aspen Municipal Code, City is entitled to certain financial guarantees to ensure (i) that the required improvements to the public right-of-way are installed and (ii) that the required landscaping is implemented and maintained, and Owner is prepared to provide such guarantees as hereinafter set forth; and WHEREAS, contemporaneously with the execution and recording of this 2007 PUD Agreement, City and Owner have recorded the Final PUD Development Plan as Reception I 1111 " '" I I III" 111111 ~~;~~~! ~~. 24' J~NICE K VOS CAUDILL PITKIN COUNTY CO R 116.00 0 0.00 . No. ~ge7' in the Office of the Clerk and Recorder of Pitkin County, Colorado. I \ I NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and the approval and acceptance for recordation by City of the Final PUD Development Plan, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: I I I ARTICLE I PURPOSE AND EFFECT OF 2007 PUD AGREEMENT 1.1 Purpose. The purpose of this 2007 PUD Agreement is to set forth the complete and comprehensive understanding and agreement of the parties with respect to the renovation of the Hotel Jerome and the Cortina Lodge and to enumerate all terms and conditions under which such renovations may occur. 1.2 Effect. It is the intent of the parties that this 2007 PUD Agreement shall effectively supersede and replace in their entirety certain previously recorded plats, PUD agreements, protective covenants, and land use approvals that encumber the Hotel Jerome Property and/or the Cortina Lodge Property, including without limitation those matters identified in Article VI below (collectively, the "Prior Instruments and Approvals"), and City and Owner agree to cooperate in the execution and recording of such documents as may be necessary or appropriate to accomplish the vacation and/or termination of said Prior Instruments and Approvals. The parties anticipate that these recordings will take place contemporaneously with the recording of the Final PUD Development Plan. However, a delay in the recording of any such vacation/termination documents shall not affect or delay the recording of this 2007 PUD Agreement or the Final PUD Development Plan. All prior land use approvals associated with the Hotel Jerome Property that are not identified as Prior Instruments and Approvals in Article VI below shall remain unmodified hereby and in full force and effect. ARTICLE II ZONING AND REGULATORY APPROVALS 2.1 Approval Ordinance and Resolutions. I (a) Pursuant to Ordinance No. 42 (Series of 2006) adopted on December II, 2006, the Aspen City Council granted final approval of a PUD Amendment for the Hotel Jerome including an extensive renovation of the existing Hotel Jerome, an expansion of the Hotel's existing net leasable commercial area, the reconfiguration and renovation of the Hotel's Main Street and Mill Street courtyards, and the elimination of a prior condition that a portion of the Hotel's parking garage be reserved for Hotel employees. The PUD Amendment also approved the renovation of the existing Cortina Lodge to meet the Hotel's employee housing mitigation requirements. I I . I I I I (b) Pursuant to Resolution No. 37 (Series of2006) adopted on December 13, 2006, the City of Aspen Historic Preservation Commission (the "HPC") granted final development plan approval for the contemplated renovation of the Hotel Jerome. 2 I \ "III "III "\1\1 "II IIIIII \,,\ 1111"1 III "I" IIII 1"1 ~~~~:;~~0~;: 241 JANICE K VOS CAUDILL PITKIN COUNTY CO R 116.00 (c) Pursuant to Resolution No.6 (Series of2006) adopted on March 8, 2006, the HPC granted minor development approval for the renovation of the Cortina Lodge. (d) This 2007 PUD Agreement incorporates all of the pertinent provisions of Ordinance No. 42 and HPC Resolution Nos. 6 and 37. In the event of any inconsistency between the provisions of Ordinance No. 42, HPC Resolution No.6 and/or HPC Resolution No. 37, and the provisions of this 2007 PUD Agreement, the provisions of this 2007 PUD Agreement shall control. 2.2 Dimcnsional Requirements for Hotcl Jerome. Ordinance No. 42 established and approved the following dimensional requirements for the Hotel Jerome PUD: (a) Minimum Lot Size (b) Minimum Lot Area Per Dwelling Unit (c) Maximum Allowable Density (d) Minimum Lot Width> (e) Minimum Front Yard Setback> (I) Minimum Side Yard Setbacks> (g) Minimum Rear Yard Setback> (h) Maximum Height (i) Minimum Distance Between Buildings G) Minimum Percent Open Space> (k) Trash Access Area (I) Allowable Floor Area Commercial: Lodge Units: Other: (m) Minimum Off-Street Parking 47,735 sq. ft. N/A-No Dwelling Units 94 Lodge Units 170 feet None None None 54 feet at Northeast Corner of Existing Building N/A-Single Structure Per Existing Conditions Per P&Z Resol. No. 8-86 114,934 sq. ft. 15,985 sq. ft. 59,214 sq. ft. 39,735 sq. ft. 47 spaces > Per Land Survey Plat dated October 24, 2006 to be recorded with Final PUD Development Plan 2.3 Vested Ri!!hts. Under Development Order of the City of Aspen Community Development Department issued January 5, 2007 with an effective date of January 14,2007 (the "Development Order"), the right to undertake and complete the development and use of the Hotel Jerome Property and the Cortina Lodge Property pursuant to the terms and provisions of this 2007 PUD Agreement and the Final PUD Development Plan is vested until January 14, 2010, and shall not be altered, impaired, diminished or delayed by any subsequent zoning or land use action that is prohibited by Section 24-68-105(1) of the Colorado Revised Statutes. In accordance with the requirements of CRS Section 24-68-1 03(b), a properly noticed public hearing concerning the establishment of such vested rights for the Property was conducted on December 11,2006. As authorized by CRS Section 24-68-I02(4)(a), City and Owner agree that the site specific plan for the Property consists of and includes, but is not limited to, the number, permitted size, and configuration of the Hotel's lodge units, the commercial areas, the parking 3 I I WJJI II II III 1111 1111 II "III ~~;~~::!~;. 241 K VOS COUOILL PITKIN COUNTY CO R 116.00 0 0.00 . spaces, and the other spaces and areas in the Hotel Jerome; the number, permitted size, and configuration of the affordable housing units and the other spaces and areas in the Cortina Lodge; the number of employees mitigated by the Cortina Lodge; and all other matters set forth in Ordinance No. 42 (Series of 2006), HPC Resolution Nos. 6 and 37 (Series of2006), the Hotel Jerome Final PUD Development Plan recorde~~Y'~ , 2007 as Reception No. ~"39.t'7, this 2007 Hotel Jerome PUD Agreement, and all other documents and plans recorded concurrently therewith. For purposes of this Section 2.3, this 2007 PUD Agreement shall be considered a "development agreement" as that term is used in CRS Section 24-68- 104(2). ARTICLE III DEVELOPMENT REQUIREMENTS AND RESTRICTIONS - HOTEL JEROME 3.1 Hotel Jerome Component. The renovated Hotel Jerome will contain (i) 94 lodge units containing a maximum of 59, 214 square feet of floor area, calculated in accordance with the City's floor area regulations in effect on January 5, 2007 (the date of the Development Order), which floor area regulations are attached hereto as Exhibit A and made a part hereof by this reference (the "Floor Area Regulations"), (ii) 14,891 square feet of net leasable commercial area, (iii) 47 parking spaces located in the Hotel garage, and (iv) various back-of-house facilities and areas containing a maximum of39,735 square feet of floor area. The prior requirement that 27 of the Hotel's on-site parking spaces be reserved for Hotel employees is hereby fully and forever waived and terminated. 3.2 Cortina Lod!!e Component. (a) The renovated Cortina Lodge will contain (i) four (4) studio units in the Lodge's one-story structure, ranging from 264 square feet to 299 square feet of net livable area, (ii) four (4) two-bedroom dormitory suites with a shared bath and individual closets in the Lodge's two-story structure, ranging from 535 square feet to 659 square feet of net livable area, and (iii) a common kitchen, dining area and laundry. The net livable areas set forth above are approximations only, and the final unit sizes will be in substantial conformity therewith. City hereby approves the foregoing variation of the Aspen/Pitkin County Housing Authority ("APCHA") minimum size requirements for Category I units. The renovated Cortina Lodge shall be credited with housing 21 employees. I I (b) The eight (8) affordable housing units in the Cortina Lodge (the "Affordable Housing Units") must be deed restricted to APCHA's Category I income and occupancy rental guidelines, and a Certificate of Occupancy must be issued therefor, before a Certificate of Occupancy will be issued for the Hotel Jerome renovation. The deed restriction will be in substantial conformity with the form of Deed Restriction attached hereto as Exhibit B and made a part hereof by this reference. The Deed Restriction provides that any units not rented to Hotel Jerome employees may be rented to any employee that qualifies under APCHA Guidelines. 4 I I I I JANICE K vas Cr=lUDILL PITKIN COUNTY CO R 116.00 D 0.00 (c) The Declaration of Covenants, Restrictions and Conditions for the Cortina Lodge recorded December 15,1988 in Book 581 at Page 332; Resolution No. I (Series of 1987) of the Aspen City Council recorded June 6, 1990 in Book 622 at Page 347; and the Amendment to Cortina Declaration of Covenants, Restrictions and Conditions recorded June 12, 1991 in Book 648 at Page 373, will be deemed fully and forever terminated upon'the recording of the new Deed Restriction on the Affordable Housing Units, a copy of which is attached hereto as Exhibit B. (d) Unless a different arrangement is worked out with the City, and only to the extent necessary to comply with applicable Colorado law, at the time ofrecording of the deed restriction Owner will convey a one-tenth of one percent interest in the Cortina Lodge Property to APCHA. Said one-tenth of one percent interest is hereinafter referred to as the "APCHA Interest". The conveyance of the APCHA Interest shall be expressly subject to the understanding and agreement of Owner and APCHA that (i) ownership of the APCHA Interest only gives APCHA the right to enforce the deed restriction on the Affordable Housing Units, and does not give APCHA any authority or rights that are not specifically set forth in the deed restriction, (ii) in all other respects, APCHA shall be deemed to have no ownership interests, rights or responsibilities in connection with the AffordableHousing Units or the Cortina Lodge Property, and the record owner of the remaining interest in the Cortina Lodge Property shall have full right and authority to lease, encumber, or otherwise deal with the Cortina Lodge Property and the Affordable Housing Units therein as if such owner held a 100 percent ownership interest therein, (iii) APCHA shall have no liability to third persons arising solely out of its ownership of the APCHA Interest, and Owner (and any successor or assign of Owner in the ownership of the Cortina Lodge Property) shall indemnify APCHA and the City from and against any claims, liabilities, losses, damages, fees or expenses arising solely out of the ownership of the APCHA Interest, and (iv) the APCHA Interest will be conveyed to the then record owner of the remaining interest in the Cortina Lodge Property if and when the Colorado legislature or a court of competent jurisdiction legalizes the imposition of rent restrictions on affordable housing units. (e) Owner reserves the right to provide substitute affordable housing for the affordable housing being provided in the Cortina Lodge, subject to the prior approval of the City of Aspen. I I 3.3 Affordable Housinl! Mitil!ation. The renovated Hotel Jerome's additional net leasable commercial area will require affordable housing mitigation for a total of 1.42 employees, one (I) of which will be housed at the renovated Cortina Lodge. The remaining 0.42 employees will be mitigated by a cash-in-lieu payment by Owner to the City prior to issuance of a Building Permit for the Hotel renovations. The amount of such payment shall be calculated based on an average of APCHA's Category 2 and Category 3 payment-in-lieu fees in effect at the time of Building Permit submittal. 3.4 Construction in Accordance with Plans and HPC Resolutions. 5 I I I 1111111111111111 111111 ~~~;~~::~~; : 24F JANICE K VOS CAUDILL PITKIN COUNTY CO R 116.00 D 0.00 (a) Hotel Jerome. The Hotel Jerome renovation, and all of its component parts, shall be accomplished in substantial compliance with the Hotel Jerome Final PUD Development Plan and with all architectural plans and elevations, utility plans, drainage plans, and landscape plans that are recorded contemporaneously with the recording of this 2007 PUD Agreement. In addition, the Hotel Jerome renovation shall comply with the conditions of approval set forth in HPC Resolution No. 37 (Series of 2006), to wit: (i) All replacement windows on the ground floor must be of wood. Upper floor windows are permitted to be clad. Cut sheets must be submitted for review and approval by HPC staff and monitor. Ifthere are any historic windows left on the building, they must be repaired and preserved. Tinted glass is not approved for any of the window units. Detailed drawings of the window openings proposed to be restored at the sidewalk level on the east fayade must be reviewed and approved by HPC staff and monitor. (ii) Awnings are only approved for the J-Bar and "Jerome Shop" spaces. The proposed awnings must be redesigned for review and approval by HPC staff and monitor in order to more closely match the historic awnings. The awnings for the J-Bar and "Jerome Shop" will be retractable and removable. Upper awnings must be mocked-up for review and approval or denial by the HPC Board. HPC staff and monitor will review proposed signage. (iii) Metal balcony railings on the exterior of the building must be mocked-up for review and approval or denial by the HPC Board. (iv) No new column features or materials that are inconsistent with the design of the original columns can be added. (v) The Final Lighting Plan must be reviewed and approved by HPC staff and monitor, as set forth in Section 3.8(a) below. The proposed decorative exterior light fixtures, in particular sconces, must be restudied to be less contemporary. The HPC Board supports a design competition for the pendant lamp at the Hotel entry, with the understanding that the HPC staff and monitor must still grant approval. (vi) Any historic materials must be repaired in place, and to the extent that portions of the parapet require reconstruction, it should be based on documented evidence and photographs of the original appearance. I (vii) All other masonry repairs, including cleaning, repointing, application of a sealer, etc., will require further information and approval by HPC staff and monitor. (viii) The sidewalk treatment must be reviewed and approved by staff and monitor. 6 (ix) There shall be no deviations from the exterior elevations as approved without first being reviewed and approved by HPC staff and monitor, or the full HPC Board. I I I (x) These conditions of approval must be printed on the cover sheet of the building permit plan set and all other prints made for the purpose of construction. I I I I I I (b) Cortina Lodl!e. The Cortina Lodge renovation and reconfiguration, and all component parts thereof, shall be accomplished in substantial compliance with the architectural plans and elevations therefor that are recorded contemporaneously with the recording of this 2007 PUD Agreement. In addition, the Cortina Lodge renovation and reconfiguration shall comply with the conditions of approval set forth in HPC Resolution No.6 (Series of2006), to wit: (i) Owner shall provide further information about lighting and any exterior utilities or conduit for review and approval by HPC staff and monitor before purchase or installation of same. (ii) Owner shall retain existing door and window openings wherever possible, even if such openings are made non-functional. Revisions shall be reviewed by HPC staff and monitor. (iii) Owner shall install a front door on the two-story structure and a more appropriate window on the laundry room, guided by old photographs if available. (iv) There shall be no deviations from the exterior elevations as approved without first being reviewed by HPC staff and monitor, or by the full HPC board. (v) These conditions of approval shall be printed on the cover sheet of the building permit plan set and on all other prints made for the purpose of construction. (vi) Owner shall provide the contractor with a copy of HPC Resolution No.6 (Series of 2006), and the contractor shall submit a letter addressed to HPC staff as part of the building permit application indicating that all conditions of approval contained in said Resolution are known and understood. The contractor shall also meet with the Historic Preservation Officer prior to applying for the building permit. 3.5 Guest Transportation. Owner shall provide transportation within the City of Aspen and Aspen airport pickup and delivery for the guests of the Hotel Jerome. Any vehicle owned, possessed or operated for such purpose by Owner shall be stored in the Hotel's underground garage when not in operation. 3.6 Inventory and Treatment of Interior Features of Hotel Jerome. (a) Prior to or contemporaneously with submittal of an application for a building permit for the Hotel Jerome renovation, Owner shall submit to the Historic 7 I I I I 1111111111111111111111 :~~~~~:;~;: 24f JANICE K VOS CRUDILL PITKIN COUNTY CO R 116.00 0 0.00 Preservation Officer a written inventory of all original features existing within those interior areas of the Hotel Jerome that are customarily open to the public, or where the public is typically invited. The inventory must be accompanied by current photographs, and copies of any photographs of the interior of the Hotel Jerome available from the Aspen Historical Society Archives. I (b) The City's Historic Preservation Officer shall review the inventory and shall verify the completeness thereof. Any overlooked elements that can be documented as original shall be added to the inventory. The inventory shall also identify the proposed treatment of the items on the inventory. To the extent there is any disagreement between Owner and the Historic Preservation Officer, the Owner may appeal the matter to the City Manager. The City Manager's decision in the matter shall be final, unless such decision is appealed by the Owner to the City Council, which body shall then conduct a de novo review of the issue. (c) Once the proposed treatment is mutually agreed upon by City and Owner, no changes in treatment shall be allowed without the prior consent of the Historic Preservation Officer, subject to the appeal rights of Owner described in Section 3.6(b) above. I I 3.7 Cortina Lodl!e Historic Landmark Desil!nation. Before a building permit is issued for the renovation of the Hotel Jerome, Owner shall submit to the HPC an application for Historic Landmark Designation for the Cortina Lodge pursuant to Section 26.415.030.B of the Aspen Municipal Code, "Criteria for Listing on Aspen Inventory of Historic Landmark Sites and Structures". 3.8 Hotel Jerome Landscape Improvements. (a) Owner shall record a Conceptual Landscape Plan for the Hotel Jerome Property as part ofthe Final PUD Development Plan, and shall submit a Final Landscape Plan for the Hotel Jerome Property for review and approval by the City Parks Department and the HPC staff and monitor prior to issuance of a building permit for the Hotel renovation (the "Final Landscape Plan"). Owner shall be responsible for implementing the Final Landscape Plan, and landscaping improvements shall be accomplished as subdivision improvements in accordance with Article IV of this 2007 PUD Agreement. (b) All landscaping in the public right-of-way shall meet the requirements set forth in Municipal Code Chapter 21.20, Trees and Landscaping on Public Right-of-Way, and shall be approved by the City Parks Department prior to installation. Before installing any landscaping or other improvements in the public right-of-way, Owner shall obtain a Revocable Encroachment License (in the event required) from the City Engineering Department. (c) Owner shall obtain a tree removal permit from the Parks Department and pay the applicable tree removal fee (in the event required) prior to issuance of a building I I 8 1111111111111111 111111 ~~~~~~:~ ~~: 24~ JANICE K vas CAUDILL PITKIN COUNTY CO R 116.00 D 0.00 permit for the Hotel renovation. The permit shall be submitted with the building permit application. I (d) Owner shall install tree saving construction fences around the drip line of any trees to be saved on the Hotel Jerome Property as approved by the Parks Department. The Parks Department must inspect and approve the fence location before any construction activities commence. No storage of materials, storage of construction equipment, construction backfill, or foot or vehicular traffic shall be allowed within the fenced drip line. Any work and/or minor excavation for the installation of additional landscaping, property fences and surface materials located within the drip line protection zone will be required to be hand excavation only with no over digging. All work within the drip line requires oversight from the Parks Department for approval of soil amendments, root pruning and grade changes. Excavations outside of the tree protection zone shall address tree and root protection in the following way: All roots shall be cut prior to full excavation using a clean sharp pruning saw; all roots will be cut flush with the exposed soil line; six inches of mulch is required to be placed within the zone of vegetation protection and maintained at a level of six inches during the entire project; irrigation of trees is required throughout the entire duration of the project with the contractor supplying water to the trees at a rate which is appropriate for proper health. burlap shall be placed over the edge of the excavation covering all freshly cut roots; contractor will irrigate the burlap with an appropriate amount of water in order to keep the burlap moist, preventing the ends of the roots from drying out. I 3.9 Utilities. I I I (a) Owner shall comply with the City of Aspen Water System Standards, with Title 25, and with applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City Water Department. I (b) Owner shall comply with the Aspen Consolidated Sanitation District's rules and regulations. No clear water connections (roof, foundation, perimeter drains) shall be allowed to ACSD lines. A completed tap permit for service with the District shall be submitted with the building permit application for the Hotel renovation. (c) Owner shall comply with all Fire Marshal requirements in connection with the Hotel renovation. 3.10 Enl!incerinl! Requirements and Conditions. (a) No construction material or dumpsters shall be stored on the public rights- of-way unless a temporary encroachment license is obtained from the City Engineer. (b) Owner shall submit a construction management plan to the City Engineering Department with the building permit application for the Hotel renovation, and shall abide by any additional construction management requirements in effect when 9 1111111111111111 111111 :~~;~~:0~f 0~3 241 JANICE K VOS CAUDILL PITKIN COUNTY CO R 116.00 0 0.00 the building permit application is filed. The management plan shall include a noise, fugitive dust control, and construction traffic and construction parking management plan which address, at a minimum, the following issues: (i) A fugitive dust control plan including proposed construction fencing, watering of haul roads and disturbed areas, daily cleaning of adjacent paved roads, construction speed limits, and other measures necessary to prevent windblown dust from crossing the property line. (ii) A description of construction debris hauling routes and associated impacts on adjoining streets; and (iii) Construction parking mitigation. Except for essential trade trucks, no other personal trucks shall be parked in the area around the site. The City encourages that site workers be shuttled in from the airport parking area. (iv) Owner shall not track mud onto City streets during construction. A washed rock or other style mud rack must be installed during construction. I I I I (v) Owner shall abide by all noise ordinances. Construction activity is limited to the hours between 7:00 a.m. and 7:00 p.m. on Monday through Saturday. 3.11 Air Quality Impact Fee. Before a building permit is issued for the Hotel renovation, Owner shall pay to the City an Air Quality Impact Fee in an amount calculated in accordance with the regulations in effect at the time of building permit submittal. I 3. I 2 Park Development Impact Fee. Before a building permit is issued for the Hotel renovation, Owner shall pay to the City a Park Development Impact Fee in an amount calculated in accordance with the methodology and fee schedule in effect at the time of building permit submittal. No new bedrooms or commercial space are being created at the Cortina Lodge, hence no Park Development Impact Fee is due and payable in connection with that project. 3.13 School Land Dedication Fee. No School Land Dedication Fee is required for either the Hotel renovation or the Cortina Lodge renovation, as no subdivision of either Property is occurring or approved. 3.14 Exterior Lil!htinl!. All exterior lighting within the Hotel Jerome Property shall comply with Section 26.575.150, Outdoor Lighting, of the Aspen Municipal Code unless otherwise exempted by the Community Development Director. A Lighting Plan shall be submitted for review and approval by the HPC Monitor prior to issuance of a building permit for the Hotel renovation. 3.15 Buildinl! Permit Matters. Prior to issuance of a building permit for the Hotel renovation, the following shall occur: 10 I I I II " " 1111111111 """ ~~;~~t~f 0~3 24F JANICE K VOS CAUDILL PITKIN COUNTY CO R 116.00 0 0.00 . (a) The primary contractor shall submit a letter to the Community Development Director and to HPC staff stating that the conditions of approval of the Hotel renovation have been read and understood including, without limitation, the conditions set forth in HPC Resolution No. 37 (Series of 2006), and must meet with the Historic Preservation Officer before submitting the building permit application. (b) The primary contractor and/or superintendent shall obtain a specialty license in historic preservation. (c) All tap fees, impact fees, housing fees and building permit fees shall be paid. If an alternative agreement to delay payment of the Water Tap and/or Parks Impact fee is finalized, those fees shall be payable according to the agreement. (d) Prior to any demolition, Owner shall complete the Building Department's asbestos checklist and, if necessary, a person licensed by the State of Colorado to perform asbestos inspections shall conduct an inspection. The Building Department cannot sign any building permits until submittal of this report. If there is a finding of no asbestos, the demolition can proceed. If asbestos is present, a licensed asbestos removal contractor must be retained to remove it. ARTICLE IV A. HOTEL JEROME LANDSCAPING IMPROVEMENTS Owner shall complete the landscaping of the Hotel Property and of the adjoining public right-of-way in accordance with the Final Landscape Plan referred to in Section 3.8(a) above, no later than six (6) months following the issuance of a Certificate of Occupancy for the Hotel renovation. Owner shall be responsible for ensuring the success of all landscaping installed pursuant to the Final Landscape Plan for a period of two (2) years following the date of installation, and shall replace any landscaping that fails during such two (2) year period. Owner or it successors or assigns shall have the right to plant additional native vegetation within the Hotel Property, as it may consider appropriate from time to time, without further approvals being required. Before a building permit is issued for the renovation, Owner shall provide the City Engineering Department and the City Parks Department with a cost estimate for the proposed landscaping improvements (including two (2) years of maintenance thereof) prepared by a landscaping contractor licensed in the State of Colorado, and the Engineering Department shall approve the cost estimate. B. FINANCIAL ASSURANCES In order to ensure construction and installation of the landscaping improvements described in Section A above, and to guarantee 125 percent of the approved estimated cost of the landscaping improvement (including two (2) years of maintenance thereof), Owner shall provide to the City an irrevocable letter of credit from a financially responsible lender in the amount of the approved estimated cost of such landscaping improvements. Said letter of credit shall be provided to the City prior to the issuance of a building permit for the Hotel renovation, shall be II 1111111111111111 111I II ~~;~~~0~f 0~~ 24f JANICE K VOS CAUDILL PITKIN COUNTY CO R 116.00 0 0.00 in a form reasonably acceptable to the City Attorney and the City Manager, and shall give the City the unconditional right, upon default by Owner, to draw funds as necessary and upon demand to partially or fully complete and/or pay for any of such improvements or pay any outstanding and delinquent bills for work done thereon by any party, with any excess letter of credit amount to be applied first to additional administrative or legal costs associated with any such default and the repair or deterioration in improvements already constructed before the unused remainder, if any, of such letter of credit is released to Owner. Provided, however, that Owner shall be given fourteen (14) days' written notice of default (and the right to cure during said period) prior to the City's ability to make a draw under the letter of credit. Notwithstanding the foregoing, delays or other problems resulting from acts of God or other events beyond the reasonable control of Owner shall not constitute a default hereunder so long as a good faith effort is being made to remedy the problem and the problem is in fact resolved within a reasonable period of time following its occurrence. As portions of the improvements required are completed, the City Engineer shall inspect them, and upon approval and written acceptance, he shall authorize a reduction in the outstanding amount of the letter of credit equal to the agreed estimated cost for the completed portion of the improvements; provided, however, that twenty-five percent (25%) of the estimated cost thereof shall be retained until the landscaping improvements have been maintained in a satisfactory condition for two (2) years. It is the express understanding of the parties that compliance with the procedures set forth in Article V below pertaining to defaults under and amendments to this 2007 PUD Agreement shall not be required with respect to the enforcement and implementation of these financial assurances and guarantees to be provided by Owner as set forth above. ARTICLE V NON-COMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS In the event that the City Council determines that Owner is not acting in substantial compliance with the terms of this 2007 PUD Agreement, the City Council shall notify Owner in writing specifying the alleged non-compliance and asking that Owner remedy the alleged non- compliance within such reasonable time as the City Council may determine, but not less than 30 days. rfthe City Council determines that Owner has not complied within such time, the City Council may issue and serve upon Owner a written order specifying the alleged non-compliance and requiring Owner to remedy the same within thirty (30) days. Within twenty (20) days of the receipt of such order, Owner may file with the City Council either a notice advising the City Council that it is in compliance or a written petition requesting a hearing to determine anyone 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 2007 PUD Agreement should be granted with respect to any such non-compliance which is determined to exist. I 12 1111111111111111 111111 :7~;~~f0~f 0~: 24' JRNICE K vas CAUDILL PITKIN COUNTY CO R 116.00 0 0.00 . I I Upon the receipt of such petition, the City Council shall promptly schedule a hearing to consider the matters set forth in the order of non-compliance 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, including the imposition of daily fines until such non-compliance has been remedied, the withholding of permits and/or certificate of occupancy, as applicable; provided, however, no order shall terminate any land use approval. The City Council may also grant such variances, extensions of time or amendments to this 2007 PUD Agreement 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 hereunder if Owner demonstrates by a preponderance of the evidence that the reasons for the delay(s) which necessitate said extension(s) result from acts of God or other events beyond the reasonable control of Owner, despite good faith efforts on its part to perform in a timely manner. ARTICLE VI PRIOR INSTRUMENTS AND APPROVALS 6.1 Amended and Restated Planned Unit Development Agreement - Hotel Jerome - Renovation and Addition recorded September 15, 1986 in Book 5 I 8 at Page 92 I as Reception No. 281483. 6.2 Supplemental PUD Agreement - Hotel Jerome recorded June 12, 1991 in Book 648 at Page 376 as Reception No. 333508 and rerecorded July 9, 1991 in Book 650 at Page 952 as Reception No. 334427. 6.3 Amended and Restated Planned Unit D&velopment Plat - Hotel Jerome - recorded September 15, 1986 in Plat Book 19 at Pa~ and related drawings recorded contemporaneously therewith. 6.4 Second Amendment to Amended and Restated Planned Unit Development Plat- Hotel Jerome - recorded July I, 1991 in Plat Book 26 at Page 89. 6.5 Ordinance No. 70 (Series of 1990) of the Aspen City Council, amending the Final PUD Development Plan for the Hotel Jerome. 6.6 Declaration of Covenants, Restrictions and Conditions for the Cortina Lodge recorded December 16,1988 in Book 581 at Page 332 as Reception No. 307031. I I I I 6.7 Amendment to Cortina Declaration of Covenants, Restrictions and Conditions recorded June 12, 1991 in Book 648 at Page 373 as Reception No. 333507. 6.8 Resolution No. 1 (Series of 1987) of the Aspen City Council, granting substitution of Cortina Lodge Employee Units for On-Site Hotel Jerome Employee Units, recorded June 6, 1990 in Book 622 at Page 347 as Reception No. 323313. 13 il((~J~/l(~I~111(lfllll)IJI1II1(~lllllll 1111111 ~~;~~f~f 0~724J co R 116.00 00.00 ARTICLE VII GENERAL PROVISIONS 7.1 The provisions hereof shall be binding upon and inure to the benefit of Owner and City and their respective successors and assigns. I 7.2 This 2007 PUD Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 7.3 If any of the provisions of this 2007 PUD Agreement or any paragraph, sentence, clause, phrase, word, or section or the application thereof in any circumstance is invalidated, such invalidity shall not affect the validity of the remainder of this 2007 PUD Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstance shall not be affected thereby. 7.4 This 2007 PUD Agreement and the exhibits attached hereto contain the entire understanding between the parties hereto with respect to the transactions contemplated hereunder. Owner, its successors or assigns, may, on its own initiative, petition the City Council for an amendment to this 2007 PUD Agreement or for an extension of one or more of the time periods required for performance hereunder. The City Council shall not unreasonably deny such petition for amendment or extension after considering all appropriate circumstances. Any such amendments or extensions of time shall only become effective upon the execution by all parties hereto that are affected by the proposed amendment. 7.5 Numerical and title headings contained in this 2007 PUD Agreement are for convenience only, and shall not be deemed determinative of the substance contained herein. As used herein, where the context requires, the use of the singular shall include the plural and the use of any gender shall include all genders. I I I I 7.6 Upon execution of this 2007 PUD Agreement by all parties hereto, City agrees to approve the Final PUD Development Plan and to accept the same for recordation in the office of the Clerk and Recorder for Pitkin County, Colorado, upon payment of the recordation fees by Owner. 7.7 Notices to be given to the parties to this 2007 PUD Agreement shall be considered to be given if hand delivered or if deposited in the United States Mail to the parties by registered or certified mail at the addresses indicated below, or such other addresses as may be substituted upon written notice by the parties or their successors or assigns: 14 I II II II II 1111111111 1111/// II II I II ;'~e~~~~f23 JANICE K VOS CRUDILL PITKIN COUNTY CO R 01/30/2007 02:24F 116.00 0 0.00 CITY: City of Aspen City Manager 130 South Galena Street Aspen, CO 81611 With Copy to: Hotel Jerome, Inc. c/o The Broadmoor Hotel P.O. Box 1439 Colorado Springs, CO 80901 Arthur C. Daily, Esq. Holland & Hart LLP 600 East Main Street Aspen, CO 8161 I OWNER 7.8 This 2007 PUD Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart. Facsimile signatures shall be treated as original signatures hereon. I I 7.9 The terms, conditions, provisions and obligations herein contained shall be deemed covenants that run with and burden the Property and any and all owners thereof or interests therein, their respective successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their respective successors, grantees or assigns. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: City of Aspen, Colorado, a Colorado municipal corporati By: Attest: ~~ ltJe~A.!itl;~fj;</4/iJ\ Kathryn S. Koch, City Cler . APPROVED AS TO FORM: ~~ n orcester, City Attorney 15 OWNER: Hotel Jerome, Inc. By: ~ Its: II . ~ . I STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 30o/4,ay of ~ 2007, by Helen Klanderud as Mayor and Kathryn S. Koch as City Clerk of he City of en, Colorado, a municipal corporation. Witness my hand and official seal. STATE OF COLORADO COUNTY OF ~\ PettA} ) ) ss. My commission expires: 04/1'1/2-00 T . The foregoing instrument was acknowledged before me this a,5"t. day of ::ro...'f'l\l.l\ ~ ~ ,2007, by ~c:l,~"-e.>l\. ~o.r-\-D\. f'- as y.j/ Jerome, Inc., Colorado corporation. of Hotel Witness my hand and official seal. -3llqtOq ~~cU -Ph&~) Notary Public j~~I!~RMJwm~I~lf~"~11 ;;~;~~"~" -- ... R 116.00 0 0.00 16 EXHIBIT 1111111111111111111111 ~~~;~~f0~f 0~724f JFlNICE K vas CFlUDILL PITKIN COUNTY CO R 116.00 0 0.00 Sections: 26.575.010 26.575.020 26.575.030 26.575.040 26.575.045 26.575.050 26.575.060 26.575.070 26.575.080 26.575.090 26.575.100 26.575.110 26.575.120 26.575.130 26.575.140 26.575.150 26.575.160 26.575.170 26.575.180 26.575.190 26.575.200 ~ 3 .4 Chapter 26.575 MISCELLANEOUS SUPPLEMENTAL REGULATIONS General. Calculations and measurements. Open Space. Yards. Junk Yard and Service Yards. Fences. Utility/trash service areas. Use square footage limitations. Child care center. Home occupations. Landscape maintenance. Building envelopes. Satellite dish antennas. Wireless Telecommunication Services Facilities and Equipment Accessory uses and accessory structures. Outdoor Lighting. Dormitory. Fuel storage tanks Restaurant. Farmers' market. Group Homes. 26.575.010 General. Regulations specified in other sections of this Title shall be subject to the following supplemental regulations. 26.575.020 Calculations and measurements. The purpose ofthis Section is to set forth supplemental regulations which relate to methods for calculating and measuring certain enumerated terms as used in this Title. The definitions ofthe terms are set forth at Section 26.1 04.1 00. A. Floor area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: I. General. In measuring floor area for the purposes of calculating floor area ratio and allowable floor area, there shall be included that floor area within the surrounding exterior walls (measured from their exterior surface) of a building, or portion thereof. I I 2. Decks, Balconies, Porches, LOf!f!ias and Stairways. The calculation of the floor area of a building or a portion thereof shall not include decks, balconies, exterior stairways, terraees and I I 689 (Aspen Supp. No. 2,4-03) 26.575.020 1111111111111111 111111 ~~;~~:0~f 0~~ 241 J~NICE K VOS C~UOILL PITKIN COUNTY CO R 116.00 0 0.00 similar features, unless the area of these features is greater than fifteen (15) percent of the maxi- mum allowable floor area of the building (the excess of the 15% shall be included). Porches shall not be counted towards FAR. 3. Garal!es. CarTJorts and Storal!e Areas. In all zone districts except the R-15-B zone district, for the purpose of calculating floor area ratio and allowable floor area for a lot whose principal use is residential, garages, carports, and storage areas shall be excluded up to a maximum area of two hundred fifty (250) square feet per dwelling unit; all garage, carport, and storage areas between two hundred fifty (250) and five hundred (500) square feet shall count fifty (50) percent towards allowable floor area; all garage, carport and storage areas in excess of five hundred (500) square feet per dwelling unit shall be included as part of the residential floor area calculation. For any dwelling unit which can be accessed from an alley or private road entering at the rear or side of the dwelling unit, the garage shall only be excluded from floor area calculations up to two hun- dred fifty (250) square feet per dwelling unit if it is located on said alley or road; all garage, car- port and storage areas between two hundred fifty (250) and five hundred (500) square feet shall count fifty (50) percent towards allowable floor area. For the purposes of determining the exclu- sion, if any, applicable to g~ae;es carports, and storage areas, the area of all structures on a parcel shall be aggregated. In the 113 one district, garage, carport, and storage areas shall be limited to a five hundred (500) square ot exemption 4. Suhl!rade areas. To determine the portion of sub grade areas that are to be included in calculat- ing floor area, the following shall apply: a. For any story that is partially above and partially below natural or finished grade, which- ever is lower, the total percentage of exterior surface wall area that is exposed above the most restrictive of the grades shall be the total percentage of the gross square footage ofthe subject story included in the floor area calculation. Subgrade stories with no exposed exterior surface wall area shall be excluded from floor area calculations. (Example: If fifteen (15) percent of the exterior surface wall area has been exposed above natural or finished grade (whichever is lower), then fifteen (15) percent of the gross square footage of the subject story will be included as floor area.) b. Also excluded from floor area calculations shall be any portion of a subgrade accessory dwelling unit whose exterior surface wall area is exposed above grade for glass, window openings, doors, and similar ways of getting light and air into the unit, or that provides re- quired Uniform Building Code egress to the unit. The maximum amount of this exclusion shall be one hundred (100) s.f of the floor area ofthe accessory dwelling unit. c. For any dwelling unit that can be accessed from an alley or private road entering at the rear or side of the dwelling unit, the garage or carport shall only be eligible for the exclusions described in sub-sections a. and b. if it is located along said alley or road. (Aspen Supp. No.2, W3) 690 26.575.020 d. In the R-15B zone district only, garages, carports, and storage areas shall be excluded from residential floor area calculations up to a maximum of five hundred (500) square feet per dwelling unit. 5. (Repealed by Ord. No. 56-2000, S 8) 6. Accessory Dwellinf! Units. An Accessory Dwelling Unit shall be calculated and attributed to the allowable floor area for a parcel with the same inclusions and exclusions for calculating Floor Area as defined in this section, unless eligible for an exemption as described below: Detached and oermanentlv affordable ADU Floor Area Exemotion. One hundred (100) per- cent of the Floor Area of an ADU which is detaehed from the primary residence and deed re- stricted as a "For Sale" affordable housing unit and transferred to a qualified purchaser in accor- dance with the Aspen/Pitkin County Housing Authority Guidelines, as amended, shall be ex- cluded from the calculation of Floor Area. 7. Linked Pavilion. Any element linking the principal structure to an accessory structure shall not be included in the calculation of floor area provided that the linking structure is no more than one (I) story tall, six (6) feet wide and ten (10) feet long. Areas oflinking structures in excess often (10) feet in length shall be counted in floor area. III II II 1111 I III III \1\11\ \\\11\\\11\\ \11\ :~~~~i:~f 0~~ 241 JRNICE K vas CAUDILL PITKIN COUNTY CO R 116.00 D 0.00 690-1 (Aspen Supp. No.2. 4.(3) I 1111111111111111111 I II ~~~;~~:0~f 0~3 24f JRNICE K ves CRUDILL PITKIN COUNTY CO R 116.00 0 0.00 . EXHIBIT I h OCCUPANCY DEED RESTRICTION AND AGREEMENT AFFORDABLE HOUSING UNITS CORTINA LODGE THIS OCCUPANCY DEED RESTRICTION AND AGREEMENT (the "Deed Restriction") is made and entered into this _ day of ,2007, by and between HOTEL JEROME, INC., a Delaware corporation, whose address is c/o The Broadmoor Hotel, P. O. Box 1439, Colorado Springs, CO 80901 (hereinafter referred to as "Owner"), and the ASPEN/PITKIN COUNTY HOUSING AUTHORITY, a multi-jurisdictional housing authority established pursuant to the THIRD AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT recorded on January 8, 2003 at Reception No. 477066 in the Office of the Clerk and Recorder of Pitkin County, Colorado (hereinafter referred to as "Housing Authority"). WIT N E SSE T H: WHEREAS, Owner is the owner in fee simple of Lots P and Q, Block 73, City and Townsite of Aspen, Pitkin County, Colorado, on which is situated a renovated structure known as the Cortina Lodge (hereafter, the "Cortina Lodge"); and WHEREAS, the Cortina Lodge contains four (4) studio units and four (4) two-bedroom dormitory suites (each, an "Affordable Housing Unit" and collectively, the "Affordable Housing Units"), together with a common kitchen, dining area and laundry, as authorized and approved by Ordinance No. 42 (Series of 2006) adopted by the Aspen City Council on December I I, 2006 and recorded , 2007 in said records. The Affordable Housing Units are depicted on the floor plans attached hereto as Exhibit A and made a part hereof by this reference, and contain the following net livable areas, to wit: Unit Number Unit Tvpe Unit I Unit 2 Unit 3 Unit 4 Unit 5 Unit 6 Unit 7 Unit 8 Studio Studio Studio Studio 2-bdrm. dorm suite 2-bdrm. dorm suite 2-bdrm. dorm suite 2-bdrm. dorm suite Net Livable Area _ square feet _ square feet _ square feet _ square feet _ square feet _ square feet _ square feet _ square feet The foregoing variation of APCHA's minimum size requirements for Category I Affordable Housing Units was approved by the City of Aspen in Section 10 of said Ordinance No. 42 (Series of 2006); and . I I II "I" "" III 111111 '" ~~;~~~~f 0~7 24! JANICE K VOS CAUOILL PITKIN COUNTY CO R 116.00 0 0.00 WHEREAS, in accordance with. said Ordinance No. 42 (Series of2006) and the 2007 Hotel Jerome PUD Agreement recorded , 2007 at Reception No. in said records, Owner desires by this instrument to deed restrict the use and occupancy of the Affordable Housing Units to persons who are employed in Pitkin County (and their families) and who meet the qualification guidelines set forth in the Aspen/Pitkin County Affordable Housing Guidelines established and indexed by the Housing Authority on an annual basis (the "Guidelines"); and WHEREAS, as set forth in Paragraph I(fand g) of that certain Master Termination Agreement recorded , 2007 as Reception No. in said records, the previous Declaration of Covenants, Restrictions and Conditions for the Cortina Lodge recorded December 16, 1988 in Book 581 at Page 332 as Reception No. 30703 I, as amended by Amendment to Cortina Declaration of Covenants, Restrictions and Conditions recorded June 12, 1991 in Book 648 at Page 373 as Reception No. 333507, shall be deemed fully and forever vacated, terminated, cancelled, released, extinguished null, void, and of no further force or effect whatsoever upon the recording of this Deed Restriction. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the Owner covenants and agrees as follows: I. The Affordable Housing Units shall at all times be rented in accordance with the terms of this Deed Restriction. 2. The use and occupancy of the Affordable Housing Units shall henceforth be limited exclusively to housing for persons who are employed in Pitkin County (and their families) who meet the definition of "qualified Category I employee" as that term is defined by the Guidelines. Owner shall give first priority for occupancy of the Affordable Housing Units to employees of the Hotel Jerome. Any Affordable Housing Units not rented by Owner to Hotel Jerome employees may be rented to any "qualified Category I employee selected by Owner. If the Owner does not lease an Affordable Housing Unit to a qualified employee of his own selection, then the Housing Authority shall select the tenant in accordance with the Guidelines. Employees shall be qualified by the Housing Authority as to employment, maximum income and asset limitations. 3. Written verification of employment of employee(s) proposed to reside in an Affordable Housing Unit shall be completed and filed with the Housing Authority by Owner prior to occupancy thereof, and such verification must be accepted by the Housing Authority. 4. An Affordable Housing Unit shall be rented for periods of no less than six (6) consecutive months. Upon vacancy of an Affordable Housing Unit, Owner is granted forty-five (45) days in which to locate a qualified employee, unless a longer period is authorized by the Housing Authority. Approval for such additional time may be requested by Owner for repair and/or refurbishment of an Affordable Housing Unit, for renovation and/or redevelopment of the Cortina Lodge property, or for an unexpected breach of the lease agreement by the tenant, and 11111111111111 1111 11111 \ III ~~~~~t~f 0~~ 24f JONICE K VOS COUDILL PITKIN COUNTY CO R 116.00 0 0.00 such approval shall not be unreasonably withheld or delayed by the Housing Authority. If a qualified employee is not placed in an Affordable Housing Unit within the above-prescribed period, the Housing Authority may rent the Affordable Housing Unit to a qualified employee of its own selection. 5. The maximum rental rate for an Affordable Housing Unit shall not exceed the Category I rental rate as set forth in the Rental Guidelines established by the Housing Authority as part of the Guidelines, subject to annual adjustment as permitted by the Guidelines. The maximum permitted rent for the studio units on the date of execution of this Deed Restriction is $ per month, and the maximum permitted rent for the 2-bedroom dormitory suites on the date of execution of this Deed Restriction is $ per month. Rent shall be verified and approved by the Housing Authority upon submission and approval of the lease. 6. Each Affordable !-lousing Unit must meet minimum occupancy requirements as stipulated in the Guidelines, i.e., one person per bedroom. 7. A written lease agreement shall be executed by Owner and the tenant for each occupancy of an Affordable Housing Unit, and shall provide for a minimum rental term of six (6) consecutive months, subject always to the Owner's right to terminate the lease if the tenant defaults in the performance of the tenant's obligations thereunder. An executed copy of the lease shall be provided to the Housing Authority by Owner within ten (10) days of the Housing Authority's approval of the proposed tenant. 8. The terms and provisions of this Deed Restriction shall constitute covenants running with the title to the Cortina Lodge property as a burden thereon for the benefit of, and shall be specifically enforceable by, the Housing Authority, the City of Aspen, Colorado, and their respective successors and assigns, by any appropriate legal action including, but not limited to, injunction, abatement, or eviction of non-qualified tenants. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. OWNER: HOTEL JEROME, INC., a Delaware corporation By: Its: STATE OF COLORADO) ) ss. COUNTY OF ) The foregoing Deed Restriction was acknowledged before me this _ day of ,2007, by as of Hotel Jerome, Inc., a Delaware corporation. Witness my hand and official seal. My commission expires: Notary Public ACCEPTANCE BY HOUSING AUTHORITY The foregoing Deed Restriction and its terms are accepted by the Aspen/Pitkin County Housing Authority this _ day of ,2007. ASPEN/PITKIN COUNTY HOUSING AUTHORITY By: Chairperson STATE OF COLORADO) ) ss. COUNTY OF PITKIN ) I I The foregoing Acceptance was acknowledged before me this _ day of 2007, by as Chairperson of the AspenlPitkin County Housing Authority Board. Witness my hand and official seal. My commission expires: Notary Public 3654258_t .DOC 1111111111111111 111111 ~~~;~~f0~f 0~3 241 JANICE K vas CRUOILL PITKIN COUNTY CO R 116.00 0 0.00 I 1111111111111111 111111 ~~~;~~~:~:2 : 25J JANICE K VOS CRUOILL PITKIN COUNTY CO R 21.00 0 0.00 MASTER TERMINA nON AGREEMENT HOTEL JEROME PUD THIS MASTER TERMINATION AGREEMENT (the "Termination Agreement") is made and entered into as of the;32 day Of~/(IJdhtt:, 2007, by and between THE CITY OF ASPEN, COLORADO, a munici corporat n (hereinafter referred to as "City"), and HOTEL JEROME, INC., a Delaware corporation (hereinafter referred to as "Owner"), WITNESSETH: I WHEREAS, pursuant to Ordinance No. 42 (Series of 2006) adopted on December II, 2006, the Aspen City Council granted final approval of a PUD Amendment for the Hotel Jerome Property described in said Ordinance, including an extensive renovation of the existing Hotel Jerome, an expansion of the Hotel's existing net leasable commercial area, the reconfiguration and renovation of the Hotel's Main Street and Mill Street courtyards, and the elimination of a prior condition that a portion of the Hotel's parking garage be reserved for Hotel employees. The PUD Amendment also approved the renovation of the existing Cortina Lodge situated on the Cortina Lodge Property described on said Ordinance to meet the Hotel's employee housing mitigation requirements; and 1 I I I I I WHEREAS, in accordance with said Ordinance No. 42 (Series of 2006), Owner and City have executed that certain 2007 Hotel Jerome PUD Agreement, which instrument was recordeU~ ~ ,2007 as Reception No.~7a in the Office of the Clerk and Recorder of Pitkin County, Colorado (the "2007 PUD Agreement"); and WHEREAS, Section 1.2 of the 2007 PUD Agreement provides that it is the intent of the parties thereto that the 2007 PUD Agreement effectively supersede and , replace in their entirety certain previously recorded plats, PUD agreements, protective covenants, and land use approvals that encumber the Hotel Jerome Property and/or the Cortina Lodge Property, including without limitation those matters identified in Article VI of the 2007 PUD Agreement, and further provides that the City and Owner shall cooperate in the execution and recording of such documents as may be necessary or appropriate to accomplish the vacation and/or termination of such prior instruments and approvals; and WHEREAS, City and Owner desire by this Termination Agreement to accomplish the vacation and/or termination of such prior instruments and approvals. I I , o 0.00 NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 533929 Page: 2 of 4 I. Vacation and Termination of Instruments and Approvals. From and after the execution and recording of this Termination Agreement by City and Owner, the following-described recorded PUD agreements, plats, protective covenants, and land use approvals, and all covenants, agreements, obligations, approvals, conditions, benefits and burdens set forth therein, shall be and shall be deemed fully and forever vacated, terminated, cancelled, released, extinguished, null, void, and of no further force or effect whatsoever, and shall no longer constitute either a burden upon or a benefit to all or any part of the Property or either of the parties hereto or their respective successors and assigns, to wit: (a) Amended and Restated Planned Unit Development Agreement- Hotel Jerome - Renovation and Addition recorded September 15, 1986 in Book 5 I 8 at Page 921 as Reception No. 281483. (b) Supplemental PUD Agreement - Hotel Jerome recorded June 12, 1991 in Book 648 at Page 376 as Reception No. 333508 and rerecorded July 9, 1991 in Book 650 at Page 952 as Reception No. 334427. (c) Amended and Restated Planned Unit Deve19pment Plat - Hotel Jerome - recorded September 15, 1986 in Plat Book 19 at Pag~and related drawings recorded contemporaneously therewith. (d) Second Amendment to Amended and Restated Planned Unit Development Plat - Hotel Jerome - recorded July I, 199\ in Plat Book 26 at Page 89. . . (e) Ordinance No. 70 (Series of 1990) of the Aspen City Council, amending the Final PUD Development Plan for the Hotel Jerome. (I) Declaration of Covenants, Restrictions and Conditions for the Cortina Lodge recorded December 16, \ 988 in Book 58 \ at Page 332 as Reception No. 307031.** (g) Amendment to Cortina Declaration of Covenants, Restrictions and Conditions recorded June 12, 199\ in Book 648 at Page 373 as Reception No. 333507.** (h) Resolution No. I (Series of 1987) of the Aspen City Council, granting substitution of Cortina Lodge Employee Units for On-Site Hotel Jerome Employee Units, recorded June 6,1990 in Book 622 at Page 347 as Reception No. 323313. ** These two documents shall remain in full force and effect until the Deed I I I I I I I Restriction attached as Exhibit B to the 2007 PUD Agreement is recorded in the Office of the Clerk and Recorder of Pitkin County, Colorado, upon which recording said two documents shall be deemed fully and forever vacated, terminated, cancelled, released, extinguished, null, void, and of no further force or effect whatsoever. 2. Counterparts and Facsimile Sil!natures. This Termination Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart, and facsimile signatures shall be treated as original signatures hereon. 3. Bindinl! Effect. This Termination Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns forever. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: The City of Aspen, Co orado, a municipal corp' By: Attest: ~~A~(qf~/(J./ Kathryn . Koch, City Cler VU/\ APPROVED AS TO FORM: ~((4/t*- n orce ter, City Attorney Owner: Its: UP. STATE OF COLORADO) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this !!oi11ay of ~,2007, by Helen Klanderud as Mayor and Kathryn S. Koch as City Clerk of Ue CitJVof Aspen, Colorado, a municipal corporation. Witness my hand and official seal. My commission expires: OA;fr?f-uJOf I I I I STATE OF C.OIDl'o.A 0 ) ) ss. COUNTY OF f \ fla.~O) The foregoing instrument was acknowledged befop me this ~taay of -::h('\lo.O-.,,",~ 2007, by ~-\-p "\-.1')("\ ~(.l,r\i) \, 1\ as V. of Hotel Jerome, I ., a Delaware corporation. < . [JPMJ >II 0..1 PJu 111 f.'J "0 Notary Public I I Witness my hand and official seal. My commission expires: ~'\1-\ \ 0'1 332 t 546_2.DOC