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Home My WebLink AboutLand Use Case.307 S Mill St.18A-86101 5 ptdl 9 (Ue i \% A Â·-<66 .THE POPCORN wAGoN 2737-182-17-00* SPECIAL REVIEW . 018A-F 6 Jl - 44&01 Fu cl X ~~ -4f- 1 CLOSED S In 3 . 1 1 A h l 4- All-_---Aill-~ e. I - 'Ir-,~~~~ Ad 2 t .4 : ..2*- ' '91 6 ... : 4 +11...... ~% - ...- I W.:31 ': 7*<4 . .5.... 1. , 17.- fc. A .14 . 4 - 14 4 4 .~21"~ A' .= 7 '44 4:.4 - - * ' -2.5- -- #aÂ¥Â©...Ai~ 2 42. 74. :. 4, h . . 9 3 _ -- r .. . - . * 3 . '' b . 4 16_/W 4 -4 11â‚¬L ... .7/ l . 0 . 4 1,0 i N A .2 ~U -~ t. 4, 1 1 24 , '132''l.Mi 0/ 1 ..a-mal L -Â»3~ .Vlk , ,.,r--lk. .3 1Â·6 ~C ~ - 0/ 0 1 ~.21.2 Â£.LIV'll' .1 V ,Â·Al-1/11/ i ..3 6,4 1-3 U . 1-19-1 1 Wn-0-7-003 City of Aspen '* 'Z> 1- 1 u c, DATE RECEIVED: D ... 10 V. ~ 1 clll no. i,A Â·84 DATE RECE 1132Â£) COMPLETE : l,-i; , 104' STAFF: 98 PROJ ECI NAME: 1%,a,rn k'Le- Spc; caTAA fid - L.,c>~... -&...\ k.u-44-.**-i :-or~-- S tÂ«<4 /-h APPL ICANT: Lil ' UDE,4 u-â€¢ Arrow ....2 Applicant Address/Phond*-2.Mt 221 3 #45125. CO Elt.,li REPRES EN TATIV E:~806 ~FE(84Â£0 Representative Address/Phone: Zlif S. 4,65~A.6,1â€¢ 101 Type of Application: I. GMP/Subdivision/PUD 1. Conceptual Submission 20 $2,730.00 2. Preliminary Plat 12 1,640.00 3. Final Plat 6 820.00 IIÂ® Subdivision/PUD 1. Conceptual Submission 14 $1,900.00 2. Preliminary Plat 9 1,220.00 3. Final Plat 6 820.00 IIIÂ® All "Two Step" Applications 11 '$1,490.00 < IV. All "One Step" Applications 5 $ 680.00 &/ V. Referral Fees - Environmental Health, Housing Office 4 1 0 Minor Applications 2 $ 50.00 ./. 11 2. Major Applications 5 $ 125.00 46 Referral Fees- Engineering .1 4 Minor Applications 80.00 Major Applications 200.00 tr (ED ec MEETING DATE: le\914 PUBLIC H EARING : YES C Na) DA'TE REFERRED: 4~ll|%(f INITIALS: _.GiL/ Ifv, 0 ..2.0#% REFERRALS: egiaaÂ» f-City Atty Aspen Consol. S.D. --_- School District K '4,4&/19 v' City Engineer Mtn. Bell Rocky Mt n. Nat. Gas D72%78.95" Housing Dir. . Parks Dept. State Hwy Dept (Gleriwd) %. â€ž Aspen Water Holy Cross Electric __ Statenwy Dept (Gr.Jtn) 4,-4 t City Electric Â· Fire Marshall Bldg: Zoning/Inspectn .N =-0 . Envir. Hlth. - Fire Chief Other: ,#51./.4 Roaring Fork Transit Roaring Fork Energy Center ~Â·~9=4. ..,- ., ZINAL ROUTING : DATE ROUTED: 61476 IN IT IAL: ~92-0, 4,6e#* City Atty - City Engineer Building Dept. ,-41, b<- other : Er\Vi rah,jvlf#40.1 }-]Pa--.1*~k Other: Â¢f' 1.17[Â·T r C fr A '71 TI C h AT 11 T Ar'A 9-Â· TAM - 01<u_,0 . A-o V Eu 14' - V# .. i l' U 0,4 CJUL *40 \ The Building Dept. f...\ L. The Planning Dept. Aspen, Colo. I wish to verify that the small area between the Popcorn Wagon's kitchen facility and the Wheeler Square building was used as a storage and office before it was demolished. I understand that the owners of the Popcorn Wagon demolished that area and wish to rebuild it as it was, 0 as pictured below. Sincerely, r- \,P'-1,1Â»L_ ji- 4 /6- 11-/1 J 121<12 ae- 1 U w A#Ja f i i K'-1-" _ -WA-TER-FACELHO.e E- l 1 ./ t, P k : L .5 '-4 1 '0 E I 1. t. ~ PRESENT COMMISARY h \\:- i V U i -O - 2 00 5r/ , 1 CK 0* F / 17â€¢ 3 2 El -1 1 3:4" '1f 44 7 1 4 ,3 4 .~ PROPOSED ADOWâ‚¬ 1 1 1 ] -f ; 4 - 4- lit/(litill//01/ ty {j;/ Hillill Ill/'ll jill'i//2 Â£ 1- 9" tr-41 5,-4" 1 1 r I .... 1 /1 %. - i RE: COMMBARY ADDITION reR THE POPCORN WAGON SCALE: Pr-: r |DATE: 9-7- 67 -Â·i 1 -- , Â·Â·*M''W ~Â·Â·,4:;Â¥Â·i*h~,Â· Â· Â· /,O-,W Dan A~ow Box 2213 'Ch u-' t' a ,-7 'i-Â»a i-<1 7 "21 1,i '97 1 21 1 al Aspen Colo., 81611 9 -7... ''- -- --=-111111 925-2718 bus 923-3627 hm SEP 2 1 1987 11 I f September 21, 1987 Allen Richman p 01 JIP Steve Burstein Paul Tradune The City of Aspen, i In response to the concern that was expressed in the letter to me from Steve Burstein dated Sept 17th, 1987 (exhibit A), I fully intend to fulfill my promise to the city to construct an enclosure for my neighbor's dumpster. I worked with my landlord and other neighbors to get the area paved this summer (costing about $4,000.), and have the contractor ready to build as soon as I can get the area cleared. I can't build the enclosure, however, until after I build the addition to my present commissary for logistical reasons. The HPC understood this when I applied for permission for my addition and I have proceeded as fast as I could to complete this project. I am willing to put up a $1,000. bond, security, or whatever it would be called, which would be released back to me upon completion of the enclosure, in order to backup my word. I ask that the city attorney draw up a simple agreement and that upon signing of this agreement and reciept of the "security deposit", the planning dept approve the expansion of my commissary (exhibit B) before the trash enclosure is completed. Please, please act quickly. The rate at which this project has gone so far indicates that it may be very cold out before it can be completed. Sincerely, iÂ·~~*-~_- - 1 t H. 1. A . Aspen/Pitkiltrian,ling Office 130 s kiuthfgalenÂ°als treet aspetillâ‚¬*1Â»rad<0 81611 September 17, 1987 Mr. Dan Arrow P.O. Box 2213 Aspen, Colorado 81612 Dear Dan, This letter is in response to your request for an exemption from the Growth Management Quota System for a minor commercial expansion to accomplish increasing the size of the Popcorn Wagon commissary by 102 square feet. A prior request for a 96 square feet expansion was approved by the Planning Director, as noted in a memorandum to Bill Drueding dated August 14, 1987, and by HPC on December 9, 1986. You also requested assistance on how to proceed on reconstructing another little area. Following are my comments: 1. The Planning Office approves the requested 102 square foot expansion provided that the trash dumpster enclosure be completed prior to any new construction. The enclosure was a condit- ion of both HPC's original approval and the Planning and Zoning Commission's Conditional Use approval on June 24, 1986. 2. We do not have any more information on the verification of the little "office" space on the northwest corner of the buil- ding. It is up to you to work with the Building Department on this matter. I was talking with Bob Francis, attorney for the Barnard Estate, about another matter, and I mentioned your project. He suggested Dr. Comcowich would probably know. On a site visit I noted the enclosure of that area would appear to constrain service access to *the rear of the building for the Grill and Waterfall Hope. If it is new space, such enclosure would appear inappropriate. Sincerely, 24424 Steve Burstein, Al Aspen/Pitkin Planning Office cc: Bill Drueding, Zoning Official sb.pcB 1.5 ' - 1-" e. , 3' -C .01: - 01 -WA-TER FALL--_.HOPE '1 - P i o t PRESENT COMMIMRY _ . P 4 N I .- , - $ TO-3 60 . 1/ ! , 91 g / ~9_ / lf, 1 - 413'1 4,/ IE- rp 0 1 4 1 . - I 4\ 4 4 444 f-r-j 54 4 2 ic 4 1.1 ~ 4 -1 3 - 3 PROPOSED ADDED,414 i \ u i i J I . . .11.-- 1. -/,1/4/- - c 1 - 31 J / 4 I 1 1 ./ 5 /7 j# 1- il./. , 1 1 / 4 45 4 - ID I i '11111111]1111011!it'jillill'lll'll'lliti'Illiti. i Z 1, ,-, i : . 1 1 1'-4" _8' - 3" , 5' -~-4" 0 4-- 0 Â· : . 1 \ 1 , 2.0 -JE' 1 7. IRE: COMMIbARY ADDGION FGR THE. POPCORN Â»/AGION SCALEÂ·: Pr = )' Â·DATâ‚¬: 9-7-8-7 IFOR: A.APEN BUIL-DING, DEPT. 502>MITTED 69 TUF 00*00-r,9.N \~1.6.(Anit ~(30 A\./INGÂ·,Ir | Li).2611.1-5-7,. I b' - 0 " . . file; Apaa Wt rn Spchl Ve.,-ep' C Re,T..idt KLEIN. SEIGLE & KRABACHER Ox 4 Rer'J 'P> xy,v,) /476 PROFESSIONAL CORPORATION ATTORNEYS AT LAW 201 NORTH MILL STREET HERBERT S KLEIN TELEPHONE JON DAVID SEIGLE ASPEN. COLORADO 81611 (303) 925Â·8700 B JOSEPH KRABACHER THOMAS C HILL June 24, 1986 VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED William L. Comcowich, Trustee <0- *it. 4.1 -~ & Ctro j J\Â· 7 Estate of Dr. Robert Barnard ' 0 Trust of Robert Barnard iR g 420 West Main Street Aspen, Colorado 81611 9-'*N, cO't, Re: Lease Agreement dated July 3, 1985 Dear Dr. Comcowich: We are writing this letter to you on behalf of Iloward Gunther and Grill on the Park, Inc., a Colorado corporation (formerly known as Tavern on the Park, Inc.) (the "Company"), with respect to that certain Lease Agreement dated July 3, 1985, for Unit B and a portion of Unit C, Aspen Commercial Condominiums, Pitkin County, Colorado (the "Lease"). There are several problems with respect to the water and sewer systems of the premises, and we are writing this letter to you in order to put you on notice as to these problems and to make formal demand that the problems be rectified. 1. With respect to the water lines, the plumber for the Company, Ludwich Risch, has informed us that the main water line into the restaurant is insufficient to handle the restaurant's needs. The Company has already installed 3/4 inch water lines within the structure of the building, but the main line going into the restaurant is not large enough to handle the loads that will be placed upon it by the restaurant. In addition, it is our understanding that the Popcorn Wagon is tying into this line, and this will further increase the load on the water line and may cause additional problems. We have requested that the water line be changed in order to handle the loads that will be placed upon it by the restaurant and by the Popcorn Wagon. This letter will confirm that you agreed with Howard Gunther to remedy this problem during the next two weeks, and that your attorney Bob Francis has all necessary authority to remedy tile problem. 2. With respect to the sewer, it is our understanding that the Popcorn Wagon is tying into the building's sewer line. As you know, the sewer line has had a history of bad disposal problems. The Company has routed the sewer line as far as possible in order to alleviate any potential problems. In order to avoid any potential problems, the Company has had the restaurant install an extremely large grease trap to prevent overloading the sewer. We are at a loss to determine what, if anything, the Popcorn Wagon is doing to .. , 9 9 \Villiam L. Comcowich, Trustee June 24, 1986 Page 2 mitigate potential problems with the sewage disposal system. Due to the prior history of bad sewage problems, we feel that the Popcorn Wagon may overload the sewer, and if this occurs, we intend to hold the Lessor under the Lease responsible for all damages and costs, including loss profits and loss of business. As you know, at the time the Company entered into the Lease none of its officers or directors were informed, or had any knowledge, that the Lessor would be leasing the space on the corner of Hyman Avenue and Mill Street to the Popcorn Wagon. We are taking the liberty of providing copies of this letter to the Aspen/Pitkin Sanitation Department and the City of Aspen, Engineering Department. We hope this matter will be solved by your agreement to remedy the water line problem and by requiring the Popcorn \Vagon to connect to the city's main sewer line rather than the restaurant's service line. We will continue to moniter the situation as developments occur. Should you have any questions with regard to this letter, please feel free to call the undersigned at your earliest convenience. Very truly yours, KLEIN, SEIGLE & KRABAC!-IER P.C. By B. Joseph Krabacher BJK:nwt CC: Robert A. Francis, Esquire Aspen/Pitkin Sanitation Department City of Aspen, Engineering Department ~ PEN/PITKIN PLANN ING OFFIC.~ 130 S. Galena Street Aspen, Colorado 81611 (303) 925-2020 Le 09 030_ aketa . db-.kf'-- 0*Lurtq'J' Wr- )0* 021/ 3 06*a-,Â»- 86 8/6/ 2- 7 RE VMe Al/2202,3 4-JAGO ,-) Dear - This is to inform you that the Planning Office has completed its preliminary review of your 5/EW,2/1*vigo) application for com plete- ness. We have determined that'your application 0.- is complete. is not complete. The additional items we will require are as follows: Disclosure of ownership (one copy only needed) . Adjacent property owners list (one copy only needed) . Additional copies of entire application. Authorization by owner for representative to submit application. Response to the attached list of items demonstrat- ing compliance with the applicable policies and regulations of the Code, or other specified materials. A check in the amount of $ is due. ~ _ A. Since your applica,tion is complete, we have scheduled it for review by the --Fl d,nniA.A Conlmisgtah on Junt 12% /9# G We will be calling you if 46 need any additional information prior to that date. In any case, we will be calling you several days prior to your hearing to make a copy of the review memorandum available to you. Please note that it (is) (is not) your responsibility to post your property with a sign, which we can provide you. B. Since your application is incomplete, we have not scheduled it for public review at this time. When we have received the materials we have requested, we will be happy to place you on the next available agenda. Please feel free to call StÂ©LPAYI/gtn , who is the planner assigned to this case, if you have any questions. Sincerely, ASPEN/PITKIN PLANNING OFFICE 44.UP'-- t.3 122~~ Alan Richman, Planning and Development Director AR:jlr Reviewed by: C Aspen PLZ -3 City Council I. - 0 : 1.A Ok *Â»z 11 141 Â£ 4 0-2. dzpy.f'd -11 :P:pir.,6 (0Â£,4:A teat # 5-2,Â¥U,~~ cpz) 11,tu U .. . Q) 0,0-!014*k wel .4.0-ktiL< Â°f-41Â·' Virl,w odr,j i 4, pUÂ·,0.61 ted . U V V 1. A trash/utilities/service area shall be provided including a trash enclosure 10* feet wide and /3 feet keep to accommodate a 6 yard dumpster, a service corridor to the rear of the Barnard Building 6 feet wide and a service vehicle access area in front of the trash enclosureA 20 feet in length to the Hyman Street curb. ,+1,4,1 2. The applicants shall complete the paving and landscaping scheme within 6 weeks of opening including: paving bricks laid, installation of street lights, placement of tree grates around existing pine trees and planting of aspen trees. flowers, shrubs and grass as represented in the application. Â°du (9444, 6,An.3,>40 k ccili,t,J i 1 12.j- le iL or,#idie.I 4 Â£~~ w-Â£0~~'t?-pr 6 irri,41,+37Â£u,/& (ar~~Al 0.4. 2.41<-*ye rlr~ L laur,) 4 14,1 (ultal : 4 . 40 M+rvh-<h . e .a 9 . 3. A planter shall be placed on the western edge of the plaza area as represented in the application, ~the 4-8-nÂ·deea-pre- pjanttrj ageaâ‚¬ along Hyman and Mill Streets shall be '' Cotii(DcA.el 0* al.gÂ·.1 en ti, ~lly pt.id c,uli-11;.J t k,tu e, ive,Â·,011 d |'51~Â·,~,1-5 V + ' 'll , -Au (41 tuul . 4. Letters from the Sanitation District and Water Department indicating that there is adequate sewer and water service to the Popcorn Wagon shall be obtained by the applicants and submitted to the Planning Office and Environmental Health Department prior to issuance of a Certificate of Occupancy. 5. The type of street lights and illumination intensity shall be reviewed to the satisfaction of the Commercial Core and Lodging Commission prior to i.saua-nee-ef- a Cortificate-4- 4 43 1 11 1 0 - 6, GL affl-4.1,4 2/lt.uird,r & tr.(U,%19:7 404 02< ct,? 0,Â»AU 0-Lit+14+ '10/1 A .1 0/J r44'9 boll u,u-fituc E-<1 'UÂ·'t.2,00*1) i c.Â¢242-Ir;.4 geÂ£,-cli J 63 4 6 Prpoa 60) tr Â· 0 W . .. MEMORANDUM TO: Aspen Planning and Zoning Commission FROTI: Steve Burstein Plannina Office RE: Popcorn Wagon Special Review -- Commercial Restaurant in Open Space and Reduction in Trash and Utilities Requirement Parcel ID#2737-182-17-005 DATE: June 24. 1986 LOCATION: Lots R and S Block 82: City and Tcwnsite of Aspen, southwest corner of Mill and Hyman Streets. ZONING: CC APPLICANTS' REQUEST: Lillian Lively and Dan Arrow request permission to place the Popcorn Wagon on required open space of the Barnard Property, Proposed chances to the site include brick pavers and planters, tree grates around existing trees, new plentings, two streets lights and a trash dumpster enclosure. A commissary would be located in an existing cement block portior of the adjacent building. APPLICABLE SECTION OF CODE: Section 24-3.7(d)(8) states required open space may be used for commercial restaurant use ifr on review. the Planning Commission shall determine that such use not be in derogation of the purposes of open space requirements of this section. Section 24-3.7(h)(4) establishes minimum required dimensions of a utilitv/trash service area abutting an alley consistine of 20 feet bv 10 feet deep. Reduction of trash and utility access recruirements can be permitted by the Planning Com.mission through Section 24-3.5 of the Code. PLANNING OFFICE COMMENT: a. Trash and Utilities Access: The Barnard Property abuts the allev of Block 82 next to Wagner Park. This alley abutment is not appropriate for utilitv and trash service for occupants of the property. The trash area for the Grill, Waterfall Hope as well as the Wheeler Square Building is presently handled on the Hyman Street open space. The main delivery service to the Grill is also through this part of the site. The applicants propose to more tightly define and enclose a trash area on the western edge of the propertv to serve all existing users. .. After discussion with the Encineering Department. RFI the applicants and the manager of the Grill. it was felt that the best solut-ion would -be to create a trash enclosure area 10 f eet wide and twenty ( 20) feet deep (to accommodate a 6 yard dumnster) leave a service corridor to the rear of the building 6 feet wide, and a service vehicle access area in front of the trash enclosure of 20 feet to the curb of Hyman Street. b. Restaurant Use of Open Space: The Po I) corn Wagon is an unusual entity. and is subject to question whether it is within the normal definition of restaurants. Given the type of services the Popcorn Wagon has provided in the past, we find that the use is a "Commercial Restaurant" and therefore subject to Section 24-3.7(d)(8). C. Paving, Planters and Plantings: The applicants Dropose to pave the major portion of the site with paver bricks and place two ( 2) foot hir,h one (1) foot wide nlanters along the edges of the property abutting the Mall. The narrow brick-faced planters would make for a harsher edge to the mall than what we feel is appropriate for this open space and would constrain the roots of anv trees planted in them. We suggest that the proposed plantings of aspen trees, flowers and arass be planted di rectly i. nt o the ground adjacent to Mill and Hyman Streets. The width of planted area should be wider than that proposed and a low picket or iron fence may be necessary to protect this planted area. The applicants believe that the planters are most appropri- ate because the flowers can be better attended. wash water will not drain into the vegetation and the planters better organize the plaza space. The planter adjacent to the Wagon and along the util ity strip should be built as proposed to "anchor" the Wagon and buffer the trash and service area. Tree grates for the existing spruce trees on the site should be provided as proposed. Trimming of the pine trees should be restrained to the plan nroposed inthe applicantfs June 23 memo to accomplish the clearing of six (6) feet in height. d. Street Lights: Two street lights w ould be installed. The Commercial Core and Lodging Commission requested to conduct a final review of the type of street lights to ensure that they are compatible with mall lights. Illumination inten- sity should also be reviewed by CCLC. e. Vehicular and Pedestrian Traffic: The proposed operation should not significantly impede vehicular or nedestrian traffic. During times of service vehicle deliveries. there will be some additional congestion. The trash and service plan should help accommodate traffic somewhat better than it is done at the present time. .. f. Water and Sewer Service: The Water Department and Sanita- tion District have indicated that they can service the Popcorn Wagon. It appears that there are complications within the Barnard building that will require the attention of the building owner and tenants. Lee Cassinr Environ- mental Health Officer, expressed concern over the freezing of winter lines in her letter of .June 9, 1986 (attached) . However, the applicants are responsible for keeping the above-ground water lines from freezing. g. Restrooms: Arrangements have been made for the use of restrooms in the Magnifico Building. Approval was given by J 01' the Fnvironmental nealth Department provided that the ,;17< restrooms are available while the Popcorn Wagon is open. RECOMMENDATION: The Planning Office recommends approval of the Popcorn Wagon use of required open space, and trash area reduc- tion special review, subject to the following conditions: 1. A trash/utilities/service area shalj]~) be provided including a trash enclosure 10 feet wide and 20. feet keep to accommodate a 6 yard dumpster. a service corridor to the rear of the Barnard Building 6 feet wide and a service vehicle access area in front of the trash enclosure 20 feet in length to the Hyman Street curb. 2. The applicants shall complete the paving and landscaping scheme within 6 weeks of opening including: paving bricks * laid. installation of street lights, placement of tree ~. grates around existing pine trees and planting of a Spell ,; , 4 4 , - trees. flowers, sh rubs and grass as Le-presented in the 4 /6,1.1 application. A letter of credit or bond-shall be submitted ' for these improvements to the satisfaction of the City ...â€ž - At t or n ey. The Zoning Official shall be _contacted to inspect - the landscape improvements prior to redemption of the bond ' , or letter of credit. 3. A planter shall be placed on the western edge of the plaza area as represented in the anplication, and the landscape areas along Hyman and Mill Streets shall be planted directly into the ground in strips as shown in the site plan at least two (2) feet in width. / i: 4. Letters from the Sanitation District and Water Department indicating that there is adequate sewer and water service to the Popcorn Wagon shall be obtained by the applicants and submitted to the Planning Office and Environmental Health Department prior to issuance of a Certificate of Occupancy . 5. The ty ne of street lights and illumination intensity shall be reviewed to the satisfaction of the Commercial Core and //Unvel Lodging Commission prior to issuance of a Certif-i-eate of Occupancy. --/.-5 . 4'. - 4,1 u -'-~17-Â·0â€¢r '-Â·0 ' r % 4 t h- 6 F . V , 0 00 4 The Popcorn Wagon P.O. Box 2213 Aspen, Co. 81612 Owners: Lillian Lively and Dan Arrow 923-3627 Relocation of the Popcorn Wagon to Barnard Property Present Zoning is Ccommercial Core Use of approx 2067 sq ft of total lot size approx 6000 sq ft Lot located at the intersection of Mill and Hyman Sts. S.W. corner, known as the Barnard Property. Existing uses: fenced "lawn" 1282 sq ft, gravel parking and dumpster space 665 sq ft, storage room 120 sq ft Proposed use: to relocate and resume operation of the restaurant known as the Popcorn Wagon, which includes the following changes to the property: -remodel storage room into a clean food prep commissary -install new electric and natural gas service -repaint the currently white cinderblock walls a color which will make the walls inconspicuous -trim lower branches of pine trees -lay paving bricks on seating area, which includes cleaning up the current parking space -relocate and design the concealment of trash dumpster -install streetlamps -build brick planters and plant with perennial , flowers and aspen trees -place wagon in existing parking spaces and permanently install sewer,water,gas and electric Background of Request Popcorn Wagon owners appeared at City Council on May 12 requesting an amendment to the Administrative Policy on Exterior Uses because Bill Dreuding determined that the Popcorn Wagon did not fit in the current policy. Council directed staff (Planning Dept.) to "make it happen on the Barnard Property". Appeared at Council work session on May 19 and Planning Dept. reported that five steps were necessary before placing the Wagon on the Barnard Property. 1. City Council amendment to the "Administrative Policy on Exterior Uses" to allow a food service use that is not immediately adjacent to a restaurant. 00 0. 2. Planning Commission special review approval of "commercial restaurant use" of required open space pursuant to Section 24-3.7(d) (8). Presuming that this site constitutes part of the required open space for the parcel, the Planning Commission would need to determine that the Popcorn Wagon qualifies as a "commercial restaurant use" and therefore is eligible to apply for this review, and that the Popcorn Wagon "is not in derogation of the purpose of open space requirements". 3. Historic Preservation Committee review to authorize "construction or erection of any improvement... upon any site or area included within an H, Historic Overlay District" pursuant to Section 24-9.10(a) (3) of the Municipal Code. 4. Commercial Core and Lodging Commission review and approval should be accomplished to ensure that the wagon would fit in with mall concepts. 5. Board of Appeals exempting the Wagon from Fire Code distance requirements. With the following results: 1. City Council amended the Administrative Policy on Exterior Uses to allow the Popcorn Wagon to locate on the Barnard Property. Council also noted the the Popcorn Wagon is an asset to the community and would effectively extend the mall on Hyman Street. Council lent their enthusiastic support to the relocation. 3. Historic Preservation Committee gave preliminary approval for Popcorn Wagon relocation planswith recommendations on landscaping. A public hearing has been scheduled for June 24. 4. Commercial Core and Lodging Commission gave approval for Popcorn Wagon relocation plans with recommendations on choice of streetlamp design. 5. Jim Wilson, Chief Building Official and Fire Marshal gave approval for proposed situation of Wagon on property, noting that that distance would be sufficient to not pose a fire hazard. The lot, as it now sits, is not particularly pleasant. As visitors exit the Visitor's Center in the Wheeler they are greeted with the sight of two large unfriendly "No Parking" signs, a very large dumpster and usually a car or two. If the visitor were to cross Hyman Street for a closer look he/she would note that the "lawn" is used for the storage of dog droppings and little bits of stray trash. The "lawn" is fenced, which further inhibits it's use by humans. The parking space is not required in the Commercial Core district and by definition is not open space. The placement of the Popcorn Wagon on the property will effectively increase the open space by 32% (from 1282 sq ft to 1692 sq ft). 00 0. The Popcorn Wagon placement on the lot, we feel, will enhance the visual aspect of the lot and will make the space available for use by people. The parking space and "No Parking" signs will be replaced with the Wagon and the "lawn" will be replaced with paving bricks, upon which will be tables and chairs. The dumpster will be hidden from view and Popcorn Wagon employees and management will take responsibility for keeping the area clean. The limbs of the pine tree will be trimmed to allow free movement underneath the trees and more trees will be added to the property. Benches will be placed on the Hyman St. perimeter, where the sidewalk is sufficiently wide to allow easy pedestrian flow. Upon approval of this move the following timetable will apply to improvements: 1 week: paving bricks laid wagon in place commissary complete utilities to the wagon tables and chairs placed wagon open for business mid-sept (at the latest): complete landscaping planters built 9 / 3 '86 .. Brh [R-Â©-IMBIMIN~ JuN 2 3 Ibdd i Â· R 8 -&,i TRASH 1. There will be no reduction of area dedicated to trash. Presently entire 665 sq ft has space for dumpster and 2 automobile parking spaces. Trash dumpster,on any particular day, could be found anywhere on that area. Trash overflows are placed wherever there is no car. 2. The Popcorn Wagon will provide its own separate dumpster which will be covered and not visible from the street or mall. We will not use existing dumpster. 3. As previously stated, Don Fleiscer (Manager of Wheeler Square) and Dr.Comcowich (Executor of Barnard estate) will be enclosing the present trash dumpster. 4. Location of that dumpster enclosure will be as in attached drawing. 5. Area in front of trash dumpster enclosure (currently used as parking space) will be service vehicle access, where none existed before. 6. Access to THE GRILL will be 6' area between dumpster and Wheeler Square. 7. Current problem with overflow of trash dumpster is due primarily to boxes which are not flattened. As the new neighbors, we will be requesting that dumpster users flatten bcxes before inserting in dumpster in order to prevent overflow. 141Fl r'nn r , .. PLANTERS T7 ae will be requesting from RPC and PAZ to build planters as in drawing. Trimming of trees will be as follows: Western evergreen tree- 9 branches plus~2 bare branches closest to the ground, to a level of about 6 at the trunk. '-1 . Eastern evergreen tree- o branches to a level of about 6' at the trunk. Cherry Tree 1 branch on western side which is completely broken at this time. Pine trees are currently trimmed in a lopsided manner, and our trimming will even this out. T T /1 Â·r T r? 1 T ?.r / 1 1.,lunlljb At this time the street lamp design is not decided, CCLC must be consulted on this matter. 100 watts in each lamp may be sufficient to light the area. This will need to be tested on site to be sure that there is sufficient lighting for the safety of our customers. . l li - " '- 124 1- -- - WATERFALL HOPE 11 'TRASH 1 1 1 1 1292 S'l FT '23.5 531 FT Â·na + rr,0. 'pa ~ - 1 PARK/NG WHEELER 2 SQUARE -1 LI <C . 0 . 5 --- - -1 -1 O 0 FENCE HYMAN ST. ~ REE etc i 5-17-96 S calc ~ 9/0'. IF+. WATERFALL HOPE Whf ., .x ~~AN.0, ,-'n, 4,94, 2 , %,442**M 4 0~*~p,~l*I, r-'ib'v~ COMMISSARY 'Il lilli Ill'll! J J . l IL I i i ' , %1:,#'I,<111 1 1 , , 11 1 1 ! 1 1/ 1 rl , 1 1 ' 1 - -0-474 1 , 1 1 1 1 1 ~;*Â·3~,~~2'0-lili 111 1, lili 111111111~2,f~UÂ£*~..1,52,,Â£ -,~'~'' "~'~dh'~~~~L-a '1 1 1 1 '11 1 1 , 1 1,111'111. 11'111,1 1 1 1 1 1 1 1 . LJ:Leet 94 \ 1 h 17 1!' i /|''~,6 /1 il/J'i; 1''i 1 1. ~111,~~/111111~1~1~,~111~1 1,~,~1~, 1.1,h ' 1 '9 1 .G i 9 1 WHEELER 171'11/1/1/1/1,4/1,-rl'I;/1,1,4/~' 1,1"7* /'/ //'/I'/,1 1., i' 2 'Ra, /1 11'111 1 lili '11 ~~ ' SQUARE 1-w ' 4"*3-1---2['-4,/r.2..~IN.WiR41,90Â·2*9~41-r~T~1~_L~~--14 ' . 1 . i [ =. m Â©21 1 â€¢ ST LAMP ~~*~ TABLE. Â· PLANTER 0 0 FENCE HYMAN SI Â· 1 PARK BENCH -- SCALE d=10' Â£L T -96 MILL,ST. MALL 90 ._.... u-â‚¬1Â£-~~~~-c'J -2 -31-L-1~ ,2r-~U - _192~ Â·2==St=. - , 331Â®2__ 4 qÂ· - *th< W dil/jimim/ ~ W Â·,'~ [2Â§33[IFIh~.~~I~--223~i -Â·r-----~EZZIiJEE3@ll@EEil[523~d:~:~':': 0+.:kÂ·ge~t - - -- - -.,m#immlz-rk+7+7--01,2-1acl_r<.-i_i_1-1[~3~7--1031~~~~'~~ 11..4 1 3 14 - ...... El&@j.....m -- - < 1 1 Â·. '1 Â·Â·,' EFR~4*qu I ~-mi~*Ilizz-tf//Sr.__214{Â»Â· In,573921118#3)4]FEE-ammiwar.Sh']322662262*. - ' Â·-Â·Â·~~Â·~ /39/']j : .'Â· 1!zit-3}63[2733[EI]Lk k - 3 + . Â«'*211--.4- '4113 /4 7.~ - 11 5 ' I#:I~I:~fi I:,9 0 ~ :Er= ~--7-94- 6%~ , . 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SCALE I IN=ET concrete liner Ittallyl caps -/ A 3041 7 /./ /+1 1 67* pbyik ' P:VA . t I, 1 : : H ~~).11-9Â· f ~Â·714'? b..Â·Â» \1.I DHI;JI]31. -1..::...11 0. :Â· 11,Â·:Â· *Bill Â· , 4-IN MEEEÂ·.:cm~mMI Â·Â·Â· ': "MmumunD.,U Â©1196@* PLANTERS Dark Brown brick consistant with Mall Pavers Concrete liner 3/4" to 1" thick Red tile caps. er .. MEMORANDUM - JUN 181986 TO: Steve Burstein, Planning Department ~0/7 FROM: Elyse Elliott, Engineering Department td~ DATE: June 18, 1986 RE: Popcorn Wagon Special Review The Engineering Department has no problems with this application providing that all commitments are fulfilled concerning utilities and dumpster facilities. Two on-site parking spaces will be lost as a result of the new landscaping. EE/co/PopcornWgSR - MEMORANDUM TO: Elyse Elliott, City Engineering Department FROM: Steve Burstein, Planning Office RE: Popcorn Wagon Special Review - Commercial Restaurant in Open Space Parcel ID#2737-182-17-005 Case No. 018A-86 DATE: June 17 , 1986 Attached for your review is an application submitted by Dan Arrow and Lil Livelyr requesting special review approval for a commer- cial restaurant (The Popcorn Wagon) in open space. We are requesting tonight, June 17, that P&Z attend a special meeting on June 24th to review this application and would appreciate your comments on a rush basis, and in any event no later than Thursday, June 19th. If you anticipate problems meeting this deadline, please let me know immediately. Thank you. M.3 - ~ ASPEN*PITKINI 4 ENVIRONMENTAL HEALTH DEPARTMENT - . 1 11 1 '. '~ I June 9, 1986 Lil Lively Dan Arrow Popcorn Wagon P.O. Box 2213 Aspen, CO 81612 Dear Dan and Lil: I have reviewed the plans you gave me today for the Popcorn Wagon and Commissary. They are approved with the following comments. 1. The use of restrooms in the Magnifico Building is approved and this office needs a copy of the contract or agreement between you and the building manager. The restrooms must be available at all times while you are open. 2. My biggest concern is with the freezing of the water lines that has occurred in the past. The lines do not have to be \buried if you can use sufficient heat tape/ insulation or other means to ensure that the pipes never freeze. 3. While a 6" overhang is recommended from the edges of all cooking surfaces to the edges of the hood, the three to four inches that exists in some parts of your hood is acceptable. 4. The installation of the mopsink beneath the vegetable sink and the handsink above the 4 three-compartment sink are approved as long as they are convenient enough to use. 9! Thank you for getting the plans to me before I left and if you y have questions while I am gone, please feel free to contact Tom. Sincerely, ge- F dll Lee E. Cassin Environmental Health Officer f . Â¢1 cc: Aspen/Pitkin Regional Building Department i p 1Â»113Â¤ P South Salena Street Â·-Â·ArÂ·Â·.â€¢7, IPÂ·Â· Uâ‚¬1.4,Y, UAspen, Colorado 81611 1Â«44.j , 3 303/925-2020 1 .%44+43Â¢P>fM*, 2.t.79f-*0~;j)349:....::.t >,t :r-tÂ·I:LP.Â·-~' -;ff44%4;;....)2. f 04 Systems ' Waste BROWNING-FERRIS INDUSTRIES Aspen District June 2, 1986 Ms. Lil Lively The Popcorn Wagon Box 2213 Aspen, CO 81612 Dear Ms. Lively, We wish you luck at your new location. The trash service you had at the Volk property should be sufficient at your new 10- cation, one 90 gallon trash can picked up daily. If needed, we could always add a second container. I am sure you will keep the trash container in a similar spot as at the Volk property, virtually~invisible from the street. ~y truly yor, / 74. 1 L 1 -7- 1FC k pf /VaÂ¢neAr U.LUVA-AVV Mfnaget / C U 0172 PACIFIC AVENUE Â· P.O, BOX 7966 Â· ASPEN, COLORADO 81612 Â· (303) 925-6505 +1/ ~87//?2-0/-7 --60& ~~9â‚¬#t A. 9,{ar'.ih~ I ATTORNEY AT LAW PROFESSIONAL CORPORATION Maz_13, 1986 D~LimiD w g~ A .AN-2Im City of Aspen Planning & Zoning Commission JUL 1 130 S. Galena Street Aspen, Colorado 81611 RE: Lil Lively and Dan Arrow/ The Popcorn Wagon Ladies & Gentlemen: As I am sure you know, the Estate of Dr. Robert Barnard has entered into a lease agreement with Lil Lively and Dan Arrow for open space located at the corner of Hyman and Mill Street. Dan and Lil have apprised the Estate of the improvements they plan on installing, and the Estate has approved those plans. The purpose of this letter is to advise the Planning and Zoning Commission that those proposed improvements have been so approved. If you have any questions, please do not hesitate to contact the undersigned. Sincerely, Robert A. Francis, P.C. RAF:jw 215 S. MONARCH, SUITE 101 ASPEN, COLORADO 81611 303-925-6150 1 5 e . To: Ron Mitchell, Acting City Manager Mayor Stirling and City Council From: Dan Arrow and Lil Lively, Owners of the Popcorn Wagon Re: Popcorn Wagon Relocation on Barnard Property Date: May 19, 1986 We were very pleased with the statements of support of and appreciation for the Popcorn Wagon made by Mayor Stirling and City Council at the May 12 meeting and have also been touched by the abundant concern and support we have received from fellow businessmen and loyal patrons. Further, we were releived and encouraged by the City Council directive to Staff (specifically the Planning Department) to "make it happen on that space". After the meeting that evening we offered to work with Steve Burstein of the Planning Department to "make it happen" and the offer was readily accepted. However, by Thursday, we were informed by Steve that the Planning Department "didn't like us on that corner" and was recommending other locations, and we were amazed to discover that the Planning Department was unaware of our basic needs (electricity, water, sewer, natural gas, commissary and bathrooms). Although we understand that perhaps the Planning Department has a responsibility to point out the negative and to offer alternatives, we are distressed that the directive of "making it happen on that space" was ignored. We trust that we can work with the City Manager, Planning Department and City Council to locate the Popcorn Wagon on the Barnard property without delay. We offer the following comments for your consideration and in answer to the memorandum dated 5/15/86 from the Planning Office and Building Departments regarding the relocation of the Popcorn Wagon : The wagon was moved to the Barnard Property on Sunday, May 11 in order to remove it from its previous location on the Volk property (which was due for demolition on Monday, May 12.) It's positioning on the property was temporary and we apologize for any indications it may have given the City that it was permanently positioned. With the wagon operating on the corner, clearly the "lawn would be ruined", however, we feel that our improvements can be a plus for the city. As the corner stands, the lawn is covered with dog droppings, little bits of trash, large pieces of trash and piles of dirt and gravel. Adjacent to the lawn are a very large dumpster, parking space, and numerous unpleasant "No Parking-We Tow" signs (put up by the previous occupants of the building). The tree that Steve Burstein observed as cut down was not a pine tree but a dead crabapple tree. The stump is available for examination. A few pine boughs were trimmed from the lower part of the 2 large evergreen trees. .. The suggested alternative locations on the mall do not appear workable. The Popcorn Wagon must be attached to water, sewer, electricity and natural gas and must have nearby, easily accessible commissary and bathrooms. At none of the proposed locations would any of these be available and/or concealable. The expense of installing and arranging the aforementioned makes the recommended conditions of a lease from the City (experimental & subject to 6 month review and revocation) unacceptable. The Popcorn wagon has a record of operation for the past 17 yeras and a permanent location is required quickly. The Popcorn Wagon would require as much space on the mall as it does on private property and we find no apparent justification for using public open space rather than private. The Administrative Policy on Exterior Uses (July 28,1982) allows for food service or restaurant use. Since The Popcorn Wagon is considered a building, it can be considered as a restaurant and consequently qualifies as restaurant use. The Barnard property is available, is currently leased to the Popcorn Wagon and the property will be aesthetically pleasing with the placement of the Popcorn Wagon. The Popcorn Wagon can be located, attractively, 20 feet away from the main building as recommended in the memorandum dated 5/15/86 to Peggy Seegers, Zoning Official from Jim Wilson, Chief Building Official. We would prefer and will request from the Board of Appeals to be 12 to 15 feet from the building. We understand the concern expressed by the Wheeler Opera House and wish to join in the expression of concern for the elegant evergreens on the Barnard property. It is our intention to trim and groom only the lower branches of the evergreens and to plant small aspen trees and indigenous flowers as part of the design of the seating area. We understand the potentibl problem of popcorn going into the Wheeler and offer to place signs and to verbally discourage our patrons from taking our popcorn into the Opera House. We feel that a well placed sign at the Opera House would further discourage people from taking popcorn into the theatre. We look forward to meeting with the HPC, CCLC and Board of Appeals for the necessary approvals. .. The requirements for operation of the Popcorn Wagon are: (all of which are available on the Barnard property) - elecrticity 150 amps 110 - sewer - natural gas connection - potable water - male and female bathrooms within 200 ft. - approx 350 sq feet of outdoor seating, bordered by brick planters with flowers and trees - 150-200 sq ft commissary Our plans for the property are: (see drawings) -remodel storeroom into clean, food prep commissary -install new electric and natural gas service -repaint the currently white cinderblock walls a color which will make the walls inconspicuous -trim lower branches of pine trees -lay paving bricks on seating area which includes cleaning up the parking area -relocate and work with Don Fleischer (manager of the Wheeler Square) to design the concealment of the dumpster -install an antique street lamp -have 30" high brick planters built and planted with perennial flowers and aspen trees -lastly, place wagon at the approved distance from the buildings and permanently install to releive stress from springs and axles WATERFALL HOPE 1 11 1 - \Ll 4% 0 J O 0 T RASH 0 1 0 1 3 1 o PARKING l WHEELER SQUARE m n n. n 0 H Y IMA N ST 0 0 FENCE O TREE 5-17-96 MILL ST. .LIL PRPOSED CHANGES f~ ~ WATERFALL HOPE 1 -~ L_ ' COMMISSAR 0 0 - 1-' ~ TRASH || Elu 8 61 N /1i i %\ 10+ i. il + 1 \4/ WHEELER 0Â» SQUARE Ii-i--.-I- O TRE PLANTER HYMAN ST. 0----0 FENCE 5-/7-96 Ecde 9/o't= / Ft. .. SCALE IIN=IFT r------.. i-,Â·=7 013[saa.1 .....,jAWNFRA .....LI.k~|.8-Llial f ~ Â·Â·p-1-4.. k-.lippeC' :'- 41.1\11'111~Il'IMiÂ®44Â·.Â·1*1:::.....:Â·1*Wl@)1*jl, mi,Â·..0 lijakili Â£t~ b/...3: 1 Â£ 1 1)HI~111!liPT.ZIFIF-.'. - 16: < 4Â¥41 Â· , :11Â·<6 k~li< NFI M.- i../.,i'0*BEHL ...... IM lk'ANU tilld{Y....'iue}lzdi%*i~~lÂ£* =fc-*/---4 Â·v-:r.:2Â»9==19/." '3'Wuk*4\ 2.121*>?rhf,1 -a.-3* PLANTERS , 1 0.' 31' 3'c lEt 44 9 '6.f" 11 1 /1\ /9, 1 1 1 I 00 2 45- O CAll 16 1 6" 61/ 2" lk' 9,1 - 1,01 '31 19'/'I .. MEMORANDUM TO: Ron Mitchell, Acting City Manager FROM: Steve Burstein, Planning Office Peggy Severs, Building Department Bill Drueding, Building Department RE: Popcorn Wagon Relocation DATE: May 15, 1986 We offer the following comments regarding the relocation of the Popcorn Wagon: 1. The location on the southeast corner of Galena and Hyman where the Popcorn Wagon has been moved since Sunday night, appears to be inappropriate. This small area is part of the Barnard property open space, is fenced in and contains lawn and pine trees. If the wagon remains on this site, the lawn would be ruined and pine trees disturbed, particularly if seating, trash disposal and other accessory facilities are incrementally added to the site. As of a site visit today one pine tree has been cut down, for which there appears to be no justification. We are checking whether the tree was part of the required landscaping plan of the parcel and should be replaced. In addition, the Fire Marshall has determined that the wagon must be at least 20 feet from the other buildings according to the Fire Code. This location appears to violate this code criterion. If the Popcorn Wagon were to be located on this site, the following approvals would be necessary: a. City Council amendment to the "Administrative Policy on Exterior Uses" to allow a food service use that is not immediately adjacent to a restaurant. b. Planning Commission special review approval of "commer- cial restaurant use" of required open space pursuant to Section 24-3.7(d)(8). Presuming that this site constitutes part of the required open space for the parcel, the Planning Commission would need to determine that the popcorn wagon qualifies as a "commercial restaurant use" and therefore is eligible to apply for this review, and that the popcorn wagon "is not in derogation of the purpose of the open space require- ments." C. Historic Preservation Committee review to authorize .. "construction or erection of any improvement...upon any site or area included within an H, Historic Overlay District" pursuant to Section 24-9.10(a)(3) of the Municipal Code. d. Commercial Core and Lodging Commission review and approval should be accomplished to ensure that the wagon would fit in with mall concepts. e. Board of Appeals exempting the wagon from Fire Core distance requirement. 2. We believe that the Popcorn Wagon can be better accommodated on the mall, and we offer the following alternatives (see map attached for location). a. Rubey Park plaza on corner of Durant and Galena. The area has heavy pedestrian traffic but the wagon would not significantly impede pedestrian movement. Advan- tages include 1) Fire code provisions could be met on this site, and 2) The City would have sufficient review powers over the operation through a vending license and lease agreement. However, during ski season the plaza is a queing area for ski buses. The Wagon would conflict with this use and therefore the site is not the preferred alternative. b. Notch of open space west of Think Toys store. From the perspective of integrating the Popcorn Wagon into mall activities this is a good location. However, it is presently used by rafting companies; and the 20 foot distance from other buildings required in the Fire Code cannot be met. C. On the Mill Street mall across from Wagner Park. This area is very heavily used in the summer and the popcorn wagon would contribute to further congestion. This is therefore not a desirable choice. d. On the Galena Street mall across from the Independence Lodge. This area is also quite heavily used, and again is not a preferred site. e. On the Cooper Street Mall, within the center green- space. In this location, fire code requirements can be met and the City can review the operation periodically. The Wagon will not block pedestrian flow, street sweeping, snow removal, or fire lanes. The Wagon should generate activity in an area of the Mall that is typically underutilized. This alternative entails some modification of the open ditch and lawn, but no trees would need to be removed. We recommend Alternative (e) (with areas c and d as possible .. second or third choices) under the following conditions: 1. City Council must grant a lease agreement and vending license to the Popcorn Wagon subject to Section 13-61 of the Municipal Code. The applicant shall submit a site plan specifying the location of the wagon and any seating. The vending license shall be experimental and subject to review and revocation after 6 months. 2. HPC and CCLC review and approvals shall be accomplished prior to issuance of vending license. CC: Jay Hammond Paul Taddune SB.515 6'/irci' 67/2'L. 1',i %,c,-71/,; 6,1,Â·: 10,- Fbi.( c,-., LL):li,:..J 1 j \ 6 1 11 1 1 Il J l .-I )I J r, 1 1- 1 MAIN Â· 1 1 -61 1 el z O k 1-101 1 5 W cr -J z lu J -W - - 13 1-1 1 m 0 1 <1 < 10 0 E Â·E 1 0 = E : , I liOPKINS - r s 1 -- 1 1 3 - ~ a r- <1 ZL 1 ..... - 1 11. @r 3 L _ _ ..... ....._ O ,- 1 1 =1 HYMAN 1 1.- t2444 - I 1 3 , lili , 111 - til b 1 1 1 1 lilli 1111 f I t - n \ 3 1 r 1 1 i||| i / COOPER I 1 c~ 1-1 i 1 1 lilli l 1 - 1/- d~/. - -1 1 1 ..... - 1 1 - -- 0 DURANT 1 - . - - I - : 1 I- - - - -'-- - ~-11 1 F Figure 36 LEGEND : Total Number of Pedestrians Counted in a 15-minute Morning Plus a ||l|||[| More Than 60 1,1,11,1 40 to 6 0 15-minute Afternoon Period (4.14.86) 20 to 40 u-- Pedestrian Study Area TTDP ~- Leigh, Scott & Cleary, Inc. Illill Cb .. MEMORANDUM TO: Peggy Seegers, Zoning Official FROM: Jim Wilson, Chief Building Official ~~PI/'~ RE: Popcorn Wagon Relocation DATE: May 15, 1986 By building code definition, the popcorn wagon is a building, "Any structure used or intended for supporting or sheltering any use or occupancy." Section 501 requires the Building Official to classify every building according to its use or the character of its occupancy. Various building code requirements are then applied based on the particular occupancy classification. I would classify the Popcorn Wagon as a Group B, Division 2, Occupancy for the application of building code. A building's location on property is not restricted by building code, but construction, based on the location, is controlled to prevent fires from spreading to adjacent properties. A B-2 Occupancy is required to have fire resistive walls if closer than 20 feet to property line. Prohibiting or protecting openings in exterior walls is also necessary when close to a property line. Because the Popcorn Wagon is not fire resistive and has openings on all sides, it should be located a minimum of 20 feet from any building. JW/ar 0 ' Â·,3 LU ' h . E 14 7 ( SD -vp - E - 0 > 21 - F- > O ri Â· 0 Â· cs E C) 1 $ Â·~ -0 E-fi; _19 6 E-6-T-T, 0 E G -T-T'v U.; > . 9 w p~,13 1-SD-WÂ·E 1 W - 0 ' -1 1 Â» 1 1 . 1. * 1,0 ! 90 CD LU' N - - t- E-G-T-TV ~3 E-G--LTV O SD-E-G---TV w .__.- _. E w ; LE--19 Â«TITY -2. LL; -- ~ - Â£ -UJ, 0 .T- 1 g. 3 1 1 1 - ... . 1 UJ , i<ZO B : ; i f i : 0 <1 , Â· I i , ! . 1 co 1 _ SO.-w- E 1-SD C5 IW Â·t W-SD LU A > : p- C 1 O b 1 1 1 ' 1 1 fl 1: 1 -Ct Ul 0- ! -1 k.- . . . 1 1 -:' 11 1 -LU T * E-G - 4.1 E-G-T-T ' ' - rEl Ul -1 ' ~ 2 .r a 1 1 # -1 --1 L J E -A city of aspen 1 1 DURANT Ew ~ T W W --- 1-- .- '....I C t 19 T 5 1 w T' , E -< E :1-ri-*02,- T G-T-T . E-G-TV ~ 7. v- T | 2 - - 9 1 - ,- 1-1,- , r- - --Â·-- 'z.- - .# -'-7E~ ' ~ 9 14; .1 i 0 2 , L _, Â» ...1 16 2 ~21 L - ap--- o L: noty cros: electric *- G .9 .... ; 1 Â» W k- 101 1 K o j G 1- . . 4- 4 - T C:it_.01-,1,â€¢ , i 7 1 -1 -. 1 JI Ira/.7 , ..,r - 1 1 1 1 1 W B ' 1 0 11 -- R , 0 4 ..1 . O 4> W-G 0 <ibitiÂ·/.iT 9 -:- 2 W 10 1 0 1 ...1--4 1 1 PI,de. url'~tj M. f - 6-+V i.nj; .pe}s offic-* 300 , 1- A L M - 3- A. 1 . G i. fl .- 4 59 , i.Â· City Ot ,]soefl electric 1 '~I ~ rioi, cross .-/ e'lectr,c f I / . l 1 SCALE I = 200 i LEGEND SS --- SANITARY SEWER 6 SD ---- STORM DRAIN 4 1 - IRRIGATION T - -TELEPHONE TV ---CABLE TV. E --- -ELECTRIC - - - SERVICE AREA 806 - -'' G---- GAS W---- WATER CC - - - -CONTROL CABLE TC - - - - TRAFFIC COUNTER 4 NOTEÂ· F' EXCAVATIONS WITHIN HIGHWAY 82 u R.O.W. ( Shown ,n heovj block 1.nes ) 4 REQUIRES STATE HIGHWAY DE PT PE w., I Fot %4114 1-IN~ E)(Ila)$:00 8. i f. . of 402 1 . h CON Â»% 60,16/1 3 -l 9- 8 6 TO:City Council '713 -3627 FROM: Dan Arrow & Lil Lively (owners of The Popcorn Wagon) DATE: May 7,1986 SUBJECT:Amendment to Administrative Policy on Exterior Uses Dan Arrow and Lil Lively, owners of The Popcorn Wagon request that the City Council of Aspen amend the Administrative Policy on Exterior Uses dated July 28,1982 that The Popcorn Wagon be permitted to provide resturant service on private property. It is the intention of the owners of The Popcorn Wagon to relocate on private property at the SouthWest corner of Hyman and Mill, next to Waterfall Hope and the Mason & Morse Building. The Popcorn Wagon has served the Aspen Community and visitors as a unique fast food resturant for over 17yrs and is consistent with the "type of ambiance" that Aspen is trying to provide. The use of open space on private property for The Popcorn Wagon, we feel, does comply with "traditional 1, uses . It has operated in compliance with state and local health ordinances as a resturant (rather than as a push cart) thus making it different from recent food vending requests. The Popcorn Wagon is not a lunch truck, a street vender, or a push cart. The Policy on Exterior uses was amended at the Dec.9th 1985 meeting of the City Council to include Christmas tree sales and raft trip use and we feel that allowing the Popcorn Wagon this use is as valid and wanted by the community. The Popcorn Wagon, at the corner of Galena and Cooper, installed year round outdoor seating which over the years has become a much used meeting and eating activity center for the community. It is very likely that at the new location such activity will follow and make that open space much more useful than it has ever been. Since The Popcorn Wagon (grandfathered in its old location) will soon need to relocate it is important that this special permission be given so that Aspen can keep this asset. It is used in promotions for Aspen regularly and represents one of the things that is old that we want to keep. The Popcorn Wagon was located at this new location up " until 1975. The owners will be renovating the wagon so that it has an attractive appearance and represents Aspen well. .. TO: City Council FROM: Â·Wayne Chapman DATE:. July 28, 1982 SUBJECT: Administrative Policy on Exterior Uses The Zoning Enforcement officer met with the City Attorney and Clty Manager to tiscuss the issue of exterior uses on private prbperty. This discussion was precipitated by a complaint that tne zoning enforcement officer had received concerning a flower. stand which has been constructed and is currently operating entirely on private property next to 11_2_Ls restaur.ant. _ 'TAL CC.(1.Le'.Â· --- The outcome of this meetingâ‚¬resulted in the following administrative . policy regarding exterior uses. \ 1.~) x Food service uses or restaurant uses will be permittea to- provide direct Service to customers* in the immediate adjacent exterior* area provided that tne primary interior use is. a food service or restaurant use. However, this : '.will not *permitÂ· expansion into the publ.ic .right-of-way. 2. Rafting companies will be permitted. to set up temporary. . structures on private Â·ptoperty only. 3. All other retail sales as exterior uses will be prohibited. This policy is based largely on traditional uses and lS directea toward maintaining the type of ambiance tnat we feel Aspen isÂ· trying to provide. . fÂ» Wc:ds .. Regular MeetiDq -- AsEen-_City Council .December 9. 1985. REOUEST FOR -FOOD- CONCESSION STAND Bill Drueding, building department, recommended Council reinforce the administrative policy memorandum of July 1982 on exterior uses, adding the sale of Christmas trees. Drueding pointed out the zoning code states that no commercial uses may be operating in the 25 percent open space requirement. The Code has been amended to allow restaurants to use open space for seating.- Drueding said this proposed potato wagon will operate on the only open space at the corner of Hyman and Mill, but is not the same intent as a restaurant putting tables outside their property. Councilman Isaac said he would not want to see a proliferation of vending in open spaces around town. David Camp, applicant, presented a picture of the potato wagon he would like to operate on private property at the corner of Hyman and Mill. Camp told Council the agreement he has with the owner of the property is to operate until April 1st. The popcorn wagon will be moving to this location April 1st. Camp said he has worked out a base of operations with the Village Pantry. Steve Burstein, planning office, said they feel the administrative policy of July 1982 is in effect and it would exclude this operation. Assistant City Manager Mitchell said Council had decided to handle these requests on a case by case basis. Councilwoman Fallin said she would like to see more detail, where the toppings for the potatoes would be, and setaing, etc. Mayor Stirling moved to amend the administrative policy dated July 28, 1982 in section 2, #2 that rafting companies and the sales of ChristmaÂ·s Â·trees will be permitted to set up temporary structures on private property; seconded by Councilwoman Fallin. Mayor Stirling said this is a difficult issue, but his inclina- tion is to not open it up at this time. Mayor Stirling said because of the dear nature of restaurant space in downtown Aspen, it makes it more difficult for restaurants to operate year round. City Attorney Taddune told Council it is advisable not to expand on the administrative policy without changing the city code. .. MEMORANDUM Date: December 3, 1985 TO: Ron Mitchell, Asst City Manager FROM: B.ill Drueding, Zoning Enforcement Officer ll.A SUBJECT: Potato Wagon and Outside Uses In July, 1982, a flower stand was placed east of R-Peas' building on private property, the same area as requested by Mr. Camp. At that time it was determined that our building and zoning codes did not explicitly address this type of exterior business use on private property. There had also been requests for pretzel wagons, hot dog Â·stands, etc., on private property. Subsequently, Wayne Chapman presented the July 28, 1982, Administrative Policy to City Council. We have since had similar exterior use requests.from Clark's Market and City Market. After meetings with the City Attorney an ordinance was drafted and presented to City Council. Your memo of March 4, 1985, is attached. As you indicated to me, Council did not take action on the Ordinance draft but.instead dealt only with the Hickory Meat Smokers. To my knowledge, there has not been any action since. In reference to Mr. Neiley's letter of November 26, 1985. In the CC zone, 25% open space is required. Section 24-3.7(d)(8), "The provisions of subparagraph (7) above notwithstanding, required open space may be used for commercial restaurant use if, on review, the planning commission shall determine that such use not b c i 3 dcrogs tinn o f the r urrosed - f + he -pon 8 rharze reclu irements of this 'section; provided,Â·however, that nothing herein shall be construed to permit the construction of structures prohibited by this section in designated open space areas." It appears to me that the Pota'to Wagon would operate in required open space. I would not consider this wagon a restaurant and therefore may not even be considered under the P&Z review process. I believe this section was amended to allow existing restaurants to offer outside summer dining on private property, such as with Pour. La France. There is outside dining on City property. The Mall seating is by contract with City Council. Mr. Neiley also'mentions Christmas tree sales. Every year this problem arises. Those lots on West Main Street are selling retail in an office zone and, therefore, not permitted. It h dâ€¢ been an unofficial policy to advise the proprietors that they are in violation of zoning codes and to give them. thirty (30) days to abate. Concerning "lunch trucks": Peppermint Patty has thehonly current vending contract issued by City Council. It is my understanding. that Aspen Catering does not vend to the public but sellsÂ· to construction sites after getting a.contract with the building contractor which at this point seems'to fulfill the needs. Concerning the previous offered amendments to Section 13-14, at a time when Council is requesting fewer laws, this appears to increase Council and staff's work load' and further fattens the Aspen Municipal Code. For a $100.00 fee, Council and staff would be required to review any type of outdoor use on private property from potato wagons to live bait sales. Upon requests, clothing and ski racks could be placed outside of businesses, etc. I feel if any temporary uses are to be considered these should be listed and all other uses not be considered. 0 0 Ron Mitchell, Asst City Manager â€ž December 3, 1985 Page 2 After enforcing City codes for over five (5) years, I feel that the administrative memo of July 28, 1982, should be reinforced and Christmas trees added to those uses permitted. I feel an attempt to look at every temporary use request will open a deluge of imaginative requests to Council. Also, if the now grandfathered Popcorn Wagon moves its location, it will violate the 1982 administrative policy. CC: Paul Taddune, City Attorney Patsy Newbury, Zoning Official Alan Richman, Planning Hal Schilling, City Manager BD/ar ' .. - 1 - --- - 1 1,=11 -~- ' I.:1 .11.-,11-r/ Â· Â·Â· Â· Â· : Â· Â· Â· - Â·Â·.-I....*....; ..Trl--- HPL Popcorn wagon 5/27/86 Preliminary review of the popcorn wagon, relocation NW corner Mill Street and Hyman,Lil Lively and Dan Arrow. Georgeann Waggaman said that in the presentation the board whats to know what is happening with the trees. Dan Arrow open by stating that there are two big fur trees on the lot, a cherry tree over next to the Wheeler square, the applicant said that they will not touch the cherry tree but proposed to trim the fur trees,so people can walk underneath them, about six feet. Right now one of the trees, the bows touch theground, and 4 others are six feet, and will need a little bit of trimming. the sitting will be near one of the trees. CCLC recommendation included ~ placing grates around the trees to protect the roots. The parking spot will be eliminated,showing the drawing, first ~ one is how it looks now, and the second of how the applicant ; i plans to make it. i The applicant will be paving the area with paving bricks, the t popcorn wagon itself will be almost totally on the exsisting parking space. The reason to park it there was because of fire relation,it could not be closer to the building,it had to be 20 feet from the building. The applicant has gone through City Council, and CCLC, suggested that the applicant change the tree lamps,CCLC did give permission to place conduit and review the street lamps. Burstein asked about the benches,the placement, and if they were on private or public right of way. The applicant stated that CCLC did not want the benches on the Mill Street side, unless the y could see how it would work,it looked to close to the trees on the mall. They did like the idea of placing them on the Hyman street side if it did not encroach on the public right of way. There lease is for the land up to the Wheeler Square property. The planters will be dark brown brick,about the same color as the mall brick, about 30 inches high and will place trees and flowers, Georgeann Waggamn said that this will come to be a urban park. Burstein attended the CCLC meeting, and his commit was that there be more greenry at less next to Waterfall and Hope,but the response iwas that grass does not grow well there,its to shaped, but Burstein would like to see less paved surface,and some green area in it place, besides just the planters. Drueding said that the open space and the sitting of the restaruant will have to go to P&Z for review. Waggaman asked if bark chips could be used to soften up, around j /- .. - . i the bases of the trees? Arrow said the problem with that idea is the bricks will have to be washed down every day, there concern would be with the mud. Waggaman said there is such a hard surface,if only something could soften up the look maybe some trees and the bark chips would buffer that wall.Maybe a attractive fence would look nice. Poss said that the applicant need a better landscape plan,and have them come back to HPC, the plan is harsh,and needs to be soften, but that is up to the applicant. Pat O'Byran said the only problem she has cutting the beautiful trees, and wants toknow how much they plan to prune? The applicant said the one on the right,is already lop sided, there is a hole on the left side, and then the limbs on the right go down to the ground, if the limbs went all the way down to the ground he would not trim it, the one on the left is already trimmed about five feet. , Waggaman asked if the tables really had to go that close to the trees? If the applicant would bring the tables out closer to the mall side asnd let the trees grow down lower, that way the spacce is block out more in the back. Cunniffe said that the applicant should do a park like setting more than the look of the mall. Pasquarella likes the idea of keeping the wagon in town,it has historic value, and is probably the only place in town that this can be placed. Georgeann Waggaman said that she has no problem with preliminary approval with consideration at the Public Hearing of the suggestion HPC has given the applicant. June 24th will be the Public Hearing. The applicant asked that HPC approval with the amendment of the applicant leaving a line perhaps between those two trees undeveloped,at this point. Waggaman said that this will have to go to Public Hearing, and this is only preliminary approval, the public will have to have imput to this item. Nick Pasquarella moved to approve for preliminary approval with asking their consideration to rearrange the softening of the degree of the landscaping more to HPC suggestions, second,Pat O'Bryan, all in favor, motion carried. - I ' , ,>* U t-' -I' 2.- .:.Il.- . .... 4- e . LEASE AGREEMENT THIS LEASE AGREEMENT made in Aspen, Colorado this 20th day of August , 1985, by and between the Estate of Robert Barnard (hereinafter referred to as "Lessor") and Lil Lively and Dan Arrow, jointly and severally, (hereinafter referred to 1\ as "Lessee") . ,\ 1, \0Â©t 4-- p 4.--- 0*,n~. 6040' 5 WITNESSET IT: ---------- 1. Premises. In consideration of the rents and covenants hereinafter specified to be paid and performed by Lessee, Lessor does hereby lease to Lessee and Lessee does hereby rent from Lessor the following described premises: Approximately 2048.13 square feet of land, the same consisting of an approximate rectangle 61.3 feet by 34.0 feet, including all improvements presently thereon, and being a part of the Aspen Commercial Condominiums as shown on the Condominium Map filed for record in Plat Book d at Page 449. Said area is more specificall.y depicted on Exhibit "A", attached hereto (as outlined in red), and is hereinafter referred to as "the Premises". The premises is subject to a right of access (as shown on Exhibit "A") in favor of the tenants of Unit B of the Aspen Commercial Condominiums. Lessee may improve the Premises in the area of the access so long as the right of access is not interfered with or diminished in any fashion. 2. Primary Term. The term of this Lease Agreement shall be three (3) years and five (5) months (or until such term shall sooner cease under any provisions of this Lease Agreement), said term commencing on April 1, 1986, and ending on August 31, 1989. Lessee shall also have an option to extend this lease for five years (to and including August 31, 1994) provided that Lessee serves written notice of its election to exercise such option no later than July 1, 1989, and provided, further, that Lessee is not in default upon any of its obligations hereunder at the time of the exercise of such option, or at any time between such exercise and the commencement of the option period, and provided further that the amount of rent for the first year of the option period shall be automatically increased on September 1, 1989 by 10% of the amount of rent for the last year of the base period. The rent for each ensuing option yea.1- shall based upon such increased rent, as modified for cost-af--1 i.ving increases .. provided hereinafter in Paragraph 3, but the automatic increase shall occur only once, and only upon the exercise of this option. 3. Rental. The rent for said term is a sum total of Fourty-Nine Thousand Two Hundred Dollars ($49,200.00) payable over the term of the lease in equal monthly installments of $1,200.00 per month due and payabJe to Lessor in advance of the first day of each calendar month of the primary term at 420 E. Main Street, Aspen, Colorado or such other place as Lessor may from time to time designate in writing to Lessee, subject, however, to an annual adjustment equal to the increase, if any, in the Cost of Living Index, Bureau of Labor Statistics, all items, Denver area. Said adjustment, if any, shall be effective as of the first day of each April during the term of this lease, except April 1, 1986, and shall he based on the most recently available annual cost-of-living index. For example, if the first available published annual cost-of-living figure appears in December, 1986, it shall be th index used in April, 1987 to adjust the rate for the year of April 1, 1987 - April 1, 1988. No payment by the Lessee or receipt by the Lessor of a lesser amount than the monthly rent stipulated in this Lease shall be deemed other than a payment on account of the earlier rent due, nor shall any endorsement or statement on any check or in any letter accompanying any check or payment intended as a rent payment or payments, and which endorsement or statement purports to render such check or payment full paympnt of a rental amount under dispute bind Lessor, and the Lessor mav accept such check or payment without prejudice to its right to recover the balance of the rent or to pursue any other remedy provided for in this lease. Acceptance of any such rent shall not be deemed a waiver by the Lessor of any breach of this lease by Lessee then existing. 4. Payments due Lessor in Advance of Occupancy. The following sums shall be du Lessor in cash or certified funds on or before February 1, 1986 and failure to pay the same 2 shall, notwithstanding the execution hereof, render this Lease Agreement at once null and void and without any force and effect, said sums being: $1,200.00 First monthly installment of rent $1,200.00 Last monthly installment of rent 5. Personal Guaranty. Simultaneously with the execution of this Lease Agreement, Lil Lively and Dan Arrow, individuals and majority stockholders of Lessee, shall execute their personal guaranty of this Lease Agreement in the form annexed hereto as Exhibit "B". It is expressly agreed and understood between the parties hereto that any failure or refusal by either of these individuals to execute the personal guaranty as required hereunder shall render this entire Lease Agreement null and void and without any force or effect. 6. Real Estate Taxes. In the event real estate taxes on the property in which the Premises i.s located (I,ots H and I, Block 82, City and Townsite of Aspen) for the year 1986 or any year thereafter under the primary term or any options to extend above granted, exceed the amount of real estate taxes payable for the year 1985, Lessee shall pay to Lessor as additional Â·~ rent for said year 1986 and every year thereafter an amount equal to that portion of the increase over 1985 real estate taxes that the square footage of the Premises bear to the entire square footage of the said property of which the Premises is a part, provided that if such an increase is appropriate for 1986, it shall be apportioned to reflect the fact that Lessee shall only occupy the Premises for eight months of that year. In the event such additional rent shall be determined to be due, Lessor shall furnish Lessee a statement showing the computation of the additional rent and Lessee shall pay the additional rent to the Lessor within ten (10) days after the receipt of the statement. If after Lessor shall have made payment of additional rent, Lessor shall receive a refund of any real estate taxes for any calendar year on which such 3 .. additional rent has been based, Lessor shall within ten (10) days after receiving the refund pay to Lessee a portion of the refund computed on the same basis as was the additional rent for that calendar year less any expenses (including attorney fees and appraisers fees) incurred by Lessor in connection with any proceeding or application that resulted in said refund. Nothing contained in this paragraph may be construed to create any duty or obligation on the part of Lessor to contest any tax increase. Lessor's computations of additional rental to be paid hereunder shall be conclusive and binding, but shall not preclude any adjustment of the computation if Lessee shall, within 30 days after receiving notice that additional rents are payable, notify Lessor of any claimed error in the computation; provided, however, nothing herein shall be construed to extend the time provided above when additional rents as determined by Lessor are due and payable by Lessee. Lessor's computations shall include square footage of the premises, square footage of the entire property, the amount of the tax increase and where appropriate, proration for any period where Lessee occupies the Premises for only a part of the year. Landlord's remedies for failure to pay such additional taxes shall include, without limitation, all of its remedies in the event of a failure to pay rent. 7. Permitted Uses. All uses to the extent hereinafter permitted are commercial; no residential use of the Premises shall be allowed. The Premises shall be used as a snack bar/restaurant which shall include the right to dispense alcoholic beverages, provided that Lessee, at Lessee's expense, shall obtain the necessary licenses and permit, and provided further, that Lessee, at Lessee's expense, shall at all times comply with the terms and conditions of such licenses and permits. 8. Assignment or Subletting by Lessee. For purposes of this paragraph, any event, directly or indirectly, causing Lil Lively and Dan Arrow to become in the aggregate the owners of 4 .. less than fifty-one (51%) per cent of the out.standing stock of Lessee shall ipso facto be considered an assignment of this I.,ease and for purposes of Lessor deeming itse]-f secure as to the ownership of the stock of Lessee, Lessor or its duly authorized agent is hereby granted the right to inspect at any reasonable hour, the stock certificate books, minute or resolution books, or other records of Lessee necessary to determ-ine the ownership of the stock of Lessee. Lessee shall not assign this Lease nor any portion of its interest in the leasehold estate created hereby without the prior written consent of Lessor having been first obta-ined; provided that said consent shall not be unreasonably withheld by Lessor; however, in the giving of such consent Lessor may impose any or all of the following conditions, none of which separately or together shall be considered unreasonable: (a) Lessor may require prepayment by Lessee to Lessor of the next to last month's rent due under the term as granted under this Lease Agreement. Said additjonal prepayment shall be held by the Lessor for the entire term hereof or any options to extend and may be comingled with other funds of the Lessor, shall not earn interest for the benefit of Lessee, and shall not be construed to be held in trust for the Lessee. The prepayment of the next to last month's rent as provided herein shall in no way be construed to establish or be an amount of liquidated damages and Lessor expressly reserves the right to proceed against Lessee for any unpaid rents, or with respect to any other breach or default under any condition or covenants of this Lease Agreement over and above said next to last month's rent. (b) Lessor may require the proposed assignee or sublessee to demonstrate to Lessor sufficient net worth and ability to pay all rents reserved hereunder and perform all covenants and conditions under this Lease 5 .. Agreement. Failure to so demonstrate shall entitle Lessor to withhold consent to such assignment. (C) Nothing contained in this paragraph or in this Lease Agreement may be construed as Lessor's approval or consent to any sublease, encumbrance, pledge, or the granting of any security interest in, or the use as collateral in any fashion of this Lease Agreement or the interest of Lessee in the leasehold estate created hereunder and further Lessee shall not sublet, encumber, pledge, grant any security interest in or use as collateral in any fashion this Lease Agreement or the interest of Lessee in the leasehold without the written consent of Lessor having been first obtained. (d) In the event Lessor's consent to any assignment or sublet is given such assignee or sublessee shall during the term of said assignment or subletting assume the covenants, conditions and obligations of Lessee under this Lease Agreement; provided, however, Lessee and any personal guarantors hereof shall at all times remain fully liable for the performance of all said covenants, conditions and obligations. Lessor may also require the personal guarantee of any assignee or sublessee as a condition of approval of such assignment or sublease. (e) Any assignment, sublet, encumbrance, pledge, grant of any security interest in, or use as collateral in any fashion of this Lease Agreement or the interest of Lessee in the Leasehold in violation hereof shall be null and void, without any force and effect and shall at once be deemed a breach of this entire Lease Agreement. (f) Notwi-thstanding any other provision of this paragraph, in the event Lessee shall desire to obtain a business loan from a lending institution to be applied for the use and benefit of operations to be conducted in let premises and said lending institution shall require of Lessee a conditional assignment of this Lease Agreement to 6 .. secure said loan, Lessor shall not unreasonably withhold its written consent to the same, provided that such assignment, if any, shall not impair Lesser's position or security hereunder in any fashion. 9. Improvements. Lessee shall not make additions, improvements, repairs, alterations or changes in or on the Premises or any part or portion thereof, including exterior or interior painting or the p].acement of s i.gns, without the prior written consent of Lessor, which consent shall not be unreasonably withheld, and all improvements, repairs, alterations, or changes made at any time during the term of this Lease Agreement or prior to the commencement thereof, shall immediately become the property of Lessor to be surrendered as part of the Premises at the end of this Lease Agreement; provided, however, Lessee shall have the Landlord's permission to place upon the Premises the Popcorn Wagon presently located at the corner of Cooper and Galena Streets, Aspen, Colorado, which shall remain the Lessee's property and which may be removed by Lessee upon termination, and provided further that Lessee shall be permitted to remove any street lights which it may install during the term hereof, and provided further Lessee shall have the right at its own cost and expense to remove any and all furniture and other items or personalty not permanently affixed to the Premises prior to termination or other expiration of this Lease. Tjessee assiimes all responsibility at its own cost and expense to secure building permits, if any, or any other governmental approvals, certificates, licenses, or otherwise that may be necessary for any improvements that will be permitted by Lessor. With respect to any additions, improvements, repairs, alterations, or changes made by Lessee to the Premises prior to the execution of this Lease Agreement, Lessor's signature hereto shall be deemed his written consent to all of the same. Public liability insurance for the benefit of 1,essor and Lessee as their interests may appear, with adequate coverage shall be 7 .. maintained by Lessee at all times when any work is in progress in connection with any such work as is contemplated in this Paragraph. Lessee shall promptly pay for all such remodeling, additions, alterations, substitutions, replacements or removals; shall discharge any and all liens filed against the leased Premises arising therefrom; and, upon the request of Lessor, shall promptly deposit with Lessor a surety bond or other security satisfactory to Lessor to insure completion thereof. Nothing contained in this Lease Agreement shall be construed as constituting the consent or request of Lessor, expressed or implied to any contractor, subcontractor, laborer or materialman for the performance of any labor or services or the furnishing of any materials for any improvement of the leased premises or any remodeling, alteration, addition or repair thereof, nor as giving the Lessee the right, power or authority to contract for or permit the rendering of any services or furnishing of any materials that would give rise to the filing of mechanics lien or other lien against the fee of the premises. In.the further event Lessee commences such alterations it agrees to post the notice permitted by C.R.S. Â§38-22-105 in such a fashion to advise all third parties or Lessor's interest in the Premises. Failure to post such notice shall be a default of this lease. 10. Utilities, Other Charges, Taxes. Lessee shall pay for all utilities to the Premises. Lessee shall pay all occupation and use taxes, personal property taxes as to property of Lessee and all other expenses incident to the use of the Premises. Lessee shall at its own expense keep free and clear from snow and debris all external sidewalks and pavement surfaces which abut on the leased premises, it being agreed that the maintenance of the said pavement in a saf and attractive condition is the sole responsibility of the Lessee. 11. Further Obligations o Lessee. (a) To pay rent promptly as provided herein. 8 .. (b) Upon termination of this Lease Agreement to quit and surrender the premises in as good order and condition as at the beginning of the term, with only reasonable wear and damage excepted. (C) Maintain workmen's compensation insurance as required by law, and comply with rules and regulations pertaining to employers taxation, tax withholding, social security and unemployment compensation. A copy of any notice of delinquency of levy by any taxing authority shall be given Lessor promptly. (d) To keep the Premises and is appurtenances in a clean condition, free from hazards to health or safety to persons and property. (e) Not to use the Premises for any purposes contrary to this Lease Agreement or any applicable low or regulation. (f) To prevent any disorderly conduct or nuisance whatever within the Premises. (g) To prevent overloading or abuse of the floors, walls or structure and to prevent any use of the Premises which would render the insurance void and/or the insurance risk more hazardous. (h) To permit the Lessor to advertise the Premises for re-lease at a reasonable time before the Lease expires, or the tenancy otherwise terminates, by signs or other devices placed in or about the Premises. (i) Any uses of the Premises permj-tted under this Lease Agreement shall be at all times subject to and in compliance with the Condominium Declaration for the Aspen Commercial Condominium, and any amendments or supplements, thereto, and the Articles of Incorporation, By-Laws, or amendments or supplements thereto or rules and regulations of the Aspen Commercial Condominium Association. 12. Compliance. The Lessee shall promptly comply with all laws, ordinances, rules, regulations, requirements, and 9 .. directives of the federal, state, and city or municipal governments or other public authorities and all of their departments, bureaus and subdivisions, applicable to and affecting the said Premises, their use and occupancy, for the correction, prevention and abatement of nuisances, violations or other grievances in, upon or connected with the Premises, during the term hereof; and shall promptly comply with all orders, regulations, requirements and directives of the Board of Fire Underwriters or similar authority and of any insurance companies which have issued or are about to issue policies of insurance covering the Premises and its contents, for the prevention of fire or other casualty, damage, or injury, all at the Lessee's own cost and expense. 13. Hold Harmless. For all its covenants and conditions contained herein, the Lessee agrees to and shall save, hold and keep harmless and indemnify, the Lessor from and for any and all payments, expenses, costs, attorney fees and from and for any and all claims, judgments, awards or liability for any losses or damage to property or injuries or death to persons occasioned wholly or in part by or resulting from any acts or omissions by the Lessee or Lessee's agents, employees, guests, licensees, invitees, sublessees, assignees, or successors, or for any cause or reason whatsoever arising out of or by reason or any use, occupancy or possession by the Lessee or bv the conduct of the Lessee's business. This indemnification clause shall not be construed to create a right of action or basis of claim for third persons against either party hereto. 14. Insurance. Lessee, at its own cost and expense, shall obtain and keep in full force during the term of this Lease Agreement or any extension thereof, general public liability insurance against any and all liability or claims arising out of or occasioned by or resulting from any accident or otherwise in or about the Premises for injuries or death to any person or persons or property of any person or property of any person or persons with such carriers as shall be approved 10 .. by Lessor for limits of not less than Sl,000,000.00 for injuries to one person and $2,000,000.00 for injuries to more than one person in any one accident or occurrence which policies shall contain the name of Lessor as an insured party thereunder. Copies of all policies of insurance required herein to be obtained by Lessee shall be delivered to Lessor together with periodic proof of timely payment of premiums thereon. At least fifteen (15) days prior to any cancellation or termination date of any such policy, Lessee shall deliver to Lessor a renewal or replacement policy with proof of payment of premiums thereon. Lessor shall insure the building which is upon the land of which the Premises is a part against fire, normal extended coverage perils, vandalism and malicious mischief. In the event Lessee fails to maintain insurance as required herein, then Lessor may, but is not required, obtain such insurance for Lessee, may pay Lessee's insurance premium, or may take any other appropriate action to protect itself. Any amounts advanced by Lessor on behalf of Lessee for Lessor's insurance protection, or to pay Lessee's insurance premium shall be deemed additional rent and due from Lessee together with the rental payment next due hereunder. 15. Abatement. If, as a result of damage to or destruction of the Premises due to fire or the elements, or as a result of any other cause whatsoever (unless such other cause is by Lessee's negligence), the whole or any part of the let premises shall become untenantable, dangerous or unfit for Lessee's use, or Lessee loses the use of all or a portion of the leased premises, rent shall abate justly and proportionately during the continuance of such condition. 16. No Waiver. No assent expressed or implied by the Lessor to any breach of any one or more of the covenants or agreements hereof by the Lessee shall be deemed to be construed a waiver of any succeeding or other breach. 17. Holding Over. If the Lessee shall, with the knowledge and consent of the Lessor, continue to occupy the 11 .. Premises after the expiration of the primary term hereunder or any extension thereof, the I,essee shall become a tenant from month to month on the same terms and rents as herein stipulated for the last month of the term of the Lease. Nothing herein shall be construed, however, as implying that Lessee has any right to hold over, and any such holdover period shall be, if at all, with Lessor's waiver of any rights and subject to all of Lessor's rights and remedies. 18. Bankruptcy. In the event Lessee voluntarily files a petition in bankruptcy or institutes insolvency, reorganization or receivership proceedings in any court, or in the event the Lessee is adjudicated a bankrupt or adjudged to be insolvent, or if a receiver is appointed by any court for the Lessee, or if the Lessee makes an assignment for the benefit of creditors, the Lessor may immediately elect to declare this Lease ended. In such event the Lessor may, at its option, immediately, with or without notice, notice being waived, terminate this lease and immediately retake possession of the Premises, using such force as may be necessary without being guilty of trespass or forcible entry or detainer and without working any forfeiture of the obligations of the Lessee hereunder. In any such event, the Lessor may at its election have a provable claim in bankruptcy or receivership or similar proceedings in an amount equal to at least the sum of the last six (6) monthly payments of rental provided for during the primary term hereof, which sum is hereby fixed and liquidated as the minimum amount of damages sustained by the Lessor as a result of'any such occurrence. 19. Eminent Domain. In the event that the land upon which the Premises is located is taken in whole or in part by condemnation proceed-ings or eminent domain, or in the event that Lessor and Lessee shall convey all or a part of said Premises in avoidance or in settlement of such condemnation proceedings, or threat of condemnation proceedings (either of which is referred to hereinafter as "the taking"), Lessor and 12 .. Lessee herein agree as follows: If the taking is of a part of the Premises, then from the time of taking of physical possession by the condemnor or proposed condemnor, the then rent payable hereunder shall abate in the ratio that the area of the leased premises taken bears to the area of the leased premises before such taking; provided, however, that in the event a portion of said Premises in excess of one-third (1/3) of the area thereof is taken, or if such taking shall render the remainder of the Premises unsuitable for the use to which it has put immediately prior to such taking, then at Lessee's option this Lease shall terminate. Whether condemnation be for a part or the whole of the Premises, the award, sale price or amount received in settlement, will be apportioned between Lessor and Lessee as follows: (a) First, to the Lessor-All amounts attributable to the value of the land and improvements constructed by the Lessor, taken with such land and improvements to be valued as if free and clear of all liens and encumbrances including this Lease, and as in the condition at the time of execution of this Lease Agreement. (b) Next, to the Lessee-All amounts attributable to the value of any improvements constructed on the Premises by Lessee. (C) Finally, to the Lessor-The balance of the award, if any. Any person or party claiming by, through or under Lessor or Lessee, respectively, shall share in any award, sales proceeds or settlement only out of the portion thereof allocated to the party by, through or under which they c].aim. In the event of the taking of the whole of the Premises, this Lease shall terminate and all obligations of the parties to each other hereto shall cease upon the taking of physical possession by the condemnor or proposed condemnor. In the event of the partial taking or condemning of the Premises, hereinabove mentioned, and if in such event Lessee does not, pursuant to 13 .. its rights hereunder, elect to terminate this Lease, the award made to Lessee for such partial taking or condemnation of the buildings or improvements shall be used for the restoration of the buildings and improvements located on the land on which the building is situate to the extent necessary to render the same a complete unit as nearly as possible equal in quality and character as existed prior to the taking. 20. Default. If the premises shall be deserted or abandoned or if there shall be default in the performance of any covenants, agreements, or conditions herein contained on the part of the Lessee for more than five (5) days after written notice of such default is given Lessor, this Lease Agreement at the option of Lessor shall thereupon become null and void and Lessor shall have the right to re-enter or repossess the Premises, either by force, summary proceedings, surrender or otherwise, and dispossess and remove therefrom the Lessee or other occupants thereof, and their effects, without being liable for any prosecution therefor. In such case the Lessor may, at its option, relet the Premises or any part thereof, as the agent of the Lessee, and the Lessee shall pay the Lessor the difference between the rent hereby reserved and agreed to be paid by the Lessee for the portion of the term remaining at the time or re-entry or repossession and the amount, if any, received or to be received under such reletting for such portion of the term. Further, no right of redemption shall be exercised under any law of the State of Colorado in the event Lessee is dispossessed from the Premises for any cause or Lessor obtains possession of the Premises due to a breach or default under any provision of this Lease Agreement by Lessee, any and all remedies or rights conferred upon or reserved to Lessor hereunder are cumulative and not exclusive. If the default in the observance or performance of any covenant or provision of this Lease by Lessee be other than the payment of rents and such default continues for more than five (5) days after notice of such default is given by Lessor, Lessor shall 14 .. not be entitled to treat such default as a default in the observance or performance of any covenant or provision of this Lease if Lessee in good faith is diligently proceeding to cure said default. 21. Peaceful Enjoyment. So long as Lessee is not in default under any of the terms or provisions of this Lease, Lessor covenants to protect Lessee's right of peaceful enjoyment of the Premises. 22. Estoppel Certificate. Lessee, upon request of Lessor or any holder of a mortgage against the fee, shall from time to time deliver or cause to be delivered to Lessor or such mortgagee, within ten (10) days from date of demand a certificate duly executed and acknowledged in form for recording, without charge, certifying, if true that this Lease Agreement is valid and subsisting and in full force and effect and that Lessor is not in default under any of the terms of this Lease. 23. Partial Invalidity. If the term or provision of this Lease Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease Agreement and the application of such term of provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease Agreement shall be valid and be enforceable to the fullest extent permitted by law. 24. Attorney Fees. In the event that the Lessor shall, without fault on the Lessor's part be made a party to any litigation by or against the Lessee then the Lessee shall pay all costs of such litigation and reasonable attorney's fees incurred by or charges against the Lessor in enforcing the covenants, terms, and conditions of this lease or in terminating this lease by reason of the Lessee's default. In any litigation between the Lessor and the Lessee the Lessee agrees that it shall pay the Lessor's costs and attorney's 15 .. costs and attorney's fees, provided however, that the Lessor is determined to be the prevailing party in such litigation. 25. Notices. Wherever this Lease provides for notice from Lessor to Lessee, or from Lessee to Lessor, the same shall be served by personal delivery (including the posting by Lessor upon the Premises) or by registered or certified mail, postage prepaid, addressed as follows: LESSOR The Estate of Robert Barnard c/o Dr. William L. Comcowi-ch 420 West Main Street Aspen, Colorado 81611 LESSEE Lil Lively and Dan Arrow P.O. Box 2213 Aspen, Colorado 81612 COPY TO COPY TO provided, however, that Lessor and Lessee may, at any time change the place of receiving notice by written notice of such change of address to the other; provided further that nothing herein contained shall preclude or render inoperative service of any notice that Lessor may desire or is required at any time to give or serve upon Lessee in any manner prescribed or permitted by the laws of the State of Colorado. Notice by mail as herein provided shall be deemed given, unless sooner received, three (3) days after the date of registration or certification, including Saturdays, Sundays and all legal holidays. Lessee agrees that all of its officers, stockholders, directors and the personal guarantors herein, are appointed its agents for personal delivery of any notice required or permitted to be given hereunder, and that such persons are further appointed its agents for personal service of process pursuant to Colorado law in any action occurring between the parties to this Lease and arising out of the letting of the Premises by Lessor to Lessee. Lessee agrees that any service of process upon such individual s shall be 16 .. considered service upon Lessee or all purposes hereunder and binding upon Lessee. 26. Successors. This Lease Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their assigns, heirs, successors and personal representatives. The term "Lessor", as used in this Lease so far as covenants or obligations on the part of Lessor are concerned, shall be limited to and mean and include only the owner or owners of the building in which the premises is located, and in the event of and transfer or transfers of such interest, Lessor herein named (and in the case of any subsequent transfers or conveyances, the then grantor) shall be automatically freed and relieved from and after the date of such transfer or conveyance of all liability with respect to the performance of any covenants or obligations thereafter to be performed under this L ease Agreement, it being intended hereby that the covenants and obligations of Lessor contained in this Lease or provided by law shall be binding on Lessor, its successors and assigns, only during and with respect to their respective successive periods of ownership. 27. Right of Lessor to Enter Premises. Lessor or its agents or employees may enter upon the Premises at any reasonable time during the term of this Lease with reasonable notice to Lessee or without such notice if it is deemed necessary by Lesser for protection of the Premises. Such right of entry shall include the right to enter the improvement(s) upon the Premises. 28. Authority of Lessee. Lessee represents and warrants that it is a corporation duly organized, existing and in good standing under the laws of the State of Colorado and that it is duly authorized and empowered to enter into this Lease Agreement, bind Lessee hereto and perform all of the duties, covenants and obligations of Lessee under this Lease Agreement. 17 29. Modification. This Lease Agreement shall not be altered, modified or otherwise changed except by a further written agreement between the parties hereto. 30. Descriptive Headings. The descriptive headings of this Lease are inserted for convenience in reference only and do not in any way limit or amplify the terms and provisions of this Lease Agreement. 31. Genders. Where necessary to carry out the meaning hereof the singular shall mean the plural, the plural the singular, and any gender apply to all genders. 32. Counterparts. This Lease Agreement may be executed in counterpart each of which shall be deemed an original, but which together shall constitute one and the same Lease Agreement. 33. Controlling Law. This Lease Agreement shall be construed, interpreted and subject to the law of the State of Colorado. IN WITNESS WHFREOF, the parties hereto have caused this Lease Agreement to be duly executed on the day and year first above written. LESSEE: LESSOR: Estate> of Robert B ard Aw 44- 440~ /14-*-Afly ,,O I -7 L g~-1 41< Z - - ban Arrow 18 =,t i : 31*S 15 (1Â¥W AÂ·PI ~ 53[OFNE'02 k.Â£934041 / i,/ EL/Off kaq(Nnoi 1 / 01/ Alâ€ž64 7 / e.0,; 6ib,4 1//1/ El=-- 33177d Av ..1.1 DI r, 1 -1,~ap--lic,~~ .99* MILL ST, MALL .. STATE OF COLORADO ) :SS COUNTY OF PITKIN ) c The foregoing instrument was acknpwlgdged before me this 40+ day o f di;,rAigy~- , 1985 by k.2150>â‚¬ 9 and r,Â·lty, 249â€¢i) 3 V Witness my hand and official seal. My commission expires : 471-6 /4 ,*7 U Sl*'065*0 6. (1).uu No*/ry Public>, Actaress: 62/y N. /71~,14 Â¢ r,0 0111>4*, 60 4/6,1 U STATE OF COLORADO ) :SS COUNTY OF PITKIN ) The foregoigg instrument was acknowledged before me this 43,Â«4 day of (1094,-457, , 1985 by William L. Comcowich, Personal Represe*cative for the Estate of Robert Barnard. Witness my hand and official seal. My commission expires: 54.,ic, Â»5'-/2/7 I \ . A 3 r--- *,2-1/47-0 6 6'4'261, Ndtary Public LarkssÂ·.2/Y f-j. 2)0*.1-4-1 /1794: e Â»25-9 19 GUARANTY OF LEASE AGREEMENT GUARANTY given by Lil Lively and Dan Arrow, the undersigned to the Estate of Robert Barnard (Lessor), this 20th day of August , 1985, FOR VALUE RECEIVED, and in consideration for, and as an inducement to Lessor making that certain Lease Agreement dated the 20th day of August, 1985, with Lessee, Lil Lively & Dan Arrowfor space described as: Approximately 2048. 10quare feet of land, the same consisting of an approximate rectangle 61.3 feet by 34.0 feet, including all improvements presently thereon, and being a part of the Aspen Commercial Condominiums as shown on the Condominium Map filed for record in Plat Book 4 at Page 449. Said area is more specifically depicted on Exhibit "A", attached hereto (as outlined in red), and is hereinafter referred to as "the Premises". The premises is subject to a right of access (as shown on Exhibit "A") in favor of the tenants of Unit B of the Aspen Commercial Condominiums. Lessee may improve the Premises in the area of the access so long as the right of access is not interfered with or diminished in any fashion. the undersigned guarantee to Lessor, Lessor's successors and assigns, the full performance and observance of all the covenants, conditions and agreements, therein provided, to be performed and observed by Lessee, without requiring any notice of non-payment, non-performance, or non- observance, or proof, or notice, or demand, whereby to charge the undersigned therefor, all of which the undersigned hereby expressly waiges and expressly agrees that the validity of this Guaranty and the obligations of the guarantor hereunder shall in no way be terminated, affected or impaired by reason of the assertion by Lessor against Lessee of any of the rights or remedies reserved to Lessor pursuant to the provisions of.the Lease Agreement. The undersigned further covenant and agree that this Guaranty shall remain and continue in full force and effect as to any renewal, modification or extension of the Lease Agreement and during any period when Lessee is occupying the Premises as a "month-to-month or holdover tenant" or otherwise. IN WITNESS WHEREOF, the undersigned have signed this Guaranty. axely ' 2% D irrow STATE OF COLORADO ) :SS COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this ADÂ» day of August,1985 by Lil Lively and Dan Arrow. My commission expires : (74415 x.r~%* WITNESS my hand and off-06ial seil. ' 3104 L NO t~ky Public Ad#ess: 215 S. Monarch Aspen, Colorado 81611 'Illii i 'jillt .//ili 111 FEXISTI NA DUILED] b.le_..... 1/litil - 11-it, !Ill/li 1ll1jl ll,1.1 1 1 111,1 1%.fr ~~ 4*REE-UES..... ///// SQUARE !1'; ... /E><ISTINÂ¢S, FENCE ' ijil. 4 1 a.Â¤ E 10 REW.hhk/ ilill .:... 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