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HomeMy WebLinkAboutagenda.council.regular.20080922COUNCIL AGENDA September 22, 2008 5:00 P.M. Call to Order II. Roll Call III. Scheduled Public Appearances IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Mayor's and Councilmembers' Comments b) Agenda Additions or Deletions c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters maybe adopted together by a single motion) a) Minutes -August 26, September 8, 2008 b) Approval of Instant Runoff Committee c) Board Appointments d) Resolution #87, 2008 -Contract East Water Plant e) Resolution #88, 2008 -Contracts - Truscott Building Stabilization f) Resolution #89, 2008 -Contracts - DHM Burlingame Site Planning VII. First Reading of Ordinances a) Ordinance #30, 2008 -Establishing TDRs - 541 Race Street P.H. 11124 b) Ordinance #31, 2008 -Code Amendment -Encroachments P.H. 10/14 VIII. Public Hearings a) Ordinance #25, 2008 -Historic Designation - 28 Smuggler Grove b) Ordinance #29, 2008 -Water Service Agreement -Three Trees c) Ordinance #22, 2008 -Code Amendment -Residential Multi-family Replacement d) Ordinance #24, 2008 - 508 East Cooper Street Settlement IX. Action Items a) 1005 Waters Avenue -Ordinance #48 Negotiation X. Adjournment Next Regular Meeting October 14, 2008 COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. v t ~, MEMORANDUM TO: Mayor and City Council FROM: Kathryn Koch, City Clerk DATE: September 15, 2008 RE: Instant Runoff Voting Task Force REQUEST OF COUNCIL: Staff requests approval of a task force to recommend to Council policies and procedures for instant runoff voting. BACKGROUND: In August 2007 when Council put the Charter Amendment question regazding adoption of instant runoff voting on the ballot, the motion was "if this is approved by the voters, Council will appoint a task force of citizens, the city clerk and city attorney to propose recommendations aspecific instant runoff method". The ballot question was: AMENDMENT TO CITY OF ASPEN HOME RULE CHARTER TO ALLOW INSTANT RUN-0FF VOTING PROCEDURES AND COUNCIL MEMBERS TO BE ELECTED BY MAJORITY VOTE Shall Ordinance No. 38, Series of 2007, be approved to amend Section 2.7 of the City of Aspen Home Rule Charter to require City Council to adopt and implement instantrun-off voting procedures for the election of Mayor and members of Council; and to amend Section 3.2 to require members of Council to be elected by majority vote? Yes 615 No 186 DISCUSSION: Staff recommends the following task force: Kathryn Koch John Worcester Jack Johnson Su Lum Blanca O'Leary Sy Coleman Peter Nicklin Linda McAusland Pam Schilling Janice Vos-Caudill Barry Crook City Clerk City Attorney City Councilmember Citizen Citizen Citizen Citizen Citizen Town Clerk -Basalt Pitkin County Clerk Independent Voter The task force will consider: • How IRV works from a voter's perspective • How the votes are counted • Equipment and technology requirements • Legislation to recommend to Council for adoption by January 2008 FINANCIALBUDGET IMPACTS: The budget impacts will be negligible as the past four election cycles, the city has had and paid for two separate elections. If the task force does recommend hiring a company to assist with ballot counting electronically, the cost should be the same or less than a runoff election. ENVIRONMENTAL IMPACTS: These should also be negligible as less product will be used and people will not have to drive to polling places twice. RECOMMENDED ACTION: Approve the proposed task force members and make additions if you would like. PROPOSED MOTION: By adopting the consent calendar, Council is approving the task force to work on recommendations for instant runoff voting. If not on the consent calendar, the motion would be, "I move to approve the list of task force members and to add XXXX" v. a MEMORANDUM TO: Mayor and City Council FROM: Charles O. Bailey, Treatment Supervisor THRU: Phil Overeynder, Public Works Director CC: Steve Barwick, City Manager CC: John Worcester, City Attorney DATE OF MEMO: September 12, 2008 MEETING DATE: September 22, 2008 RE: East Water Treatment Plant Filter Media Replacement REQUEST OF COUNCIL: Staff requests award of a contract to F.B. Leopold Company for filter media in the East Water Treatment Plant representing eight (8) filter cells, 226.88 square feet each, with a total filter azea of 1,815 square feet. The total contract award is $334,975. The City of Aspen Water Department desires to remove and replace the filter media in the East Water Treatment Plant by way of this contract. PREVIOUS COUNCIL ACTION: City Council approved monies for Filter Media Replacement in 2006. BACKGROUND: The East Water Treatment Plant was constructed in 1986 and had the filter media replaced in 1993 during an infrastructure renovation. The filter media used in the treatment process of surface water has a 15-year operational life to which degradation of the faceting Anthracite and Sand occurs. DISCUSSION: The Water Department desires to have the Filter Media consisting of a combination of anthracite, sand, garnet and support gravel removed and a State of Colorado Health Department approved new filter support barrier installed. We will then install new filter media consisting of sand and anthracite which will give the East Water Treatment Plant additional water treatment capabilities. FINANCIAL/BUDGET IMPACTS: Existing 2008 appropriations for this project total $368,000. The proposed contract award is covered by existing budget authority in the Water Fund capital budget. Page 1 of 2 RESOLUTION #S~ A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO AND F.B. LEOPOLD COMPANY INC. SETTING FORTH THE TERMS AND CONDITIONS REGARDING EAST TREATMENT PLANT MEDIA REPLACEMENT CONSTRUCTION AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and F.B. Leopold Company Inc. , a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and F.B. Leopold Company Inc. regarding East Treatment Plant media replacement, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held September 22, 2008. Kathryn S. Koch, City Clerk 're.cny .rn,v.. CONTRACT FOR CONSTRUCTION (Short Fortn) THIS CONTRACT, made and entered into on August 25, 2008, by and between the CITY OF ASPEN, Colorado, hereinafter called the "City", and F.B. LEOPOLD COMPANY INC., hereinafter called the "Contractor". THEREFORE, in consideration of the mutual covenants and Contracts herein contained, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Construction of Project. Contractor agrees to furnish all labor, materials, tools, machinery, equipment, temporary utilities, transportation and any other facilities needed therefor, and to complete in a good, workmanlike and substantial manner the Project as described in the Scope of Work and/or Proposal appended hereto as Exhibit "A" which is incorporated herein as if fully set forth (the "Project"). 2. Plans and Specifications; Compliance with Laws. The Project is to be constructed and completed in strict conformance with the Scope of Work and/or Proposal appended hereto for the same approved in writing by the parties hereto. The Project shall also be constructed and completed in strict compliance with all laws, ordinances, rules, regulations of all applicable governmental authorities, and the City of Aspen Procurement Code, Title 4 of the Municipal Code, including the approval requirements of Section 4- 08-040. Contractor shall apply for and obtain all required permits and licenses and shall pay all fees therefor and all other fees required by such governmental authorities. 3. Payments to Contractor. In consideration of the covenants and Contracts herein contained being performed and kept by Contractor, including the supplying of all labor, materials and services required by this Contract, and the construction and completion of the Project, City agrees to pay Contractor a sum not to exceed Three Hundred Thirty Four Thousand Nine Hundred Seventy Five ($334,975.00) DOLLARS or as shown on Exhibit "A". 4. Commencement and Completion. Contractor agrees to commence work hereunder immediately upon execution hereof, to prosecute said work thereafter diligently and continuously fo completion, and in any and all events to substantially complete the same not later than November 1, 2008, subject to such delays as are permissible under the "Extension of Time for Completion" section of this Contract. 5. Payment of Bills and Charges. Contractor shall pay promptly all valid bills and charges for material, labor, machinery, equipment or any other service or facility used in connection with or arising out of the Project, and shall obtain periodic releases doc from all subcontractors and material suppliers supplying labor or materials to the Project concurrently with Contractor's delivering any payment to such subcontractors and material suppliers. Contractor shall indemnify and hold City and City's officers, employees, agents, successors and assigns free and harmless against all expenses and liability suffered or incurred in connection with the claims of any such subcontractors or material suppliers, including but not limited to court costs and attorney's fees resulting or arising therefrom; provided that Contractor shall be excused from this obligation to the extent that City is in arrears in making the payments to Contractor. Should any liens or claims of lien be filed of record against the Property, or should Contractor receive notice of any unpaid bill or charge in connection with construction of the Project, Contractor shall immediately either pay and discharge the same and cause the same to be released of record, or shall furnish City with the proper indemnity either by title policy or by corporate surety bond in the amount of 150% of the amount claimed pursuant to such lien. 6. Releases. Contractor shall, if requested by City, before being entitled to receive any payment due, famish to City all releases obtained from subcontractors and material suppliers and copies of all bills paid to such date, properly receipted and identified, covering work done and the materials furnished to the Project and showing an expenditure of an amount not less than the total of all previous payments made hereunder by City to Contractor. 7. Hierarchy of Project Documents. This Contract and the Proposal or Scope of Work appended hereto as Exhibit "A" are intended to supplement one another. In case of conflict, however, this Contract shall control both. 8. Changes in the Work. Should the City at any time during the progress of the work request any modifications, alterations or deviations in, additions to, or omissions from this Contract or the ProposaUScope of Work, it shall be at liberty to do so, and the same shall in no way affect or make void this Contract; but the amount thereof shall be amortized over the remaining term of this Contract and added to or deducted, as the case may be, from the payments set forth in Paragraph 3 above by a fair and reasonable valuation, based upon the actual cost of labor and materials. This Contract shall be deemed to be completed when the work is finished in accordance with the original Proposal or Scope of Work as amended or modified by such changes, whatever may be the nature or the extent thereof. The rule of practice to be observed in fulfillment of this paragraph shall be that, upon the demand of either City or Contractor, the character and valuation of any or all changes, omissions or extra work shall be agreed upon and fixed in writing, signed by City and Contractor, prior to performance. 9. Contractor's Failure to Perform. Should Contractor, at any time during the progress of the work, refuse or fail to supply sufficient material or workmen for the expeditious progress of said work or fail to perform any other provisions of this Contract, City may, upon giving notice in writing to Contractor as provided herein and upon Contractor's failure to remedy any such failure within 3 days from receipt of such notice, terminate this Contract and provide the necessary material and workmen to finish the z work and may enter upon the Property for such purpose and complete said work. The expense thereof shall be deducted from the payments remaining under Paragraph 3 above, or if the total cost of the work to City exceeds the amount of such remaining payments, Contractor shall pay to City upon demand the amount of such excess in addition to any and all other damages to which City may be entitled. In the event of such termination, City may take possession of all materials, equipment and appliances belonging to Contractor upon or adjacent to the Property upon which said work is being performed and may use the same in the completion of said work. Such termination shall not prejudice or be exclusive of any other legal rights which City may have against Contractor. 10. Extension of Time. for Completion. Time is of the essence of this Contract and Contractor shall substantially complete the work during the time provided for herein. However, the time during which Contractor is delayed in said work by (a) the acts of City or its agents or employees or those claiming under Contract with or permission from City, or (b) the acts of God which Contractor could not have reasonably foreseen and provided against, or (c) unanticipated stormy or inclement weather which necessarily delays the work, or (d) any strikes, boycotts or obstructive actions by employees or labor organizations and which are beyond the control of Contractor and which it cannot reasonably overcome, or (e) the failure of City to make progress payments promptly, shall be added to the time for completion of the work by a fair and reasonable allowance. Contractor recognizes, however, that the site of the work is in the Rocky Mountains at a high elevation where inclement whether conditions are common. This fact has been considered by Contractor in preparing its Proposal and or agreeing to the Scope of Work. Furthermore, Contractor shall have the right to stop work if any payment, including payment for extra work, is not made to Contractor as provided in this Contract. In the event of such nonpayment, Contractor may keep the job idle until all payments then due are received. 11. Unforeseen Conditions. It is understood and agreed that Contractor, before incurring any other expenses or purchasing any other materials for the Project, shall proceed to inspect the work site and all visible conditions and that if, at the time of inspection therefor, the Contractor finds that the proposed work is at variance with the conditions indicated by the Proposal, Scope of Work, or information supplied by City, or should Contractor encounter physical conditions below the surface of the ground of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract or inherent in a work site located in the Rocky Mountains, Contractor shall so notify City, and City shall at that time have the right and option to immediately cancel and terminate this Contract or to instruct Contractor to continue the work and add the additional amount attributable to such unforeseen conditions to the payments due Contractor as set forth above. It is agreed that in the event of any cancellation by City in accordance with this section, Contractor shall be paid the actual costs of the work done prior to the time of cancellation. In computing such costs, building permit fees, insurance and such financing Page: and title charges as are not refundable shall be included; provided that supervision time, office overhead and profit shall not be included in such costs to be refunded to Contractor by reason of such cancellation. 12. Acceptance by City. No payment hereunder nor occupancy of said improvements or any part thereof shall be construed as an acceptance of any work done up to the time of such payment or occupancy, but the entire work is to be subject to the inspection and approval of City at the time when Contractor notifies City that the Project has been completed. 13. Notice of Completion; Contractor's Release. City agrees to sign and file of record within five (5) days afrer the substantial completion and acceptance of the Project a Notice of Completion. If City fails to so record the Notice of Completion within said five (5) day period, City hereby appoints Contractor as City's agent to sign and record such Notice of Completion on City's behalf. This agency is irrevocable and is an agency coupled with an interest. Contractor agrees upon receipt of final payment to release the Project and property from any and all claims that may have accrued against the same by reason of said construction. If Contractor faithfully performs the obligations of this Contract on its part to be performed, it shall have the right to refuse to permit occupancy of any structures by City or City's assignees or agents until the Notice of Completion has been recorded and Contractor has received the payment, if any, due hereunder at completion of construction, less such amounts as may be retained pursuant to mutual Contract of City and Contractor under the provisions of Paragraph 3 above. 14. Insurance. a. The Contractor agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Contractor pursuant to the terms of this Contract. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to the terms of this Contract by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. b. Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions do not set forth minimum insurance coverage, then the minimum coverage shall be as set forth below. Such coverage shall be procured and maintained with forms and insurance acceptable to City. All coverage shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor pursuant to the terms of this Contract. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. doc 1. Aorkmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workmen's Compensation requirements of this paragraph. 2. Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00} each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests provision. 3. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occunrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Contractor's owned, hired and non-owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests provision. If the Contractor has no owned automobiles, the requirements of this Section 5.4.2.3 shall be met by each employee of the Contractor providing services to the City under this contract. c. Except for any Contractor Liability insurance that may be required, the policy or policies required above shall be endorsed to include the City of Aspen and the City of Aspen's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City of Aspen, its officers or employees, or carried by or provided through any insurance pool of the City of Aspen, shall be excess and not contributory insurance to that provided by Contractor. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under any policy required above. d. The certificate of insurance provided by the City of Aspen shall be completed by the Contractors insurance agent as evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City of Aspen prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverage afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City of Aspen. e. In addition, these Certificates of Insurance shall contain the following clauses: Underwriters and issuers shall have no right of recovery or subrogation against the Ciry of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above-described insurance. To the extent that the City's insurer(s) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recovery or subrogation against the Contractor. The insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy. Any and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Proposer. Location of operations shall be: "All operations and locations at which work in connection with the referenced project is done." Certificates of Insurance for all renewal policies shall be delivered to the Architect at ]east fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this Contract or thereafter. e, Failure on the part of the Contractor to procure or maintain policies providing the required coverage, conditions, and minimum limits shall constitute a material breach of contract upon which Ciry may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith. All moneys so paid by City shall be repaid by Contractor to City upon demand, or City may offset the cost of the premiums against moneys due to Contractor from City. f. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 15. Damage or Destruction. If the Project is destroyed or damaged by any accident or disaster, such as fire, storm, flood, landslide, earthquake, subsidence, theft or vandalism, any work done by Contractor in rebuilding or restoring the work shall be paid for by City as extra work under Paragraph 8 above. If, however, the estimated cost of replacement of the work already completed by Contractor exceeds twenty (20%) percent of the insured sum set forth in Pazagraph 14 above, City shall have the option to cancel this Contract and, in such event, Contractor shall be paid the reasonable cost, including net profit to Contractor in the amount of ten (10%) percent, of all work performed by Contractor before such cancellation. a°~ 16. Notices. Any notice which any party is required or may desire to give to any other parry shall be in writing and may be personally delivered or given or made by United States mail addressed as follows: To City: City of Aspen Water Department 130 South Galena Street Aspen, Colorado 81611 To Contractor: I WA .R R, WA T .WA .R .FOPOLD, INC 227 SOUTH DIVISION ST subject to the right of either party to designate a different address for itself by notice similarly given. Any notice so given, delivered or made by United States mail, shall be deemed to have been given the same day as transmitted by telecopier or delivered personally, one day after consignment to overnight courier service such as Federal Express, or two days after the deposit in the United States mail as registered or certified matter, addressed as above provided, with postage thereon fully prepaid. 19. Inspections; Warranties. (a) Contractor shall conduct an inspection of the Project prior to fmal acceptance of the work with City. (b) Contractor shall schedule and cause to be performed all corrective activities necessitated as a result of any deficiencies noted on the final inspection prior to acceptance. The costs of material and/or labor incutted in connection with such corrective activities shall not be reimbursed or otherwise paid to Contractor. (c) Contractor shall obtain, at City's expense, third party warranty contracts (to be entered into by City}. 20. Licensure of Contractor. Contractor hereby represents and warrants to City that Contractor is duly licensed as a general contractor in the State of Colorado, and if applicable, in the County of Pitkin. 21. Independent Contractor. It is expressly acknowledged and understood by the parties that nothing in this Contract shall result in, or be construed as establishing an employment relationship. The Contractor shall be, and shall perform as, an independent the Contractor who agees to use his best efforts to provide the Work on behalf of the City. No agent, employee, or servant of the Contractor shall be, or shall be deemed to be, the employee, agent or servant of the Ciry. The Ciry is interested only in the results obtained under the Contract Documents. The manner and means of conducting the Work are under the sole control of the Contractor. None of the benefits provided by the City to its employees including, but not limited to, worker's compensation insurance and unemployment insurance, are available from the City to the employees, agents or servants of the Contractor. The Contractor shall be solely and entirely responsible for its acts and for the acts of the Contractor's agents, employees, servants and subcontractors during the performance of the Contract. THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTTTLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE CONTRACT. 22. Assignment. This Contract is for the personal services of Contractor. Contractor shall not transferor assign this Contract or its rights and responsibilities under this Contract nor subcontract to others its rights and responsibilities under this Contract, and any attempt to do so shall be void and constitute a material breach of this Contract. 23. Successors and Assigns. Subject to pazagraph 22, above, this Contract shall be binding on, and shall inure to the benefit of, Ciry and Contractor and their respective successors and assigns. 24. Entire Contract. This Contract contains the entire Contract between City and Contractor respecting the matters set forth herein and supersedes all prior Contracts between City and Contractor respecting such matters. 25. Waivers. No waiver by City or Contractor of any default by the other or of any event, circumstance or condition permitting either to terminate this Contract shall constitute a waiver of any other default or other such event, circumstance or condition, whether of the same or of any other nature or type and whether preceding, concurrent or succeeding; and no failure or delay by either Ciry or Contractor to exercise any right arising by reason of any default by the other shall prevent the exercise of such right while the defaulting party continues in default, and no waiver of any default shall operate as a waiver of any other default or as a modification of this Contract. 26. Remedies Non-Exclusive. No remedy conferred on either party to this Contract shall be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy. 27. Governing Law. This Contract shall be governed by, and construed in accordance with, the laws of the State of Colorado. Venue for any action at law or equity shall be Pitkin County. 28. Attorneys' Fees. If either party to this Contract shall institute any action or proceeding to enforce any right, remedy or provision contained in this Contract, the CCS-97Ldoc Page~B prevailing party in such action shall be entitled to receive its attorneys' fees in connection with such action from the non-prevailing party. 29. Severability. Any provision in this Contract which is held to be inoperative, unenforceable or invalid shall be inoperative, unenforceable or invalid without affecting the remaining provisions, and to this end the provisions of this Contract are declazed to be severable. 30. Nondiscrimination. During the performance of this Contract, the Contractor agrees as follows: The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, nationa[ origin, age, mazital status, sexual orientation, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. The Contractor will take affirmative action to insure that applicants aze employed, and that employees aze treated during employment without regard to their race, color, religion, sex, national origin, sex, age, sexual orientation, handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 31. Prohibited Interest. No member, officer, or employee of the City of Aspen, Pitkin County or the Town of Snowmass Village shall have any interest, direct or indirect, in this Contract or the proceeds thereof. 32. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest: a. The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an Contract or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. b. The Contractor agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particulaz matter, pertaining to this Contract or to any solicitation or proposal therefor. o. It shalt be a material breach of the Contract for any payment, gratuity, or offer of employment to be made by or on behalf of a Subcontractor under a contract to the prime Contractor or higher tier Subcontractor or any person associated therewith, as an CCS-971.doc inducement for the award of a Subcontract or order. The Contractor is prohibited from inducing, by any means, any person employed under this Contract to give up any part of the compensation to which he/she is otherwise entitled. The Contractor shall comply with all applicable local, state and federal "anti-kickback" statutes or regulations. 33. Payments Subject to Annual Appropriations. If the contract awarded extends beyond the calendaz yeaz, nothing herein shall be conshued as an obligation by the City beyond any amounts that may be, from time to time, appropriated by the City on an annual basis. It is understood that payment under any contract is conditional upon annual appropriation of funds by said governing body and that before providing services, the Contractor, if it so requests, will be advised as to the status of funds appropriated for services or materials and shall not be obligated to provide services or materials for which funds have not been appropriate. 34. Illegal Aliens -CRS 8-17.5-101 & 24-76.5-101. a. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. b. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. b. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. Page: 10 c. By signing this document, Contractor certifies and represents that at this time: (i) Contractor does not knowingly employ or contract with an illegal alien; and (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. d. Contractor hereby certifies that: (i) Contractor shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Contractor shall not enter into a contract with a subcontractor that fails to confirm to the Contractor that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not employ any new employees who are not eligible for employment in the United States; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Contractor shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Contractor is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Contractor shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Contractor shall: CCS-97Ldoc Page: 11 (1) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Contractor shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Contractor violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Contractor's violation of Subsection 8-17.5-102, C.R.S. (ix) If Contractor operates as a sole proprietor, Contractor hereby swears or afftrms under penalty of perjury that the Contractor (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law,(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. IN WITNESS WHEREOF, the parties agree hereto have executed this Contract For Construction on the date first above written. Page: l2 ATTESTED BY: AJTTESTE///D'BY: ~~( ~ ~ ~ (, S~ Gu ~ , ~ ~ CITY OF ASPEN, COLORADO By:, Title: APPROVED S TO FORM: By; % l[I~6~ ,, o CON By: Title: General Manager, Leopold Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a partnership, the Contract shall be signed by a Principal and indicate title. The City of Aspen Contract for Construction Amendment September 4, 2008 This amendment modifies the Contract for Construction issued to ITT Water and Wastewater Leopold, Inc. August 25, 2008 for $334,975.00 as follows: 1. Contract Item 2. Plans and Specifications. Gould Construction (sub- contractor to Leopold) will be responsible for obtaining a general permit for the onsite work. Neither Leopold nor our other sub- contractor, USA, is required to obtain any permits relative to this contract. 2. Contract Item 20. Licensure of Contractor. Leopold is not a licensed contractor in the State of Colorado. Our sub-contractors, USA and Gould are licensed in the State of Colorado and this licensure will suffice as the appropriate contractor licensure required under this contract. 3. Contract Item 22. Assignment. Leopold will sub-contract the site work to two contractors. Item 22 is not applicable to this contract. 4. General Conditions. Article 5.1 Bonds. Leopold is not required to carry any bonds as a material supplier on this contract. Our sub- contractors, Gould and USA are required to carry the appropriate performance and payment bonds in the amount of their orders. 5. General Conditions. Article 5.3.3 Insurance. Professional Liability Insurance is not required for this contract. 6. General Conditions. Article 6.14 Taxes. This project is tax-exempt. 7. General Conditions Article 6.2.2. Supervision and Superintendence. Leopold will not be required to keep a resident supervisor on site. Our sub-contractors will manage their work through direction from our Project Manager based out of our Zelienople Pennsylvania office. Leopold will provide site supervision through our Service group as appropriate to train the installation crews and witness any required testing. Neither Leopold's Service personnel nor our sub-contractor are authorized to make commercial decisions for Leopold. 8. Freight terms are FOB-Factory, FFA (full freight allowed). }~ CIS~~~'~~~`~k~1 N ~~~~~~~-~~ ~~ 2 ~~~~ Exhibit A IMSO (INTEGRAL MEDIA SUPPORTI CAP: Under this section, we propose to famish 1,815 squaze feet of IMSO (Integral Media Support) Cap. IMS® cap shall be made of plastic beads sintered together and molded to match the surface of the Leopold Universal Underdrain. The IMS® Cap shall be factory installed to plastic block prior to shipment. The LM.S ®Cap shall be field installed to existing plastic block using the supplied hazdwaze and sealant. FILTER MEDIA: Eight (8) filter cells, 226.88 squaze feet each TOTAL FILTER AREA: 1,815 square feet 1,986 cubic feet SILICA SAND -12" Depth plus 1 /2" skimming allowance and 5 % extra Effective size: 0.45 mm to 0.55 mm Uniformity coefficient: 1.40 99 Tons 2,874 cubic feet FILTER ANTHRACITE -18" Depth plus 1"skimming allowance Effective Size: 1.00 mm to 1.10 mm Uniformity coefficient: 1.40 72 Tons SUBMITTAL: Materials meet and/or exceed American Water Works Association Standazd B100-96 for Filtering Material. Samples and/or test reports detailing the physical and chemical characteristics of the filtering material will be provided for review and approval prior to release for shipment. PACKAGING AND PLACEMENT EQUIPMENT: Material will be packaged in semi-bulk containers, "Super Bags," with lifting sleeves and bottom dischazge spout, containing approximately 2,000 to 4,000 pounds per sack. QUANTITIES: Quantities indicated above are F.B. Leopold Company's best calculations of the quantity requirements. Five percent (5%) extra sand is included to cover incidental damage or loss. Any additional loss of material due to storage or handling is not covered by this proposal. Page. 15 DELIVERY: All sales are F.O.B. factory with full truck freight allowed to jobsite. The transportation carrier's initial weight shall govern settlement. With delivery of the media to the initia! carver, properly consigned as per your instructions, our responsibility ceases. If same is mis-delivered, confiscated, contents lost or damaged en route, your recourse is against the carrier. We do not agree to replace media or accept deduction for loss or damage. INSTALLATION OF IMS® CAP (USA CONSTRUCTION): Under this section, we propose to famish the services of USA Construction to install the IMS Cap on the existing Superblock II Underdrain system. Under this section, we propose to fiunish the services of Gould Construction to remove the existing filter media and install new filter media on top of the IMS Cap. MANUFACTURER'S SERVICES: The services of a qualified Leopold technical representative to instruct the Contractor's personnel about the proper installation technique of the IMS Cap in the first rivo filter cells will be provided for a period of six (6) days (8 hr/day) on site plus four (4} days travel time to and from the job-site in two (2) trips. The services of a qualified Leopold technical representative to inspect the Contractor's installation of the IMS Cap in the remaining cells will be provided for a period of three (3) days (8 hr/day) on site plus six (6) days travel time to and from the job-site in three (3) trips. Additional services may be obtained at the current prevailing rate plus living and travel expenses. PRICING: Pricing is for shipments on or before December 31, 2008. We do not include any applicable taxes. MANUFACTURING LEADTIME: Please consult our factory for manufacturing lead-times. Page: DATE MM DD VVYV ACORD,. 09/05/2008 PaonucEa Aon Risk Bervi CeS Northeast, Inc. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY fka Aon Risk Services, Inc. of New York AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER THIS 199 Water Street CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE New York Nv 100 3 6-3 5 51 USA COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC# Pxorve- 866 283-7122 FAX- 847 953-5390 MSURED INSURER A: ACE Amerl Can Insurance Company 22667 d The F. s. Leopold Company Advanced Water Treatment MsuRER B. indemnity insurance Co of North America 43575 118 5. Division Street li l 6063 Msuaea G. u u5A ze enop e PA 1 MSURER D'. 1 9 - ' MSURER E: .._. _ : , -: , - O ~,+ yx . .Far":. , . I . . :. , THE POLICIES OP INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE MSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OP ANY CONTRACT OR OTHER DOCUMEM WITH RESPECT TO WHICH TFIIS CERTIFICATE MAY BE ISSUED OR MAY PERTAM, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREM IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LIMITS SHOWN ARE AS REQUESTED INSR LTA A INSR TYPE OF MSURANCE POLCY NUMBER POLICY EPFECTI POLICY E%PIRATION LIMITS DATE(MM\DD\WI DATE(MM\OD\W) A eMLUABILITV x5LG23736627 Ol/Ol/O& 01/01/09 EACN OCCURRENCE E2, 000, 000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED 52,000,000 PREMISES (Ea occmercel CLAIMS MADE ® OCCUR one person Exc u e ~ PERSONAL&ADV MNRY E2,000,OOO '~ V O GENERAL AGGREGATE E10,000,000 m GEN'L AGGREGATE LIMIT APPLIES PER'. PRODUCTS-COMPIOP AGG E6.000,000 m O POLICY © ^ NCf ^ LOC A AUTOMOBILE LIABILITY ISAH0824060-7 01/01/08 01/01/09 COMBINED SMGLE LIMIT e X ANy gUTO cEa xdawp 51,000,000 Z. w ALL OWNED AUTOS BODILY MNRY v SCHEDULED AUTOS (Pee person) t HIRED AUTOS BODILY INIURY as L.) NON OWNED AUT06 (Per ecddwp PROPERTY DAMAGE ryar accidmp GARAGE LIABB.ITY AUTO ONLY - EA ACCIDENT ANY AUTO OTHER THAN EA ACC B AUTO ONLY'. AGG EXCESS NMBRELLA LIABILITY EACH OCCURRENCE ^OCCU0. ^ CLAIMS MADE AGGREGATE e DEDUCTIBLE RETENTION B WLRC X C STATU- OTH- WORKERSCOMPENSATIONAND A05 I B EMPLOYERS'WABILIW 5CFC4446213-3 O1/Ol/OB 01/01/09 EL. EACH ACCIDENT 52,000, 000 _ ANY PROPRIETOR/PARTNERI EXECUTNE WI Only DISEASE-EA EMPLOYEE EL 52 000 000 OFFICEWMEMBER ESCLUDED? 4447111$ Ol/01/08 Ol/Ol/O9 . , , A Ifya, describe wrier SPECIAL PROVISIONS WLRC CA & AZ Only E.L. DISEASE-POLICY LIhffT 52,000,000 belo.v OTNER DESCRIPTION OF OPERATIONS/IgCAT10NSNEHICLESIEXCLUSIONS ADDED 8V ENDORSEMEMISPECIAL PROVISIONS RE: city of Aspen, Colorado water Treatment Plant -Filter Rehab Leopold iM5 cap and Filter Media, Proposal M06296REV01, dated July 28, 2008, city of Aspen Contract for Construction issued August 25, 2008 <E334, 975.00). The City of Aspen and its officers and employees are included as Additional insured with respect to General _F.,,w . „s.:~. The Cl ty Of Aspen SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION The Ci tYy of Aspen's Officers DATE THEREOF, THE ISSUING MSURER WILL ENDEAVOR TO MAIL 30 DAYS WRI'19'EN NOTICE TO THE CERTIFlCATE HOLDERNAMED TO THE LEFT , and Em l0 ee5 p y BUT FAILURE TOWSO SHALL IMPOSE NOOBLIGATION OR LIABILITY 130 South Galena Street OF ANY KMD UPON THE MSURER, ITS AGENTS OR REPRESENTATNES. ~~ Aspen co 81611 u5A AUTHORIZED REPRESENTATIVE ..9 ~X ~rO~11~ //~-p -~ Attachment to ACORD Certificate for Tne F. a. Leopold Company The terms, conditions and provisions noted below are hereby attached to the captioned certificate as additional description of the coverage afforded by the insurer(s). This attachment does not contain all terms, conditions, coverages or exclusions contained N the policy. INSURED The F. a. Leopold Campany advanced water Treatment 118 S. Division Street zeli enople Pa 16063 USa ADDITIONAL POLICIES If a policy below does n WSURER WSURER WSURER WSURER WSURER of include limit information, refer to the corresponding policy on the ACORD certificate form for policy limits. INSR LTR ADD'L INSRD TYPE OF P'SUMNCE POLICY NUMBER POLICY DESCRIPTION POLICY EFFECr1VE DATE POLICY EXPIRATION DATE LIMITS DESCRIPTION OF OPERATIONSILOCATIONSNEHICLES/EXCLUSIONS ADDED 0Y ENOORSEMENTISPECIAL PROVISIONS Liability policy as required by written contract. Certificate No : 5 700 30 3 40419 MEMORANDUM TO: FROM THRU: DATE OF MEMO: MEETING DATE: RE: Mayor and Council Tyler A. Christoff, Project Manager, Engineering. Tricia Aragon, P.E., City Engineer September 15`h 2008 September?Z 2008 VIG Truscott Building C Foundation Stabilization Construction Approval SUMMARY: Staff recommends that Council approves the contract for Hayward Baker, Inc for Foundation Stabilization of Truscott Building C in the amount of $72,898.50. BACKGROUND: Due to differential soil settlement occurring around Truscott Building C damage to the building's concrete walkways and elevator structure has occurred. Without corrective measures damage to the building will continue and eventually render the elevator un- usable due to safety concerns. Schmueser Gordon Meyer, Inc (SGM) has completed a structural analysis and repair plan for the building. DISCUSSION: This project will help stabilize the existing soils around Truscott Building C. Soil stabilization for this project will involve compaction grouting operations around each of the foundation footings experiencing settlement. These improvements should stabilize the inadequate fill material and prevent further settlement. The City received quotes from two qualified Geotechnical construction firms. Both Hayward Baker, and Mays Construction Specialties, Inc submitted proposals based on site observations and the structural repair plan completed by SGM. The proposal received from Mays Construction Specialties was not conclusive in regards to material quantities and location. May's proposal would not provide specific quantities until after exploration was complete. Hayward Baker was able to submit a complete proposal based on site observations and SGM's structural repair plan. Due to the safety concerns associated with this project staff thinks that it is in the City's best interests to award the construction contract to this vendor. Proposals were received from two Contractors as summarized below: Hayward Baker $63,390.00 Mays Construction Specialties $33,000.00 FINANCIAL IMPLICATIONS: Fuudiug Source Truscott Housing Capital Projects Fund (491.94) will fund this project. A supplemental funding request memo will be presented to Council during an upcoming session. Expenditures Foundation Stabilization of Truscott Building C $63,390.00 Contin¢ency $ 9,508.50 TOTAL $72,898.50 RECOMMENDATION: Staff recommends that Council approves the contract for Hayward Baker, Inc for Foundation Stabilization of Truscott Building C in the amount of $72,898.50. ALTERNATIVES: If the project is not approved the City would continue to try to maintain the area however the eventual decommissioning ofthe elevator would need to occur. PROPOSED MOTION: "I move to approve Resolution No.~, Series of 2008." RESOLUTION #~ (Series of 2008) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND HAYWARD BAKER SETTING FORTH THE TERMS AND CONDITIONS REGARDING FOUNDATION STABILIZATION OF TRUSCOTT BUILDING C AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Hayward Baker, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves a contract with Hayward Baker regarding Foundation Stabilization of Truscott Building C, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: Mick Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held September 22th 2008 Kathryn S. Koch, City Clerk HAYWARD BAKER Geotechnipl Construction LLER AUGUST 13, 2008 THE CITY OF ASPEN ENGINEERING DEPARTMENT 130 SOUTH GALENA ST ASPEN, CO 81611 ATTENTION: TYLER CHRISTOFF TEL: 970.544.3143 FAX: 970.920.5081 EMAIL: tvler~~ci.aspen.co.us REFERENCE: Mr. Christoff, COMPACTION GROUTING OF SOIL BACKFILL TRUSCOTT REDEVELOPMENT ASPEN, CO Included here-in is Hayward Baker, Inc. (HBI's) proposal for compaction grouting for soils densification at the above referenced project. INTRODUCTION This proposal is based upon: 1. A site visit by Tom Szynakiewicz of HBI. 2. Two sheet drawings of the affected buildings by Theodore K. Guy and Associates dated 7/19/01. A repair plan for the affected areas by Schmuser Gordon Meyer dated 9/19/08. HBI understands that fill is settling behind the building wall of two units at the above referenced project. It is estimated that approximately 10 -15 ft of fill soils exist along the slabs which have settled. HBI proposes to utilize compaction grouting to densify and stabilize the fill in order to reduce the potential for future settlement. Lift of the slabs and/or columns will be attempted as possible and practical. COMPACTION GROUTING Compaction grouting improves ground conditions by volumetric displacement. Avery viscous (low- mobility), aggregate grout is pumped in stages to displace and densify the surrounding soils. By sequencing the work from primary to secondary locations, this densification process can be performed to achieve significant improvement. Spacing of the compaction grout locations will be as necessary to accommodate the environment and the desired level of densification. The primary purpose of the compaction efforts will be to densify the soils and mitigate the potential for future TRUSCOTT REDEVELOPMENT ASPEN, CO Page 2 of 7 August 13, 2008 settlement. The grout is manufactured on-site so adjustments in flowability and slump can be made real-time. COMPACTION GROUTING PROGRAM HBI will provide all crew, materials, labor and expertise necessary for compaction grouting of in-situ soils. Initially, a casing will be drilled into the ground to termination depth; grout will be pumped through the casing as the casing will be withdrawn in 1 fr stages. Grout will be pumped at each stage until one of the following refusal criteria is met: 1. A minimum grout pump gauge pressure of 150 - 200 psi is achieved. 2. More than 3 Cubic Feet of grout have been placed in any single grout stage. 3. Surface heave is noticed at the grout location. Once the casing is withdrawn to the next stage, the process is repeated until the surface is contacted. The procedure is repeated at each compaction grouting location. HBI will install three compaction grout points in a staggered pattern on either side of the pipe. Based on HBI's experience, this spacing will achieve the desired results. Once HBI has completed compaction grouting, the existing excavation can be filled with compacted lifts of soil. TECHNICAL CONSIDERATIONS It is estimated that the compaction grout holes will be approximately 10 - 15 ft deep depending on the depth/elevation of native soils. Quantities for the project are derived as follows: 1. 10 compaction grout locations under building columns 2. 32 compaction grout locations along existing slabs immediately adjacent to the buildings 3. 18 compaction grouting locations along existing slabs around the Elevator/Equipment building 4. 8 compaction grouting locations underneath the Equipment Building It is estimated that compaction grout holes will be approximately 14 ft deep and will terminate in native soils. 2.5 cubic feet per foot of grouting were used to calculate grout use on the project. HBI will attempt to achieve lift of the affected areas. However, lifr is often limited by factors outside of HBI's control including the soil conditions and soil response, and condition of the structure and/or footings. The primary purpose of the grouting effort will be to arrest the potential for future movement. HBI will require access to the garage areas in order to monitor the walls of the garage structure for movement during the grouting operation. Additional testing maybe performed at the Owner's or Contractor's discretion by the taking of boring samples in-between the columns to verify densification of soils. HAr1AlARD BAI~R www. h avwa rd b a ke r. co m TRUSCOTT REDEVELOPMENT ASPEN, CO Page 3 of 7 HBI will conduct compaction grouting in the following general sequence: 1. HBI receives written order to proceed. 2. HBI mobilizes to the site. 3. HBI installs all compaction grout locations. 4. HBI demobilizes from site. August 13, 2008 QUALITY ASSURANCE AND QUALITY CONTROL PROGRAM HBI's QA/QC program will consist of field documentation. The grouting operations will be documented on forms by HBI personnel to describe the grout volume and pressure experienced at each location and each stage. HBI will employ a full time, qualified superintendent for the duration of the project. Daily reports by the superintendent detailing production will also be completed and submitted. SCHEDULE It is estimated that the compaction grouting will take approximately 6 days to complete. HBI anticipates mobilization of crew and equipment approximately 2-3 weeks and after receiving a written notice to proceed. We have attached our schedule of prices and list of conditions herein. This letter and its attachments constitute HBI's proposal and will be made a part of any contract between The City of Aspen and HBI. The acceptance of the price of this Proposal shall evidence the concurrent acceptance of all terms and conditions recited herein or incorporated by reference. Any resulting contract will not include any other agreements or documents not specifically given to HBI and referenced herein. We trust this proposal is of interest to you and we look forward to being of service. If we can be of any assistance in clarifying any points in this proposal, please contact us at (303) 469-1136. Sincerely, HAYWARD BAKER, INC. f~,~= Tom Szynakiewicz, P.E. Project Manager HAYWARD BAI~R ~° www. h avwa rd b a ke r, co m TRUSCOTT REDEVELOPMENT ASPEN, CO Page 4 of 7 August 13, 2008 SCHEDULE OF PRICES Hayward Baker Inc. (HBI) proposes to perform the work described in the accompanying letter for the prices listed below and under the terms and conditions stated herein. It is understood that final payment will be based on the actual quantities and that the estimated quantities listed below are for budgeting purposes only. Item Description Est'd Unit Unit Total No. Quantity Price Price 1 Mobilization 1 LS $9,450.00 $9,450.00 Compaction Grouting 2 da rate 6 DAY $5,165.00 $30,990.00 Compaction 3 Grout 2550 CF $9.00 $22,950.00 TOTAL $63,390.00 NAYWAE:D BAKER ,.. ~; www. havward baker.com TRUSCOTT REDEVELOPMENT August 13, 2008 ASPEN, CO Page 5 of 7 SPECIFIC TERMS AND CONDITIONS The following facilities and services are to be provided to HBI by others free of all costs to HBI: Site Access: Preparation and maintenance of clear, well drained, uninterrupted access ways and working platforms at least 30 ft wide suitable for HBI equipment moving under its own power. Access includes adequate ramps at suitable levels and should be available at the time and to the extent necessary [o suit HBI's operations. Sequence: Work is to be made available in a sequence that will enable HBI to work efficiently and systematically without restriction. Progression of the Work: HBI's proposal is based upon carrying out the work in an unobstructed manner during regular working hours, Monday through Saturday, in a single uninterrupted visit to the site. HBI reserves [he right to work overtime, nights or weekends at HBI's own discretion without incurring charges for inspection, site overhead or other consequential charges. In the event that HBI's work is interrupted for any reason beyond our control such as untimely excavation or site congestion, HBI shall be compensated a[ the rate of $325.00 per hour for standby of the crew and equipment. Site Preparation and Maintenance: Removal of all surface or subsurface topsoil, brush, organic material and other unacceptable material in accordance with the requirements of the contract documents. Site Work: The work under [his proposal does not include any excavation, grading or sealing work required on the site to establish a working platform or to restore the site to the original or finished grade. All such work is to be furnished by others in a timely manner, so as not to impede the progress of the work or cause damage to the finished work. Traffic Control: All pedestrian and vehicular traffic control including signs and bamcades, if and when required. Utilities: Location of utilities not located by [he Utility Notification Center of Colorado (UNCC) is not included in [he scope of work of HBI. The [Owner or Contractor] is obligated to ensure [hat all utilities not marked by One-Call are properly located, exposed, potholed and/or relocated so that HBI's work can proceed in a safe and productive manner. Furthermore, i[ is possible that damage may occur as a result of heave, settlement or intrusion caused by grout material due [o the unforeseeable condition of [he ground or utility. For this reason, HB[ can not accept responsibility for damages thus caused. Permits and Easements: All site permits and easements required [o legally perform the work. Water Suooly: Adequate supply of clean fresh potable water supplied to within 300 fee[ of HBI's operations at the rate of 100 gpm at 65 psi. Security: Site security during nights and weekends. Site Yard: An area shall be provided on-site, adjacent to [he work, for HBI's equipment, storage yard, workshop, material stockpiles and site office(s). Union Manning: Labor to comply with union requirements on HBI operations other than [hose specifically discussed in the proposal. Labor Affiliations: This proposal is made with [he understanding that HBI will employ open shop labor. In the event that union labor must be used the client will pay for any cost differential. Hazardous Material: In the event that HBI encounters any hazardous material on the site that has no[ been rendered harmless, HBI shall immediately stop work in the area affected and report the condition in writing to the Owner and Engineer. To the fullest extent permitted by law, the Owner and Contractor shall indemnify and hold harmless HBI, their agents, consultants, and employees from and against all claims, damages, losses and expenses, including but not limited to attorney fees arising out FiAYWARD BAl~R R~ILiR www. havward ba ker.com TRUSCOTT REDEVELOPMENT August 13, 2008 ASPEN, CO Page 6 of 7 of or resulting from performance of the work in the affected area. The following additional terms and conditions will apply to the proposed work: Liquidated Damaees: The Owner or Contractor shall not be entitled to any liquidated damage, delay damage or other time related penalties arising from the work. Bonds: The costofabondpremiumisnotincludedin[hecontractprice. If desired by and paid by the [Owner or Contractor], HBI will furnish a Payment and Performance Bond a[ I % of total contract price. Confidentiality: All specifications, drawings, price and technical data submitted by HBI are [o be treated as confidential and shall not be used for any purpose other than the evaluation of this bid, nor shall such information be disclosed to any third party for any purposes without the express written consent of HBI. Such information shall remain HBI's property and be returned to HBI upon demand. Period of Acceptance: This Proposal is offered for acceptance for a period of 21 days. Exclusions: Any items of work not specifically included in this proposal shall not be the responsibility of HBI. GENERAL TERMS AND CONDITIONS Pavmen[ Terms: Progress payments will be submitted monthly and shall be payable within 30 days of the invoice date. All other amounts due, including retention (if any), will be paid in full within 45 days of substantial completion of HBI's work, regardless of the anticipated project completion date. An interest charge of 1-1/2%percent per month will be added [o invoice amounts not paid within 30 days from date of invoice. All costs of collection, including attorneys' fees and court costs, will be added [o unpaid invoice amount. Chaneed Conditions: Notwithstanding all clauses of [his contract, if HBI, during its work, encounters 1) subsurface conditions or latent physical conditions which differ from those indicated in this Agreement, or 2) unknown physical conditions of an unusual nature, differing from [hose ordinarily encountered, then HBI shall be entitled to an equitable price and schedule adjustment to compensate it for such changed condition. Insurance: HBI will provide the following insurances within limits as shown. Comprehensive General Liability: $5,000,000.00 (Combined Single Limit, Bodily Injury and Property Damage) Automobile Liability: ~ $1,000,000.00 (Combined Single Limit, Bodily Injury and Property Damage) Workman's Compensation: Statutory Force Majeure: HBI cannot accept any liability for default or delay in the completion of the work when caused by strike, riot, war, or Act of God or other similar circumstances beyond HBI control. Limitation of Liabili[v: We will perform the work in a professional manner in cooperation with soils engineer. However, we cannot accept liability on any further damage to [he structure, landscaping, utilities, french drains, septic systems, wells, etc. and/or any consequential damages [hat may result from the normal performance of [he work. All utilities and other services left in place shall be located, exposed, and shown to our on site representative prior [o commencement of work. Liability: No liability can be accepted by HBI, nor shall HBI accept as in any way responsibility for defects of any kind whatsoever arising from a cause which is outside HBI's immediate control or knowledge, or for any fault in the junction FiAYWARD BAKER ~y..~.a,.., 'T""'.. www.havward baker.com TRUSCOTT REDEVELOPMENT ASPEN, CO Page 7 of 7 August 13, 2008 between HBI's work and subsequent work carried out by others. This includes potential, undesired foundation movement and/or settlement due to the un-natural addition of water to the soils underneath the proposed buildings from landscaping, sewer or water pipe leaks etc. HBI also can not be liable for structure damage which may result from improper compaction of the top five feet of soils by Others as mentioned above. Tndemniri: Subject to the terms of the Liability Clause above, and to the correct soil conditions having been provided to us prior to our work, HBI shall IIISUi¢, indemnify and hold harmless the Owner and their employees from and against all claims, damages, losses, and expenses, including attorneys fees, but only to the extent of the negligence of HBI, provided that any such claim, damage, loss or expense (I) is attributable to bodily injury, sickness, disease or death, or to the injury [o or destruction of tangible property (other than the work itself) including the loss of use resulting therefrom, and only to the extent such claim is covered under the General Liability Policy of HBI. Standard Construction Contracts: As an alternate to accepting HBI's proposal as the contract document, HBI considers [he "Standard Form Construction Contract" as preparedjointly by AGC, ASA and the ASC, 1994 Edition to be balanced and fair [o all parties. Such contract, with no changes to the standard text thereof, along with this proposal and the specific documents herein, could form the contract for the work herein proposed. Any other contract form will require our review. Where incorporated into a contract, this proposal shall supercede all conflicting terms of such a contract. Accepted by: NAYWARD BAI~R www. hayward bake r.com MEMORANDUM TO: FROM: THRU: Mayor and City Council Chris Everson, Affordable Housing Project Manager Tricia Aragon, P.E., City Engineer DATE OF MEMO: September 15, 2008 MEETING DATE: September 22, 2008 RE: Contracts for Planning and Design Services to Support the Construction Experts Group Burlingame Ranch Affordable Housing Project REQUEST OF COUNCIL: Staff requests awazd of a contract to Poss Architecture + planning for azchitectural design services to accompany the efforts of the Construction Experts Group. Additionally, staff requests award of a contract to DHM Design for site planning and engineering design services to accompany the efforts of the Construction Experts Group. PREVIOUS COUNCIL ACTION: During the May 2Q 2008 City Council work session, staff was directed to seek recommendations from the Construction Experts Group on potential cost savings measures for future phases of affordable housing development at Burlingame Ranch. BACKGROUND: During the May 20, 2008 City Council work session, the Housing Subcommittee of the Citizens Budget Task Force requested that City Council (Recommendation # 3) "Reconsider Burlingame 2 and 3 Assumptions". The intention of the Housing Subcommittee of the Citizens Budget Task Force was to "encourage a process which will involve developers and construction firms bringing their informal recommendation and expertise to the re-engineering exercise. This should happen prior to a contract being awarded, or bond issue being taken to the public." Instead of approving this recommendation, City Council directed staff to proceed as noted in the "Previous Council Action" section above. DISCUSSION: Poss Architecture + Planning is the incumbent architect on the Burlingame Ranch project. Additionally, DHM Design is the incumbent site planning & engineering designer on the Burlingame Ranch project. As a note, Sopris Engineering is working for DHM Design on the site engineering and is billing through DHM Design as part of the DHM contract described herein. All of the firms mentioned were working on the original design for Phases 2 and 3 of Burlingame Ranch when City Council directed that effort to be stopped. For the purposes of supporting the work of the Construction Experts Group, it would be impractical and cost- inefficient to competitively bid out this work because of the existing knowledge that these firms have of the Burlingame design guidelines, PUD considerations, general conditions and existing construction involved in the Burlingame Ranch affordable housing development project. The proposed two contracts are attached to this memo. FINANCIALBUDGET IMPACTS: Both of the contracts presented herein aze time and materials contracts and, as such, the totals noted here represent the high end of the estimated ranges provided in the scopes of work provided. The total estimated contract award is for architectural services is $206,000 (Poss), and the total estimated contract award for site planning and engineering services is $205,252 (DHM/Sopris). The sum of Page I of 2 these scopes of work creates for us a conceptual plan that can be brought to City Council as a recommendation for the development of future Phases of Burlingame Ranch affordable housing. The contract amounts fit within the budgeted amount for planning and design of future phases of development at Burlingame Ranch. The Construction Experts Group recommendation as well as the money spent on these contracts and the plans that will be developed as a result of these contracts will be useful to the City for the purposes of future development at Burlingame Ranch whether the community decides that a total of 236 units or up to 300 units should be developed at Burlingame. 2008 FUNDING Burlingame 2/3 Design & Planning 2008 FUNDING Staff (Payroll & Benefits) $130,000.00 Professional Fees $2,030,320.00 Materials & Supplies $10 000 00 Design & Planning TOTAL 2008 FUNDING $2,170,320.00 2008 EXPENDITURES Burlingame 2/3 Design & Planning- 2008 EXPENDTTURES Staff (Payroll & Benefits) $15,771.46 Professional Fees -Includes items noted below as ** $506,578.83 Materials & Supplies $2,179.41 Proposed (Poss) Architecture Contract $206,000.00 ** Already billed by Poss for this contract ($35,588.34) Proposed (DHM/Sopris) Planning & Engineering Contract $205,252.00 ** Akeady billed by DHM/S~ris for this contract ($103,252.001 Design & Planning TOTAL 2008 Expenditures to date $746,941.36 ENVIRONMENTAL IMPACTS: In addition to concerns about livability and cost-savings, the Construction Experts Group desires to make recommendations that aze consistent with the environmentally advanced efforts that have already been established for the Burlingame Ranch affordable housing project. RECOMMENDED ACTION: Staff recommends awazd of contract to Poss Architecture + Planning for azchitectural design services to accompany the efforts of the Construction Experts Group. Additionally, staff recommends award of contract to DHM Design fot site planning and engineering design services to accompany the efforts of the Construction Experts Group. ALTERNATIVES: Altematives to awarding these contracts as requested include (1) requiring the Construction Experts Group to work without the aid of these professional services and (2) to competitively bid these professional services. Both of the alternatives mentioned would adversely affect the schedule of planning and design for the project to the point that the Construction Experts Group would not be able to make recommendations to City Council within enough time for bids or reliable estimates to be obtained by City staff prior to City Council being asked to approve ballot language on bond funding for the May 2009 election. ATTACHMENTS: 2) AGREEMENT FOR PROFESSIONAL SERVICES (DHM) Resotr"#;en we Svc ~ 5 ~-(ip+~d~~C. ~- ',tG,~ ~H-~1 GO'h.~~'~ ~-lki5"t.~-~. Page 2 of 2 RESOLUTION #~ (Series of 2008) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND DHM DESIGN SETTING FORTH THE TERMS AND CONDITIONS REGARDING SITE PLANNING AND ENGINEERING SERVICES FOR BURLINGAME PHASES II AND III AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and DHM Design, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, DHM Design regarding Site Planning And Engineering Services for Burlingame Phases II and III a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held September 22, 2008. Kathryn S. Koch, City Clerk AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and DHM DESIGN ("Professional"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit "B" attached hereto and by this reference incorporated herein. 2. Completion. Professional shall corr9mence work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed no later than SEE EXIIIBIT "B". Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed $205,252.00. Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assi¢nability. Both parties recognize that this contract is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which maybe due to any sub-contractor. PS1-971.doc Page 1 5. Termination. The Professional or the City may temunate this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional maybe determined. 6. Covenant Against Continent Fees: The Professional warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for the Professional, to solicit or, secure this contract, that s/he has not paid or agreed to pay any, company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and eniirely responsible for its acts and. for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. --- .. _ .._ . _. _. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands; on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any PS1-971.doc Page 2 subcontractor of the Professional. The Professional agrees to invesfigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Secfion 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Secfion 8 above. 1n the case of any claims- made policy, the necessary retroacfive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($SOQ000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($SOQ000.00) disease -each employee. Evidence of qualified self-insured status maybe subsfituted for the Workers' Compensation requirements of this pazagraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with milumum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,00- PS1-971.doc Page 3 0.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a (~ severability of interests provision. 7C ~- °- ` ~ ~- __., _......__L:,,... .~ wJ bl}M (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carved by the City, its ofFcers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, condi- tions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certifi- cate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minunum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seg., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIItSA PS1-971.doc Page 4 Property/Casualty Pool. Copies of the C1RSA policies and manual are kept at the City of Aspen Finance Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, ageements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or mailed by certified mail return receipt requested, to: City: City Manager City of Aspen 130 South Galena Street Aspen, Colorado 81611 Professional: Laura Kirk DHM Design 311 Main Street, Suit 102 Carbondale, Colorado 81623 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwith- standing anything to the contrary contained herein, this agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. PS1-971.doc Page 5 16. Illegal Aliens -CRS 8-17.5-101 & 24-76.5-101. a. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. b. Definitions. The following terms aze defined in the new law and by this reference aze incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th. Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. c. By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who aze newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees aze not employ illegal aliens. d. Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new PS1-971.doc Page 6 employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into. the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is eazlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor perfomung work under the Public Contract for Services knowingly employs or contracts with anew employee who is an illegal alien, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of P51-971.doc Page 7 Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law,(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 17. General Terms. (a) It is agreed that neither this agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this ageement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties aclrnowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This agreement shall be governed by the laws of the State of Colorado as from time to time in effect. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date hereinafter written. [SIGNATURES ON FOLLOWING PAGE] PS1-971.doc Page 8 ATTESTED BY: CTTY OF ASPEN, COLORADO: By: Title: Date: SSED BY: ~ , By: Date: ~ I ~ ~ / ~ (rJ PS1-971.doc Page 9 PROFESSIONAL: V~u ~ ec5~6~ EXHIBIT "B" to Professional Services Agreement Rate Schedule (To be completed prior to execution of Agreement) PS1-971.doc Page 11 311 Main Street, Suite 102 Carbondale, CO 81623 ~ 970.963.6520 4 September, 2008 John Laatsch City of Aspen Asset Management 130 Galena Street Aspen, CO Re: Burlingame Ranch Density Study Services Dear John: Per your request we are providing an estimate of our fees for site planning services for the density studies at Burlingame Ranch. Our services are broken into four categories: work completed and billed through the 25`" of July; work completed from July 25`" to the first deadline of September 4`"; work to be completed by October 2ntl; and work to be completed by November 6`". In developing our scope we have made a number of assumptions as outlined below: • W e are developing site plan documents consistent with a conceptual level PUD application submittal. Based on direction from the City and the Construction Experts Group, our plans are predicated on a density of up to 300 units. W e are working on a time and materials basis responding to work tasks as directed by the City and the Construction Experts Group. In this respect, it is difficult for us to anticipate the full range of our scope or work products. We have been and will continue to work in close coordination with the City to ensure the most efficient and cost effective process possible. We will continue to work under these assumptions unless othervuise directed by the City. • We will be contracted directly with the City of Aspen and report directly to you as a representative of the City. W hile we fully expect other Ciiy staff to review and comment on the project, we will be looking to you for final authorization and design direction. Sopris Engineering will be providing a proposal for civil engineering services for a similar scope of work under separate cover. WORK BILLED THORUGH JULY 25`": DHMworked on the density studies and site plan diagrams on a time and material basis, as directed by the City. The following is a summary of the work and tasks completed for the month of June and July. Generated site plan diagrams ("Schemes 1-3" and "Current Scheme"), exploring the opportunities for increasing unit density in Phases I and 11. Studies included diagrammatic building layout/unit counts, surface parking, and underground/structured parking options. • Attended team conference call (06/04/08) to kick off Phase II Density Study work. • Attended meeting (06/11/08) with City Staff and Poss Architecture+Planning staff as needed to coordinate site plan diagrams. • Formatted diagrams into product package for distribution to City and Task Force. • Attended Task Force Meeting (06/12/08). • Revised site plan diagrams based on team meeting of 06/11/08 and Task Force Meeting of 06/12/08. • Scanned and distributed diagrams via email and print media. • Conducted a photo inventory of various existing affordable housing projects in the APCHA inventory. Determined unit densities based on site acreage and total unit counts. Formatted photo inventory and density data into graphic product for distribution to City and Task Force. • Generated revised parking structure studies based on surface parking priorities. • Formatted scheme diagrams into AutoCAD to be used for area and rough quantity takeoffs. • Continued refinement of higher density schemes without underground parking structures. • Met with Assistant City Manager on 07/15/08 • Team meeting (7/16/08) • Attended Task Force Meeting (07/24/08) • Generated initial grading schemes for preliminary cut and fill calculations by Sopris Engineering DHM fees for this work already billed total: $27,810 WORK COMPLETED AS OF SEPTEMBER 4'" DHM developed a site plan looking at a maximum of 300 units, without centralized underground parking structures, while maintaining a level of open space more consistent with lower density schemes. A plan incorporating these goals was provided to the City on 09/04/08. The total recommended unit count for all phases is 293 with a parking ratio of 1.6 cars per unit. Unit and modular sizes are based on direction from the City and Task Force. Preliminary grading was completed for the new higher density plan and provided to Sopris Engineering for use in their draft engineering report. Preliminary site sections have been developed as a basis for further illustrating the intent of the new site plan. • During this period, DHM attended a task force meeting on 8/14/08; a team meeting on 08/23/08; and a team meeting with the City on 9/3/08. • Coordinated with Poss regarding footprints and building locations. • Reviewed and provided information as needed for a code study relative to fire access, accessibility, and building design. Estimated fees for this work will be approximately: $14,000 WORK TO BE COMPLETED AS OF OCTOBER 2ND DHM will continue to develop the site plan in coordination with Poss and Sopris incorporating code reviews, and more developed architectural unit and building layouts. Refinements to the site sections will also be provided during this period. In anticipation of meetings with the existing homeowners at Burlingame, DHM is prepared to provide products for those presentations as well as attend those meetings to address specific site concerns. Estimated fees for this work will be approximately: $14,000 - $18,000 WORK TD BE COMPLETED AS OF NOVEMBER 6"' DHM will produce a site and landscape package suitable for conceptual level submittal to the Community Development Department at the City of Aspen. Products will respond to the required items as defined in the City's Land Use Code. DHM will continue to coordinate with the design team and City as well as attend meetings as requested. Estimated fees for this work will be approximately: $15,000 - $20,000 3D COMPUTER MODEL: DHM would be happy to assist with development of computer models to better illustrate the conceptual design for the revised site plans to the community. DHM would begin by working with contour information provided by Sopris Engineering. ff this information is suitable for modeling, we anticipate that we could generate a computer site model indicating simple building blocks for $5,000-$10,000. This level of 3D modeling would still be quite rough but would provide the framework for additional detail and rendering opportunities to more fully explain the design direction. TIME & MATERIALS: DHM is working on a time and materials basis under the authorization and supervision of the City of Aspen's Asset management Department. Fees above are estimates only based on our stated hourly rates and anticipated work given our efforts over the last several months. Should the nature of the work tasks change substantially our fee estimates may be either too high or too low. HOURLY RATES: Our hourly rates for this portion of the project are as follows: Principal - $160; Senior Associate - $135; Associate - $120; Senior Designer - $105; Designer - $90. These hourly rates shall be adjusted in accordance with the normal salary review practices of DHM Design Corporation. Please call with any questions or clarifications as you review our proposal. Sincerely, DHM Design Laura Kirk Uce President Sept 4, 2008 Page 1 of 5 Laura Kirk DHM Design 311 Main Street, Suite 102 Carbondale, Colorado 81623 RE: Burlingame Ranch Employee Housing Project Phase- II Civil Services through November 4, 2008 SE Project No. 28019.02C Deaz Laura: Sopris Engineering, LLC (SE) is pleased to submit this proposal to provide the required Civil Engineering services for conceptual site design work and preparation of design documents and plans for the project. Scope of Work We have based our scope of services on the preliminary site layout developed by DHM Design and POSS Architecture. We understand that the Project comprises development of employee housing, and construction of site infrastructure. This proposal describes the scope of work we feel is necessary to provide the information required for site planning purposes. SE will perform all civil engineering, and prepare the engineering report and preliminary site plan. Supporting Engineering Documents and Drawings SE will provide civil services including the following: 1. Preparation ofPhase-I As-Constructed Survey Plan; We have billed $34,000 and have been paid. 2. Phase-II preliminary conceptual site analysis, grading and earthwork estimates; We have billed $41,442 and have not been paid. 3. Completion of the preliminary drainage design and system layout based on current City standards; We estimate our fees at $20,000, we have not billed and not paid. 4. Development of a preliminary site grading plan that will show the utility layouts, site grading, storm water drainage system, street geometric layout, and typical cross sections through coordination with utility service providers, obtaining "Will Serve" letters from the Utility companies, and finalizing the stacking order of future lines following project architect's user demands. We estimate our fees at $20,000, we have not billed and not paid. SE will provide these services based on our hourly rates included with this proposal. Fee Structure SE anticipates the Scope of Work will include continued work with the design and project management team. The fees will be based on time and materials and billed monthly to the City of Aspen. We will make our best attempt to meet your application schedules providing that we receive the required information on a timely basis. 502 Main Street Suile A3 Carbondale, CO 81623 (970) 704-0311 Fax (970) 704-0313 SOPRIS ENGINEERING • LLC civl~ consultants Burlingame Ranch Phase-II SE Project No. 28019.02C Page 2 of 5 4 September, 2008 Services Not Included The services not included in this proposal are any structural design, soil or geological investigations, environmental studies, water rights research, wildfire or wildlife studies, landscaping, debris flow studies, traffic studies, Survey, or any other special or unusual requirements. However, if any of the above- mentioned services are needed or requested, fees may be negotiated for those services on either a fixed fee or time and materials basis as indicated on the enclosed Schedule of Hourly Rates dated January 2008. Public meeting attendance or meetings for review with government entities are not included. However, if such meeting attendance is requested or required, fees may be negotiated for such services based upon the attached Schedule of Hourly Rates. Acceptance of Proposal In accepting this proposal, the client warrants that funds are available to compensate Sopris Engineering and that these funds are neither encumbered nor contingent upon the subsequent granting of approvals, pemuts, or financial commitments by lending institutions or other entities. You may accept this proposal by signing the enclosed agreement authorizing professional services and returning one signed copy to our office along with the specified retainer. Thank you for providing us with an opportunity to submit a proposal for this project. Sopris Engineering looks forward to working with you once again. Please contact me if you have any questions or need further information. Sincerely, Sopris Engineering, LLC Nick Adeh, P.E. Project Leader /Manager Enclosures: Schedule of Hourly Rates Authorization for Professional Services 502 Main Street Suite A3 Carbondale, CO 61623 (970) 704-0311 Fax (970) 704-0313 SOPRIS ENGINEERING • LLC civil consultants Burlingame Ranch Phase-II SE Project No. 28019.02C Page 3 of 5 4 September, 2008 Sopris Engineering, LLC Schedule of Hourly Rates Effective January, 2008 Total project chazges are based on hourly rates, plus direct job expenses as follows: Personnel Charges Principal Engineer, Principal Surveyor Project Manager Project Engineer (P.E.), Survey Manager (L.S.) Design and/or Field Engineer, Survey Supervisor Technician, Field Observer, Party Chief Technical Typist, Clerical Thtee-man Survey Crew Two-man Survey Crew Robotic Survey Crew GPS Survey Crew Courtroom Expert Testimony Court and Deposition Preparation Deposition Computer Charges Computer Plots Online Reseazch Miscellaneous Charges Photocopies BlacklineBlueline prints Mylaz Sepias Vehicle Mileage Ovemight Delivery-(in state) Overnight Delivery (out of state) Custom Billing Outside Consultants orsub-Contractors Other Direct Project Expenses $170.00/hr. $120.00/hr. $105.00/hr. $90.00/hr. $80,00/hr. $50.00/hr. $160,00/hr. $140,00/hr. $140.00/Iv. $180.00/hr. $250.00/hr. $170.00/hr $200.00/hr $20.00/ea Additionai $20.00/hr $0.15/ea. $1.50/ea. $20.00/ea. $0.50/mi. As charged As charged $20.00/hr Billed at Our Cost plus 10% Billed at Our Cost Travel Expenses; Airfare, lodging, meals, car rental, telephone, parking fees, 502 Main Street Suite A3 Carbondale, CD 81623 (970) 704-0311 Fax {970) 704-0313 SOPRIS ENGINEERING •LLC civl~ consultants Burlingame Ranch Phase-II SE Project No. 28019.02C Page 4 of 5 4 September, 2008 etc. AUTHORIZATION FOR PROFESSIONAL SERVICES BY SOPRIS ENGINEERING, LLC Project Name: Burlingame Ranch Phase-II, Civil Services Proposal No.: Project No.: 28019.02C Date: 4 September. 2008 The services covered by this Authorization fomt shall be performed in accordance with the following provisions and the enclosed Sopris Engineering, LLC (SE) proposal letter listed above unless otherwise specified. 1. Time Schedule: SE will make every reasonable effort to complete all services, which are specifically to be famished under this agreement, in a timely manner. 2. Professional Standards: SE shall be responsible, to the level of competency presently maintained by other practicing professional engineers/surveyors in the same type of work in the Client's Community, for the professional and technical soundness, accuracy, and adequacy of all work furnished under [his Authorization. SE makes no other warranty, expressed or implied. 3. Termination: Either CLIENT or SE may terminate [his Authorization by giving twenty (20) days written notice to the other party. In such event, CLIENT shall forthwith pay SE in full for all work previously authorized and performed prior to the effective date of temilnation. If no notice of termination is given, relationships and obligations created by this Authorization shall be temunated upon completion of all applicable requirements of this Authorization. 4. Legal Expenses: In the event legal action is brought by CLIENT or SE against the other to enforce the obligations hereunder or arising out of any dispute concerning the terms and conditions hereby created, the losing party shall pay the prevailing party such reasonable amounts for fees, costs and expenses as may be set by the court. 5. Payment: Monthly invoices will be issued by SE for all work performed under the terms of this agreement. Time accounting cuts off on the 25th of the month (invoice date). Invoices will be sent out on or about the last day of the month. They will be sent to the clirnt at the address indicated at the bottom of this Authorization form. Invoices are due and payable on receipt. Finance charges at 1 1/2%per month (18% Annual Rate) will be chazged on all amounts which aze over 30 days past due. Client/lTvner agrees to pay reasonable collection and attorney's fees in the event of nonpayment. 6. Assignment of Agreement: This agreement shall be binding on the heirs, successor and assigns of the parties hereto and is not [o be assigned by either party without first obtaining [he written consent of the other. 7. Ownership of Documents: All reports, plans, Feld data, field notes, calculations, estimates and other documents prepared by SE as instmments of service, shall remain the property of SE unless there are other contractual agreements. 8. Limitadon of Liability: SE's liability to the CLIENT for any negligent act, error or omission is, in the aggregate, limited to an amount not to exceed the fee earned under this ageement, or $50,000, whichever is greater. Please provide the jollowiag information: CLIENT: DHM Design Approved for CLIENT: Title: Dale: Billing Name and Address: 502 Main S treet Suite A3 Carbondale, CO 81623 (970) 704-0311 Fax (970) 704-0313 SOPRIS ENGINEERING • LLC civil consultants Burlingame Ranch Phase-II SE Project No. 28019.02C Page 5 of 5 4 September, 2008 Phone No. 502 Main S treet Suite A3 Carbondale, CO 81623 (970) 704-0311 Fax (970) 704-0313 SOPRiS ENGINEERING • LLC clvll consultants MEMORANDUM ~ ~ ~ ~' TO: Mayor Ireland and Aspen City Council FROM: Sara Adams, Preservation Planner THRU: Chris Bendon, Community Development Director ~ '^ A~ DATE OF MEMO: September 12, 2008 ~~IJJJ`~~~"~" MEETING DATE: September 22, 2008 RE: 541 Race Alley, Establishment of Three (3) Transferable Development Rights, First Reading of Ordinance #~ Series of 2007 (Parcel 2737-073-92-006) Second Reading is scheduled for, November 24, 2008. REQUEST OF COUNCIL: The applicant requests City Council approve the establishment of three 250 square feet Transferable Development Right certificates (TDRs). BACKGROUND: Lot History: Lot 6 of the Fox Crossing Subdivision is a designated historic landmazk, ptu•sttant to Ordinance 50 Series of 20041, which also granted subdivision approval to the Fox Crossing development. According to the subdivision approvals, Lot 6 is a 6, 068 squaze feet lot approved to contain two historic 1960s log cabins (aka House Kl and House K2). ^ Previous actions: o In 2004, City Council approved the establishment of four (4) TDRs for the subject lot as part of the Fox Crossing Subdivision approval. All four (4) TDRs have been severed from historic Lot 6 and landed on Lots I and 2 within Fox Crossing.z o Historic Preservation Commission (HPC) Review • The property is currently under review by the HPC for an addition to one of the cabins. The second cabin is proposed to remain largely unaltered and deed restricted as a for-sale Accessory Dwelling Unit. Conceptual approval was granted by HPC on June 25, 2008,3 which included the 500 square feet FAR ~ Ordinance 50, Series of 2004 is included in the application, Exhibit D. 2 Section 1 of Ordinance 50, Series of 2004 specifies the sending and landing sites for TDRs within Fox Crossing Subdivision. ' HPC Resolution 15, Series of 2008. Exhibit B, See Exhibit C for HPC June 25, 2008 meeting minutes. Revised 9/12/2008 541 racestreetfirstreading.doc Page 1 of 3 bonus for the proposed new addition and preservation of the cabins. Final development approval is pending at HPC. DISCUSSION: The purpose of a TDR is to encourage the preservation of Historic Landmarks within the City of Aspen by permitting those property owners to sever and convey, as a sepazate development right, undeveloped Floor Area to be developed on a different and non- historic property within the City of Aspen. Each TDR comprises 250 squaze feet of Floor Area. The TDR program enables standard market forces, and the demand for floor area and increased unit sizes in specific zone districts, to accomplish a community goal of preserving Aspen's heritage as reflected in its built environment. ^ The applicant requests approval from City Council to establish three (3) 250 square foot TDR certificates, which equals a total of 750 square feet of unbuilt floor azea to be severed from the property. The final remaining unbuilt floor azea on the property after the severance of 750 square feet of floor area will be 16 squaze feet, not including the 500 square feet floor area bonus granted by HPC. ^ The review criteria found in Exhibit A analyze the existing built development on the property against the maximum allowable floor area to determine the amount of unbuilt development that can be turned into TDRs. Development that already received approval is also analyzed as part of the review process for establishing TDRs a The property must be a local landmark, i.e. listed on Aspen's Inventory of Historic Sites and Structures, to establish TDRs. • The applicant proposes a clerical change to the subdivision agreement to accurately reflect the language in the approved subdivision ordinance. This minor change requires an administrative approval by the Community Development Director and is not under Council's purview. Floor Area Analysis for Lot 6, 541 Race Alley: Total allowable floor area for 6,068 square foot lot in R-6 zone district (3,250 square feet) - 4 TDRs already severed from the nronerty in 2004 (3,250 - 1,000) _ 2,250 square feet of allowable floor area ou the subject property Existing floor area of two cabins is 1,484 (2,250 - 1,484) _ squaze feet (2 * 742 square feet = 766 square feet of uubuilt floor area 1,484 square feet) Remainder of development potential after (766 - 750) _ severing three TDRs 16 square feet of unbuilt floor area RECOMMENDED ACTION: "In reviewing the proposal, Staff finds that the project meets the applicable review criteria to Establish three (3) Transferable Development Rights and finds that ° See Exhibit A, criterion d. Revised 9/12/2008 541 racestreetfirstreading.doc Page 2 of 3 TDRs are a good tool for preserving a historic resource by reducing development pressure. Staff recommends approval of the three TDR certificates." PROPOSED MOTION: "I move to approve Ordinance #~ Series of 2008 upon First Reading, and schedule Second Reading for November 24, 2008." CITY MANAGER COMMENTS: ATTACHMENTS: A -Review Criteria. B -HPC Resolution No. 15, Series of 2008 granting Conceptual approval and the 500 square feet floor area bonus. C -HPC Minutes for June 25, 2008 meeting approving Resolution No. I S Series of 2008. D -Application. Revised 9/15/2008 541 racestreetfirstreading.doc Page 3 of 3 ORDINANCE NO.~(-J (SERIES OF 2008) AN ORDINANCE OF THE ASPEN CITY COUNCIL ESTABLISHING THREE (3) 250 SQUARE FEET OF FLOOR AREA HISTORIC TRANSERABLE DEVELOPMENT RIGHT CERTIFICATES FOR THE SENDING SITE OF 541 RACE ALLEY, LOT 6 OF THE FOX CROSSING SUBDIVISION, CITY OF ASPEN, PITHIN COUNTY, COLORADO PARCEL N0.2737-073-92-006. WHEREAS, the Community Development Department received an application from Fox Crossing Partners, LLC, 601 East Hopkins Avenue, Suite 202, Aspen, CO represented by Stan Clauson Assoicates, Inc., 412 East Hyman Avenue, Aspen, CO, requesting the establishment of three (3) Historic Transferable Development Right Certificates for the property located at 541 Race Alley, Lot 6 of the Fox Crossing Subdivision, City of Aspen, Colorado; and, WHEREAS, the subject property is zoned R-6 (Medium Density Residential); and, WHEREAS, 541 Race Alley, Lot 6 of the Fox Crossing Subdivision, City and Townsite of Aspen, Colorado is listed on the Aspen Inventory of Historic Sites and Structures; and, WHEREAS, in order to establish a Historic Transferable Development Right Certificate, the applicant shall meet the following requirements of Aspen Municipal Code: Section 26.535.070 which is as follows: 26.535.070. Review Criteria for the Establishment of Historic Transferable Development Right. A Historic TDR Certificate for 250 square feet of Floor Area may be established by the Mayor of the City of Aspen if the City Council, pursuant to adoption of an ordinance, finding all the following standards met: a) The Sending Site is a Historic Landmark on which the development of a single family or duplex residence is a permitted use, pursuant to Chapter 26.710. Properties on which such development is a conditional use shall not be eligible. b) It is demonstrated that the Sending Site has permitted unbuilt development rights, for either a single family or duplex home, equaling or exceeding two- hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates requested. Ordinance No. ,Series 2008 Revised 9/12/2008 541racestreet ordinance.doc Page 1 of 4 c) It is demonstrated that the establishment of TDR Certificates will not create a nonconformity. In cases where nonconformity already exists, the action shall not increase the specific nonconformity d) The analysis of unbuilt development right shall not only include the actual built development, any approved development order the allowable development right prescribed by zoning, and shall not include the potential of the Sending Site to gain Floor Area bonuses, exemptions, or similar potential development incentives e) Any development order to develop Floor Area, beyond that remaining legally connected to the property after establishment of TDR Certificates, shall be considered null and void. ~ The proposed deed restriction permanently restricts the development of the property (the Sending Site) to an allowable Floor Area not exceeding the allowance for a single family or duplex residence minus two hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certiftcates established. The deed restriction shall not stipulate an absolute Floor Area, but shall stipulate a square footage reduction from the allowable Floor Area, as may be amended from time to time. The Sending Site shall remain eligible jor certain Floor Area incentives and/or exemptions as may be authorized by the City of Aspen Land Use Code, as may be amended from time to time. The form of the deed restriction shall be acceptable to the City Attorney. g) Areal estate closing has been scheduled at which, upon satisfaction of all relevant requirements, the City shall execute and deliver the applicable number of Historic TDR Certificates to the Sending Site property owner and that property owner shall execute and deliver a deed restriction lessening the available development right of the subject property together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Office. h) It shall be the responsibility of the Sending Site property owner to provide building plans and a zoning analysis of the Sending Site to the satisfaction of the Community Development Director. Certain review fees may be required for the confirmation of built Floor Area. WHEREAS, upon review of the application, and the applicable code standazds, the Community Development Department recommended approval, with conditions, of the proposed establishment of three (3) Historic Transferable Development Rights; and, WHEREAS, on September 22"d, 2008 the Aspen City Council approved Ordinance No. ~ Series 2008, on First Reading by a to vote, approving with conditions the establishment of three (3) Historic Transferable Development Right Certificates for the property located at 541 Race Alley, Lot 6 of the Fox Crossing Subdivision, City of Aspen, Colorado; and, WHEREAS, during a duly noticed public hearing on November 24~', 2008, the Aspen City Council approved Ordinance No. ,Series 2008, by a _ to vote, approving with conditions the establishment of three (3) Historic Transferable Development Right Certificates for the property located at 541 Race Alley, Lot 6 of the Fox Crossing Subdivision, City of Aspen, Colorado; and, Ordinance No. ,Series 2008 Revised 9/12/2008 541 racestreet_ordinance.doc Page 2 of 4 WHEREAS, the Aspen City Council has reviewed and considered the proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Development Director, and has taken and considered public comment at a public hearing; and, WHEREAS, the City Council finds that the request to establish three (3) Historic Transferable Development Rights meets the intent of the Aspen Historic Preservation Program and is consistent with the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance fiurtkters and is necessary for the promotion of public health, safety, and welfaze. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1 The City Council finds that the application meets all required standazds and eligibility as stated in Section 26.535.030 and Section 26.535.070, and applicant's submission is complete and sufficient to afford review and evaluation for approval; and Section 2 The City Council does hereby establish three (3) Historic Transferable Development Rights of 250 square feet of Floor Area each to the sending site located at 541 Race Alley, Lot 6 of the Fox Crossing Subdivision, City of Aspen, Colorado with the following conditions: 1. Upon satisfaction of all requirements, the city and the applicant shall establish a date on which the respective Historic TDR Certificates shall be validated and issued by the City and a deed restriction on the property shall be accepted by the City and filed with the Pitkin County Clerk and Recorder. 2. On the mutually agreed upon date, the Mayor of the City of Aspen shall execute and deliver the applicable number of Historic TDR Certificates to the property owner and the property owner shall execute and deliver a deed restriction lessening the available development right of the Sending Site (541 Race Alley, Lot 6 of the Fox Crossing Subdivision, City of Aspen) by 750 square feet together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Office. Section 3: a This Ordinance shall not ~ect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 4: If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion Ordinance No. ,Series 2008 Revised 9/12/2008 541races[reet ordinance.doc Page 3 of 4 shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 5• A public hearing on the ordinance will be held on the 24`h day of November, 2008, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. Section 7• This ordinance shall become effective thirty (30) days following final passage. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 22nd day of September, 2008. Michael C. Ireland, Mayor Attest: Kathryn S. Koch, City Clerk FINALLY, adopted, passed and approved this day of , 2008. Michael C. Ireland, Mayor Attest: Kathryn S. Koch, City Clerk Approved as to form: John P. Worcester, City Attorney Ordinance No. ,Series 2008 Revised 9/12/2008 541 racestreet_ordinance.doc Page 4 of 4 Exhibit A S¢CNOn 26.535.070 REVIEW CRITERIA FOR ESTABLISHMENT OF HISTORIC TRANSFERABLE DEVELOPMENT RIGHT. A Historic TDR Certificate may be established by the Mayor of the City of Aspen if the City Council, pursuant to adoption of an ordinance, finds all the following standards met: a) The Sending Site is a Historic Landmark on which the development of a sing[e- jamily or duplex residence is a permitted use, pursuant to Chapter 26.710. Properties on which such development is a conditional use shall not be eligible. Staff Finding: The proposed 6,068 square feet sending site is located within the R-6 zone district, which allows residential single-family and duplex uses. The sending site is a designated Historic Landmark, listed on the Aspen Inventory of Historic Landmark Sites and Structures. b) It is demonstrated that the Sending Site has permitted unbuilt development rights, for either a single family or duplex home, equaling or exceeding two-hundred and fifty (250) square feet of Floor Area mult<'plied by the number of Historic TDR Certificates requested. Staff Finding: Lot 6 has 2,250 square feet of allowable floor area. This calculation is based on the R-6 zone district requirements for a single family/dupex residence and the severance of four (4) TDRs pursuant to the subdivision approvals in 2003. Two historic cabins (742 square feet each) are approved for relocation to Lot 6 for a total of approximately 1,484 square feet of floor area. Afrer relocation, a total of 766 square feet of unbuilt floor area will remain on Lot 6, which qualifies the property to request establishment of three (3) TDRs or 750 square feet. Staff finds that criterion b is met. c) It is demonstrated that the establishment of TDR Certifuates will not create a nonconformity. In cases where nonconformity already exists, the action shall not increase the specific nonconformity. Staff Finding: The establishment of three TDRs will not increase or create anon-conformity. d) The analysis of unbuilt development right shall not only include the actual built development, any approved development order the allowable development right prescribed by zoning, and shall not include the potential of the Sending Site to gain Floor Area bonuses, exemptions, or similar potential development incentives. Staff Finding: This is a two part analysis: 1) actual built development, i.e. the existing condition of the property and 2) analysis of approved development. Exhibit A Revised 9/12/2008 541 racestreetExhibitA.doc Page 1 of 3 Analysis of actual built development: Lot 6 currently has one historic cabin entirely located on the site and a portion of the second historic cabin straddling the north lot line. Currently, there is a total of approximately 1,500 square feet of floor azea unbuilt on the property. Analvsis of approved development: Both cabins are approved to be relocated to Lot 6 pursuant to Ordinance 50, Series of 2004 granting approval for the Fox Crossing subdivision. The total squaze footage of the two (2) historic cabins equals approximately 1,484 squaze feet. Approximately 766 square feet of built floor area will remain after the two cabins aze located onto Lot 6. Note: The applicant has received HPC conceptual approval which includes the 500 square feet floor area bonus for rehabilitation of the cabins. The project incorporates a deed restricted, detached, for sale accessory dwelling unit that awards 374 square feet of bonus floor azea to the proposal. Final approval is pending at HPC. The TDR application does not take either bonus into account in the calculation of unbuilt floor area on the site. e) Any development order to develop Floor Area, beyond that remaining legally connected to the property after establishment of TDR Certiftcates, shall be considered null and void Staff Finding: The property will not include any development order to develop floor area beyond that remaining legally connected to the property after the establishment of three TDR certificates. JJ The proposed deed restriction permanently restricts the development of the property (the Sending Site) to an allowable Floor Area not exceeding the allowance for a single family or duplex residence minus two hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates established The deed restriction shall not stipulate an absolute Floor Area, but shall stipulate a square footage reduction from the allowable Floor Area, as may be amended from time to time. The Sending Site shall remain eligible for certain Floor Area incentives and/or exemptions as may be authorized by the City of Aspen Land Use Code, as may be amended from time to time. The form of the deed restriction shall be acceptable to the City Attorney. Staff Finding: The applicant clearly states an understanding of this standazd (f) in the application. g) Areal estate closing has been scheduled at which, upon satisfaction of al[ relevant requirements, the City shall execute and deliver the applicable number of Historic TDR Certificates to the Sending Site property owner and that property owner shall execute and deliver a deed restriction lessening the available development right of the subject property together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Offzce. Exhibit A Revised 9/12/2008 541 racestreetExhibitA.doc Page 2 of 3 Staff Finding: The application states that the requirements of section (g) are understood by the applicant. h) It shall be the responsibility of the Sending Site property owner to provide building plans and a zoning analysis of the Sending Site to the satisfaction of the Community Development Director. Certain review fees may be required jor the conftrmation of built Floor Area. Staff Finding: The application demonstrates a clear understanding of the requirements of section (h). Exhibit A Revised 9/12/2008 541 racestreetExhibitA.doc Page 3 of 3 RECEPTION#: 551559, OS/01!2008 at 10:23:19 AM, 1 of a, R 321.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC) APPROVING AN APPLICATION FOR MAJOR DEVELOPMENT (CONCEPTUAL), RESIDENTIAL DESIGN STANDARDS, ADU STANDARDS AND VARIANCES FOR THE PROPERTY LOCATED AT 541 RACE STREET, LOT 6, OF THE FOX CROSSING SUBDIVISION, CITY OF ASPEN, COLORADO RESOLUTION NO. 15, SERIES OF 2008 PARCEL Hl: 2737-073-92-006. WHEREAS, the applicant, Fox Crossing Partners, LLC, 601 East Hopkins Avenue, Ste. 202, Aspen, CO, 81611, represented by Janver Darrington of Chazles Cunniffe Architects and Stan Clauson of Stan Clauson Associates, Inc., request Major Development (Conceptual), Residential Design Standard Review, Accessory Dwelling Unit Design Standard Review and Variances for the property located at 541 Race Street, Lot 6 of the Fox Crossing Subdivision, City of Aspen, Colorado; and WHEREAS, Section 26.415.070 of the Municipal Code states that "no building or structure shall be erected, constructed, enlazged, altered, repaired, relocated or improved involving a designated historic property or district until plans or sufficient information have been submitted to the Community Development Director and approved in accordance with the procedures established for their review;" and WHEREAS, for Conceptual Major Development Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project's conformance with the City of Aspen Historic Preservation Design Guidelines per Section 26.415.070.D.3.b.2 and 3 of the Municipal Code and other applicable Code Sections. The HPC may approve, disapprove, approve with conditions or continue the application to obtain additional information necessary to make a decision to approve or deny; and WHEREAS, for approval of setback variances, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine, per Section 26.415.110.0 of the Municipal Code, that the setback variance: a. Is similar to the pattern, features and character of the historic property or district; and/or b. Enhances or mitigates an adverse impact to the historic significance or architectural character of the historic property, an adjoining designated historic property or historic district; and WHEREAS, for approval of an FAR bonus, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine, per Section 26.415.110.0 of the Municipal Code, that: a. The design of the project meets all applicable design guidelines; and b. The historic building is the key element of the property and the addition is incorporated in a manner that maintains the visual integrity of the historic building and/or EXHIBIT B HPC RESOLUTION NO. 15, 2008 c. The work restores the existing portion of the building to its historic appearance; and/or d. The new construction is reflective of the proportional patterns found in the historic building's form, materials or openings; and/or e. The construction materials are of the highest quality; and/or f An appropriate transition defines the old and new portions of the building; and/or g. The project retains a historic outbuilding; and/or h. Notable historic site and landscape features are retained; and WHEREAS, Saza Adams, in her staff report dated June 25th, 2008, perfonned an analysis of the application based on the review standazds regazding Accessory Dwelling Unit Design Standards, Residential Design Standazds, Variances and the "City of Aspen Historic Preservation Design Guidelines, found them to have been met for Conceptual Review, and recommended approval with conditions; and WHEREAS, at their regular meeting on June 25, 2008, the Historic Preservation Commission considered the application, found the application was consistent with the review standards for the Setback Variances, Accessory Dwelling Unit Design Standazds, Residential Design Standazds, and Conceptual Design and the "City of Aspen Historic Preservation Design Guidelines" and approved the application by a vote of 5 to 0. NOW, THEREFORE, BE TT RESOLVED: That HPC hereby recommends approval for Major Development Review (Conceptual), ADU Design Standazd Review, Residential Design Standazd Review and Variances for the property located at 541 Race Street, Lot 6, Fox Crossing Subdivision, City and Townsite of Aspen, Colorado as proposed with the following conditions; l . The front porch of the free mazket residence will not be altered. 2. The applicant will restudy the grading to maintain the existing relationship to grade as appropriate to be reviewed during Final Review. 3. The 500 square feet FAR Bonus is granted. 4. The following setbacks are granted: a variance of five feet for the front yard (west) setback for the free mazket residence where ten feet are required and five feet are provided; a variance of ten feet for the front yard (west) setback of the ADU where five feet are provided and fifteen feet aze required; a variance of seven feet for the north side yard setback where three feet aze provided where ten feet are required; a variance of five feet for the south side yazd setback where five feet are provided and ten feet aze required; and a variance of five feet of distance between the cabins where ten feet is required and five feet aze provided. 5. The unit shall be a "for sale" unit. 6. It is preferred that the unit be offered for sale through the lottery system with the Aspen/Pitkin County Housing Authority. However, the Code stipulates that the initial developer may select the first qualified purchaser of the unit. Subsequent conveyances shall be according to the lottery sales procedures specified in the AspenlPitkin County Housing Authority Guidelines as amended. 7. The unit shall be no higher than Category 4 with a preference to Category 3. 8. The governing documents slrall be reviewed and approved by APCHA. EXHIBIT B HPC RESOLUTION NO. 15, 2008 9. If the unit is part of a Homeowners' Association (HOA), language shall be provided in the Protective Covenants, or any other appropriate governing documents, covering the unit's homeowners' assessments. The assessments shall be based on the value of the deed- restricted sales compared to the sales price of the fi-ee-market homes within the same HOA. This language shall be required in the approval and in the Covenants associated with the project and shall also allow for the same voting representation as any other unit located within the HOA. No changes to this restriction would be allowed without APCHA's approval. 10. The Certificate of Occupancy for the deed-restricted unit shall be in conjunction with the free-market unit (or sooner). 11. Since this unit is an existing unit, Part VII, Section 14, Deed Restricting Existing Dwelling Units, comes into play. Specific conditions are required prior to Certificate of Occupancy of the &ee-market residence. If accepted by the City or County, existing units must be upgraded in accordance with the following criteria (unless a variance from these requirements is approved by the applicable governing body upon the recommendation of the APCI-IA): a. The interior walls of all units must be freshly painted. b. The interior Appliances must be purchased within the last five years and be in good and working condition. a Carpet must be less than five years old and be in good condition and repair, or be replaced. d. The exterior walls shall be freshly painted within one year of dedication. e. A general level of upgrade to yazds and landscaping shall be provided. f. Windows, heating, plumbing, electrical systems, fixtures and equipment shall be in good and working order. g. The roof must have a remaining useful life of at least ten (10) years. h. All units shall meet the International Building Code minimum standards, any applicable housing code or, in the absence of an adequate code, the housing code acceptable to the APCHA. i. All units shall be approved by the APCHA and verified by a qualified Building Inspector accepted and approved by the APCIIA. j. Applicant shall bear the costs and expenses of any requited upgrades to meet the standazds stated in Part VII, Section 14, a through i, as well as any structuraVengineering reports required by the APCHA to assess the suitability for occupancy and compliance with the APCHA standards of the proposed units. 12. A development application for a Final Development Plan shall be submitted within one (1) yeaz of the date of approval of a Conceptual Development Plan. Failure to file such an application within this time period shall render null and void the approval of the Conceptual Development Plan. The Historic Preservation Commission may, at its sole discretion and for good cause shown, grant cone-time extension of the expiration date for a Conceptual Development Plan approval for up to six (6) months provided a written request for extension is received no less than thirty (30) days prior to the expiration date. (signatures on the following page( EXHIBIT B HPC RESOLUTION NO. 15, 2008 APPROVED BY THE COMMISSION at its regular meeting ou the 25th day of Juue 2008. Approved as to Form: ~~„^-` Jim True, City Attorney Approved s to content: HISTO PRESERV TION COMMISSION Sarab roughton, Vice- Chair ATTEST: ~~t. ~ ~ ~ 1.2,,,Q Kathy Striclcl ind, Chief Deputy Clerk EXHIBIT B HPC RESOLUTION NO. 15, 2008 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF JUNE 25.2008 204 N. Monarch -Conceptual Development (cont'd from 5/28/2008) .............................. 2 406 E. Hopkins- Isis .......................................................................................................... 3 612 W. Francis St. -Historic Designation ......................................................................... 4 541 and 541 %i Race Street -Conceptual Development and Variances ............................. 6 Holden Marolt Shed and Ski Club building ...................................................................... 12 EXHIBIT C HPC MINUTES, NNE 25, 2008 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF JUNE 25.2008 Alison said she finds that the proposal is eligible under our criteria and it is a good example of Post War Aspen. As long as the current owners have it, it will be kept in the existing context. MOTION.• Ann moved to approve Resolution #14 for designation of 612 W. Francis; second by Alison. All in favor, motion carried 6-0. 541 and 541 %: Race Street -Conceptual Development and Variances Michael recused himself. Sarah chaired. Affidavit of posting -Exhibit I Colored photographs -Exhibit II Sara said the discussion is about Lot 6. There will be two 1960's cabins located onto the parcel and this was all approved through the subdivision. The request is to discuss adding an addition to one of the cabins that will be a free mazket residence. They want to convert the other cabin to an ADU and they are not proposing any changes to the cabin, possibly asub-grade space but no external addition which is favorable. HPC will be looking at the residential design standards for accessory dwelling units. They are also requesting the 500 square foot FAR bonus and some setback requirements. Overall staff feels the guidelines aze met especially guideline 10.3 and 10.4. The scale and size of the addition do not overwhelm the cabin. They are one story in height and appropriate. Staff is concerned about the connection of the connector piece to the historic cabin for the addition. We are recommending dropping the height if that is possible or shortening the length. It is difficult to distinguish the gable roof form of the cabin with the connector piece intersecting right into that gable. Another concern is the relationship of the free market porch to grade. There seems to be some changes in the floor of the free market porch, it seems to be a lot lower than the accessory dwelling unit. Staff feels the relationship to grade of the front porches remain as existing. They are identical right now and should remain that way. In terms of the porch guideline 5.1 and 5.2 take about preserving the original porch and avoid removing or covering details of the historic porch. They are proposing to take off some of the horizontal logs that are part of the front porch and putting in stone columns and staff feels they are not appropriate for the landmark. In terms of the FAR bonus we think that they meet the criteria and the design guidelines with the condition that the front porches remain the same in terms of the relationship and also design. EXHIBIT C HPC MINUTES, JUNE 25, 2008 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF JUNE 25.2008 We also think the FAR bonus should be granted if the connector piece is brought into a little more compliance with our guidelines by having a differentiation between the original roof form and where that connection is for the addition. Sara also pointed out that the front yard of the house is actually facing the park not Race Street which was part of the subdivision approval. They are requesting two front yard setback variances for each of the cabins and two side yard setback variances and a distance between buildings variance. This site is a 6,000 square foot lot and they are trying to put the two cabins on the site as part of the subdivision approval. The cabins are detached which staff supports. Staff is in favor of the setback variances in terms of the site planning. Keeping the cabins detached is preferable than having them attached. Stan Clauson presented Stan said the original approval had the two pan-a-bodes brought together in one single family residences. That ended to being an unfeasible design. There where three historic resources on the overall project, the Victorian house on Lot 5 and one pan-a-bode on Lot 5 and one on Lot 6. In laying out the subdivision Walnut Street extended which became the park and that is the front and Race Street or alley is the rear of the property. Charles Cunniffe, architect did a power point on the project. The park slopes from the pan-abodes down to the other houses. The power point showed the relationship of the porches to the park. One of the pan-a- bodesporches steps down because the floor level in the building is lower. In the back of the pan-a-bode the head room is six feet. The top of the plywood on the roof height is nine feet on the connector. We don't want to expand the already below space as it will be uncomfortable. On the connector we could have the connector look like a cricket rather than a sloping roof. The addition looks bigger on the pan-a-bode because it is so small. In allowing the free market unit to be lowered and discussing the lower porch it lets the pan-a-bodes step up to the Victorian. At grade you wouldn't see the sloping roof because each house blocks the other. Sarah asked about the slope on the south of the cabin. Charles said there is a grading change to the house next to the cabin. To avoid having a foundation wall there is a grade change from the house to the right up to the cabin. EXHIBIT C HPC MINUTES, JUNE 25, 2008 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF JUNE 25.2008 Sarah said so there is a hill there. Charles said we are trying to mold it so that it looks natural rather than having walls. The hill and drop off is true to the way it existed. Sarah asked about the grading between the two cabins. Charles said it is basically a slight swell for drainage. Charles said it slopes from back to front so we are draining from the alley side of the house into the park. The park was designed to be a drainage area. The cabins will be moved slightly together. Sara said as part of the subdivision approval both cabins are designated and they are being relocated to Lot 6 and it is up to the applicant to figure out how the design should work. Charles said in the earlier approval the cabins where combined to have one large free market. Sarah asked about the porches. Charles said they are one step to grade now. The grade has been moved around during the construction of the site. Vice-chair Sarah Broughton opened the public hearing. L.J. Elsperman, neighbor said he supports the project. L.J. asked if they where taking away space from the park and is the FAR being increased. Stan Clauson commented that the park will remain as is. The previous approval created a single family free market residence. This proposal is a single family free market plus an ADU. The ADU is not considered in the density. In terms of the land use code there is no increase in density but there will be two residences instead of one and it is the same FAR. Sara said the ADU is going to be deed restricted for sale. Charles said on the site the FAR is lower than previously approved. L.J. said the cabins are 840 square feet. Sarah closed the public hearing. Sarah said basically we are being asked to look at the porch, connector, FAR bonus, setback variances and grading. EXHIBIT C HPC MINUTES, NNE 25, 2008 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF JUNE 25, 2008 Alison pointed out that the setback variances improve the situation. Sarah said the porch and the connector go hand in hand because it is a grading issue. Alison said you wouldn't bring the porch up and step up to it. Brian said he is more concerned about seeing the connector from the alley side. If it can't be seen the sloped connector would be preferable because that design would be better for drainage. Alison also agreed with Brian. Applying the cricket would make the roof lines more complex. Guideline 10.4 supports a product of its own time. Ann and Sarah agreed. Jay said he feels we should try to find innovative ways to make the design parameters work and maintain the integrity of the historic resource. Sarah said she has a lot of concerns about the grading that is going on and the siting of the house. We are creating real issues with drainage. Depending on the height of the cabins then goes into the height of the connector piece and the roof. We need to be siting the cabins as per our guidelines which talks about keeping them in their historic relationship with the site. The existing conditions has a much gentler slope. Alison said part of the problem is the house to the south was sited lower. Charles pointed out that originally the cabins where to be pushed together as a single family home and it had a different approach to the site. Charles suggested bringing the grade across and not creating the swell and that might work. We could do an area drain to the center of the two cabins and drain it out to the pazk. The park is the drainage pond for the entire site. Ann agreed with Charles recommendation. Brian said do create the abrupt change in the landscape to make the park more usable or do you taper it out. Sarah said the grading should not be falling on the historic resources. Charles said we need to find balance between all the sides. Brian suggested designing retaining walls and use shrubs on the sloped area. This grading is essential to the 500 square foot bonus. EXHIBIT C HPC MINUTES, JUNE 25, 2008 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF JUNE 25, 2008 Sarah said the two cabins need to be seen on the same level piece of land. Jay said the grading is directly connected to lowering the porch. How do we feel about lowering the porch. By allowing that to happen the bonus would be less warranted. Guideline 5.1 and 5.2 deal with preserving the original porch. Brian said if there is something we could do to maintain the same level of facades on the two buildings he could grant the bonus. Alison said the ADU is well done and it complies with all the guidelines. The problem is they are trying to force it into something that it is not by lowering the floor grade. Jay said this is a designated property and it is clear that the porch should not be changed. I've been in both units. Part of the person who is going to buy this unit will have the quaintness of owning an historic piece of property and that will be incorporated as to how they live in it. This is a major issue. I would have a problem offering the bonus as designed because of lowering the porch. Ann said she doesn't have the same problem. The site plan has been approved. The importance here is that the cabins are separated and they are being preserved. Sarah pointed out that we are not here to compare the two applications. Sara said in reference to the FAR bonus in the future the applicant was thinking about establishing TDR's. Amy said the bonus that is provided for the ADU and the 500 requested, not all is needed to build the project that is proposed so they can sell some as TDR's. Sara said they are not required to do any affordable housing mitigation on this lot because it is designated. They are doing it voluntarily. EXHIBIT C HPC MINUTES, NNE 25, 2008 10 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF JUNE 25.2008 Charles said the cabin is being brought up to code. I don't think you can meet every guideline 100%. Guidelines are guidelines and they aze to guide the HPC to come up with the right solution or something that compromises. Sazah it is great that the cabins are being preserved and they are now five feet apart. The cabins do need to function for today but I still have a lot of concerns with the grading. We all concur that the site is working well and the stumbling block is this elevation puzzle. Stan said possibly the approval could call for a restudy the grading at final. Ann said they are close enough to getting the bonus. The bonus is granted at conceptual and the grading is reviewed at final. Ann said she would made a motion to approve the project contingent on working out the grading. Jay said something needs to go in the motion about the porch. Sarah said the porch in its relationship to the grade is the concern. Ann said isn't the issue that the porch got lower. Sarah said yes. Sarah said she is fine with adding the condition. Jay said grading detracts how the cabins where set there to begin with. Again, the people who live in these cabins have to live with park activity right out there front door. The grading from the cabin to the park should not distinguish a property line. It should encourage people to come up to the cabin. MOTION: Ann made the motion to approve Resolution #1 S as written for 54I and 541 % Race Street. Ann pointed out that the condition on the front porch and the free market are in the resolution. Motion second by Alison. Sara asked if condition #2 should be changed. Brian said the applicant will restudy the grading. Sarah said the motion needs to be clear as to what we aze asking. Alison said the relationship to grade of the free market cabin is the issue. EXHIBIT C HPC MINUTES, NNE 25, 2008 11 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF JUNE 25.2008 Sarah said we are trying to say that the existing relationship to grade that these cabins have is what we would like to see in the proposal because we don't see it right now in the free market. Brian said the grading needs restudied to help maintain the existing relationship between the two buildings. Sarah re-phrased the condition: Applicant will restudy grading to maintain existing relationship to grade as appropriate and to be reviewed at final. Amy asked the boazd if they are asking that the porch not be dropped on the free market. Sarah said yes, that is what we are asking. Condition #1 states that the front porch on the free market residence will not be altered. Right now the porch is being altered in this proposal. Amy said she just wanted to make sure that it was built in the resolution. Amended motion: Ann accepted the change to condition #2 that the applicant will restudy grading to maintain existing relationship to grade as appropriate to be reviewed at final. Alison amended the second. All in favor, motion carried. Holden Marolt Shed and Ski Club building Brian Flynn pointed out that the Parks Department prefers to tear down the Marolt Shed. That area should be used as open space not storage. We let the Historical Society use the one bay. It is a public safety hazard right now. HPC needed more information on the Ski Club building. MOTION.• Sarah moved to adjourn; second by Alison. All in favor, motion carried. Meeting adjourned at 8:00~p.m. Kathleen J. Strickland, Chief Deputy Clerk EXHIBIT C HPC MINUTES, NNE 25, 2008 12 Vll MEMORANDUM TO: Mayor and City Council FROM: Trish Aragon, P.E., City Engineer DATE OF MEMO: September 15, 2008 MEETING DATE: September 22, 2008 RE: Title 21 Code Amendment -Encroachments REQUEST OF COUNCIL: Staff is recommending approval of revisions to Title 21 - Streets, Sidewalks and Other Public Places. PREVIOUS COUNCIL ACTION: In 2007 the Title 21 was revised to include standards for work within the right of way. On June 30`" during a council work session Staff presented Title revisions for temporary and permanent encroachments. The proposed revisions are included in Attachment A. BACKGROUND: In 2007 Title 21 was revised to clarify the types, durations and time frames for Temporary encroachments. The time frame of the temporary encroachments was not consistent with other Department time frames and did not coincide with material availability in the Winter. Additionally the code did not include limitations on the winter season in the Core. Lastly, construction staging was not addressed in the code. Additionally Title 21 was revised to prohibit all earth soil stabilization (i.e. soil nails) within the right of way (ROW). Earth retention systems are used to stabilize the excavation of a building. Most systems used in the city become non essential after the building's foundation is installed. Typical systems used in the City include micro piles, soldier beam caissons, internally braced system and soil nails. ROW is for public use, and below the ground surface the ROW is used by utility companies to provide their services to citizens. It is the City's responsibility to protect the ROW for current and any future uses. By allowing earth retention systems in the ROW these systems have the potential to impact current and future uses in the ROW. As a result, the City's current code does not allow the use of ROW for earth retention systems. As a general policy, it is not the City's interest to grant encroachments (such as earth retention systems), thereby providing public property for private use. New structures should be able to Page 1 of 3 accomplish their various needs within the confines of their property boundaries and required setbacks. DISCUSSION: Staff is proposing the attached revisions to Title 21 which addresses encroachments. These changes can be separated into two categories: temporary encroachments and permanent encroachments. Temporary Encroachments: The revisions proposed for temporary encroachments include adding back in some of the language that was mistakenly left out when Title 21 was revised in 2007. Additionally the revisions include limitations to construction activities in the winter season in the Core and include provisions to allow for construction staging. Permanent Encroachments: The City's current code is not sufficient for today's construction practices. For example, earth retention systems which do not penetrate the ROW are limited to a maximum depth they can achieve. This depth is 40 feet. For depths greater than 40 feet, the earth retention system requires a horizontal component as a result this component of the earth retention system will most likely penetrate the ROW. Due to this depth limitation, the City may want to consider revising the code to allow encroachments of earth retention systems. The reason is that if a building needs these greater depths it is most likely for the installation of underground parking associated with a large development such as a hotel. The underground parking has a public benefit therefore the use of ROW for an earth retention system is achieving the goal of utilizing the ROW for public benefit. Before the City allows the use of the ROW for earth retention systems the City needs to ensure that any existing or proposed uses of the ROW are protected. This can be achieved with limitations on the use of earth retention systems in the ROW. These limitations include: o Limiting the location of earth retention systems horizontally and vertically within the ROW. o Limiting the location of earth retention systems in the proximity of current and future utilities. o Providing a mechanism to recover any future costs to the City if the earth retention system has to be removed. The attached Title revisions allow for the use of ROW for earth retention systems which include the above limitations. FINANCIAL/BUDGET IMPACTS: The revenues collected from the permanent encroachments of earth retention systems will allow the City to recover any future costs to the City if the earth retention system needs to be removed for the installation of a utility. RECOMMENDED ACTION: Approve revisions for temporary and permanent encroachments in Title 21 -Streets, Sidewalks and Other Public Places. Page 2 of 3 ALTERNATIVES: Instead of revising the code as recommended above, the Following alternatives exist for permanent encroachments: The code could stay the same, it currently allows the City Engineer to allow for variances in the code as related to earth retention systems. However, if the City Engineer allows for a variance it will be more difficult to provide a mechanism to allow the City to recover any future costs to the City if it has to remove the earth retention system. Council could determine on a case by basis whether or not to allow the use of an earth retention system in the ROW. Council may also at that time, impose a fee to recover any future costs to the City. PROPOSED MOTION: This should be a brief statement for a Council member to read such as "I move to approve Ordinance # ..." CITY MANAGER ATTACHMENTS: A -Redline version of Title 21. B -Ordinance # Page 3 of 3 Attachment A Sec. 2.12.051. Engineering Department fees. This Section of the Code sets forth certain fees for the Engineering Department: CATEGORY FEE Encroachment license application and processing $343.00 Vacation application and processing 343.00 Right-of--way permit application and processing (waived for sidewalk replacement work) 343.00 Temporary occupation of ROW under encroachments b commercial operations -per square foot $2.50/sq. ft. per month Temporary occupation of ROW under encroachments wi[hi the core by commercial operations -per square foot $5.25/sq. ft. per month Temporary occupation of ROW under encroachments outsid of the core by commercial operations -per square foot $2.64/sq. ft. per month Permanent encroachment $1,000.00/permit Permanent encroachment for earth retention $2.(i4/cu. ft. nar month Map and plan printing $4.00/copy Sec. 21.04.050. Occupancy of public right-of--way prohibited without eucroachment license; application fee; appeals. (a) No person shall occupy, construct, place or maintain within any public right-of--way any building, structure or appurtenance, fence, tree, vegetation or other obstruction without first having obtained an encroachment license from the City Engineer. Any person seeking an encroachment license must submit an application on forms provided by the City Engineer, accompanied by an administrative fee in an amount prescribed by Subsection 2.12.050(e) of this Code. The City Engineer may specify the terms and conditions under which any encroachment license is to be issued so as to protect the best interests of the City. All encroachment licenses granted under this Section whether delineated as temporary or permanent shall be revocable by the City with or without cause at any time. Chapter 21.12 CONSTRUCTION AND EXCAVATION WITHIN PUBLIC RIGHT-OF-WAY Sec. 21.12.010. Permit required. It shall be unlawful for any person to undertake any construction or repair within or dig up, open, disturb, grade, excavate, or otherwise alter any public right-of--way or use, occupy, or stage construction materials in andpublic right-of--way in the City without first having obtained a permit or license for such work from the City Engineer. A separate permit shall be required for each construction or excavation project. New and existing structures should be able to accomplish their various needs within the confines of their property boundaries and required setbacks. All right-of--way permit and encroachment license applications shall comply with the most current edition of the Engineering Department's construction and excavation standazds for work in the public rights-of--way.- All encroachment licenses granted under this Section whether delineated as temporary or permanent shall be revocable by the City with or without cause at any time. (Code 1971, §19-46; Ord. No. 30-1975, §1; Ord. No. 11-1977, §1; Ord. No. 20-1990, §1; Ord. No. 15, 2007, §2) Sec. 21.12.020. Application. Application for aright-of--way permit or encroachment license, either temporary or permanent, shall be made no later than one (1) week prior to the planned commencement of the work. The applicant must have a valid builder's or excavating license issued by the City of Aspen/Pitkin County Building Department. The City Engineer may allow the petmittee to obtain a permit or license sooner than one (1) week prior to the planned commencement of the work if the scope of work is deemed to be ^ °~-^ °'--^'~minimal. Emergency situations will be exempt; however a permit must be obtained as soon as is possible and no later than the next business day. (Code 1971, §19-47; Ord. No. 30-1975, §1; Ord. No. 11-1977, §1; Ord. No. 20- 1990, §1; Ord. No. 15, 2007, §2) Sec. 21.12.030. Plans and specifications required for construction. No permit for construction or construction related activity within any City right-of--way shall be issued until plans have been submitted to and approved by the City Engineer. (Code 1971, §19-48; Ord. No. 30-1975, §1; Ord. No. 11-1977, §1; Ord. No. 20-1990, §1; Ord. No. 15, 2007, §2) Sec. 21.12.040. Fees and bonding. No permit shall be issued unless the applicant has first signed the required agreement, paid the required fees and filed the appropriate bond as follows: (a) An indemnity and hold harmless agreement as approved by the City Attorney. (b) A permit fee in an amount prescribed by Subsection 2.12.050(e) of this Code. (c) A maintenance bond in an amount equal to the total cost of construction, including labor and materials, or two thousand five hundred dollars ($2,500.00), whichever is greater. The maintenance bond shall guarantee that the material and equipment are furnished and used, and the workmanship employed in the performance of the work described in the right-of--way permit will be of such character and quality as to ensure it to be free from all defects and in continuous good order and in a condition satisfactory to the City Engineering Department for a period of two (2) yeazs from the date of issuance of the final inspection log, indicating one hundred percent (100%) satisfactory completion of the work. The maintenance bond shall be noncancelable for two (2) full years from the date of issuance of satisfactory completion. (d) The applicant may request to substitute a maintenance bond with a letter of credit or cash-in-lieu payment contingent upon approval of the City Engineer. (e) If the City must replace the improvements within two (2) yeazs of acceptance of the work, the City shall execute the maintenance bond or letter of credit. This will encourage the contractor to take the initiative to replace the defective improvements. The City will not replace improvements unless the contractor chooses not to replace them. (Code 1971, §19-49; Ord. No. 30-1975, §1; Ord. No. 11-1977, §1; Ord. No. 88-1979, §l; Ord. No. 37-1985, §1; Ord. No. 20-1990, §1; Ord. No. 77-1992, §9; Ord. No. 15, 2007, §2) Sec. 21.12.050. Permittee may replace paved improvements. For construction and excavation in paved areas, the permittee may elect, subject to the approval of the City Engineer, to replace the defective paved improvements in lieu of having the maintenance bond executed. The pedestrian mall brick pavement area shall be reconstructed under the supervision of the Parks Director. Where bricked or other specialized sidewalks are encountered outside of the pedestrian mall, the permittee shall undertake complete restoration of the surface. All bricks or other specialized sidewalk materials shall be removed with care and stockpiled for reuse if at all possible. The replacement of the paved improvements shall be in accordance with all City specifications and subject to inspections and final approval by the City Engineer (see excavation and construction standazds). (Code 1971, §19-50; Ord. No. 30-1975, §1; Ord. No. 11-1977, §1; Ord. No. 20-1990, §1; Ord. No. 15, 2007, §2) Sec. 21.12.060. Licensing and insurance required. All permittees under this Chapter must be licensed and insured pursuant to Chapter 8.12. (Code 1971, §19-51; Ord. No. 30-1975, §l; Ord. No. 11-1977, §1; Ord. No. 15, 2007, §2) Sec. 21.12.070. Conditions and special requirements for issuance. Permits under this Chapter shall be issued subject to all the regulations and specifications in Sections 21.12.120 through 21.12.390 of this Chapter, the City's construction and excavation standards and any special requirements that the City Engineer deems necessary in order to maintain the health, welfare, safety and convenience of the public. (Code 1971, § 19-52; Ord. No. 30-1975, §1; Ord. No. 11-1977, §1; Ord. No. 20-1990, §l; Ord. No. 15, 2007, §2) Sec. 21.12.080. Change in scope of work; duty to notify. If there is any change in the scope or extent of the work described in the approved right-of- way permit, the permittee shall immediately notify the City Engineer before proceeding. (Code 1971, §19-53; Ord. No. 30-1975, §1; Ord. No. 11-1977, §l; Ord. No. 20-1990, §1; Ord. No. 15, 2007, §2) Sec. 21.12.090. Issuance of permit in certain months restricted. No permit required by this Chapter shall be issued for any construction or excavation within any City right-of--way for the period from November 15 through March 31, except in case of an emergency. In addition, from June 15 through Labor Day weekend for the Commercial Core and Main Street Condor, no construction or excavation within any City right-of--way will be permitted except in case of an emergency. (Code 1971, §19-54; Ord. No. 30-1975, §1; Ord. No. 11-1977, §1; Ord. No. 46-1989, §1; Ord. No. 20-1990, § 1; Ord. No. 15, 2007, §2) Sec. 21.12.100. Permit to be kept and exhibited at site. The permit required by this Chapter shall be kept at the site of the excavation while the work is in progress and shall be exhibited upon request to the City Engineer or any police officer. (Code 1971, §19-55; Ord. No. 30-1975, §1; Ord. No. I1-1977, §1; Ord. No. 20-1990, §1; Ord. No. 15, 2007, §2) Sec. 21.12.110. Record keeping required. The City Engineer shall keep a record of all permits issued. (Code 1971, § 19-56; Ord. No. 30-1975, §1; Ord. No. 11-1977, §1; Ord. No. 20-1990, §1; Ord. No. 15, 2007, §2) Sec. 21.12.120. Street closures not permitted. Street closures are not permitted. The City Engineer may permit lane closures. When lane closures are permitted, the applicant must: (a) Verify the closure specified on the permit with the Engineering Depardnent, the School District and the Roaring Fork Transit Authority (RFTA) at least one (1) week in advance. (b) Notify the Aspen Communication Center at (970)920-5310 one (1) day prior to closure and at the time of re-opening. (c) Set and maintain, at the applicant's expense, necessary barricades, flashers, construction signs and flaggers; and take all necessary precautions in accordance with the Manual on Uniform Traffic Control Devices (MUTCD). (d) r~..»...'~Hours of work will he in compliance with Title 18 or Title 8 or both. Utility work must he completed between 7:00 a.m. and X5:00 p.m., Monday through Friday and behs~een 9:00 a.m. and 5:00 p.m. on Saturday, unless approved otherwise by the G«.:.. ~.. •..I Uo..lt6 Tl,.......t.....,...• C.... .. ,...L ..,.t:.,:~. ,...t~:.le •6e .. ..: F.eA ti...e f......o.('.ItV Council.. (Ord. No. 15, 2007, §2) Sec. 21.12.130. Limitations on use of public streets, alleys and sidewalks for construction materials. (a) Purpose. It shall be the purpose of this Section to regulate the use of public streets, alleys and sidewalks for construction material storage and placement of pedestrian barricades. This regulation is intended to ensure adequate snow removal in City streets, alleys and sidewalks, allow for safe flow of pedestrian and vehicular traffic and maintain the image of the City as a resort community, while also accommodating construction activity. (b) Definitions. Construction material storage means parking of construction trailers or construction equipment, storage of construction materials for any purpose other than unloading or placement of any structure which is typically accessory to construction activity. Pedestrian barricades means any structure authorized by the City Engineer to permit the safe passage of pedestrians past construction sites. Paved street means that portion of the right-of--way between curbs or drainage swales. Sidewalk means that portion of the right-of--way between a curb or drainage Swale and a property line. StaKing means any construction related activity that lasts less than one working day. _(c) Limitations. (1) The following limitations shall be enacted on the use of the public right-of--way during the period of November 13 to tEprifMarch 31: a. Storage of construction materials shall be prohibited in all paved streets, alleys and sidewalks in the City. b. Placement of pedestrian barricades shall be prohibited in all paved streets and alleys in the City. c. Placement of pedestrian barricades shall not be permitted in sidewalks in the City ~,., ,.w«.,:..:.,,. „ ..,:. c ,,.., .we r~:.., c..,.:..oo_Core. (2) The following limitations shall be enacted on the use of the public right-of--way during the period of April 1 to June 1 and Labor Day to November 13: a. Storage of construction materials shall be prohibited in all paved streets, sidewalks and alleys in the City. b. Placement of pedestrian barricades shall be permitted in paved streets, alleys and sidewalks in the City by obtaining a permitper+rtittemporarv revocable encroachment license from the City Engineer. (3) The following limitations shall be enacted on the use of the public right-of--way during the period of June 1 through Labor Day: a. Storage of construction materials shall be prohibited in all paved streets, sidewalks and alleys in the City. b. Placement of pedestrian barricades shall be permitted in paved streets, alleys and sidewalks in the City, except within the Commercial Core and Main Street Corridor, by obtaining a itpewnittemporary revocable encroachment license from the City Engineer. (4) Exceptions. a. The City Engineer or City Council may make exceptions to this Section when special circumstances are present where strict compliance of these regulations would jeopardize the public safety or the expeditious continuation of the project and granting the exception is in the public interest. b. r::onstruction staging ma}' occur with limited activities and limited work hours. (d) Permits. (1) The City Engineer shall have the sole responsibility for issuance of permits and licenses pursuant to this Section. Reserved construction marking permits shall comply Section 24.16.240. (2) [n determining whether to issue a permit, the City Engineer shall consider the following: a. For the placement of pedestrian barricades in the public right-of--way, the applicant shall demonstrate that the barricade: cannot be functionally located on private property; provides for safe passage of pedestrians according to International BuildingCode Chapter 33 and City Engineer; will be maintained in a usable, safe and attractive manner; and is located so as to minimize the loss of public pazking spaces to the extent practicable. b. For the storage of construction materials in ^^ °n~,~.val;<City rights-of-way, the applicant shall: demonstrate that the materials cannot be functionally located on private property; provide a pedestrian walkway to replace the sidewalk when it is blocked by construction materials; and ensure that the period of storage is the minimum necessary to accomplish necessary construction activities. (Code 1971, §19-57; Ord. No. 12-1988, §1; Ord. No. 20-1990, §1; Ord. No. 15, 2007, §2) Sec. 21.12.140. Permanent Encroachments into City Rights-of-Way. !`,.«..a.. ..a:..« :« ,.1.:«,...,.:I ..a..1-:I:-...ti,.« .. .:a., ..1...11 «,.a ..^«^a...,a^ a6^ !`:a. .:..6a ..f ....,.. .. n o~^^, ^a:,.« n n ^_, .^„^a:^«As a general policy. it is not in the City's interest to grant permanent encroachments, therebyprovidin~public property for private use. New and a^'~~e ^"^" "^ ^^°'^~«^-' °"^"°xisting structures should be ^~~::,~able to accomplish their various needs within the confines of a"^ ~~'~°^'~^~~'~atheir property boundaries: and required setbacks. Variances from this requirement may be granted ^'~- ;e-sa~ disefetier~ef by the City Engineer or City Council G~iteria which may be considered by the Citv En<~ineer for granting a variance from this requirement include but are not limited to~ Encroachments into the right-of--way associated with earth retention efforts (pilings, soils nails, etcl may be authorized by the City Engineer under the following proposed re~~ulations which include, but are not limited to: a. The associated structure is commercial or mixed comrnerciaVresidential b. The applicant must prove extenuating circumstances preclude using other methods of stabilization that can be contained entirely within project prooerty boundaries. a The earth retention fixture is sacrificial and can be removed after subsequent structural elements are completed. d. The earth retention structure does not extend past Che back of curb of any abutting roadway or into the driving, surface of any alley and is installed 2' below any utilities. e. In no circumstance shall any encroaching fixture be within the tirst 5' below rg_ade. E The applicant shallpay a fee in accordance with section 2.12.05 Iof the Municipal Code. The fee will encompass the total horizontal and vertical extent of the appurtenance measured from the property line. (Ord. No. 15, 2007, §2) 2. Encroachments into the ri¢ht-of-wav associated with public infrastructure improvements thatprovide a public benefit. Attachment B ORDINANCE NO. _ (Series of 2008) AN ORDINANCE AMENDING TITLE 2 AND TITLE 21 OF THE ASPEN MUNICIPAL CODE REGARDING OCCUPATION AND EXCAVATION IN THE CITY RIGHT-OF-WAY. WHEREAS, the City intends to insure the quality of repairs and improvements made by users of the right-of--way. WHEREAS, the City intends to minimize the disruption caused by excavations in the right-of--way. WHEREAS, the City intends to require advance notice about excavations and encroachments in the right-of--way. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That section 2.12.051 of the City Aspen Municipal Code be hereby amended to read as follows: Sec. 2.12.051. Engineering Department fees. This Section of the Code sets forth certain fees for the Engineering Department: CATEGORY FEE Encroachment license application and processing $343.00 Vacation application and processing 343.00 Right-of--way permit application and processing (waived for sidewalk replacement work) 343.00 Temporary occupation of ROW under encroachments b commercial operations -per square foot $2.50/sq. ft. per month Temporary occupation of ROW under encroachments withi [he core by commercial operations -per square foot $5.28/sq. ft. per month Temporary occupation of ROW under encroachments outsid of [he core by commercial operations -per square foot $2.64/sq. ft. per month Permanent encroachment $1,000.00/permit Permanent encroachment for earth retention $2.64/cu. ft. per month Map and plan printing $4.00/copy Section 2 That Section 21.04.050(a) of the City of Aspen Municipal Code be hereby amended to read as follows: (a) No person shall occupy, construct, place or maintain within any public right-of- way any building, structure or appurtenance, fence, tree, vegetation or other obstruction without first having obtained an encroachment license from the City Engineer. Any person seeking an encroachment license must submit an application on forms provided by the City Engineer, accompanied by an administrative fee in an amount prescribed by Subsection 2.12.050(e) of this Code. The City Engineer may specify the terms and conditions under which any encroachment license is to be issued so as to protect the best interests of the City. All encroachment licenses granted under this Section whether delineated as temporary or permanent shall be revocable by the City with or without cause at any time. Section 3 That Sections 21.12.010, 21.12.020, 21.12.030, 21.12.120, 21.12.130, and 21.12.140 of the City of Aspen Municipal Code be hereby amended to read as follows: Sec. 21.12.010. Permit required. It shall be unlawful for any person to undertake any construction or repair within or dig up, open, disturb, grade, excavate, or otherwise alter any public right-of--way or use, occupy, or stage construction materials in any public right-of--way in the City without first having obtained a permit or license for such work from the City Engineer. A separate permit shall be required for each construction or excavation project. New and existing structures should be able to accomplish their various needs within the confines of their property boundaries and required setbacks. All right-of--way permit and encroachment license applications shall comply with the most current edition of the Engineering Department's construction and excavation standards for work in the public rights-of--way. All encroachment licenses granted under this Section whether delineated as temporary or permanent shall be revocable by the City with or without cause at any time. Sec. 21.12.020. Applicatiou. Application for aright-of--way permit or encroachment license, either temporary or permanent, shall be made no later than one (1) week prior to the planned commencement of the work. The applicant must have a valid builder's or excavating license issued by the City of Aspen/Pitkin County Building Department. The City Engineer may allow the permittee to obtain a permit or license sooner than one (1) week prior to the planned commencement of the work if the scope of work is deemed to be minimal. Emergency situations will be exempt; however a permit must be obtained as soon as is possible and no later than the next business day. Sec. 21.12.120. Street closures not permitted. Street closures are not permitted. The City Engineer may permit lane closures. When lane closures are permitted, the applicant must: (a) Verify the closure specified on the permit with the Engineering Department, the School District and the Roaring Fork Transit Authority (BETA) at least one (1) week in advance. (b) Notify the Aspen Communication Center at (970)920-5310 one (1) day prior to closure and at the time of re-opening. (c) Set and maintain, at the applicant's expense, necessary barricades, flashers, construction signs and flaggers; and take all necessary precautions in accordance with the Manual on Uniform Traffic Control Devices (MUTCD). (d) Hours of work will be in compliance with Title 18 or Title 8 or both. Utility work must be completed between 7:00 a.m. and 5:00 p.m., Monday through Friday and between 9:00 a.m. and 5:00 p.m. on Saturday, unless approved otherwise by the City Council. Sec. 21.12.130. Limitations on use of public streets, alleys and sidewalks for construction materials. (a) Purpose. It shall be the purpose of this Section to regulate the use of public streets, alleys and sidewalks for construction material storage and placement of pedestrian barricades. This regulation is intended to ensure adequate snow removal in City streets, alleys and sidewalks, allow for safe flow of pedestrian and vehicular traffic and maintain the image of the City as a resort community, while also accommodating construction activity. (b) Definitions. Construction material storage means parking of construction trailers or construction equipment, storage of construction materials for any purpose other than unloading or placement of any structure which is typically accessory to construction activity. Pedestrian barricades means any stmcture authorized by the City Engineer to permit the safe passage of pedestrians past construction sites. Paved street means that portion of the right-of--way between curbs or drainage swales. Sidewalk means that portion of the right-of--way between a curb or drainage Swale and a property line. Staging means any construction related activity that lasts less than one working day. (c) Limitations. (1) The following limitations shall be enacted on the use of the public right-of--way during the period of November 1 to March 31: a. Storage of construction materials shall be prohibited in all paved streets, alleys and sidewalks in the City. b. Placement of pedestrian barricades shall be prohibited in all paved streets and alleys in the City. c. Placement of pedestrian barricades shall not be permitted in sidewalks in the City Core. (2) The following limitations shall be enacted on the use of the public right-of--way during the period of April 1 to June 1 and Labor Day to November 1: a. Storage of construction materials shall be prohibited in all paved streets, sidewalks and alleys in the City. b. Placement of pedestrian barricades shall be permitted in paved streets, alleys and sidewalks in the City by obtaining a temporary revocable encroachment license from the City Engineer. (3) The following limitations shall be enacted on the use of the public right-of--way during the period of June 1 through Labor Day: a. Storage of construction materials shall be prohibited in all paved streets, sidewalks and alleys in the City. b. Placement of pedestrian barricades shall be permitted in paved streets, alleys and sidewalks in the City, except within the Commercial Core and Main Street Corridor, by obtaining a temporary revocable encroachment license from the City Engineer. (4) Exceptions. a. The City Engineer or City Council may make exceptions to this Section when special circumstances are present where strict compliance of these regulations would jeopardize the public safety or the expeditious continuation of the project and granting the exception is in the public interest. b. Construction staging may occur with limited activities and limited work hours. (d) Permits. (1) The City Engineer shall have the sole responsibility for issuance of permits and licenses pursuant to this Section. Reserved construction parking permits shall comply with Section 24.16.240. (2) In determining whether to issue a permit, the City Engineer shall consider the following: a. For the placement of pedestrian barricades in the public right-of--way, the applicant shall demonstrate that the barricade: cannot be functionally located on private property; provides for safe passage of pedestrians according to International Building Code Chapter 33 and City Engineer; will be maintained in a usable, safe and attractive manner; and is located so as to minimize the loss of public parking spaces to the extent practicable. b. For the storage of construction materials in City rights-of--way, the applicant shall: demonstrate that the materials cannot be functionally located on private property; provide a pedestrian walkway to replace the sidewalk when it is blocked by construction materials; and ensure that the period of storage is the minimum necessary to accomplish necessary construction activities. (Code 1971, §19-57; Ord. No. 12- 1988, §1; Ord. No. 20-1990, §1; Ord. No. 15, 2007, §2) Sec. 21.12.140. Permanent Encroachments into City Rights-of--Way. As a general policy, it is not in the City's interest to grant permanent encroachments, thereby providing public property for private use. New and existing structures should be able to accomplish their various needs within the confines of their property boundazies and required setbacks. Variances from this requirement may be granted by the City Engineer or City Council. Criteria which may be considered by the City Engineer for granting a variance from this requirement include, but are not limited to: Encroachments into the right-of--way associated with soil earth retention (pilings, soils nails, etc) may be authorized by the City Engineer under the following proposed regulations which include, but are not limited to: a. The associated structure is commercial or mixed commerciaUresidential b. The applicant must prove extenuating circumstances preclude using other methods of stabilization that can be contained entirely within project property boundaries. c. The earth retention fixture is sacrificial and can be removed after subsequent structural elements are completed. d. The earth retention structure does not extend past the back of curb of any abutting roadway or into the driving surface of any alley and is installed 2' below any utilities. e. In no circumstance shall any encroaching fixture be within the first 5' below grade. f The applicant shall pay a fee in accordance with section 2.12.051 of the Municipal Code. The fee will encompass the total horizontal and vertical extent of the appurtenance measured from the property line. (Ord. No. 15, 2007, §2) 2. Encroachments into the right-of--way associated with public infrastructure improvements that provide a public benefit. Vu1a MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Sara Adams, Preservation Planner THRU: Cbris Bendon, Community Development Director 1 '1AAn~ DATE OF MEMO: September 12, 2008 ~1~~~~~ MEETING DATE: September 22, 2008 RE: 28 Smuggler Grove Road, Landmark Designation Hearing, Second Reading of Ordinance # 25, Series of 2008 (Parcel 2737-074-00-018) REQUEST OF COUNCIL: City Council is asked to determine whether the property located at 28 Smuggler Grove Road meets the applicable criteria to be deemed a local landmazk and added to the Aspen Inventory of Historic Landmark Sites and Structures. BACKGROUND: ^ Project summary 28 Smuggler Grove Road is a circa 1880s miner's cabin that is not currently listed on the Aspen Inventory of Historic Sites and Structures. The City of Aspen filed a designation application without owner consent, pursuant to Ordinance No. 30, Series of 2007. The property owner put the application for Landmark Review on hold in January, 2008 after Ordinance No. 48, Series of 2007 was adopted to replace Ordinance No. 30. In July, 2008, the property owner voluntarily requested that the landmazk application be reinstated and processed. The property is 7,377 square feet in size and is located in the R-15A Moderate Density zone district. ^ Lot history The property owner submitted an application for a determination of potential historic significance on July 13, 2007 under Ordinance #30, Series of 2007. ~~ Revised 9/12/2008 28SmugglerCCsecondreadingsept2008.doc Page 1 of 3 The subject residence was moved to the Jukati Subdivision, specifically 28 Smuggler Grove Road, in 1976. Because the subdivision was not annexed into the City until 1987, the City did not propose landmark designation during the previous historic inventory survey. The property owner submitted an application for designation, a historic lot split and conceptual approval in 2003, but withdrew the application. • Previous actions The Historic Preservation Commission (HPC) voted unanimously six to zero recommending that City Council designate 28 Smuggler Grove Road a local historic landmazk.2 Staff did not bring the application back to the HPC after the application was reinstated in July, 2008. HPC membership remains unchanged since the application was reviewed in November of last year. Furthermore, the physical property and integrity analysis are consistent with that presented last yeaz. DISCUSSION: ^ Based on a recommendation from the Historic Preservation Commission, City Council is asked to determine if this property meets the designation criteria listed in Section 26.415.030.B of the Aspen Land Use Code, listed in Exhibit A. • The property owner elected to proceed with an application fora Certificate of Appropriateness from HPC fora 718 squaze foot addition and gazage to the residence while the designation review is underway. The HPC found that the proposed design was consistent with the Historic Preservation Design Guidelines at the Conceptual Review level. The property must be designated in order for HPC to have purview over the proposed development. ^ The property owner decided to move forwazd with Landmazk Review under the condition that the existing incentives are eligible for this property, as well as any additional incentives that may result from the replacement of Ordinance No. 48, Series of 2007. ^ As per council's request during first reading, the property owner will discuss the reasons for voluntary designation during the public hearing. RECOMMENDED ACTION: "In reviewing the proposal, Staff finds that 28 Smuggler Grove Road meets the applicable review criteria fora 1880s Mining Era building and recommends that the property be designated a historic landmark and added to the Aspen Inventory of Historic Landmark Sites and Structures." PROPOSED MOTION: "I move to approve Ordinance #25, Series of 2008 upon Second Reading." CITY MANAGER COMMENTS: a Historic Preservation Commission Resolution 39, Series of 2007, see Exhibit B. Minutes from the Historic Preservation Commission meeting dated October 24, 2007, see Exhibit C. Revised 9/12/2008 28 SmugglerCC secondreadingsept2008. doc Page 2 of 3 ATTACHMENTS: A -Review Criteria. B -Historic Preservation Commission Resolution 39, Series of 2007. C -Historic Preservation Commission minutes, October 24, 2007. D -Documentation of 28 Smuggler Grove Road. E -Integrity Assessment Score Sheet Revised 9/12/2008 28 SmugglerCCsecondreadingsept2008.doc Page 3 of 3 ORDINANCE N0.25 (SERIES OF 2008) AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING DESIGNATION OF THE PROPERTY LOCATED AT 28 SMUGGLER GROVE ROAD, LOT 2, OF THE JUKATI SUBDIVISION, CITY OF ASPEN, COLORADO TO THE ASPEN INVENTORY OF HISTORIC LANDMARK SITES AND STRUCTURES Parcel ID #:2737-074-00-018. WHEREAS, the City of Aspen initiated Historic Landmark Review to add the property located at 28 Smuggler Grove Road, Lot 2, Jukati Subdivision, City of Aspen, Colorado, owned by Jim Byrnes, 28 Smuggler Grove Road, Aspen, to the Aspen Inventory of Historic Landmark Sites and Structures; and WHERAS, the Aspen City Council adopted Ordinance #30, Series of 2007 on July 10, 2007, authorizing the Community Development Department to initiate the designation process without owner consent when deemed appropriate as indicated in the aforementioned Ordinance; and WHEREAS, Section 26.415.050 of the Aspen Municipal Code establishes the process for Designation and states that an application for listing on the Aspen Inventory of Historic Landmark Sites and Structures shall be approved if City Council, after a recommendation from HPC and City staff, determines sufficient evidence exists that the property meets the following criteria: 26.415.030B. Criteria. To be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures, an individual building, site, structure or object or a collection of buildings, sites, structures or objects must have a demonstrated quality of significance. The significance of the property located at 28 Smuggler Grove Road will be evaluated according to the following criteria: 1. A property is deemed significant for its antiquity, in that it is: a. More than one hundred (100) years old, b. It possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association given its age; and WHEREAS, at their regular meeting, based on a recommendation from City staff on October 24, 2007, the Historic Preservation Commission considered the application, found the application met or exceeded the review criteria and recommended City Council approval of the application by a vote of six to zero; and WHEREAS, Saza Adams, in her City Council staff report dated November 9, 2007, performed an analysis of the application based on the standards, found that the review criteria had been met, and recommended approval; and WHEREAS, the City Council finds that the application is complete and sufficient to afford review and evaluation for approval; and WHEREAS, on November 26~', 2007 the Aspen City Council approved Ordinance No. 51, Series 2007, on First Reading by a five to zero vote, approving the designation of 28 Smuggler Grove Road to the Aspen Inventory of Historic Sites and Structures; and, WHEREAS, the property owner requested that the application for Landmark Review be deferred on January 21, 2008; and WHEREAS, the property owner voluntarily requested to proceed with Landmazk Review of the subject property on July 1, 2008 under the condition that existing incentives be eligible to the subject property and any additional incentives that may result upon the adoption of new historic preservation regulations in replacement of Ordinance No. 48 Series of 2007; and WHEREAS, on August 25, 2008, the Aspen City Council approved Ordinance No. 25, Series of 2008, on First Reading by a five to zero vote, approving the designation of 28 Smuggler Grove Road to the Aspen Inventory of Historic Sites and Structures; and WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfaze. WHEREAS, the .City Council finds that the application meets or exceeds all applicable standazds and that the addition of 28 Smuggler Grove Road as a historic landmazk to the Aspen Inventory of Historic Landmazk Sites and Structures is consistent with the goals and elements of the Aspen Area Community Plan; and, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1 The City Council does hereby approve designation of the property located at, 28 Smuggler Grove Road, Lot 2, Jukati Subdivision, City of Aspen, Colorado, to the Aspen Inventory of Historic Landmazk Sites and Structures. Section 2: This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 3• That the City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance and exhibits in the office of the Pitkin County Clerk and Recorder. Section 4• That the Community Development Director is directed, upon the adoption of this ordinance, to cause the Official Zoning Map of the City of Aspen to be amended to reflect the rezoning of the subject property as herein described. Section 5: If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 6: A public heazing on the ordinance will be held on the 22nd day of September, 2008, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. Section 8: This ordinance shall become effective thirty (30) days following final passage. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 25d' day of August, 2008. Michael C. Ireland, Mayor Attest: Kathryn S. Koch, City Clerk [signatures on the following page] FINALLY, adopted, passed and approved this th day of , 2008. Michael C. Ireland, Mayor Attest: Kathryn S. Koch, City Clerk Approved as to form: John P. Worcester, City Attorney Exhibit A DESIGNATION OF HISTORIC PROPERTIES Section 26.415.030.B, of the City Land Use Code provides criteria for properties to be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures. 26.415.030B. Criteria. To be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures, an individual building, site, structure or object or a collection of buildings, sites, structures or objects must have a demonstrated quality of significance. The significance of the property located at 28 Smuggler Grove will be evaluated according to the following criteria: 1. A property is deemed significant for its antiquity, in that it is: a. More than one hundred (100) years old, b. It possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association given its age; or Staff Response: At present, it is not cleaz exactly where the house was moved from. The Building permit file indicates that it was moved in 1976, and the 1904 Sanbome maps depicts a building on the corner of Deane and Monazch Streets with almost identical proportions.Z This assumption is based on the historic floor plan proportions of 28 Smuggler Grove being different than other modest miner's cabins in Aspen- and the Sanborn map depicts only one house in Aspen with similaz dimensions at Deane and Monarch Streets. Based on the style of the structure, and some inspection of framing back in 2003, its construction date can be placed sometime in the late 1800's. It cleazly meets the first standazd for designation, Section 26.415.030.B.1.a, related to demonstration of antiquity. Staffs Integrity Assessment Score for this property is 63 (a minimum of 50 points is recommended for designation) which meets the designation criteria.3 The overall form of this house seems to be preserved. A modest one story addition has been constructed along the back, affecting the integrity of the rear wall, however, the plan form is otherwise intact. Many original window openings also appeaz to exist, although the sash have been replaced. The exterior siding is new. Staff finds that the designation criteria are met 1904 Sanbome Map, Exhibit D. Z Staff overlaid a copy of the 1904 Sanbome map floor plan over a 2006 aerial photograph of 28 Smuggler Grove to compare proportions. ~ Integrity Assessment Score Sheet, Exhibit E. Exhibit A Revised 8/13/2008 G:\NEW G DRIVE FOLDERS_CITY\PLANNING\Land Use Cases\Current\Current HP Cases\28 Smuggler Grove\council stuff\28SmugglerGroveExhibitA.doc Page 1 of 1 A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC) ,,,._ RECOMMENDING APPROVAL OF HISTORIC DESIGNATION AND MAJOR DEVELOPMENT (CONCEPTUAL) FOR THE PROPERTY LOCATED AT 28 SMUGGLER GROVE ROAD, LOT 2 OF THE JUKATI SUBDIVISION, CITY OF ASPEN, COLORADO RESOLUTION N0.39, SERIES OF 2007 PARCEL ID: 2737-181-23-002. WHEREAS, the applicant, the City of Aspen, 130 South Galena Street, has initiated a designation application, pursuant to Ordinance 30 Series of 2007, for the property located at 28 Smuggler Grove Road, Lot 2 of the Jukati Subdivision, Aspen Township Addition, City of I Aspen, Colorado; and "~ ~ WHEREAS, the applicant, Jim Bymes, has requested Major Development (Conceptual) for the property located at 28 Smuggler Grove Road, Lot 2 of the Jukati Subdivision, Aspen Township Addition, City of Aspen, Colorado; ~~ WHEREAS, the property owner, Jim Bymes, agreed to a concurrent designation review and Certificate of Appropriateness review by the Historic Preservation Commission of the property located at 28 Smuggler Grove Road, Lot 2 of the Jukati Subdivision, Aspen Township Addition, City of Aspen, Colorado; .._ ~ WHEREAS, Section 26.415.050 of the Aspen Municipal Code establishes the process for U Designation and states that an application for listing on the Aspen Inventory of Historic 1~ Landmakk Sites and Structures shall be approved if City Council, after a recommendation from ~ HPC, determines sufficient evidence exists that the property meets the following criteria: 26.415.030B. Criteria. To be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures, an individual building, site, structure or object or a collection of buildings, sites, structures or objects must have a demonstrated quality of significance. The significance of the property located at 28 Smuggler Grove Road will be evaluated according to the following criteria: 1. A property is deemed significant for its antiquity, in that it is: a. Mote than one hundred (100) years old, b. It possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association given its age; and, WHEREAS, Section 26.415.070 of the Municipal Code states that "no building or structure shall be erected, constructed, enlazged, altered, repaired, relocated or improved involving a ~ designated historic property or district until plans or sufficient information have been submitted RECEPTION#: 550010, 06/04!2008 at 11:03:34 AM, Exhibit B t OF 3, R St5.00 Doc Code RESOlUT10N HPC Resolution 34, Series of 2007 Janice K. Vos Caudill, Pitkin County, CO to the Community Development Director and approved in accordance with the procedures established for their review;" and WHEREAS, for Conceptual Major Development Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project's conformance with the City of Aspen Historic Preservation Design Guidelines per Section 26.415.070.D.3.b.2 and 3 of the Municipal Code and other applicable Code Sections. The HPC may approve, disapprove, approve with conditions or continue the -application to obtain additional information necessary to make a decision to approve or deny; and WHEREAS, Sara Adams, in her HPC staff report dated October 24, 2007, performed an analysis of the application based on the standards, found that the review standards for designation had been met and the review standards for Major Development (Conceptual) had been met, and recommended approval; and WHEREAS, at their regulaz meeting on October 24, 2007, the Historic Preservation Commission considered the application, found the application for designation was consistent with the review standards and recommended approval by a vote of 6 to 0; and found the application was consistent with the review standazds and "City of Aspen Historic Preservation Design Guidelines" by a vote of 6 to 0; and, NOW, THEREFORE, BE IT RESOLVED: That HPC hereby recommends Council approve Historic Designation and recommends approval for Major Development (Conceptual) for the property located at 28 Smuggler Grove Road, Lot 2 of the Jukati Subdivision, Aspen Township Addition, City of Aspen, Colorado, as proposed with the following conditions: 1. The applicant shall distinguish the width of the historic home on the south elevation for approval at Final Review. 2. The applicant shall provide a detailed proposal, including photographs, regarding the rehabilitation of the front porch for approval at Final Review. 3. The non-historic back deck is approved for demolition. 4. The applicant shall review the west bay window in the historic portion of the residence, and the placement of new windows shall be carefully considered. Fenestration shall be reviewed at Final Review. 5. The applicant shall restudy the garage door for review at Final Review. 6. A development application for a Final Development Plan shall be submitted within one (1) year of the date of approval of a Conceptual Development Plan. Failure to file such an application within this time period shall render null and void the approval of the Conceptual Development Plan. The Historic Preservation Commission may, at its sole discretion and for good cause shown, grant cone-time extension of the expiration date for a Conceptual Development Plan approval for up to six (6) months provided a written request for extension is received no less than thirty (30) days prior to the expiration date. [signature on the following page] Exhibit B HPC Resolution 39, Series of 2007 APPROVED BY THE COMMISSION at its regular meeting on the 2416 of October, 2007. Approved as to Form: James R. ruT e,Special~ Counsel Approved as to Content: HISTORIC RE RV TION COMMISSION Michael Hoffman, Ch r ATTEST: - - ,. Kathy S is and, Chief Deputy Clerk Exhibit B HPC Resolution 39, Series of 2007 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2007 Chairperson Michael Hoffman called the meeting to order at 5:00 p.m. Commissioners in attendance: Brian McNellis, Sarah Broughton, Nora Berko, Alison Agley, Ann Mullins and Jay Maytin. Staff present: Amy Guthrie, Historic Preservation Officer Sara Adams, Historic Preservation Planner Kathy Strickland, Chief Deputy City Clerk Jim True, Special Counsel MOTION: Ann moved to approve the minutes of Oct. 10`"; as amended by Brian; second by Nora. All in favor, motion carried. 28 Smuggler Grove, Historic Designation, Major Development - Conceptual Review, Public Hearing Affidavit ofposting -Exhibit I Sara said the application is for landmark designation and for major conceptual development. The City filed the designation process through Ordinance #30 and the property owner wanted us to do a concurrent designation hearing and conceptual review knowing full well if his property wasn't designated he wouldn't really have to come before HPC. This is the first property that came out of the Ordinance #30 review. Designation criteria: Sara said this building was moved from somewhere. The floor plan is interesting and the front gable end is really long. Sara overlaid a 2006 aerial photograph over the 1904 Sanborn map and found one floor plan that matched, Exhibit B in your packet. It is on the corner of Monarch and Dean St. The cabin is an 1880's miner's cabin. Staff finds that it meets criteria A and it is over 100 years old. The integrity assessment score was 63 and there is a rear addition and some window changes. This building is a good candidate for designation. Conceptual review: Sara said the lot is 7,377 square feet and zoned R-15A which is a medium density building. After the proposed addition if it goes through they will have 2,029 square feet of un-built floor area. If they are designated they will be eligible for the 500 square foot bonus. The proposal is for aone-story modest addition and a garage. The proposal meets most of the guidelines. 2 Exhibit C HPC Minutes, October 24, 2007 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2007 A small concern for staff is the rear elevation. It is all one plane, so from the rear it is hard to read the historic width of the building. Staff recommends that at final there be some kind of material change or undulation in the plan so you can still read the width of the historic piece. Things that can be dealt with at final are the proposal to enlarge the windows on the historic home. They are proposing double hung windows which are appropriate. Leaving the side windows as they are might be a better idea. We also think moving the existing light well is totally appropriate. The front porch is proposed to be restored because it is rotting and we will need photographs and a detailed plan at final. Staff recommends approval with two conditions: Come up with a way to distinguish the width of the historic home and a detailed proposal about the restoration of the front porch. Jim Burns, owner Jim said he will do something to distinguish the house. He said he can leave the windows the way they are. He also agreed to remove some of the design on the garage because it is too fancy. There is a deck on the back that needs to be removed because we want nicer landscaping. It is not attached to the house. We just want a little house to live in, my wife and me. I have had the house rented and manage the East Elk Creek Ranch and we are ready to move into town. Sarah asked if the west facing bay window is historic. Jim said the whole house was stripped to the frame and everything on the exterior is new. There is nothing historic on the outside. Amy said that is probably true and we should probably confirm the window sizes etc. Jim said the plan is to take everything out of the house down to the frame. Sarah said she would like to know the history of the bay window. Sarah said she is also concerned how the solar tubes will look like from the front of the house. Jim said his intent is to not have them visible from the front. Amy asked if any trees on the site are slated to be cut down during construction. Jim said there are non that will interfere with excavation. One thing that we might have a problem with is on the west side; there are foundation leaks and he will have to dig it up and put drain the in and there are a couple of trees that are pretty close. Exhibit C HPC Minutes, October 24, 2007 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2007 Brian pointed out that he agreed with the assessment scoring. Chairperson, Michael Hoffman opened the public hearing. Steve Huck and Marty Ames -owners of the house across the street at 23 Smuggler. Steve said he can support getting the cars off the street which is really not a street but an easement. Jim has been sensitive in the past to lighting issues and has agreed to do so on this building. Marty Ames said we have lived here 20 years and watched this house being rebuilt 3 times. A former owner installed excessive lighting on the house and it will be nice to have that reduced. Chairperson, Michael Hoffman closed the public hearing. Ann said the shingles would look better on the new addition and the old cottage. They would hold the design together better. Alison said it would be great if we could find an old photograph. Ann said if the garage door detailing could look more like the siding of the house it would fit better. Sarah said she would be concerned about solid garage doors. Ann suggested some windows on the garage door on the east elevation. Jim said it would be fun to make the garage doors look like they are shed doors. Recommendations for final 1, 2, 3, in staffs memo. 4. The non-historic deck in the back to be approved for demolished. 5. Review the historic window placement west facing bay window. 6. Explore different options for the garage door, possibly shed doors. 7. Investigate shingles; hopefully a photograph can be located. Jim said he is fine with all of the recommendations. 4 Exhibit C 1-IPC Minutes, October 24, 2007 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2007 MOTION: Alison moved to approve resolution #39, conceptual development for 28 Smuggler Grove with the three conditions as stated in staff's memo and the four recommendations as stated above; second by Sarah. Roll call vote: Brian, yes; Nora, yes; Alison, yes; Sarah, yes; Ann, yes; Michael, yes. Motion carried 6-0. MOTION: Michael moved to adjourn; second by Brian. All in favor, motion carried. Meeting adjourned at 8:00 p.m. Kathleen J. Strickland, Chief Deputy Clerk 5 Exhibit C HPC Minutes, October 24, 2007 II „ ~ it ~~] ---- - ~!~ "l ~ ~• u I. ~!~ 8s' P 311 II Cil u r ~ II <!~ ? ~ ~I 5,18 5?~ ~p .,J„ !L `cl' 6/l 610 FiDB bD6 604. 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L o. it ~y, x X' ~ 5 - n m~ o m _ a w 0 0 0 ~XIIIP,tT~ PIING moo L x K ~ a~~ s5 ` s w x = m `K i '~ S _' F s i9 ~ }~ y s ~i ` n A c ::~ a¢- ? y n •i E ;Gg 'a"4 ~~~5 ~ c { ~q 8~s szt S s N 4~~~ S ° ' s ~~ :~ _ E Y 4 ~~ o yy sE` ~~ Rf~~t Fj6 frF~+ ~. gRy~iR+{z~ 1'a x u C z84 = g c~ c { F ~ sg '.. g } ss 3q L ~19 [ ° t`~ } i a _ ~:~ 4 ~ €` i F1 n II ~~ 3 ` d a ` E ~- ~jd1~61f D 7,m{ r~, MnP ~}11~i~fi D• 4 f. 6 1 .•~.::" INTEGRITY ASSESSMENT- 19T" CENTURY MINER'S COTTAGE Integrity is the ability of a property to convey its significance. LOCATION Location is the place where the historic property was constructed or the place where the historic event occurred. 5- The structure is in its original location. 4- The structure has been moved within the original site but still maintains the original alignment and proximity to the street. 3- The structure has been moved to another site, still within the historic Aspen townsite. 0- The structure has been moved to a location which is dissimilar to the original site. TOTAL POINTS (maximum of 5) = 3 The building has been moved, but is located in a neighborhood with other relocated historic miner's cabins. • DESIGN Design is the combination of elements that create the form, plan, space, structure, and style of a property. BUILDING FORM 10-The original plan form, based on Sanborne maps or other authenticating documentation, is unaltered and there are no recent additions. 8- The structure has been expanded but the original plan form is intact and the addition(s) would meet the design guidelines. 6- The plan form has been more altered, but the addition would meet the design guidelines. 4- The structure has been expanded in a less desirable manner, but if the addition were removed, at least 50% of the building's original walls would remain. 2- The structure has been expanded and the addition overwhelms the original structure ,destroying more than 50% of the building's original walls. 0- Two historic structures have been linked together and the original character of the individual structures is significantly affected. Staff Response: 5 The plan form appears to be altered at the rear. ROOF FORM 10-The original roof form and the original porch roof, if one existed, are unaltered. 8- The original main roof is intact but the porch roof, if one existed, has been altered. Exhibit E 1 Integrity Score Sheet 6- Dormers have been added to the structure or additions have been made that alter the roof form, but the changes would meet the design guidelines. 2- Alterations to the roof have been made in a less sensitive manner, not in conformance with the design guidelines. 0- Less than 50% of the original roof form remains. Staff Response: 9 The roof form seems largely intact. SCALE 5- The original one story scale of the building, and its chazacter as a small cottage is intact. 4- The building has been expanded, but the ability to perceive the original size of the 3 or 4 room home, is preserved. 3- The building has been expanded and the scale of the original portion is discernible. 0- The scale of the building has been negatively affected by a lazge addition, whose features do not reflect the scale or proportions of the historic structure. Staff Response: 4 The building has been expanded at the reaz but the scale is discernable. FRONT PORCH ] 0-The front porch is not enclosed and original decorative woodwork remains, or if there was no porch historically, none has been added. 8- The front porch is enclosed but maintains an open character and some original materials. 6- The front porch is not original, but has been built in an accurate manner, per the design guidelines. 2- The front porch has been enclosed and most original materials aze gone. 0- The front porch is completely gone or replaced with a porch which would not meet the design guidelines. Staff Response: 10 The decorative woodwork of the front porch is intact. DOORS AND WINDOWS ] 0-The typical door and window pattern on the original house is intact- two doors off the front porch, large double hung windows in gable ends, and tall, narrow double hung windows placed "spazsely" on building walls. 8- Less than 50% of the door and window openings on the original building are new and the original door and window openings are intact. 2- More than 50% of the door and window openings on the original building aze new and/or some of the original opening sizes have been altered. 0- Most or all of the original door and window openings have been altered. Staff Response: 6 Some of the windows have been replaced. Exhibit E 2 Integrity Score Sheet 0- All exterior materials have been removed and replaced. Staff Response: 6 The original siding has been replaced and some architectural details remain. DOORS AND WINDOWS 10-All or most of the original door and window units are intact. 8- Some window and door units have been replaced, but with generally accurate reconstructions of the originals. 6- Most of the original windows have been replaced, but with generally accurate reconstructions of the originals. 0- Windows and/or doors units have been replaced with inappropriate patterns or styles. Staff Response: 0 The windows on the front fapade are not typical to miner's cabins. TOTAL POINTS (maximum of 20) = 6 • WORKMANSHIP Workmanship is the physical evidence of the crafts of a particular culture or people during any given period in history or prehistory. DETAILING AND ORNAMENTATION 5- The original detailing is intact. 3- Detailing is discernible such that it contributes to an understanding of its stylistic category. 0- New detailing has been added that confuses the character of the original structure. 0- The detailing is gone. Staff Response: 3 The architectural detailing is discernible and representative of a modest miner's cabin. FINISHES 5- All exterior woodwork is painted and masonry unpainted. 4- All exterior woodwork is painted and masonry is painted. 3- Wood surfaces are stained or modern in appearance but masonry is unpainted. 2- Wood surfaces are stained or modern in appearance and the masonry is painted. Exhibit E 4 Integrity Score Sheet SIMPLICITY OF DESIGN 5- The overall sense of "modesty" in design and detailing on the original structure is intact. 0- New, non-historic trim and other decoration have been added to the building and have altered its character. Staff Response: 5 The modest sense of miner's residences is apparent. TOTAL POINTS (maximum of 50) = 39 • SETTING Setting is the physical environment of a historic property. PROXIMITY TO SIMILAR STRUCTURES 5- The structure is one of a set (at least three) of buildings from the same period in the immediate area. 3- The building is part of a neighborhood that has numerous remaining buildings from the same period. 0- The building is an isolated example from the period. Staff Response: 0 The building was moved to its current location and is not in close proximity to other historic 19`h century buildings. HISTORIC LANDSCAPE FEATURES 5- A number of elements of the original landscape are in place, including historic fences, walkways, plant materials and trees, and ditches. 3- Few or no elements of the original landscape are present, but the current landscape supports the historic character of the home. 0- The current landscape significantly obscures views of the structure. Staff Response: 2 The current landscape does not obscure the home TOTAL POINTS (maximum of 10) = 2 • MATERIALS Materials are the physical elements that were combined or deposited during a particular period of time and in a particular pattern or configuration to form a historic property. EXTERIOR WOODWORK ] 0-Most of the original woodwork, including clapboard siding, decorative shingles in gable ends, trim, fascia boards, etc. remain. 6- Original siding has been replaced, but trim and other elements remain. 4- Original siding is intact but trim or other elements have been replaced. Exhibit E 3 Integrity Score Sheet Staff Response: 5 The exterior woodwork is painted appropriately. TOTAL POINTS (maximum of 10) = 8 • ASSOCIATION Association is the direct link between an important historic event or person and a historic property. 5- The property would be generally recognizable to a person who lived in Aspen in the 19`h century. TOTAL POINTS (maximum of 5) = 5 The lack of any major alterations renders this property largely recognizable to a person who lived in Aspen in the 19`h century. • BONUS POINTS UNIOUE EXAMPLE 5-The design of the building is unique or one of a small group among the miner's cottages. (i.e.It has Italianate or Second Empire detailing.) OUTBUILDINGS 5-There are outbuildings on the property that were built during the same period as the house. MASONRY 5-Original brick chimneys and/or a stone foundation remains. PATINA/CHARACTER 5-The materials have been allowed to acquire the character of age and are obviously weathered. Staff Response: 0 points. MAXIMUM NUMBER OF POINTS= 100 (and up to 20 bonus points) MINIMUM THRESHOLD FOR DESIGNATION= 50 POINTS TOTAL SCORE FOR 28 SMUGGLER GROVE = 63 POINTS Note: Each area of the integrity analysis includes a description of the circumstances that might be found and a point assignment. However the reviewer may choose another number within the point range to more accurately reflect the specific property. Exhibit E 5 Integrity Score Sheet Vlllb ALPERSTEIN sr COVELL, Pc. A T T O R N E Y S A T L A W DONALD W. ALPERSTEIN CYNTHIA R COVELL ANDREA L. BENSON GiLBERT Y. MARCHAND, SR. Oi Counsel 1600 BROADWAY, SUITE 2350 DENVER, COLORADO 80202-4921 MEMORANDUM dwa@alpersteincoveli.cum cfc@alpersteincovell.eom alb@alpersteincovell.com TELEPHONE (303) 6948191 FAX (303) 661-0420 TO: Aspen City Council CC: Steve Barwick, City Manager John Worcester, City Attorney FROM: Cynthia F. Covell, water counsel Phil Overeynder, Utilities Director RE: Extraterritorial Water Service Agreement: Three Trees LLC DATE: September 2, 2008 Bac_ k_ground Three Trees LLC, owns property located at 1 Toby Lane. This property is located outside the City limits, and amendment to an existing extratemtorial water service agreement is required to provide City water service. A copy of the original water service agreement is attached. It provides for water service to the then-existing residence in the amount of 2.7 ECUs, and requires amendment to change the water service if there is a new home or an increased water requirement. Proposed Amendment to Water Service Agreement Three Trees has proposed to provide the City with certain easement rights in its property and an adjacent property, owned by M.S. 4610 LLC, and to undertake certain irrigation system repair work for the City in return for the City's approval of a water service agreement that will provide City water to the new residence in an amount not to exceed 6.0 ECUs. A copy of the Alendment to Water Service Agreement is attached Water service in the amount of 6.0 ECUs exceeds the usual 5.0 ECUs typically approved for a residence of this size; however, staff recommends this service in light of the unique benefits to be provided to the City by Three Trees LLC. A second non-standard provision of this Amendment is authorization of use of irrigation water from the Si Johnson Ditch to meet extensive revegetation requirements, and outdoor landscaping on this property. The City typically does not permit both raw and treated water systems on the same property, because of the potential health and safety risks from an inadvertent cross-connection, and to prevent proliferation of raw water systems, particularly wells, that impact the City's water supplies. The Si Johnson Ditch water will be provided to Three Trees LLC by Westchester Investments, Inc. and the necessary documents to effect this transfer and to create a mutual ditch company are also prerequisites to the effectiveness of the Water Service Agreement and Three Trees' obligations to provide easements and irrigation system repairs. In this case, however, given the easement and irrigation system repair benefits the City will obtain, staff recommends these non-standard provisions. The City's commitment to provide water service pursuant to the Original Water Service Agreement as amended by this Amendment is expressly contingent upon approval and consummation of all related contracts required for constmction and implementation of the easement rights and irrigation system repairs to be provided by Three Trees LLC, actual conveyance or dedication of agreed-upon easement rights by both Three Trees LLC and MS 4610 LLC, and completion of the agreed-upon imgation system repairs by Three Trees LLC. Recommendation: Staff recommends approval of the Amendment to Water Service Agreement, contingent upon upon approval and consummation of all related contracts required for construction and implementation of the easement rights and irrigation system repairs to be provided by Three Trees LLC, actual conveyance or dedication of agreed-upon easement rights by both Three Trees LLC and MS 4610 LLC, and completion of the agreed-upon irrigation system repairs by Three Trees LLC. ORDINANCE NO. ~ ` Series of 2008 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN AMENDMENT TO THE WATER SERVICE AGREEMENT WITH BILLY RAY EUBANKS AND BONNIE JEAN EUBANKS DATED DECEMBER 17, 1996, FOR PROVISION OF TREATED WATER SERVICE OUTSIDE THE CITY LIMITS FOR A TOTAL OF 6.0 ECUS TO 1 TOBY LANE, AND PROVIDING DETAILS IN CONNECTION THEREWITH. WHEREAS, in December 1996, City Council a Water Service Agreement with Billy Ray Eubanks and Bonnie Jean Eubanks for provision of City treated water service to their property located at 1 Toby Lane, Pitkin County, Colorado; and WHEREAS, the City provided water service in the amount of 2.97 ECUs pursuant to the Water Service Agreement; and WHEREAS, Three Trees LLC has purchased the property located at 1 Toby Lane, has demolished the original residence and plans to construct a new residence on this property; and WHEREAS, Three Trees LLC has requested that the Water Service Agreement be amended to permit service to a total of 6.0 ECUs for the new residence on the property; and WHEREAS, Three Trees LLC has agreed to provide to the City, at its cost, certain easement rights and irrigation system repairs in return for the requested additional treated water service; and WHEREAS, the City Council has had an opportunity to review with City staff the proposal to provide additional service of 3.03 ECUs to provide a total of 6.0 ECUs to 1 Toby Lane, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT Section 1. The City Council of the City of Aspen hereby determines that the proposed Amendment to Water Service Agreement, authorizing provision of City water to an additiona13.03 ECUs to serve 1 Toby Lane is in the best interest of the City, so long as Three Trees LLC provides easements and performs irrigation system repairs of a sort and in a manner agreed to by both Three Trees LLC and the City Water Department, the City Council approves the Amendment to Water Service Agreement attached hereto and incorporated herein by reference, subject to and contingent upon approval, consummation and implementation of all related contracts for the easement rights and irrigation system repairs agreed by the City Water Department and Three Trees LLC to be provided by Three Trees LLC, dedication orconveyance ofagreed-upon easements and related rights by Three Trees LLC and M. S. 4610 LLC, and actual completion of the agreed-upon irrigation system repairs in the manner ageed to by the parties. Section 2. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 3. Ifany section, subsection, sentence, clause, phrase or portion ofthis ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 4. A public hearing on the ordinance shall be held on the day of , 2008, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the day of , 2008. Mayor Attest: City Clerk FINALLY ADOPTED, PASSED AND APPROVED THIS DAY OF .2008. Mayor Attest: City Clerk F:\Client Files\Aspen\Three Trees WSA\ordinance re WSA amendment.wpd CITY OF ASPEN WATER SERVICE AGREEMENT This Water Service Agreement is entered into this (`T~ day of~ce,,..~pr , 199, in Aspen, Colorado, between THE CITY OF ASPEN, a Colorado municipal corporation and home Wile qty whose address is 130 South Galena Street, Aspen, Colorado 81611 (hereafter the "City"), and BILLY RAY EUBANKS AND BONNIE JEAN EUBANKS, whose address is I Toby Lane, Aspen, Colorado 816] 1 (hereafter "Owner"). ~~~ WITNESSETH ~J ~N~ -'" _ WHEREAS, the City owns and operates the City of Aspen water system in accordance with the laws of the State of Colorado, and in accordance with the charter, ordinances, rules, regulations, ~o z policies and resolutions of the City of Aspen, and this Agreement is entered into in conformity with, w F and subject to, the charter and all such laws, ordinances, rules, regulations, policies and resolutions; Fwd and =um ~ a m WHEREAS, Owner is the sole owner of certain real properly located outside of the City of ~a z Aspen and referred to in this Agreement as the "Subject Property", described as follows: . •• m ,mm ~m m Lot 2, HEFNER SUBDIVISION, according to `~ m the plat thereof recorded April 15, 1985 ~~ m in Plat Book 17, at Page 11, in Pitkin "~N,1O~ County, Colorado, ~m~ ~~ ~ also known as street and number: 1 Toby Lane. ~r o - °' ^ WHEREAS, Owner has an existing single-family residence on the Subject Property; and AS, Owner presently receives municipal water service from the City for the Subject Prop ut is not party to a Water Service Agreement, as required by the City; and WHEREAS, Owner wishes to construct a new main for delivery of wafer service to the Subject Property, as described in this Agreement; and WHEREAS, the new main will also enable a hydrant to be installed to provide fire flow to the Subject Property and others; and WHEREAS, Owner wishes to receive reimbursement for its costs of construction of such water main and hydrant if and when water service is provided therefrom to other City customers in addition to Owner; and WHEREAS, the City has determined that this Agreement and all covenants herein are necessary to comply with the Ciry's charter ("Charter"), its municipal code ("Code") and water policies; and Water Service Agreement (revision to form of 13/93) WHEREAS, the City is willing to accept the water main and hydrant when completed and approved as herein provided, and to provide water service to Owner on the terms and conditions of this Agreement; THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein, the City and Owner agree as follows: 1. Water Service to Project and Subject Property, Upon completion of the water transmission main and hydrant provided for herein, and acceptance by the City, the City will provide treated water service and fire flow to the Subject Property as provided in this Agreement. Only those structures and uses approved for the Subject Property maybe served under this Agreement. 2. Construction of Water Transmission M in nd Hydrant. Subject to the City's inspection and approval; Owner will design, construct, install and connect to the City's water distribution system the hydrant and water transmission main ("Main") required to provide treated water and fire flow to the Subject Property. It is estimated that the cost of such design, construction, installation and connection will be approximately $134,100, which expense will be shazed between City and Owner as provided in paragraph 3 below. 3. ~qc h rine. The parties agree that the City shall contribute up to $50,000 towazds the costs of engineering, design, construction, inspection, installation and connection of the Main, which are expected to be approximately $134,100. The City's maximum contribution shall be $50,000 even if such costs exceed $134,100. In the event such costs aze less than $134,100, the City shall contribute 37.3% of the overall costs (not to exceed $50,000), and Owner shall be responsible for the remainder of such costs. Upon final installation ofthe Main, Owner shall certify the final cost of the project, including i~ ~ prelirrrinary engineering, final design drawings, engineering and review, actual construction costs, job i. a ~ inspection, and appropriate permanent location markings and easements. (The foregoing costs aze ~ a ~ collectively referred to as the "Certified Cost".) The City shall reimburse its contribution to Owner a ~ within thirty days of receipt of the Certified Cost. __oz ~~ M M The City, at its own cost (estimated to be approximately $4,000, which will not be included ~, d in its $50,000 contribution), shall prepare as-built drawings of the completed Main, and, where a m necessary. ,records of survey of easements. m `"- v = 4. RecouFment by OwnerOwner. The Certified Cost minus the City's contribution is defined m m as the Owners Contribution, and may be reimbursed to Owner (or Owner's successors and assigns) ~m c as set forth in this pazagraph. ~°.,'m The parties acknowledge that property owners who presently receive water service from the -~ M City may connect to the Main without additional charge, and that Owner shall not be entitled to -- N m ~ recoup any portion of the Owner Contribution from such property owners. mr ~N ~ ..7 N - 2 - Water Servtce Agreemen[ (revision to form of 11/93) The pazfies also aclrnowledge that there aze several property owners within the vicinity of the Main who do not presently receive water service from the City, and who may wish to connect to the Main in order to receive City water service in the future. Such property owners aze referred to in this paragraph as Other Owners. If, at any time within ten yeazs of the date of final installation of the Main, one or more Other Owners wish to receive water service for their properties by connecting to the Main, Owner (and Other Owners, as herein provided) shall be entitled to recoup a portion of the Owner's Contribution as follows: (I) An amount equal to I divided by the total number of connections to the Main, multiplied by the portion of the Owner's Contribution previously reimbursed pursuant to this pazagraph 4, shall be allocated to the Other Owners who have previously connected to the Main and made reimbursement according to this pazagraph. (2) An amount equal to 1 divided by the total number of connections to the Main, multiplied by the portion of the Owner's Contribution not previously reimbursed pursuant to this paragraph 4, shall be paid to Owner. Each Other Owner shall be entitled to shaze in recoupment received from subsequent Other Owners in proportion to their remaining unreimbursed payments to the Owner and earlier Other Owners. In no event shall Owner be entitled to recoup more than the Owner's Contribution; nor shall any Other Owner be permitted to recoup more than his contribution hereunder. The right to recoup set forth herein shall be available to Owner and any Other Owners for a period often years from the date of final installation of the Line. 5. Easements. Owner shall obtain at its own cost and convey in perpetuity to the City an as-built non-exclusive easement for the Main, along with all necessary access easements for ~~ o maintenance and repair purposes ("easements"). Unless the City agrees otherwise, the easements '~ ~ ~ must be lazge enough to provide the City with at least ten (10) feet on either side of the Main and =a = must specify that (I) sewer lines must be located at least ten (10) feet from any water main or line, w c and (2) other utilities must be located at least five (5) feet away from any water main or line. Access ~ c = easements shall be of a size determined by the City to be reasonably necessary for the operation, _= Y maintenance and repair of the Main and any other facilities to be located on such easement. Each =w d party shall be solely responsible for any injury or damages, including costs and attorneys' fees, to ~ m persons or property arising from its own negligent acts or omissions occumng on or resulting from ~ a ~ its use or occupation of any easement premises. Nothing contained herein, however, shall constitute . a = or result in any waiver or diminishment of any defense or limitation available to the City under the m a Colorado Governmental Immunity Act or other applicable law. _am ~ ~ 0 6. Treated Water Service. Upon final installation and connection of the Main, the City a will utilize the Main to provide treated water service to the Subject Property in its current condition. Any change in the treated water service requirements for the Subject Property will require amendment m ~ of this Agreement. ~mr -m ~n o -~~ - 3 - w ra..sarv~ra Avreemenc /revision to form of 11/93) The treated water to be delivered by the City pursuant to the terms of this Agreement may be used for all lawful in-building municipal purposes, and for fire protection, swimming pools and the normal and reasonable outside irrigation of trees, lawns and gazdens. Notwithstanding the foregoing, all water use will be consistent with the City's Water Policy Resolution (Resolution No. 5, as amended, (Series of 1993)), and water conservation ordinances. 7. Tip Fees - Computation and Payment; ched ' g of Tao,Y. Since Owner is presently receiving municipal water service from the City, Owner will not be charged any additional tap fee or utility connection chazge for treated water service provided to the Subject Property in its current condition. The City Water Department shall determine scheduling of the physical tap or connections to the Main. 8. Service Lines. Each service fine shall be metered in accordance with the Code at the sole expense of Owner and cross-connection and backflow prevention devices will be installed at Owner's expense. 9. Indemnification. Owner shall indemnify the City, its council, council members, departments, employees, and agents ("indemnified parties"} from and against any and all losses, claims, demands, damages, cases, causes of action or liabilities, of whatever sort, including reasonable attorneys fees, to which the indemnified parties may be or become subject, arising out of or in connection with the execution, performance or interpretation of this Water Service Agreement, or the parties' actions thereunder. In the event any of the indemnified parties receives a complaint or other notice in respect of any claim, loss or other occurrence giving rise to indemnification hereunder, Owner shall be advised of such claim, loss or other notice, and Owner shall undertake defense of such indemnified party or parties at Owner's exense. In the defense of such matter, Owner shall not, without the consent of the affected indemnified parties, consent to the entry of any judgmerit or enter into any settlement which does not include as an unconditional term thereof the full release of each indemnified party. Upon notice from the City, Owner shall promptly and fully pay or satisfy any and ~ all losses, claims, demands, damages, cases, causes of action or liabilities, of whatever sort, including =~> ~ reasonable attomeys fees as they aze incurred, which any indemnified party incurs as result or by J ~yz virtue of any matter as to which indemnification is provided in this pazagraph. Nothing herein shall `a U be deemed or construed to waive or limit the City's governmental immunity in any way. Lz x 10. Limitations on Provision of Water Service. This Agreement is only for the supply of W ~ treated water service as herein described and no expansion of uses, connections, or water service `gym beyond that set forth herein is in any way authorized by this Agreement. The City is not by this a mm' Agreement prejudging, certifying or guazanteeing its ability to provide treated water service to any ~~ z use or structure except as provided herein, nor may this Agreement be used as evidence of approval ~.m ~ of any land use requests, or as evidence of approval of water service for any land use request, except m m as provided herein. 'gym ~ ~~m m I1. Service Su¢j t to th itu harter od .c ul~, mllar;nne nn~ Unrr,cc Owner ~N ~ and its successors in interest shall be bound by, and all water service provided hereunder shall be ~m~ subject to, all applicable provisions of the Charter and the Code, as well as all applicable rules, ~~o r policies or regulations of the City now in effect or as may be hereafter adopted. ~~ o -wa - 4 - Water Service Agreement (revision [o form of 11/93) 12. Rulec RegardingWater tTse. Owner agrees to assist the City in every manner reasonably possible to enforce the City's ordinances, rules and regulations made to protect purity, safety and supply of the water delivered pursuant to this Agreement, including curtailment during times of shortage, elimination of any potential cross-connections, and the utilization of water conservation devices as set forth in the Code. Owner also agrees to prohibit all unnecessary or unreasonable waste ofwater on the Subject Property, and to make reasonable efforts to enforce such prohibition. The unreasonable or unnecessary waste ofwater shall be defined as set forth in the Code. 13. Source of Water Supnlv. The parties to this Agreement recognize that the City's water supply is dependent upon sources from which the supply is variable in quantity and quality and beyond the City's reasonable control; therefore, no liability shall attach to the City under this Agreement on account of any failure to accurately anticipate availability ofwater supply or because of an actual failure ofwater supply due to inadequate runoff, poor quality, failure of infrastructure, or other occurrence beyond the City's reasonable control. 14. *TO C~sarantee of Water Ouali . Q ~ n ~ y or Pressure. The City makes no promise or guarantee of pressure, quantity or quality of water supply for any purpose, including fire suppression, except as specifically provided herein or as is required by applicable federal, state and local laws and regulations. The City agrees to treat its water to meet all mandatory local, state and federal potable water standards. 15. No Waiver. Failure of a party hereto to exercise any right hereunder shall not be deemed a waiver of any such right and shall not affect the right of such party to exercise at some fixture time said right or any other right it may have hereunder. 16. Notices. All notices required to be given shall be deemed given upon deposit in the United States mail, first class postage prepaid, properly addressed to the person or entity to whom ~.. o directed at his or its address shown herein, or at such other address as shall be given by notice _~> pursuant to this paragraph. Copies of such notices shall also be sent in the same manner to the City ~O1 z Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado 81611. ~~o ~~ ca ~oz 17. Severability. If any provision of this Agreement shall be or become invalid or -_.. unenforceable, the remainder of the provisions shall not be affected thereby, and each and every W 6 provision shall be enforceable to the fullest extent permitted by law. _~m - c~ m a m 1 g. Rr,tir Agreement. Except as otherwise provided herein, this Agreement supersedes v = and controls all prior written and oral agreements and representations of the parties. ~mm ~ m m 19. Inter{~etation. Neither the titles to this Agreement nor the recitals appearing prior to °~ paragraph 1 of this Agreement shall be used to alter the meaning of this Agreement and in the event m m of a conflict, the terms and conditions of the numbered paragraphs shall govern. .~.o _..n m ~ 20. Binding_Aereement - Recordine. This Agreement is binding upon the parties hereto, ~,mo r their successors and assigns, and any sale of the Subject Property, or any portion thereof shall be .N u subject to this Agreement. This Agreement shall be recorded with the Pitkiri County Clerk and =a m - 5 - Water Service Agreement (revision co farm of 11/93) Recorder, and shall impose covenants running with the land upon all of the Subject Property. Deeds to subsequent owners shall provide notice of this Agreement and the obligations contained herein. 21. C,nverning Law: Venue• A orneys Fees. This Agreement and the rights and obligations ofthe parties hereunder shall be governed by and construed in accordance with the laws ofthe State of Colorado. Venue for all actions arising under this Agreement shall be Pitkin County, Colorado. In the event legal remedies must be pursued to resolve any dispute or conflict regazding the terms of this Agreement or the rights and obligations of the parties hereto, the prevailing parry shall be entitled to recover costs incurred in pursuing such remedies, including expert witness fees and reasonable attorneys' fees. 22. Authorization of Sigp6tures. The parties acknowledge and represent to each other that all procedures necessary to validly contract and execute this Agreement have been performed and that the persons signing for each party have been duly authorized to do so. 23. Counterparts. This Agreement maybe signed using counterpart signature pages, with the same force and effect as if all parties signed on the same signature page. IN WITNESS WHEREOF, the parties have executed this Agreement the date and yeaz fast above written. THE CITY OF ASPEN, COLORADO A Municipal Corporation and Home Rule City By Phil Overeynder, W r ' ector APPROVED AS TO FORM: Aspen City Attorney 11111111111111111 IIII illllll 11111 IIIIi 111 Iilll IIII Ilii 427860 02/18/3999 09:408 RGREENEN DRVIS SILVI B of 7 R 36.00 D 0.00 N 0.00 PITKIN COUNTY CO BILLY RAY E ANKS ~~~ ~ BoNNtE JEAN uBANxs - 6 - Water Service Agreement (revision to form of 11/931 1~ County of Y'i'I cc State of T~A~ ) ~~ The foregoing instrument was subscribed and sworn to before me this day of "em hev 1 ~by Billy Ray Eubanks. y~ Notary Public ' £~j'""~'~;,, ` M commis' r ' ~`~ '''~ 'J ~ ~N ~~- - ~. ~ ' INEN REBECCA M. MIETI = ~ ~ of 15 Count Notary Public, state of Texas NyCommissianF3~ires ~ _ : ;} ^ ~~ : „,~w,,f <<- . y CC State of T XA~ ) w<:. ~~ ~~~ ^t\ The fore oing instrument was subscribed and sworn to before me this I ~ day of l~CCf 1~ by Bonnie Jean Eubanks. .~ ~~' f } w ,~ .~ ~~1 i. l~'I\ ~ y ~.~;' ,; r \uurkfc\wpkubuJu.wea (10/30/96) iw r•.y ~' Icy ~)`~ i ~ t.> "~ Notary Public _ .-~,. 1~ > ~ ° ~ •. ' ~ ~, ,M commission ex it ..~ `; -) REBECCA M. MIETftNEN Nchry PuWk, shte of Tens ~ NOVEMBER 30,998 i iiiiii iiiii iiiiir uii iiiiiu iiiii iiiii iii iiiii iiii uu 427860 02/18/3999 09:40A RGREENEN DAVIS SILVI 7 of 7 R 36.00 D 0.00 N 0.00 PITKIN COUNTY CO - 7 - '• ~t I~ tiv ei , ~ . . L~ Water Service Agreement (revlslon [o form of 11/93) CITY OF ASPEN AMENDMENT TO WATER SERVICE AGREEMENT This Amendment to Water Service Agreement ("Amendment") is entered into this day of , in Aspen, Colorado, between THE CITY OF ASPEN, a Colorado municipal corporation and home rule city whose address is 130 South Galena Street, Aspen, Colorado 81611 (hereafter the "City"), and Three Trees, LLC a limited liability company organized under the laws of Colorado, whose address is c/o Thomas J. Todd, Esq., Holland & Hart LLP, 600 E. Main St., Suite 104, Aspen, CO 81611 (hereinafter "Three Trees"). WITNESSETH WHEREAS, the City is party to a water service agreement dated December 17, 1996, with Billy Ray Eubanks and Bonnie Jean Eubanks, recorded with the Pitkin County Recorder at Reception No. 427860 (the "Original Water Service Agreement"); and WHEREAS, the Original Water Service Agreement authorizes the City to provide certain extraterritorial municipal water service the Eubanks' property ("Subject Property"), which is described as Lot 2, HEFNER SUBDIVISION, according to the plat thereof recorded April 15, 1985, in Plat Book 17, at Page 11, in Pitkin County, Colorado, also known as street and number: 1 Toby Lane, Aspen, Colorado; and WHEREAS, Three Trees is successor-in-interest to the Subject Property; and WHEREAS, the Original Water Service Agreement authorized the City to provide treated water service to the Subject Property in its then-current condition, and also stated that any change in the treated water service requirements for the Subject Property would require amendment of the Original Water Service Agreement; and WHEREAS, Three Trees seeks water service for a new single-family residence on the Subject Property, which will be constructed to replace the Eubanks' original residence; and WHEREAS, the new single-family residence will have treated water service requirements different from those served pursuant to the Original Water Service Agreement, thus requiring amendment of the Original Water Service Agreement; and WHEREAS, the Municipal Code of the City of Aspen, Colorado (the "Code"), requires that the extension of water service outside the boundazies of the City shall be made only pursuant to a written agreement with the City, that the City shall not be obligated to extend such service, and may provide such service only upon a determination that it is in the best interests of the City, and that the City may impose such requirements by agreement as it deems necessary or appropriate to protect its best interests; and WHEREAS, the City's Water Service Extension Policy permits water service extension only upon demonstration that such extension will meet the policy goals and requirements of Amendmen! !o Wafer Service Agreemen! (0808) Resolution No. 5 (Series of 1993) as amended, [codified at Section 25.12.020(b) of the Aspen Municipal Code as the same may be further amended from time to time], including the requirement that the City must recover its costs associated with providing such extraterritorial service, and make a profit; and WHEREAS, the City has determined that this Amendment and alt covenants herein are necessary to comply with the Code and the City's water policies, and will allow the City to recover its costs associated with such extraterritorial service, and make a profit; and WHEREAS, the City is not hereby representing that it is a regulated public utility, or holding itself out to the public in general as capable of or intending to provide water service extraterritorially; and WHEREAS, the City is willing to amend the Original Water Service Agreement and to provide water service to the Subject Property on the terms and conditions of the Original Water Service Agreement as amended by this Amendment; THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein, the City and Three Trees agree as follows: 1. Treated Water Service to Subiect Property. The City hereby agrees to provide treated water service to the new single family residence on the Subject Property under the terms of the Original Water Service Agreement (as modified by this Amendment) in such quantities and to the extent herein provided so as to serve the structures and indoor treated water uses authorized by Pitkin County under the approvals granted to Three Trees as recorded at Reception No. . The City will continue to be the sole provider of treated water service to the Subject Property, and shall continue to provide treated water service adequate to meet the approved demands and uses of one single-family residence on the Subject Property, provided, however, that the water service provided pursuant to the Original Water Service Agreement (2.97 ECUs) shall be increased to no more than 6.0 ECUs, and Three Trees expressly acknowledges that the City shall not be required to supply water to serve more than 6.0 ECUs, and further provided, that the maximum volume of treated water the City shall be required to provide to the Project and the Subject Property pursuant to this Agreement shall not exceed 2.4 acre-feet per yeaz. Only the single family stmcture approved by Pitkin County pursuant to the above-described approval may be served under the Original Water Service Agreement as amended by this Amendment. No outdoor imgation using treated water is permitted by the Original Water Service Agreement as amended by this Amendment. Any further expansion in the treated water service requirements for the Subject Property above 6.0 ECUs or 2.4 acre-feet per year, or any outdoor water use, will require approval by the City, and further amendment of the Original Water Service Agreement, and the City makes no guazantees or assurances that any such {equested amendment will be approved. 2. Raw Water Use on Subject Property. The City acknowledges that Three Trees intends to use untreated water from the Si Johnson Ditch for revegetation and outdoor landscaping purposes, and this water and/or water rights will be acquired from Westchester Investments, Inc. Three Trees acknowledges that use of such untreated water will require installation of a pump in the Si Johnson Ditch in order to deliver the water to the Subject Property. Three Trees further acknowledges that the City owns an interest in the Si Johnson Ditch and water rights decreed thereto, and operates and maintains the ditch for its own benefit, and for the benefit of others holding water rights decreed to the Si Johnson Ditch including Three Trees' grantor, Westchester Amendment to Water Service Agreement (0808) Investments, Inc. Three Trees will install a pump, wingwalls, and overflow devices to allow it to take delivery of its entitlement from the Si Johnson Ditch, and will submit designs and plans for such equipment and devices to the City for approval prior to installation, which approval shall not be unreasonably withheld or delayed. Three Trees will be responsible for obtaining any state administrative or water court approvals that may be required in order for it to use the Si Johnson Ditch water at the location and in the manner it desires, provided that the City shall not oppose and shall cooperate with Three Trees in obtaining such approvals, if any, so long as the City's own water rights will not be adversely affected thereby. Other than by use of the above- described untreated water from the Si Johnson Ditch on the Subject Property, Three Trees agrees that unless the Original Water Service Agreement is further amended (which the City has no obligation to do), there will be no outdoor irrigation on the Subject Property with water delivered from the City's system or from any wells or other water rights on the Three Trees' property, and that neither Three Trees nor any owner or user of the Subject Property will otherwise develop or utilize any other independent raw water systems and/or water rights or wells within the Subject Property. The parties acknowledge that the Subject Property is presently connected to the City water, and is also served by a well bearing Permit No. 276472. Three Trees agrees that this well and any other existing well on the property must be plugged and abandoned in accordance with the well abandonment procedures of the Colorado State Engineer, and that Three Trees will provide the City with evidence of such abandonment within 30 days of approval of this Amendment by the Aspen City Council. In the event Three Trees fails to abandon the well and provide proof of such abandonment by this date, the City will disconnect the existing water tap to the Subject Property, at Three Trees' cost, and will not reconnect the Subject Property to the City water main until such well abandonment and proof thereof have been provided to the City. 3. Tan Fees, System Develonment Chaz¢es, and Payment in lieu of Water Rights Dedication - Computation and Payment; Scheduline of Taps.. All tap fees for treated water service herein provided shall be assessed utilizing the City's prevailing applicable tap fee. As authorized by Code Section 28.12.070, credit shall be provided for previously-paid tap fees, well system development fees, and fees paid in lieu of water right dedication. All applicable tap fees, well system development fees, and payments in lieu of water rights dedication, and other hookup chazges shall be paid at the time of building permit issuance. 4. Limitations on Provision of Water Service. The Original Water Service Agreement, as amended by this Amendment, is only for the supply of treated water service as herein described and no expansion of uses, connections, or water service beyond those set forth herein is in any way authorized by the Original Water Service Agreement or this Amendment. 5. Property Rights in Water. All water furnished under the Original Water Service Agreement as amended by this Amendment is provided on a contractual basis for use on the Subject Property as described in the Original Water Service Agreement, as amended by this Amendment, and all property rights to the water to be furnished hereunder are reserved to the City. Water service provided under the Original Water Service Agreement as amended by this Amendment does not include any right to make a succession of uses of such water, and upon completion of the primary use of the water on the Subject Property, all dominion over the water provided reverts completely to the City. Subject to the prohibition against waste and any other limitations on water use imposed in the Original Water Service Agreement, Three Trees shall have no obligation to create any particular volume of return flow. Three Trees agrees to cooperate with the City in measuring and reporting return flows to the extent such measuring and reporting are required by the Colorado State Engineer or his agents. Amendmen((o Water Service Agreemem (0808) 6. Enforcement by the City. Three Trees recognizes and agrees that the City has the right to enforce its rules, policies, regulations, ordinances and the terms of the Original Water Service Agreement and this Amendment, by the disconnection of the supply of water provided hereunder. Additionally, in the event that Three Trees violates the rules, policies, regulations or ordinances of the City or the terms of the Original Water Service Agreement or this Amendment, the City shall have all remedies available to it at law or in equity, or as provided in the Code. The City shall be free from any liability arising out of the exercise of its rights under this pazagraph. 7. Termination if Illeeal. The parties agree, intend and understand that the obligations imposed by the Original Water Service Agreement and this Amendment aze conditioned upon being consistent with state and federal laws and the Code. The parties further agree that if any provision of the Original Water Service Agreement as amended by this Amendment becomes in its performance inconsistent with the Code or state or federal laws, or is declazed invalid, the parties shall in good faith negotiate to modify the Original Water Service Agreement and this Amendment so as to make them consistent with the Code or state or federal laws as appropriate, and if, after a reasonable amount of time, their negotiations aze unsuccessful, this Agreement shall terminate. 8. Annexation. Upon the request of the City, Three Trees, or its successor-in-interest, shall petition for and/or consent to the annexation of the Subject Property to the City of Aspen at such time as determined by the City in its sole discretion, all as authorized pursuant to C.R.S. § 31-12- 121 (2007). Although land use approvals or development rights not vested in accordance with law prior to the annexation shall be subject to the terms, conditions, and regulations of the Aspen Municipal Code upon and after annexation, annexation shall not divest or diminish any land use approvals or development rights awarded by Pitkin County for the Subject Property, to the extent such approvals and rights aze legally vested on behalf of Three Trees prior to annexation to the City. Nor shall annexation alter Three Trees' or its successors' rights to ownership and use of water rights in the Si Johnson Ditch or Three Trees' role as a stockholder in a mutual ditch company to be incorporated for the Si Johnson Ditch. Notwithstanding annexation, the Original Water Service Agreement as amended by this Amendment will govern provision of water service to the Subject Property. This Pazagraph 8 shall serve as the annexation agreement between the parties, and the agreement to annex set forth herein shall be enforceable by an action for specific performance filed by the City in the Pitkin County District Court pursuant to C.R.S. § 31-12-121 (2007), in which event the City shall charge, and Three Trees or its successor-in-interest shall pay, all costs and fees associated with such enforcement action. 9. No Regulated Public Utility Status. The parties agree that the City does not become a regulated public utility compelled to serve other parties similazly situated as a result of the Original Water Service Agreement or this Amendment. Three Trees agrees that neither it, nor its successors in interest or assigns shall at any time petition the Colorado Public Utilities Commission to acquue jurisdiction over any water rate set by the City. The parties agree that in the event the City is held to be a regulated public utility by virtue of the Original Water Service Agreement or this Amendment, the Original Water Service Agreement and this Amendment shall ternnate and be of no further force or effect. 10. Amendment; Assignment. Neither the Original Water Service Agreement (as amended by this Amendment), nor the obligations of either party hereto, nor the right to receive water service hereunder, may be amended or assigned without the written consent of the parties hereto, provided, however, that subsequent owners of the Subject Property shall be subject to the terms Amemiment to Water Service Agreement (0808) and conditions of the Original Water Service Agreement, as amended by this Amendment, and shall be entitled to receive water service pursuant to the Original Water Service Agreement as amended by this Amendment. 11. Binding Agreement -Recording. This Amendment is binding upon the parties hereto, their successors and assigns, and any sale of the Subject Property shall be subject to the Original Water Service Agreement as amended by this Amendment. This Amendment shall be recorded with the Pitkin County Clerk and Recorder, and shall impose covenants running with the land upon all of the Subject Property. Deeds to subsequent owners shall provide notice of this Amendment and the obligations contained herein. 12. Authorization of Si ng atures. The parties acknowledge and represent to each other that all procedures necessary to validly contract and execute this Amendment have been performed and that the persons signing for each party have been duly authorized to do so. 13. Counterparts. This Amendment may be signed using counterpart signature pages, with the same force and effect as if all parties signed on the same signature page. 14. Original Water Service Agreement Remains in Effect. Except as herein expressly amended, the Original Water Service Agreement remains in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment the date and yeaz first above written. THE CITY OF ASPEN, COLORADO ATTEST: A Municipal Corporation and Home Rule City By By City Clerk Mayor APPROVED AS TO FORM: Aspen City Attorney Three Trees, LLC By Title: APPROVED AS TO FORM: Amendmem m Wa+er Service Agreement (0808) Attorney far Three Trees LLC STATE OF COLORADO ) ss. COUNTY OF PITKIN ) Subscribed and sworn to before me this _ day of , 2008, by , as of Three Trees LLC. Witness my hand and official seal. My commission expires Notary Public (SEAL) F 1Client Files\AsAspen\'rlaee Trees WSASamended water service ag<eemenl reM82808 wpd Amendment ro Water Service Agreement (0808) CITY OF ASPEN AMENDMENT TO WATER SERVICE AGREEMENT This Amendment to Water Service Agreement ("Amendment") is entered into this day of , in Aspen, Colorado, between THE CITY OF ASPEN, a Colorado municipal corporation and home rule city whose address is 130 South Galena Street, Aspen, Colorado 81611 (hereafter the "City"), and Three Trees, LLC a limited liability company organized under the laws of Colorado, whose address is c/o Thomas J. Todd, Esq., Holland & Hart LLP, 600 E. Main St., Suite 104, Aspen, CO 81611 (hereinafter "Three Trees"). WITNESSETH WHEREAS, the City is party to a water service agreement dated December 17, 1996, with Billy Ray Eubanks and Bonnie Jean Eubanks, recorded with the Pitkin County Recorder at Reception No. 427860 (the "Original Water Service Agreement"); and WHEREAS, the Original Water Service Agreement authorizes the City to provide certain extratemtorial municipal water service the Eubanks' property ("Subject Property"), which is described as Lot 2, HEENER SUBDIVISION, according to the plat thereof recorded April 15, 1985, in Plat Book 17, at Page 11, in Pitkin County, Colorado, also known as street and number: 1 Toby Lane, Aspen, Colorado; and WHEREAS, Three Trees is successor-in-interest to the Subject Property; and WHEREAS, the Original Water Service Agreement authorized the City to provide treated water service to the Subject Property in its then-current condition, and also stated that any change in the treated water service requirements for the Subject Property would require amendment of the Original Water Service Agreement; and WHEREAS, Three Trees seeks water service for a new single-family residence on the Subject Property, which will be constructed to replace the Eubanks' original residence; and WHEREAS, the new single-family residence will have treated water service requirements different from those served pursuant to the Original Water Service Agreement, thus requiring amendment of the Original Water Service Agreement; and WHEREAS, the Municipal Code of the City of Aspen, Colorado (the "Code"), requires that the extension of water service outside the boundazies of the City shall be made only pursuant to a written agreement with the City, that the City shall not be obligated to extend such service, and may provide such service only upon a determination that it is in the best interests of the City, and that the City may impose such requirements by agreement as it deems necessary or appropriate to protect its best interests; and WHEREAS, the City's Water Service Extension Policy permits water service extension only upon demonstration that such extension will meet the policy goals and requirements of Amendment (o Water Service Agreement (0808) Resolution No. 5 (Series of 1993) as amended, [codified at Section 25.12.020(b) of the Aspen Municipal Code as the same may be further amended from time to time], including the requirement that the City must recover its costs associated with providing such extratemtorial service, and make a profit; and WHEREAS, the City has determined that this Amendment and all covenants herein aze necessary to comply with the Code and the City's water policies, and will allow the City to recover its costs associated with such extraterritorial service, and make a profit; and WHEREAS, the City is not hereby representing that it is a regulated public utility, or holding itself out to the public in general as capable of or intending to provide water service extraterritorially; and WHEREAS, the City is willing to amend the Original Water Service Agreement and to provide water service to the Subject Property on the terms and conditions of the Original Water Service Agreement as amended by this Amendment; THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein, the City and Three Trees agree as follows: 1. Treated Water Service to Subiect Property. The City hereby agrees to provide treated water service to the new single family residence on the Subject Property under the terms of the Original Water Service Agreement (as modified by this Amendment) in such quantities and to the extent herein provided so as to serve the structures and indoor treated water uses authorized by Pitkin County under the approvals granted to Three Trees as recorded at Reception No. . The City will continue to be the sole provider of treated water service to the Subject Property, and shall continue to provide treated water service adequate to meet the approved demands and uses of one single-family residence on the Subject Property, provided, however, that the water service provided pursuant to the Original Water Service Agreement (2.97 ECUs) shall be increased to no more than 6.0 ECUs, and Three Trees expressly acknowledges that the City shall not be required to supply water to serve more than 6.0 ECUs, and further provided, that the maximum volume of treated water the City shall be required to provide to the Project and the Subject Property pursuant to this Agreement shall not exceed 2.4 acre-feet per yeaz. Only the single family structure approved by Pitkin County pursuant to the above-described approval may be served under the Original Water Service Agreement as amended by this Amendment. No outdoor imgation using treated water is permitted by the Original Water Service Agreement as amended by this Amendment. Any further expansion in the treated water service requirements for the Subject Property above 6.0 ECUs or 2.4 acre-feet per yeaz, or any outdoor water use, will require approval by the City, and further amendment of the Original Water Service Agreement, and the City makes no guazantees or assurances that any such zequested amendment will be approved. 2. Raw Water Use on Subject Prooerty. The City acknowledges that Three Trees intends to use untreated water from the Si Johnson Ditch for revegetation and outdoor landscaping purposes, and this water and/or water rights will be acquired from Westchester Investments, Inc. Three Trees acknowledges that use of such untreated water will require installation of a pump in the Si Johnson Ditch in order to deliver the water to the Subject Property. Three Trees further acknowledges that the City owns an interest in the Si Johnson Ditch and water rights decreed thereto, and operates and maintains the ditch for its own benefit, and for the benefit of others holding water rights decreed to the Si Johnson Ditch including Three Trees' grantor, Westchester Amendment to Wales Service Agreemen! (0808) Investments, Inc. Three Trees will install a pump, wingwalls, and overflow devices to allow it to take delivery of its entitlement from the Si Johnson Ditch, and will submit designs and plans for such equipment and devices to the City for approval prior to installation, which approval shall not be unreasonably withheld or delayed. Three Trees will be responsible for obtaining any state administrative or water court approvals that may be required in order for it to use the Si Johnson Ditch water at the location and in the manner it desires, provided that the City shall not oppose and shall cooperate with Three Trees in obtaining such approvals, if any, so long as the City's own water rights will not be adversely affected thereby. Other than by use of the above- described untreated water from the Si Johnson Ditch on the Subject Property, Three Trees agrees that unless the Original Water Service Agreement is further amended (which the City has no obligation to do), there will be no outdoor irrigation on the Subject Property with water delivered from the City's system or From any wells or other water rights on the Three Trees' property, and that neither Three Trees nor any owner or user of the Subject Property will otherwise develop or utilize any other independent raw water systems and/or water rights or wells within the Subject Property. The parties acknowledge that the Subject Property is presently connected to the City water, and is also served by a well bearing Permit No. 276472. Three Trees agrees that this well and any other existing well on the property must be plugged and abandoned in accordance with the well abandonment procedures of the Colorado State Engineer, and that Three Trees will provide the City with evidence of such abandonment within 30 days of approval of this Amendment by the Aspen City Council. In the event Three Trees fails to abandon the well and provide proof of such abandonment by this date, the City will disconnect the existing water tap to the Subject Property, at Three Trees' cost, and will not reconnect the Subject Property to the City water main until such well abandonment and proof thereof have been provided to the City. 3. ~ Fees. System Development Chazges, and Payment in lieu of Water Rights Dedication - Computation and Payment; Scheduline of Taps.. All tap fees for treated water service herein provided shall be assessed utilizing the City's prevailing applicable tap fee. As authorized by Code Section 28.12.070, credit shall be provided for previously-paid tap fees, well system development fees, and fees paid in lieu of water right dedication. All applicable tap fees, well system development fees, and payments in lieu of water rights dedication, and other hookup chazges shall be paid at the time of building permit issuance. 4. Limitations on Provision of Water Service. The Original Water Service Agreement, as amended by this Amendment, is only for the supply of treated water service as herein described and no expansion of uses, connections, or water service beyond those set forth herein is in any way authorized by the Original Water Service Agreement or this Amendment. 5. Property Rights in Water. All water furnished under the Original Water Service Agreement as amended by this Amendment is provided on a contractual basis for use on the Subject Property as described in the Original Water Service Agreement, as amended by this Amendment, and all property rights to the water to be famished hereunder aze reserved to the City. Water service provided under the Original Water Service Agreement as amended by this Amendment does not include any right to make a succession of uses of such water, and upon completion of the primary use of the water on the Subject Property, all dominion over the water provided reverts completely to the City. Subject to the prohibition against waste and any other limitations on water use imposed in the Original Water Service Agreement, Three Trees shall have no obligation to create any particulaz volume of return flow. Three Trees agrees to cooperate with the City in measuring and reporting return flows to the extent such measuring and reporting aze required by the Colorado State Engineer or his agents. Amerdmertt to Water Service Agreement (0808) 6. Enforcement by the Ciri. Three Trees recognizes and agrees that the City has the right to enforce its rules, policies, regulations, ordinances and the terms of the Original Water Service Agreement and this Amendment, by the disconnection of the supply of water provided hereunder. Additionally, in the event that Three Trees violates the rules, policies, regulations or ordinances of the City or the terms of the Original Water Service Agreement or this Amendment, the City shall have all remedies available to it at law or in equity, or as provided in the Code. The City shall be free from any liability arising out of the exercise of its rights under this pazagraph. 7. Termination if Illegal. The parties agree, intend and understand that the obligations imposed by the Original Water Service Agreement and this Amendment aze conditioned upon being consistent with state and federal laws and the Code. The parties further agree that if any provision of the Original Water Service Agreement as amended by this Amendment becomes in its performance inconsistent with the Code or state or federal laws, or is declazed invalid, the parties shall in good faith negotiate to modify the Original Water Service Agreement and this Amendment so as to make them consistent with the Code or state or federal laws as appropriate, and if, after a reasonable amount of time, their negotiations aze unsuccessful, this Agreement shall terminate. 8. Annexation. Upon the request of the City, Three Trees, or its successor-in-interest, shall petition for and/or consent to the annexation of the Subject Property to the City of Aspen at such time as determined by the City in its sole discretion, all as authorized pursuant to C.R.S. § 31-12- 121 (2007). Although land use approvals or development rights not vested in accordance with law prior to the annexation shall be subject to the terms, conditions, and regulations of the Aspen Municipal Code upon and after annexation, annexation shall not divest or diminish any land use approvals or development rights awarded by Pitkin County for the Subject Property, to the extent such approvals and rights aze legally vested on behalf of Three Trees prior to annexation to the City. Nor shall annexation alter Three Trees' or its successors' rights to ownership and use of water rights in the Si Johnson Ditch or Three Trees' role as a stockholder in a mutual ditch company to be incorporated for the Si Johnson Ditch. Notwithstanding annexation, the Original Water Service Agreement as amended by this Amendment will govern provision of water service to the Subject Property. This Pazagraph 8 shall serve as the annexation agreement between the parties, and the agreement to annex set forth herein shall be enforceable by an action for specific performance filed by the City in the Pitkin County District Court pursuant to C.R.S. § 31-12-121 (2007), in which event the City shall charge, and Three Trees or its successor-in-interest shall pay, all costs and fees associated with such enforcement action. 9. No Reeulated Public Utility Status. The parties agree that the City does not become a regulated public utility compelled to serve other parties similazly situated as a result of the Original Water Service Agreement or this Amendment. Three Trees agrees that neither it, nor its successors in interest or assigns shall at any time petition the Colorado Public Utilities Commission to acquire jurisdiction over any water rate set by the City. The parties agree that in the event the City is held to be a regulated public utility by virtue of the Original Water Service Agreement or this Amendment, the Original Water Service Agreement and this Amendment shall terminate and be of no further force or effect. 10. Amendment; Assignment. Neither the Original Water Service Agreement (as amended by this Amendment), nor the obligations of either party hereto, nor the right to receive water service hereunder, may be amended or assigned without the written consent of the parties hereto, provided, however, that subsequent owners of the Subject Property shall be subject to the terms Amendment (o Wafer Service Agreement (0808) and conditions of the Original Water Service Agreement, as amended by this Amendment, and shall be entitled to receive water service pursuant to the Original Water Service Agreement as amended by this Amendment. 1 I. Binding Agreement - Recordine. This Amendment is binding upon the parties hereto, their successors and assigns, and any sale of the Subject Property shall be subject to the Original Water Service Agreement as amended by this Amendment. This Amendment shall be recorded with the Pitkin County Clerk and Recorder, and shall impose covenants running with the ]and upon all of the Subject Property. Deeds to subsequent owners shall provide notice of this Amendment and the obligations contained herein. 12. Authorization of Si ang lures. The parties acknowledge and represent to each other that all procedures necessary to validly contract and execute this Amendment have been performed and that the persons signing for each party have been duly authorized to do so. 13. Counterparts. This Amendment may be signed using counterpart signature pages, with the same force and effect as if all parties signed on the same signature page. 14. Original Water Service Agreement Remains in Effect. Except as herein expressly amended, the Original Water Service Agreement remains in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment the date and yeaz fast above written. ATTEST: By City Clerk APPROVED AS TO FORM: Aspen City Attorney Three Trees, LLC Title: APPROVED AS TO FORM: THE CITY OF ASPEN, COLORADO A Municipal Corporation and Home Rule City By_ Mayor Amendment to Water Service Agreemen! (0808) CITY OF ASPEN AMENDMENT TO WATER SERVICE AGREEMENT This Amendment to Water Service Agreement ("Amendment") is entered into this day of , _, in Aspen, Colorado, between THE CITY OF ASPEN, a Colorado municipal corporation and home Wile city whose address is 130 South Galena Street, Aspen, Colorado 81611 (hereafter the "City"), and Three Trees, LLC a limited liability company organized under the laws of Colorado, whose address is c/o Thomas J. Todd, Esq., Holland & Hart LLP, 600 E. Main St., Suite 104, Aspen, CO 8161 ] (hereinafter "Three Trees"). WITNESSETH WHEREAS, the City is party to a water service agreement dated December 17, 1996, with Billy Ray Eubanks and Bonnie Jean Eubanks, recorded with the Pitkin County Recorder at Reception No. 427860 (the "Original Water Service Agreement"); and WHEREAS, the Original Water Service Agreement authorizes the City to provide certain extraterritorial municipal water service the Eubanks' property ("Subject Property"), which is described as Lot 2, HEFNER SU$DIVISION, according to the plat thereof recorded April 15, 1985, in Plat Book 17, at Page 11, in Pitkin County, Colorado, also known as street and number: 1 Toby Lane, Aspen, Colorado; and WHEREAS, Three Trees is successor-in-interest to the Subject Property; and WHEREAS, the Original Water Service Agreement authorized the City to provide treated water service to the Subject Property in its then-current condition, and also stated that any change in the treated water service requirements for the Subject Property would require amendment of the Original Water Service Agreement; and WHEREAS, Three Trees seeks water service for a new single-family residence on the Subject Properly, which will be constructed to replace the Eubanks' original residence; and WHEREAS, the new single-family residence will have treated water service requirements different from those served pursuant to the Original Water Service Agreement, thus requiring amendment of the Original Water Service Agreement; and WHEREAS, the Municipal Code of the City of Aspen, Colorado (the "Code"), requires that the extension of water service outside the boundaries of the City shall be made only pursuant fo a written agreement with the City, that the City shall not be obligated to extend such service, and may provide such service only upon a determination that it is in the best interests of the City, and that the City may impose such requirements by agreement as it deems necessary or appropriate to protect its best interests; and WHEREAS, the City's Water Service Extension Policy permits water service extension only upon demonstration that such extension will meet the policy goals and requirements of Rmendment fa WaMrServitt.lgreemext (080B) Resolution No. 5 (Series of 1993) as amended, [codified at Section 25.12.020(b) of the Aspen Municipal Code as the same maybe finlher amended from time to time], including the requirement that the City must recover its costs associated with providing such extratemtorial service, and make a profit; and WHEREAS, the City has determined that this Amendment and all covenants herein are necessary to comply with the Code and the City's water policies, and will allow the City to recover its costs associated with such extraterritorial service, and make a profit; and WHEREAS, the City is not hereby representing that it is a regulated public utility, or --___ holding its ouf t to~he public in gen r ~a~capable oforintending fo prdvide~vafer~er~ace-- extratemtorially; and WHEREAS, the City is willing to amend the Original Water Service Agreement and to provide water service to the Subject Property on the terms and conditions of the Original Water Service Agreement as amended by this Amendment; THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein, the City and Three Trees agree as follows: 1. Treated Water Service to Subiect Property. The City hereby agrees to provide treated water service to the new single family residence on the Subject Property under the terms of the Original Water Service Agreement (as modified by this Amendment) in such quantifies and to the extent herein provided so as to serve the structures and indoor treated water uses authorized by Pitkin County under the approvals granted to Three Trees as recorded at Reception No. . The City will continue to be the sole provider of treated water service to the Subject Property, and shall continue to provide treated water service adequate to meet the approved demands and uses of one single-family residence on the Subject Property, provided, however, that the water service provided pursuant to the Original Water Service Agreement (2.97 ECUs) shall be increased to no more than 6.0 ECUs, and Three Trees expressly acknowledges that the City shall not be required to supply water to serve more than 6.0 ECUs, and further provided, that the maximum volume of treated water the City shall be required to provide to the Project and the Subject Property pursuant to this Agreement shall not exceed 2.4 acre-feet per year. Only the single family structure approved by Pitkin County pursuant to the above-described approval may be served under the Original Water Service Agreement as amended by this Amendment. No outdoor irrigation using treated water is permitted by the Original Water Service Agreement as amended by this Amendment. Any further expansion in the treated water service requirements for the Subject Property above 6.0 ECUs or 2.4 acre-feet per yeaz, or any outdoor water use, will require approval by the City, and fiuther amendment of the Original Water Service Agreement, and the City makes no guazantees or assurances that any such requested amendment will be approved. 2. Raw Water Use on Subject Pronerty. The City acknowledges that Three Trees intends to use untreated water from the Si Johnson Ditch for revegetation and outdoor landscaping purposes, and this water andlor water rights will be acquired from Westchester Investments, Inc. Three Trees acknowledges that use of such untreated water will require installation of a pump in the Si Johnson Ditch in order to deliver the water to the Subject Property. Three Trees further acknowledges that the City owns an interest in the Si Johnson Ditch and water rights decreed thereto, and operates and maintains the ditch for its own benefit, and for the benefit of others holding water rights decreed to the Si Johnson Ditch including Three Trees' grantor, Westchester Amenbnrn! to Woter Service Agreement (0808) Investments, Inc. Three Trees will install a pump, wingwalls, and overflow devices to allow it to take delivery of its entitlement from the Si Johnson Ditch, and will submit designs and plans for such equipment and devices to the City for approval prior to installation, which approval shall not be unreasonably withheld or delayed. Three Trees will be responsible for obtaining any state administrative or water court approvals that may be required in order for it to use the Si Johnson Ditch water at the location and in the manner it desires, provided that the City shall not oppose and shall cooperate with Three Trees in obtaining such approvals, if any, so long as the City's own water rights will not be adversely affected thereby. Other than by use of the above- described untreated water from the Si Johnson Ditch on the Subject Property, Three Trees agrees that unless the Original Water Service Agreement is further amended (which the City has no ~rgahon to-do , ere outdoor irrigatioavn-the~ubjec~ P-rep';~vater~lelivered _- from the City's system or from any wells or other water rights on the Three Trees' property, and that neither Three Trees nor any owner or user of the Subject Property will otherwise develop or utilize any other independent raw water systems and/or water rights or wells within the Subject Property. The parties acknowledge that the Subject Property is presently connected to the City water, and is also served by a well bearing Permit No. 276472. Three Trees agrees that this well and any other existing well on the property must be plugged and abandoned in accordance with the well abandomnent procedures of the Colorado State Engineer, and that Three Trees will provide the City with evidence of such abandonment within 30 days of approval of this Amendment by the Aspen City Council. In the event Three Trees fails to abandon the well and provide proof of such abandonment by this date, the City will disconnect the existing water tap to the Subject Property, at Three Trees' cost, and will not reconnect the Subject Property to the City water main until such well abandonment and proof thereof have been provided to the City. 3. Tap Fees System Develonment Charges and Payment in lieu of Water Rights Dedication - Comvutation and Payment• Scheduling of Tans.. All tap fees for treated water service herein provided shall be assessed utilizing the City's prevailing applicable tap fee. As authorized by Code Section 28.12.070, credit shall be provided for previously-paid tap fees, well system development fees, and fees paid in lieu of water right dedication. All applicable tap fees, well system development fees, and payments in lieu of water rights dedication, and other hookup chazges shall be paid at the time of building permit issuance. 4. Limitations on Provision of Water Service. The Original Water Service Agreement, as amended by this Amendment, is only for the supply of treated water service as herein described and no expansion of uses, connections, or water service beyond those set forth herein is in any way authorized by the Original Water Service Agreement or this Amendment. 5. Prouerty Rights in Water. All water furnished under the Original Water Service Agreement as amended by this Amendment is provided on a contractual basis for use on the Subject Property as described in the Original Water Service Agreement, as amended by this Amendment, and all property rights to the water to be furnished hereunder are reserved to the City. Water service provided under the Original Water Service Agreement as amended by this Amendment does not include any right to make a succession of uses of such water, and upon completion of the primary use of the water on the Subject Property, all dominion over the water provided reverts completely to the City. Subject to the prohibition against waste and any other limitations on water use imposed in the Original Water Service Agreement, Three Trees shall have no obligation to create any particulaz volume of return flow. Three Trees agrees to cooperate with the City in measuring and reporting return flows to the extenf such measuring and reporting aze required by the Colorado State Engineer or his agents. Amendment to Water Service i4greement (0808) 6. Enforcement by the Citv. Three Trees recognizes and agrees that the City has the right to enforce its rules, policies, regulations, ordinances and the terms of the Original Water Service Agreement and this Amendment, by the disconnection of the supply of water provided hereunder. Additionally, in the event that Three Trees violates the rules, policies, regulations or ordinances of the City or the terms of the Original Water Service Agreement or this Amendment, the City shall have a[I remedies available to it at law or in equity, or as provided in the Code. The City shall be free from any liability arising out of the exercise of its rights under this pazagraph. 7. Termination if Ille¢al. The parties agree, intend and understand that the obligations impose y e ngm a e~ervi~Ageemenrand-this-Amendment-are-conditionedupnn being consistent with state and federal laws and the Code. The parties further agree that if any provision of the Original Water Service Agreement as amended by this Amendment becomes in its performance inconsistent with the Code or state or federal laws, or is declazed invalid, the parties shall in good faith negotiate to modify the Original Water Service Agreement and this Amendment so as to make them consistent with the Code or state or federal laws as appropriate, and if, after a reasonable amount of lime, their negotiations aze unsuccessful, this Agreement shall terminate. 8. Annexation. Upon the request of the City, Three Trees, or its successor-in-interest, shall petition for and/or consent to the annexation of the Subject Property to the City of Aspen at such time as determined by the City in its sole discretion, all as authorized pursuant to C.R.S. § 31-12- 121 (2007). Although land use approvals or development rights not vested in accordance with law prior to the annexation shall be subject to the terms, conditions, and regulations of the Aspen Municipal Code upon and after annexation, annexation shall not divest or diminish any land use approvals or development rights awazded by Pitkin County for the Subject Property, to the extent such approvals and rights aze legally vested on behalf of Three Trees prior to annexation to the City. Nor shall annexation alter Three Trees' or its successors' rights to ownership and use of water rights in the Si Johnson Ditch or Three Trees' role as a stockholder in a mutual ditch company to be incorporated for the Si Johnson Ditch. Notwithstanding annexation, the Original Water Service Agreement as amended by this Amendment will govern provision of water service to the Subject Property. This Pazagraph 8 shall serve as the annexation agreement between the parties, and the agreement to annex set forth herein shall be enforceable by an action for specific performance filed by the City in the Pitkin County District Court pursuant to C.R.S. § 31-12-121 (2007), in which event the City shall chazge, and Three Trees or its successor-in-interest shall pay, all costs and fees associated with such enforcement action. 9. No Reeulated Public Utility Status. The parties agree that the City does not become a regulated public utility compelled to serve other parties similazly situated as a result of the Original Water Service Agreement or this Amendment. Three Trees agrees that neither it, nor its successors in interest or assigns shall at any time petition the Colorado Public Utilities Commission to acquire jurisdiction over any water rate set by the City. The parties agree that in the event the City is held to be a regulated public utility by virtue of the Original Water Service Agreement or this Amendment, the Original Water Service Agreement and this Amendment shall terminate and be of no further force or effect. 10. Amendment; Assi~. Neither the Original Water Service Agreement (as amended by this Amendment), nor the obligations of either party hereto, nor the right to receive water service hereunder, may be amended or assigned without the written consent of the parties hereto, provided, however, that subsequent owners of the Subject Property shall be subject to the terms Amendment la WoterServire Agreement (0808) and conditions of the Original Water Service Agreement, as amended by this Amendment, and shall be entitled to receive water service pursuant to the Original Water Service Agreement as amended by this Amendment. 11. Binding Agreement - Recordine. This Amendment is binding upon the parties hereto, their successors and assigns, and any sale of the Subject Property shall be subject to the Original Water Service Agreement as amended by this Amendment. Tlvs Amendment shall be recorded with the Pitkin County Clerk and Recorder, and shall impose covenants running with the land upon all of the Subject Property. Deeds to subsequent owners shall provide notice of this Amendment and the obligations contained herein. 12. Authorization of Si ng ahares. The parties acknowledge and represent to each other that all procedures necessary to validly contract and execute this Amendment have been performed and that the persons signing for each party have been duly authorized to do so. 13. Counterparts. This Amendment maybe signed using counterpart signature pages, with the same force and effect as if all parties signed on the same signature page. 14. Original Water Service Agreement Remains in Effect. Except as herein expressly amended, the Original Water Service Agreement remains in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment the date and yeaz first above written. THE CITY OF ASPEN, COLORADO ATTEST: A Municipal Corporation and Home Rule City By By- City Clerk Mayor APPROVED AS TO FORM: Aspen City Attorney Three Trees, LLC BY. APPROVED AS TO FORM: Amendment to WaterServiceAgreemenl (OB08J Attorney for Three Trees LLC STATE OF COLORADO ) ss. COUNTY OF PITKIN ) Subscribed and sworn to before me this ^ day of , 2008, - by - _ _ _ ofThree Trees LLG. - - ,as Witness my hand and official seal. My commission expires Notazy Public (SEAL) F:\Clieut Files\Aspcn\'1'luee Ttees WSA~amended water service agreement mv082808 wpd Amendment to Water Service Agreement (0808) MEMORANDUM Vll\G TO: Mayor Ireland and Aspen City Council FROM: Chris Bendon, Community Development Director~~ MEMO DATE: September 15, 2008 MEETING DATE: September 22, 2008 RE: Land Use Code Amendments - Multi-Family Replacement Program -Public Hearing Second Reading of Ordinance No. 22, Series of 2008. SUMMARY' Community Development staff is proposing amendments to the City's long-standing Multi- Family Housing Replacement Program to reinstate certain exemptions from the Program that were previously available to homeowners. During first reading, City Council requested options for further consideration. Those additional options are contained in Exhibit A. Staff is recommending adoption of the proposed amendments as presented. The Planning and Zoning Commission unanimously recommended approval of these code amendments. To the extent that additional exemptions are desired and can be easily incorporated into tonight's ordinance, staff recommends adoption of an amended ordinance at tonight's hearing. There are a few property owners anxious to proceed under staff s proposed exemptions. If there is not clear direction on the additional options presented, staff requests adoption of the proposed ordinance as it has been presented and holding further discussions at a future work session. BACKGROUND' Since the 1970s, the City of Aspen has attempted to regulate the loss of free-market housing that housed local working residents. The Multi-Family Replacement Program as we know it today originated in 1988 through Ordinance 47, Series of 1988 afrer City Council and City Planning Staff became concerned that the demolition of existing free-market residential dwelling units was resulting in the exclusion of working residents from the City's neighborhoods. The program regulates the combination and demolition of multi-family dwelling units and is triggered any time construction, remodeling, or demolition results in the loss of amulti-family unit. The program is one of the main reasons older multi-family buildings remain in Aspen's housing stock. There a few exemptions from this long-standing program that, in staffs opinion, were inadvertently dropped from the code. Staff is proposing to reinstate these exemptions. With respect to the definitions, staff views these as "clean-ups" of existing language as it has been interpreted and applied in the past. Staff is supportive of these amendments, believing they comply with the criteria for code amendment. Prior to 2007, a homeowner could obtain an exemption from the Multi-Family Replacement requirements if they could prove that the multi-family dwelling unit(s) they wish to eliminate were never occupied by local worker. The language was vague with respect to the procedure and necessary documentation and staff would typically request an occupancy history of the units involved. Staff has proposed language to reinstate this exemption to "tourists units." The previous code also included exemption language that stated "Any RMF housing unit which is ordered demolished by a public agency, including the city, as a result of damage caused by civil commotion or natural disaster shall not be subject to the terms of this Chapter." This exemption was unintentionally omitted from the revised code section in 2007. Staff has proposed language to reinstate this exemption. An exemption for "bandit units" has been applied through interpretation but has never been codified. This exemption stated that if a bandit unit was demolished, it was not subject to the provisions of the multi-family replacement program because it was never a legal multi-family unit. Staff has proposed language to codify this exemption. LAND USE REQUESTS AND REVIEW PROCEDURES: Staff is requesting the following from City Council: • Determination if application to amend code text meets Standards of Review, pursuant to Land Use Code Chapter 26.310.040 Standards of Review. RECOMMENDATION' Staff recommends approval of this Ordinance as presented or as amended with one or more of the presented options. Because a few property owners have been waiting for adoption of staff's proposed exemptions, staff would suggest any extensive further analysis be done after adopting the exemptions as presented. CITY MANAGER COMMENTS: RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE~: "I move to approve Ordinance No. 22, Series of 2008 [with the following amendments ... ]" ATTACHMENTS: A -Options for amendments to the Ordinance B - "Pre-moratorium" replacement program C -Letter received by staff ORDINANCE No. 22 (Series of 2008) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL AMENDING THE FOLLOWING SECTIONS OF THE CITY OF ASPEN LAND USE CODE OF THE CITY OF ASPEN MUNICIPAL CODE: SECTION 26.470.070.5 -DEMOLITION OR REDEVELOPMENT OF MULTI-FAMILY HOUSING AND SECTION 26.104.100 -DEFINITIONS. WHEREAS, in accordance with Sections 26.210 and 26.310 of the City of Aspen Land Use Code, the Director of the Community Development Department initiated amendments to the Land Use Code related to the requirements and restrictions on the redevelopment of multi-family housing; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed and recommended for approval, approval with conditions, or denial by the Community Development Director and then by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, the Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code Sections Section 26.470.070.5 -Demolition or Redevelopment of Multi-Family Housing Section 26.104.100 - Definitions, as described herein; and, WHEREAS, during a duly noticed public hearing on July 22, 2008, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Sections 26.575.020 - Calculations and Measurements; 26.575.040 -Yards., as described herein, by a five to zero (5-0) vote; and, WHEREAS, the Aspen Planning and Zoning Commission finds that the amendments meet or exceed all applicable standards pursuant to Ordinance No. 22, Series of 2008. Page 1 Chapter 26.310 and that the approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Aspen Planning and Zoning Commission found that these amendments further and are necessary for the promotion of public health, safety, and welfare. WHEREAS, the Aspen City Council has reviewed and considered the recommended changes to the Land Use Code under the applicable provisions of the Municipal Code identified herein, has reviewed and considered the recommendation of the Community Development Director, the Planning and Zoning Commission, and has taken and considered public comment at a public hearing; and, WHEREAS, the City Council finds that the proposed text amendments to the Land Use Code meet or exceed all applicable standards and that the approval of the proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. WHEREAS, the amendments to the Land Use Code are delineated as follows: Text unaffected is black and in standard print and looks like this. Text being added to the code is underlined red and looks like this. - cee~ ,~`m thegmargin~and o ks `_________.o _ _ - .._.._..........-._-__________________________________________________________________ Lke utis NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO as follows: Section 1: Section 26.470.070.5 -Demolition or Redevelopment of Multi-Family Housing, which section describes the provisions for redeveloping Multi-family Residential Dwelling Units, shall be amended as follows: 26.470.070.5 - Demolition or Redevelopment of Multi-Family Housing. The City of Aspen's neighborhoods have traditionally been comprised of a mix of housing types, including those affordable by its working residents. However, because of Aspen's attractiveness as a Ordinance No. 22, Series of 2008. Page 2 resort environment, and because of the physical constraints of the upper Roaring Fork Valley, there is constant pressure for the redevelopment of dwellings currently providing resident housing for tourist and second home use. Such redevelopment results in the displacement of individuals and families who are an integral part of the Aspen work force. Given the extremely high cost of and demand for market-rate housing, resident housing opportunities for displaced working residents, which are now minimal, will continue to decrease. Preservation of the housing inventory and provision of dispersed housing opportunities in Aspen have been long-standing planning goals of the community. Achievement of these goals will serve to promote a socially and economically balanced community, limit the number of individuals who face a long and sometimes dangerous commute on State Highway 82, reduce the air pollution effects of commuting, and prevent exclusion of working residents from the city's neighborhoods. The Aspen Area Community Plan established a goal that affordable housing for working residents be provided by both the public and private sectors. The City and the Aspen/Pitkin County Housing Authority, has provided affordable housing both within and adjacent to the city limits. The private sector has also provided affordable housing. Nevertheless, as a result of the replacement of resident housing with second homes and tourist accommodations, and the steady increase in the size of the workforce required to assure the continued viability of Aspen area businesses and Aspen's tourist based economy, the City has found it necessary, in concert with other regulations, to adopt limitations on the combining, demolition, or conversion of existing multi-family housing in order to minimize the displacement of working residents, to insure that the private sector maintains its role in the provision of resident housing, and to prevent a housing shortfall from occurring. The combining, demolition, conversion, or redevelopment of multi- family housing shall be approved, approved with conditions, or denied by the Planning and Zoning Commission based on compliance with the following requirements: (See definition of Demolition.) Ordinance No. 22, Series of 2008. Page 3 1. Requirements for Combining, Demolishing, Converting, or Redeveloping Free-Market Multi-Family Housing Units: Only one of the following two options is required to be met when combining, demolishing, converting, or redeveloping afree-market multi-family residential property. To ensure the continued vitality of the community and a critical mass of local working residents, no net loss of density (total number of units) between the existing development and proposed development shall be allowed. a. One-Hundred Percent Replacement. In the event of the demolition of free-market multi-family housing, the applicant shall have the option to construct replacement housing consisting of no less than one-hundred (100) percent of the number of units, bedrooms, and Net Livable Area demolished. The replacement units shall be deed restricted as Resident Occupied affordable housing, pursuant to the Guidelines of the Aspen/Pitkin County Housing Authority. An applicant may choose to provide mitigation units at a lower Category designation. Each replacement unit shall be approved pursuant to Section 26.470.070.4 -Affordable Housing. When this one-hundred (100) percent standard is accomplished, the remaining development on the site may be free-market residential development with no additional affordable housing mitigation required as long as there is no increase in the number of free-market residential units on the parcel. Free-market units in excess of the total number originally on the parcel shall be reviewed pursuant to Section 26.470.070.3 -Expansion of Free- Market Residential Units within aMulti-Family or Mixed-Use Development. b. Fifty Percent Replacement In the event of the demolition of free-market multi-family housing and replacement of less than one-hundred (100) percent of the number of previous units, bedrooms, or Net Livable Area as described above, the Ordinance No. 22, Series of 2008. Page 4 applicant shall be required to construct affordable housing consisting of no less than fifty (50) percent of the number of units, bedrooms, and the Net Livable Area demolished. The replacement units shall be deed restricted as Category 4 housing, pursuant to the Guidelines of the Aspen/Pitkin County Housing Authority. An applicant may choose to provide mitigation units at a lower Category designation. Each replacement unit shall be approved pursuant to Section 26.470.070.4 -Affordable Housing. When this fifty (50) percent standard is accomplished, the remaining development on the site may be free-market residential development as long as additional affordable housing mitigation is provided pursuant to Section 26.470.070.3 - Expansion of Free-Market Residential Units within aMulti- Family or Mixed-Use Project, and there is no increase in the number of free-market residential units on the parcel. Free- market units in excess of the total number originally on the parcel shall be reviewed pursuant to Section 26.470.080.2 - New Free-Market Residential Units within aMulti-Family or Mixed-Use Project. 2. Requirements for Demolishing Affordable Multi-Family Housing Units: In the event a project proposes to demolish or replace existing deed restricted affordable housing units, the redevelopment may increase or decrease the number of units, bedrooms, or Net Livable Area such that there is no decrease in the total number of employees housed by the existing units. The overall number of replacement units, unit sizes, bedrooms, and category of the units shall be reviewed by the Aspen/Pitkin County Housing Authority and a recommendation forwarded to the Planning and Zoning Commission. The Planning and Zoning Commission may require the affordable housing deed restriction on the affected units be brought into compliance with the current Guidelines of the Asgen/Pitkin County Housing Authority and to the satisfaction of the City Attorney Ordinance No. 22, Series of 2008. Page 5 3. Fractional Unit Requirement. When the affordable housing replacement requirement of this section involves a fraction of a unit, cash-in-lieu may be provided only upon the review and approval of the City Council, to meet the fractional requirement only, pursuant to Section 26.470.090.3. -Provision of Required Affordable Housing via aCash-in-Lieu Payment 4. Location Requirement. Multi-family replacement units, both free- market and affordable, shall be developed on the same site on which demolition has occurred, unless the owner shall demonstrate and the Planning and Zoning Commission determines that replacement of the units on-site would be in conflict with the parcel's zoning or would be an inappropriate solution due to the site's physical constraints. When either of the above circumstances result, the owner shall replace the maximum number of units on-site which the Planning and Zoning Commission determines that the site can accommodate and may replace the remaining units off-site, at a location determined acceptable to the Planning and Zoning Commission. A recommendation from the Aspen/Pitkin County Housing Authority shall be considered for this standard. 5. Timing Requirement. Any replacement units required to be deed restricted as affordable housing shall be issued a Certificate of Occupancy, according to the Building Department, and be available for occupancy at the same time as, or prior to, any redeveloped free- market units, regardless of whether the replacement units are built on- site or off-site. 6. Redevelopment Agreement. The applicant and the City of Aspen shall enter into a redevelopment agreement that specifies the manner in which the applicant shall adhere to the approvals granted pursuant to this Section and penalties for non-compliance. The Cit~of Aspen may require a bond or other financial instrument insuring compliance with the agreement. The agreement shall be reviewed and approved Ordinance No. 22, Series of 2008. Page 6 the City Attorney. The agreement shall be recorded prior to application for a demolition permit may be accepted by the City. 7. Growth Management Allotments. The existing number of free- market residential units, prior to demolition, may be replaced exempt from growth management, provided the units conform to the provisions of this Section. The redevelopment credits shall not be transferable separate from the property unless permitted as described above in Location Requirement. 8 Exemptions The Community Development Director shall exempt- from the procedures and requirements of this Section the following types of development involving Multi-Family Housing Units. An exemption from these replacement requirements shall not exemgt a development from compliance with any other provisions of this Title: a The replacement of Multi-Family Housing Units after non-willful demolition such as a flood, fire, or other natural catastrophe, civil commotion or similar event not purposefully caused by the land owner. The Community Development Director ma~quire documentation be provided by the landowner to confirm the damage to the building was in-fact non-willful. To be exempted the replacement development shall be an exact replacement of the previous number of units, bedrooms, and square footage and in the same configuration. The Community Development Director may approve exceptions to this exact replacement requirement to accommodate changes necessary to meet current building codes; improve accessibility: to conform to zoning desi n standards, or other re ug latory requirements of the City• or to provide other architectural or site planning improvements that have no substantial effect on the use or pro¢ram of the development. (Also see Chapter 26.312 - Nonconformities.l Substantive changes to the development shall not be exempted from this Section and shall be reviewed as a willful change pursuant to the procedures and requirements of this Section. Formatted: Bullets and Numbering Ordinance No. 22, Series of 2008. Page 7 b. The demolition of Multi-Family Housing Units by order of a~.-' " FO~^a@ed° Bullets and Numbering public agency including but not limited to the Cit~of Aspen for reasons of preserving the life, health, safety, or general welfaze of the public. c. The demolition, combining, conversion, replacement, or redevelopment of Multi-Family Housing Units which have been used exclusively as tourist accommodations or by non-working residents. The Community Development Director may require occupancy records leases, affidavits, or other documentation to the satisfaction of the Director to demonstrate that the unit(s) has never housed a working resident. All other requirements of this Title shall still apply including zoning, growth management, and buildin cp odes. d. The demolition, combining, conversion, replacement, or redevelopment of Multi-Family Housing Units which were illegally created (also known as "Bandit Units"L Any improvements associated with Bandit Units shall be required to conform to current requirements of this Title including zoning, growth management, and building codes. Replaced or redeveloped Bandit Units shall be deed restricted as Resident Occupied affordable housing, pursuant to the Guidelines of the Aspen/Pitkin County Housing Authority. ..----- Formatted: Indent: Left: 0.25" Section 2: Section 26.104.100 -Definitions, which section defines the meaning of terms used in the City of Aspen Land Use Code, shall be amended as follows: Demolition. To raze, disassemble, tear down or destroy forty percent (40%) or more of an existing structure (prior to commencing development) as measured by the surface of all exterior wall and roof area above finished grade and associated assembly and components necessary for the structural integrity of such wall and roof area. For the method of determining demolition, see Section 26.575.020(E), Measurement of Ordinance No. 22, Series of 2008. Page 8 demolition. Demolition shall also include the removal of a dwelling unit in a multi-family or mixed-use building, rts ..- De1~de °r conversion to nonresidential use, or any action which penetrates demising walls or floors between Multi-Family Housing Units if such action is undertaken to combine the units.. (See Chapter_~..-- De'mos' •- - - - Deleted: shall also constitute 26.530, Residential multi-family replacement program.) damollli°^ Deleted: Dwelling. A structure or portion thereof, 7_________.________.._.______________.._.. _._______________...__________ intended and used asashelter in wldcha person or people reside and sleep Dwelling, detached residential_ A residential structure consisting ._.._ Deleted: lM~elling, nvncGeA of a single dwelling with open yards on all sides, excluding mobile r°~a^^°G Aresidentraldwellingwhich is physicdly connected to one or more homes. Also known as a Single-Family Home or asingle-Family other dwellings or buildings on one or more sides.¶ Residence. Dwelling, duplex. A residential building on a single lot or parcel comprised of two (2) ,attached Dwelling Units in either an over- ~,.- oele~a: attached°nita and-under or side-by-side configuration having a common unpierced above-grade wall of at least one (1) story in height and ten 10 feet in len th, or a common un ierced wal or floor/ceilin Deletes: /ceiling ( ) g p ~, g....... as applicable. Each unit in the duplex shall contain no less than twenty-five percent (25%) of the total floor area of the duplex structure. Dwelling, multifamily. A residential structure containing three (3) or more attached Dwelling Units in either anover-and-under or side-bv-side configuration with common unvierced demising walls or floors/ceilings as applicable, not including hotels and lodges, but including townhomes, that may include accessory use facilities •-_ limited to an office, laundry, recreation facilities and off-street parking used by the occupants. One (1) or more Dwelling Units located within aMixed-Use building shall also be considered a multi-family dwelling. The term "multi-family dwelling" also includes properties listed on the Aspen Inventory of Historic Landmark Sites and Structures consisting of three (3) or more Detached Residential Units where permitted by the Zone District. Dwelling unit. ~A structure or portion thereof; intended and used as a shelter in which a person or people reside and sleep which Deletetl: d Deleted:u . Deleted: with Deleted: d Deleted: u Deleted: n office, retail or sernce commercial Deleted: d Deleted: dwelling Deleted: u DNetetl: A separately enterable room or combinazion of rooms Ordinance No. 22, Series of 2008. Page 9 contains a kitchen and bathroom and which is designed for or used ..- De1~di ^'° ^° - as anindividual residence. Also known as a Dwelline or a Residence. Bedroom. A portion of a dwelling unit intended to be used for sleeping purposes, which may contain closets, and may have ~,~, ~nwe~~em~c:u^;f°,~ access to a bathroom.. Bui'ding ~Od`requ~"""^'s ror 1ghind ~ _____________________________________ '~' vrnrilafion. Section 3• This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 4• If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 5: That the City Clerk is directed, upon the adoption of this Ordinance, to record a copy of this Ordinance in the office of the Pitkin County Clerk and Recorder. Section 6: A public hearing on the Ordinance shall be held on the 22"d day of September, 2008, at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. Section 7: This ordinance shall become effective thirty (30) days following final adoption. Ordinance No. 22, Series of 2008. Page 10 INTRODUCED, READ AND ORDERED PUBLISHED as ~rovided by law, by the City Council of the City of Aspen on the 11 day of August, 2008. Attest: Kathryn S. Koch, Michael C. Ireland, City Clerk Mayor FINALLY, adopted, passed and approved this day of .2008. Attest: Kathryn S. Koch, City Clerk Approved as to form: City Attorney Michael C. Ireland, Mayor Ordinance No. 22, Series of 2008. Page 11 Exhibit A City Council requested staff develop some additional options for consideration. Following are suggested options organized from simple, minor amendments to fundamental changes to the program. The italicized text is suggested code language to add to the proposed ordinance. Option 1. The addition of an exemption providing for non permanent penetrations of demising walls. The normal course of remodeling, utility upgrades, etc. often affects demising walls and staff recommends this additional exemption be added. Any development action involving demising walls or floors/ceilings that is necessary for the normal upkeep, maintenance, or remodeling of adjacent Multi- Family Housing Units. Option 2. Introduction of a timeframe in the categorization of a unit as a tourist unit. The current regulation applies to a unit which has ever in its history housed a working resident. This is a very rigorous requirement, but has been at the core of the program for the past 20 years. This would be an amendment of proposed exemption c as highlighted below. c. The demolition, combining, conversion, replacement, or redevelopment of Multi- Family Housing Units which have been used exclusively as tourist accommodations or by non-working residents for a minimum of ten (10) years. The Community Development Director may require occupancy records, leases, affidavits, or other documentation to the satisfaction of the Director to demonstrate that the unit(s) has never housed a working resident. All other requirements of this Title shall still apply including zoning, growth management, and building codes. Option 3. The addition of an exemption providing for wholesale reconfiguration of adjacent units. This would allow, for example, two adjacent two-bedroom units to be redeveloped as cone-bedroom unit and athree-bedroom unit without triggering any of the replacement requirements. The rebuilding or reconfiguration of demising walls or floors/ceilings between adjacent units including substantial changes to the size, layout, number of bedrooms, or other aspects of the individual units such that the total number of units is not affected. Option 4. The addition of an exemption allowing for the combination of units in exchange fora "minimal" deed restriction on the resulting unit. This was discussed at first reading as a way to observe the original premise of the program - to maintain local housing opportunities -while recognizing the desire for units to be combined. The combining of adjacent Multi-Family Housing Units if the newly created unit is deed restricted to occupancy by full-time residents of Pitkin County. The deed restriction shall be acceptable to the City Attorney and shall be recorded prior to dssuance of a building permit. Option 5. Reversion to the pre-moratorium replacement requirements. This system allowed for the total demolition and replacement ofmulti-family buildings as free-market unit as long as the units weie not expanded - an exact replacement system. In the system, if units were expanded, housing mitigation was required. The prior system did not address unit combining any differently than today's program. Please see Exhibit B. Staff would need to re-work the proposed ordinance. Option 6. The addition of an exemption allowing for the "temporary" combination of units with a requirement to divide the units in the future. This was also discussed at first reading as a way to observe the original premise of the program - to maintain local housing opportunities -while recognizing the immediate needs of locals. Staff does not support this option. The combining of adjacent Multi-Family Housing Units if the newly created unit shall be required to be divided and returned to the previous multiple unit configuration if ever sold to part-time residents of Pitkin County. The deed restriction shall be acceptable to the City Attorney and shall be recorded prior to issuance of a building permit. Option 7. The addition of an exemption allowing for the combination of units. This could include some limitation on how many units could be combined. The combining of adjacent Multi-Family Housing Units. Or, The combining of no more than two (2) adjacent Multi-Family Housing Units. This exemption shall be allowed only once per unit, cumulatively. Option 8. The elimination of the program in its entirety. The current validity of the program was questioned during first reading. Staff continues to believe the program provides benefit in maintaining a broad range of housing choice. [Section 1 of the ordinance] Section 26.470.040.5 -Reserved ~~/~ the basis upon which exemption is claimed, and such additional documentation as may be required by the Community Development Director in order to establish the exemption. If the Community Development Director is satisfied that the dwelling unit is exempt from the provisions of this Title, a certificate of exemption shall be issued. C. Procedure. A Certificate of Compliance or Certificate of Exemption shall be obtained prior to the submission of a building permit. D. Form of Certificate. A Certificate of Compliance or Exemption shall be in a form approved by the Community Development Director. The Certificate shall constitute a Development Order issued pursuant to Section 26.304.070, Development Orders. (Ord. No. 40-2002; Ord No. 51-2003, §1) 26.530.040 Housing Replacemeut Requirements. A. One-Hundred Percent Replacemeut - No Expansion. In the event of the demolition of free- market resident multi-family housing, the owner shall have the option to construct reptace- ment housing consisting of no less than one-hundred (100) percent of the number of units and one-hundred (100) percent of the number of bedrooms demolished. The units shall be re- placed with like-type units (i.e. each one-bedroom unit is replaced with cone-bedroom unit, each two-bedroom unit is replaced with atwo-bedroom unit, etc.). Studio units may be re- placed with either studio or one-bedroom units. The project's total net livable area may not be expanded. When this one-hundred (100) percent standazd is accomplished with no expansion of the project's total net livable area, the replacement housing shall not be required to be deed restricted as affordable housing. - One-Hundred Percent Replacement - Unii Expansion. In the event of the demolition of free-mazket resident multi-family housing, the owner shall have the option to construct re- placement housing consisting of no less than one-hundred (100) percent of the number of units and one-hundred (100) percent of the number of bedrooms demolished. The units shall be replaced with like-type units (i.e. each one-bedroom unit is replaced with aone-bedroom unit, each two-bedroom unit is replaced with atwo-bedroom unit, etc.). Studio units may be replaced with either studio or one-bedroom units. The project's total net livable area may be expanded if a portion of the project, commensurate with the percentage of net livable space expansion, is deed restricted according to the Aspen/Pitkin County Affordable Housing Guidelines. The required amount of units, bedrooms, and net livable area to be deed restricted as affordable housing shall be no less than the percentage of the project's net livable area ex- pansion over the existing development. Affordable housing meeting this requirement shall be deed restricted in accordance with the requirements of section 26.530.050, Resale Restrictions (below). No more than 50% of the original project's units, bedrooms, and net livable azea shall be required to be replaced as affordable housing. (For example: a project replicating an existing unitlbedroom mix for which the aggregate net livable space is increased by 15 per- cent shall include affordable housing equal to 15 percent of the original units, bedrooms, and City of Aspen Land Use Code. June, 2005 Part 500, Page 49 net livable azea.) A project both increasing and decreasing individual units sizes for which no aggregate expansion of the project's net livable area occurs shall incur no affordable housing requirement. When this expansion and replacement percent standazd is accomplished with af- fordable housing commensurate with the expansion of net livable space, the remaining units replaced on-site shall not be required to be deed restricted as affordable housing. B. Fifty Percent Replacement. In the event of the demolition of free-market resident multi- family housing and replacement of less than one-hundred (100) percent of the number of pre- vious units and bedrooms as described above, the owner shall be required to construct re- placement housing consisting of no less than fifty (50) percent of the number of units, fifty , (50) percent of the number of bedrooms, and fifty (50) percent of the squaze footage of net ~~~K~~ ~esidentia} azea demolished. The replacement housing meeting this requirement shall be deed restricted as affordable housing in accordance with the requirements of section 26.530.050, Resale Restrictions (below). The remaining units replaced on-site shall not be required to be deed restricted as affordable housing. C. Location of Replacement Housing. Multi-family replacement units shall be developed on the same site on which demolition has occurred, unless the owner shall demonstrate and the City Council determines that replacement of the units on-site would be incompatible with adopted neighborhood plans or would be an inappropriate planning solution due to the site's physical constraints. When either of the above circumstances result, the owner shall replace the maxi- mum number of units on-site which the City Council determines that the site can accommo- date and may replace the remaining units off-site, at a location determined acceptable to City Council. When replacement units aze proposed to be built off-site, the owner shall be required to obtain a development order approving the off-site development prior to issuance of a Cer- tificate of Compliance for the original parcel. Replacement units may be redeveloped on a sepazate pazcel which is part of a multi-pazcel Planned Unit Development that includes the original pazcel. In this case, the location of rede- velopment units, both free-mazket and affordable, shall be determined by the City through adoption of a Final PUD Plan, pursuant to Chapter 26.445. D. Cash-in-Lieu Payment. When the owner's affordable housing replacement requirement of this section involves a fraction of a unit, cash in lieu may be provided to meet the fractional requirement only. The amount of a cash-in-lieu shall be determined by the Aspen/Pitkin County Housing Authority according to the applicable Affordable Housing Guidelines. E. Timing and Quality of Replacement Units. Any replacement units required to be deed re- stricted as affordable housing shall be issued a Certificate of Occupancy, according to the Building Department, and be available for occupancy at the same time as, or prior to, any re- developed free-market units, regardless of whether the replacement units aze built on-site or off-site. Replacement units required to be deed restricted as affordable housing shall contain fixtures, finish, and amenities required by the Affordable Housing Guidelines of the As- pen/Pitkin County Housing Authority. City of Aspen Land Use Code. June, 2005 Part 500, Page 50 ~xGl~ b-~ C, THE PEOPLES REPUBLIC OF ASPEN Warning to all property owners in the City of Aspen: The city has a scheme whereby every property in the City will be taken from you and put into the affordable housing pool -without the City paying for it. Its call the "Demolition or Redevelopment of Multi-Family Housing." Ordinance and is contained in section 26.470.040.5 of the Aspen Land Use Code. The City Staff and the City know full well that as properties age every single one over time will need to be replaced -it's just a natural fact that buildings have a finite useful life - no matter how well they are maintained. With the bulk of the multi -family properties (more than 2 units - essentially all condos and town homes in the City) built in Aspen during the 1960's and 1970's, how long will they last? Over the next 10-30 years, most will need to be replaced and redeveloped. This is where the City's scheme comes in -the Ordinance requires that when the units are redeveloped, that they be converted to affordable housing. That's right- you redevelop your Unit and it becomes an affordable housing unit and you can no longer live there -it's given to someone that qualifies for the affordable housing program. No compensation for the property owner - just a flat out taking of your property without paying for it. If more than 40% of the project is "demolished", it's considered a "redevelopment" that subjects the property to the Ordinance. Now the City is proposing expanding the definition of "demolition "of the project. This is a calculated attempt by the City to make your condo unit an "affordable housing" unit for even minor remodels -again without paying for it! ENOUGH IS ENOUGH! What started out as the most generous "affordable housing" program in the United States through the funding provided by the Real Estate Transfer Tax, has now turned into a socialist state whereby the affordably housed city staffers and city council members confiscate your property without paying for it in violation of the Constitution of the United States. If you don't think that you are affected because you own a single family house or duplex, think twice. When will the Ordinance be changed to come after your property? How much will you end up paying (through your taxes) when the city loses a massive lawsuit for taking property without just compensation? Does every real estate broker in town have an obligation to disclose to every prospective buyer of an Aspen condo or townhouse that one day they will be faced with the choice of letting their complex deteriorate due to age or turning their unit over to the City for its affordable housing pool, without any compensation !!!!! Realtors' beware!!!! The City Staff s proposed change to expand this ordinance (Ordinance 22-Series of 2008) is about to be rubber stanped by the City Council on September 22, 2008. Pls attend or have Condo Assoc legal representation attend to express your grave opposition to this change!! We need City Council to take this Ordinance out of the City's land use code in its entirety! SHOW UP AND FIGHT FOR YOUR RIGHTS! z~~ ~~ 11~emoraxidum TO: Mayor and Members of Council FROM: James R. True DATE: September 15, 2008 RE: Cooper Street Settlement Attached for your consideration and review is a proposed Ordinance which, if adopted, would settle litigation with numerous owners of the property regarding the denial of the Cooper Street subdivision approval. Following settlement discussions facilitated by Judge William Neighbors of the Judicial Arbiter's Group, the negotiators believe that they have reached an agreement that will result in the dismissal of the litigation and an approval of development of the property. The settlement contemplates an increase in the residential square footage that will be allowed on the property. The owners will execute and record a deed restriction that will preserve the Lower Level, the basement of the property, to 1800 square feet of abar/restaurant or brewery. The deed restriction on the property will require that the rent on the property be no greater than 75% of the free market rental for a similar basement space but not greater than $50 per square foot. It shall also require a limitation on the price of food that maybe charged by the business. The approval that allows development of the property contemplates changing part of the second floor from commercial to residential. The second floor will also contain space reserved for the first floor commercial space. Additional floor area will be added to third and fourth floors, mainly from the conversion of deck space to provide a total residential net livable square footage of 4,527. The original size of the residence was 2,008 square feet. However, under the code in which this application was originally submitted a maximum square footage of 2,842 was available. The height of the fourth floor does not require any variances and the height is less than that of the building to the east and approximately the same as the building to the west. However, there is contemplated a variance for height for a railing on a proposed roof top deck. Roof top decks are Vu~d not discouraged as they provide better views of town from the mountain than roofs with mechanical equipment. The railing will be required to be designed with minimal visual impact from the town. The attached ordinance sets forth the terms of the settlement and the approval. Attached to the ordinance and incorporated as part of the ordinance is the deed restriction that will encumber the basement. At first reading there were several concerns expressed regarding the deed restriction. The main concern involved the obligation of the City to provide information regarding rental rates and the costs of food in town. We have shifted the burden of these obligations to the owner of the property. Further, in order to make the price of food more easily determined, we have written the price obligation to be based on prices charged by Bentley's at the Wheeler, as long as Bentley's operates in its present format. Although enforcement of these price restrictions could be a challenge, it is believed that this operation will be somewhat self-enforcing. The operation would always be under some public scrutiny. If prices deviate significantly, it will be obvious. Also, it should be noted that if a brewery were located on the premises, the food price restriction would not be applicable. There was also concern expressed by Council members regazding the selection of the proposed tenant and circumstances that would arise if the owner could not locate a tenant. Although the owner maintains the right to reject a tenant proposed by the City, if the City proposed a reasonable tenant, the owner could not reject that tenant. Finally, the hours of operation set forth in the declazation are delineated as a minimum. As noted above, the final declaration is attached. For your convenience I have also attached a redline version of the declaration reflecting the specific changes. There are several other changes that were done to clarify the language of the agreement. All changes since first reading are shown in this redline version. ACTION REQUESTED: A Motion to approve Ordinance No. 24, Series of 2008. CITY MANAGER'S COMMENTS: cc: City Manager Community Development ORDINANCE N0.24 (SERIES OF 2008) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING WITH CONDITIONS, A SU$DIVISION AND CONDONIINIUNIIZATIONFQR 508 E. COOPER AVENUE, PORTIONS OF LOTS L, M, N, BLOCK 9S, CITY AND TOWNSITE OF ASPEN, CO, PITKIN COUNTY, COLORADO PARCEL N0.2737-182-24-007 WHEREAS, the Community Development Department received an application from Cooper Street Co-Tenancy, represented by Haas Land Planning, LLC, requesting approval of three (3) Growth Management Reviews, Subdivision Review, and Special Review to construct amixed-use building consisting of 3,827 squaze feet of net leasable commercial space, and one free-market residential unit; and, WHEREAS, during a duly noticed public heazing on July 12, 2007, the Historic Preservation Commission approved Resolution No. 17, Series 2007, by a five to zero (5- 0), approving Commercial Design Review for the property at 508 E. Cooper Ave, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO; and, WHEREAS, the subject property is zoned CC (Commercial Core); and, WHEREAS, upon review of the application, and the applicable code standazds, the Community Development Department recommended approval with conditions, of the proposed subdivision and associated land use requests; and, WHEREAS, during a duly noticed public heating on May 1, 2007, the Planning and Zoning Commission approved Resolution No. 6, Series of 2007, by a three to one (3-1) vote, approving three (3) Growth Management Reviews for the development of a mixed- use building that includes commercial space, and free market housing, approving a Special Review to vary the dimensional requirements of the trash/utility/recycle azea, and recommending that City Council approve with conditions the proposed subdivision and condominiumization to construct amixed-use building consisting of one (1) free-mazket residential unit and 3,827 squaze feet of net leasable commercial space located on the property at 508 E. Cooper Ave, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO; and, WHEREAS, on June 25~', 2007 the Aspen City Council approved Ordinance No. 28, Series 2007, on First Reading by a four to zero (4-0) vote, approving with conditions the Subdivision and Condominiumization of 508 E. Cooper Avenue, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO; and, WHEREAS, during a duly noticed public hearing on November 12, 2007, continued from August 13, 2007, August 27, 2007, September 10, 2007, and October 9, 2007, the Aspen City Council failed to adopt a proposed ordinance to approve the application, by a two to two (2_ 2) vote. Following such vote, a motion to adopt Ordinance No. 28, Series 2007 which denied the application was passed by a three to one (3-1) vote; and, 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\LocaI Settings\Temporary Internet Filesl0LKB31Sett1ement Ordinance(JG Edits) (2).doc Page 1 of 9 WHEREAS, following the denial of the application, the applicants timely filed a complaint pursuant to C.R.C.P. 106, requesting that the Court review the adoption of Ordinance 28 (Series of 2007) alleging that the City exceeded its jurisdiction and abused its discretion in denying the request of the applicant to subdivide the subject property; and, WIIEREAS, the City of Aspen has defended such lawsuit and has denied that the Council's denial of the application was an abuse of discretion or that the City Council exceeded its jurisdiction; and WHEREAS, as part of the litigation, the parties entered into settlement discussions regarding the complete resolution of the litigation and the development application; and WHEREAS, counsel for the parties have set forth the terms of the agreement to settle the litigation and all necessary development approvals herein; and WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Planning and Zoning Commission and Historic Preservation Commission with regazd to the original development proposal, the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing held on ;and, WHEREAS, on August 25s', 2008, the Aspen City Council approved Ordinance No. _ Series 2008, on First Reading by a - to _ L-~ vote, approving the settlement of the litigation and the approval with conditions the Subdivision and Condominiumization of 508 E. Cooper Avenue, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO, as set forth herein; and, WHEREAS, the City Council fmds that the proposed subdivision and settlement agreement meet applicable development standazds and that the approval of the proposed subdivision, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council fmds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfaze. NOW, THEREFORE, BE TT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1• Pursuant to the procedures and standazds set forth in Section 26 of the City of Aspen Municipal Code, the Aspen City Council hereby approves a Subdivision and Condominiumization for the property at 508 E. Cooper Ave, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO to construct amixed-use building consisting of one (1) free-market residential unit, and 3,827 squaze feet of commercial space. The use mix and dimensional requirements shall comply with the CC zone district, as described in the staff memorandum and included in the chart below. Specifc square footage requirements may be amended provided compliance with the below stated requirements of the underlying CC zone district is maintained. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local SettingslTemporary Internet Filesl0LKB3\Settlement Ordinance(JG Edits) (2).doc Page 2 of 9 Minimum Lot 2,842 sq. ft. No requirement Size Minimum Lot 37 Feet No requirement Width Minimum 0 Feet No requirement Front Yard Setback Minimum Side 0 Feet No requirement Yazd Setback Minimum Rear 0 Feet; P&Z granted Special Review to No requirement except trash/utiliry service area Yazd Setback vary the trash/utiliry/recycle azea shall be required abutting an alley, pursuant to dimensions to an alley frontage of nine Section 26.575.060 and a half (9.5) linear feet with a ten (10) foot vertical cleazance, and seventeen and a half (17.5) feet in de th. Maximum Building Elevations along Cooper Ave: 42 feet for all azeas of the property, and Height First floor: 14 Feet; Second floor: 24 Feet; 46 feet for areas setback 15 or more feet from Third floor: 34 Feet lot lines adjoining a Street right-of--way. Fourth floor: 44 Feet (setback greater than or equal to fifteen (15) feet from property line) Guazdrails for Roof Deck: 47 Feet 6 Inches Mechanical Elevator overrun at-4F-F'eet. ~°-~ (n" 26.575.020.B. i.d: Mechanical equipment shall Equipment Mechanical Equipment at 50 Feet. not exceed 5 feet above the maximum zone Height district height (in CC, the requirement it 5 feet above 46 feet) Pedestrian Cash-in-Lieu fee of $50 per square foot Pursuant to Section 26.575.030, Pedestrian Amenity S ace (284.2 s.£) _ $14,210 for this lot Amenity Floor Area Cumulative Free-Mazket Cumulative Maximum: Commercial: 1.5:1 Ratio (FAR) Maximum: Commercial FAR: 3:1 up to 2:1 (with 8,187 sq. ft. or 2,464sq. ft. or 1.2:1 affordable housing 2.88:1 Affordable increase) Commercial FAR: 0 sq. ft. (because located in basement) Lodging, Arts, Lodging, Arts, Cultural and Civic, Cultural and Civic, Public, Recreational, Public, Academic uses: N/A Recreational, Academic uses: 3:1 317028_1 508 E. Cooper Ave Subdivision C:~Documents and Settingsljimt\Local Settings\Temporary Internet Filesl0LKB3\Settlement Ordinance(JG Edits) (2).doc Page 3 of 9 Section 2: Plat and Agreement Pursuant to the procedures and standazds set forth in Section 26 of the City of Aspen Municipal Code, the Applicant shall record a subdivision agreement that meets the requirements of Land Use Code Section 26.480, Subdivision, within 180 days of this approval. The Subdivision Agreement shall not contain any terms that contradict or change the terms of the Conditional Settlement Agreement between the parties and the terms of this Ordinance. The Subdivision Agreement shall also include a commitment to satisfy all conditions of Planning and Zoning Commission Resolution Number 27, Series of 2006 as well as all conditions of this Ordinance. A fmal Condominium Plat may be approved and signed by the Community Development Director upon substantial completion of construction and prior to issuance of a Certificate of Occupancy. Section 3: Buildine Permit Application The Applicant may not submit a Building Permit Application until the requirements in Land Use Code Section 26.304.075, Building Permit, are fulfilled. The building permit application shall include the following: a. A copy of the final Ordinance, P&Z Resolution, and HPC Resolution as modified by the Conditional Settlement Agreement and this Ordinance. b. The conditions of approval printed on the cover page of the building permit set. c. A fugitive dust control plan to be reviewed and approved by the City Engineering Department. d. An excavation-stabilization plan, construction management plan (CMP), and drainage and soils report pursuant to the Building Department's requirements. The CMP shall include an identification of construction hauling routes, 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 4 of 9 construction phasing, and a construction traffic and parking plan for review and approval by the City Engineer and Streets Department Superintendent. The CMP shall also identify that the adjacent sidewalks will be kept open and maintained throughout construction. Staging azeas will be identified in the plan, and shall indicate that the alley shall not be closed during construction. e. Accessibility and ADA requirements shall meet adopted building code requirements. f An approved Landscape Plan, as applicable. g. Any prior approval regazding use of the existing brick shall be modified so that applicant shall not be required to preserve the existing brick wall or use all the brick in the redevelopment of the property. h. In order to provide garage level access to the free market unit, applicant shall, subject to all applicable building codes, be entitled to create an entry through the adjacent parking garage unit to the East of the subject property, provided Applicant obtains an appropriate permanent easement through the wall, if an easement is necessazy. Section 4. Buildin¢ Permit Review, The referral process and evaluation of the building permit application shall be completed within a reasonable time from the time a complete application is submitted. After completion of the referral process the Community Development Director shall: (i) issue a certificate of development approval compliance or (ii) advise applicant of any deficiencies within a reasonable time. The Applicant shall be reasonably responsive to City building permit plan review comments and shall submit requested corrections in a timely manner. Actions taken by applicant to remedy deficiencies, if any, shall be reviewed by the Community Development Director and a response made to applicant within a reasonable time. At such time as applicant cures all deficiencies, if any there are any, the Community Development Director shall forthwith issue a certificate of development approval compliance. After the chief building official receives a certificate of development approval compliance, the building permit shall issue within a reasonable time. Section 5: Dimensional Requirements The building as presented in the plans contained within the application dated September 2006 and as modified and amended in the Conditional Settlement Agreement and plans submitted on 2008 ("Modified Plans"), complies with the existing dimensional requirements of the Commercial Core (CC) zone district. Compliance with these requirements as modified in the Conditional Settlement Agreement will be verified by the City of Aspen Zoning Officer at the time of building permit submittal. Section 6: Trash/Utility Service Area The trash containers shall be wildlife proof and meet the Certificate of Appropriateness regulations pertaining to size and security. The trash/utility area shall have an alley frontage of nine and a half (9.5) lineaz feet with a ten (10) foot vertical clearance, and seventeen and a half (17.5) feet in depth, as identified in the plans approved through Special Review by the Planning and Zoning Commission on May 1, 2007. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporazy Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 5 of 9 Section 7: Sidewalks, Curb, and Gutter The sidewalks shall be upgraded to meet the City Engineer's standards and ADA requirements. Prior to issuance of a Building Permit, or any other permit to be issued for the property, including but not limited to a demolition permit, the applicant shall provide plans that meet the approval of the City Engineer. Such improvements shall be made prior to a Certificate of Occupancy on any of the units within the development. Section 8: Affordable Housine The affordable housing mitigation requirement shall be satisfied with a payment of cash-in- lieu for 12.6 squaze feet of affordable housing at the Category 41eve1. The cash-in-lieu fee shall be $3,915.67. The cash-in-lieu shall be paid at the time of building pemut and shall be earmarked for APCHA's use to "buy down" existing deed-restricted units or proposed deed-restricted units to lower categories. In addition, a mutfi-family replacement fee of $305,795.22sha11 be paid by applicant upon the issuance of a building permit. Section 9: Off Street Parkin¢ The Applicant shall provide two (2) off street pazking spaces on the adjacent property to the east to be used as pazking for 508 East Cooper. There shall be allowed a penetration through the wall of the building adjacent to the subject property to access the subject property as shown on the Modified Plans, provided Applicant obtains an appropriate permanent easement through the wall that measures 5' 1" from the property line and 18" past the width on each side of the door. Section 10: Water Department Requirements The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standazds of Title 8 (Water conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Each of the units within the building shall have individual water meters. Section 11: Sanitation District Requirements a. Service is contingent upon compliance with the Aspen Consolidated Sanitation District's (ACSD) rules, regulations, and specifications, which aze on file at the District office. ACSD will review the approved Drainage plans to assure that cleaz water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. b. On-site utility plans require approval by ACSD. c. Oil and Grease interceptors (NOT traps) aze required for all food processing establishments; locations of food processing shall be identified prior to building permit; even though the commercial space will be tenant-finished, interceptors will be required at this time if food processing establishments are anticipated for this project. d. Oil and Sand separators are required for parking gazages and vehicle maintenance establishments. Driveway entrance drains must drain to drywells. Elevator shaft drains must flow through oil and sand interceptors. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\hocal SettingslTemporaty Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page6of9 e. Old service lines must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements. Below grade development may require installation of a pumping system. One tap is allowed for each building. Shared service line agreements may be required where more than one unit is served by a single service line. Permanent improvements aze prohibited in sewer easements or right of ways. f. Landscaping plans will require approval by ACSD where soft and hazd landscaping may impact public ROW or easements to be dedicated to the district. g. All ACSD fees must be paid prior to the issuance of a building permit. h. The glycol heating and snow melt system (if any) must be designed to prohibit and dischazge of glycol to any portion of the public and private sanitary sewer system. Any glycol storage areas must have approved containment facilities. i. Soil Nails are not allowed in the public ROW above ASCD main sewer lines. j. Applicant's civil engineer will be required to submit existing and proposed flow calculations. Section 12: Exterior Liehtine All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor Lighting. Section 13: Landscapine a. Specific excavation techniques will be required for the excavation along the back of the property. Vertical excavation will be required and over-digging is prohibited in this zone. This note must be represented on the building permit set. Utility connection will need to be designed and shown on the plan in a manner that does not encroach into tree protection zones. b. Prior to issuance of any demolition or building permits, any and all tree removal will be approved by the Parks Department. Mitigation for removals shall be satisfied through planting of street trees adjacent to the site or through payment of cash in lieu. c. Root trenching will be required around all potentially affected trees with excavation next to and/or under the drip line. This can be accomplished by a contracted professional tree service company or trained member of the contractor's team. This is specific to the trees located on adjacent properties. d. The Applicant is required to make improvements to the City ROW through the installation of a new Cooper Avenue street tree, evenly spaced between the two existing trees located in front of the neighboring properties. Planting in the Public Right-Of--Way (ROW) will be subject to Landscaping in the ROW requirements. Plans for the tree planting should be completed and conceptually approved prior to building permit submittal. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 7 of 9 1. If the sidewalk is kept in tact and does not require replacement then the applicant will have to work with the Parks Department to saw cut a new tree well. 2. If the sidewalk is replaced in any manner the applicant will be required to install a structural tree trench within the tree planting zone. Trench materials, size and location will require approval of the Pazks Department. The Applicant is required to install new irrigation to the new tree planting and if possible to the two existing trees depending on the extent of any new tree trench. Section 14: Park Development Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a park development impact fee prior to building permit issuance. The fee shall be calculated according to the fee schedule in Land Use Code Section 26.610.030, Fee Schedule, in place at the time of building permit Section 15: Pedestrian Amenity Cash-in-Lieu Fee Pursuant to Land Use Code Section 26.575.030, Pedestrian Amenity, the Applicant shall pay acash-in-lieu fee for pedestrian amenity in the amount equal to ten percent of the lot azea prior to building permit issuance. The fee is assessed based on the following calculation: Lot azea = 2,842 squaze feet 10% of Lot Area = 284.2 square feet Payment = $50 x 284.2 squaze feet Pedestrian Amenity Cash-in-Lieu = $14,210.00 Section 16: School Lands Dedication Fee Pursuant to Land Use Code Section 26.630, School lands dedication, the Applicant shall pay afee-in-lieu of land dedication prior to building permit issuance. The City of Aspen Community Development Department shall calculate the amount due using the calculation methodology and fee schedule in affect at the time of building permit submittal. The Applicant shall provide the mazket value of the land including site improvements, but excluding the value of structures on the site. Section 17: All of the conditions and agreements set forth in the Conditional Settlement Agreement, attached hereto as Exhibit "A", are incorporated herein in full by this reference. Section 18: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awazded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City CouncIl, aze hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 8 of 9 Section 19• This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 20: If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section Zl. Covenants. Attached hereto as Exhibit "B" are the Covenants which are hereby approved. Applicant shall cause the Covenants to be duly executed and recorded prior to the issuance of a building permit. Section 22. Basement Ceiline Heithts. The minimum ceiling height for the 1,800 sq. ft. of basement deed restriction shall be twelve (12) feet, for purpose of potentially accommodating a brewery. Secfion 23. Public Hearine A public hearing on this Ordinance will be held on the 8ei day of September 2008 in the city Council Chambers, 130 South Galena, INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 25~' day of August, 2008. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor 317028_1 508 E. Cooper Ave Subdivision C:1Documents and Settings\jimt\Local SettingslTemporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 9 of 9 CONDITIONAL SETTLEMENT AGREEMENT This Conditional Settlement Agreement dated August _, 2008, is entered into by and among (1) the City of Aspen (the "City") and (2) JS Cooper Street LLC, a Colorado limited liability company, AP Meadows LLC, a Delaware limited liability company, Cooper Street Pier LLC, a Colorado limited liability company, RJH Cooper Street LLC, a Colorado limited liability company, RSB Cooper Street LLC, a Colorado limited liability company, RG Cooper Street LLC, a Colorado limited liability company, and NH Cooper Street LLC, a Colorado limited liability company (collectively the "Cooper Street Owners"). The parties to this Conditional Settlement Agreement shall be collectively referred to as the "Parties" or individually as a "Party." I. RECITALS 1. On November 13, 2007, the City adopted Ordinance No. 28 (Series of 2007), in which the City denied the request of the Cooper Street Owners to subdivide a proposed redeveloped building at 508 East Cooper Avenue into separate condominium interests. 2. On December 10, 2007, the Cooper Street Owners filed a C.R.C.P. 106(a)(4) Complaint in Pitkin County District Court (Case No. 07CV186) seeking judicial review of the adoption of Ordinance No. 28 (Series of 2007) alleging that the City exceeded its jurisdiction and abused its discretion in denying the request of the Cooper Street Owners to subdivide the proposed redeveloped building at 508 East Cooper Avenue into separate condominium interests (the "C.R.C.P. 106(a)(4) Litigation"). 3. In its Answer, the City denies that it abused its discretion or exceeded its jurisdiction in adopting Ordinance No. 28 (Series of 2007). 4. The Parties have determined to compromise and settle the C.R. C.P. 106(a)(4) Litigation in an amicable manner according to the terms described in this Conditional Settlement Agreement that provides the City both acash-in-lieu affordable-housing payment of $309,710.89 and a deed restriction reserving 1,800 square feet of the 310552-1 1 redeveloped building for use as affordable commercial space if the Conditional Settlement Agreement becomes a binding agreement. 5. Each Party has determined that this Conditional Settlement Agreement is fair to all Parties and that it is in each Party's mutual interest that it become a binding agreement. II. CONDITIONAL SETTLEMENT AGREEMENT Conditions Precedent 1. Conditions Precedent to the Enforceability of This Conditional Settlement A,~reement. This Conditional Settlement Agreement shall become a binding settlement agreement only if each of the three conditions precedent contained in paragraphs a., b. and c. is satisfied. If each of the three conditions precedent is satisfied, this Conditional Settlement Agreement shall automatically become a binding settlement agreement for all purposes. If any one of the three conditions precedent is not satisfied, however, this Conditional Settlement Agreement shall be null and void for all purposes. a. Condition Precedent Number One. The City Counci] approves an ordinance approving the request by the Cooper Street Owners to subdivide the proposed redeveloped building at 508 East Cooper Avenue into separate condominiums in the form of ordinance attached hereto as Exhibit A following all required public notices and hearings. b. Condition Precedent Number Two. No person files an appeal, petition for referendum, petition for initiative or any other pleadings, petitions or filings appealing or otherwise challenging the adoption of the ordinance attached hereto as Exhibit A within 45 days after the adoption of the ordinance. c. Condition Precedent Number Three. The Cooper Street Owners either (1) obtain an acceptable easement from the adjoining landowner(s), if necessary, providing access from the proposed redeveloped building at 508 East Cooper Avenue through the adjacent 310552-1 2 wall into the underground parking garage in the adjoining building within 30 days of the execution of the Conditional Settlement Agreement or (2) waive in writing satisfaction of Condition Precedent Number Three within 30 days of the execution of this Conditional Settlement Agreement. Terms 1. If Condition Precedent Number One, Condition Precedent Number Two and Condition Precedent Number Three are satisfied, the Parties agree to take all necessary steps and to file all necessary pleadings in order to dismiss with prejudice the C.R. C.P. 106(a)(4) Litigation, each Party to pay its own costs and attorney fees. 2. If Condition Precedent Number One, Condition Precedent Number Two and Condition Precedent Number Three are satisfied, the Cooper Street Owners shall pay an affordable-housing-mitigation cash- in-lieu fee of $3,915.67 pursuant to Section 7 of the Ordinance. In addition, amulti-family replacement fee of $305,795.22 shall be paid upon the issuance of a building permit pursuant to Section 7 of the Ordinance. 3. If Condition Precedent Number One, Condition Precedent Number Two and Condition Precedent Number Three are satisfied, the Cooper Street Owners shall execute and record the "Declaration of Covenants" attached hereto as Exhibit 1 which, among other things, restricts the use of 1,800 square feet of the redeveloped building to the operation of a restaurant, on-site food service, bar or both or a brewery. The Declaration of Covenants also provides for a restriction of the amount of rent to be charged for the 1,800 square feet as affordable commercial space. 4. In the event of any dispute relating to this Conditional Settlement Agreement, including any dispute regarding the enforceability of the Conditional Settlement Agreement as a final binding agreement, the prevailing Party shall be entitled to recover its attorney fees and costs. 310552-1 3 5. This Conditional Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which, together, shall constitute one and the same Conditional Settlement Agreement. 6. The undersigned have carefully read the above and foregoing Conditional Settlement Agreement, know the contents thereof, and have signed the same on behalf of each of the Parties, after having first had the benefit of legal counsel. City of Aspen By JS Cooper Street LLC By Joshua Saslove, Manager Steve Barwick, City Manager AP Meadows LLC By Andrew V. Hecht, Manager Cooper Street Pier LLC By Andrew V. Hecht, Manager RJH Cooper Street LLC By Robert J. Hurst, Manager RSB Cooper Street LLC By Robert S. Blank, Manager RG Cooper Street LLC By Ronald Garfield, Manager NH Cooper Street LLC By Nikos Hecht, Manager 310552-1 4 RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: Andy Hecht, Esq. Ga~eld & Hech[, P.C. 601 Eas[ Hyman Avenue Aspen, Colorado 81611 DECLARATION OF COVENANTS WHEREAS, JS COOPER STREET LLC, a Colorado limited liability company, AP MEADOWS, LLC, a Delaware limited liability company, COOPER STREET PIER, LLC, a Colorado limited liability company, RJH COOPER STREET LLC, a Colorado limited liability company, RSB COOPER STREET LLC, a Colorado limited liability company. RG COOPER STREET LLC, a Colorado limited liability company, and NH COOPER STREET LLC, a Colorado limited liability company, (collectively, "Declarant"), aze the owners in fee simple of the following described real estate (the "Pro er ") situate in the County of Pitkin and State of Colorado, to wit: THE EASTERLY 18 INCHES OF THE SOUTHERLY 68 FEET OF LOT L, THE SOUTHERLY 70 FEET OF LOT M, ALL OF LOT N, EXCEPT THE EASTERLY 18.75 FEET, BLOCK 95, CITY AND TOWNSITE OF ASPEN TOGETHER WITH THE PARTY WALL RESERVATIONS AND RIGHTS AS SET FORTH IN DEED RECORDED AUGUST 22, 1969 IN BOOK 243 AT PAGE 279. WHEREAS, Declarant wishes to establish certain restrictions (these "Covenants") on the use and occupancy of approximately eighteen hundred (1,800) squaze feet to be located in the below grade space in the building (the "Building") intended to be constructed on the Property, as such space (the "Lower Level") is generally depicted on Exhibit "A" attached hereto and incorporated herein by this reference. NOW THEREFORE, Declazant does hereby publish and declaze that the following terms, restrictions and limitations shall be deemed to run with the land comprising the Lower Level and be binding on each owner of the Lower Level, or any portion thereof, and shall be for the benefit of and enforceable by each owner of any other portion of the Building on the Property and the City of Aspen (the "City") and Declarant does declare that these Covenants are made in furtherance of establishing and maintaining the character and value of real estate in the City. 1. Permitted Use. The Lower Level shall be restricted to the operation of a restaurant, on site food service, baz or a brewery. Other uses allowed in the CC Zone District as a matter of right shall be permitted only upon the agreement of the Declarant and the City. Other space on the same level as the Lower Level or space any place else in the Building ("Remaining Building Space") shall not be subject to these Covenants and any and all lawful uses of such space shall be allowed in accordance with the permitted uses (or conditional uses where approved by the City) within the CC Zone District In the event that at any time the Building is subjected to a condominium regime, these Covenants shall automatically be amended be so that these Covenants only affect the Lower Level. These Covenants that apply only to the ownership, operation and use of the Lower Level and shall not burden in the Remaining Building Space. Upon recordation of the condominium map, Declazant may file a supplement to these Covenants for the sole purpose of substituting the condominium unit description for the current Exhibit "A" description. 2. Rent. If at any time and from time to time following the recording of these Covenants in the real property records of Pitkin County, Declarant enters into a lease with a tenant for the Lower Level, or any part thereof, the rent for the first year after a Certificate of Occupancy is issued for the Lower Level (the "Commencement Date") shall be an amount not to exceed the lesser of Fifty Dollars ($50.00) per square foot of leased space or 75% of the average rents paid by commercial tenants for similar spaces, plus the tenant's obligations, if any, to pay a share of the Common Area Maintenance Costs, as hereinafter defined (collectively the "Rent"). The Declazant shall have the obligation of providing evidence of the amount of rents paid by such commercial tenants. Common Area Maintenance Costs shall mean all costs and expenses (including, without limitation, insurance costs) attributable to the ownership operation, maintenance and repair of the Building, (or in the case of a condominium, the common elements) excluding however real estate taxes. To the extent costs of the ownership, operation, maintenance and repair of the Building and/or insurance costs are included in assessments levied against the Lower Level by any unit or homeowners association to be formed, Rent shall include that portion of the assessments attributable to such costs. Common Area Maintenance shall be in an amount that is reasonable for commercial space of this size and location within the commercial core. Rent shall be adjusted each calendaz yeaz after such first yeaz by increasing the amount payable per square foot for the applicable year by a percentage equal to the lesser of (i) the percentage increase, if any, in the U.S. Consumer Price Index (the "CPI") over the CPI in effect at the Commencement Date or (ii) five percent (5%). However, at no time shall rent exceed 75% of the average rents paid by commercial tenants for similar spaces. 3. Lease Restrictions. The lease entered between Declarant and any prospective tenant shall include a limitation on the prices of food, excluding alcoholic beverages, that may be charged by the Tenant to its customers and the right to terminate the lease if the price limitation is violated. Such limitation shall require that the average price of food, excluding alcoholic beverages, that may be chazged by the Tenant shall be reasonably comparable with the menu pricing of Bentley's Restaurant within the Wheeler Opera House. Reasonably comparable shall be deemed to mean within ten percent of the average price of food products sold by Bentley's, so long as Bentley's maintains its current, 2008, operational format. If Bentley's ceases to operate in its current format, then the pricing of the Tenant's menu, measured separately for lunch and dinner, shall be within the lower one-third of the average price of food, excluding alcoholic beverages, of all of the restaurants in the City of Aspen. This calculation shall include sit-down restaurants and exclude restaurants that would be deemed fast food restaurants. The Declarant shall be required to provide the Tenant and the City of Aspen with its calculations of the average price of food of all of the restaurants in Aspen, together with empirical data supporting such calculations, annually. The City of Aspen shall have the right to require that the Tenant comply with this restriction by providing notice to the Tenant of its violation. If the Tenant does not correct its pricing schedule within ten days of notice of violation, then the Declazant shall terminate the lease. In addition, any Lease to the Lower Level shall include a requirement that the business operate for forty-four weeks per year and that the business maintain business hours 317016_1 of at least between eleven o'clock a.m. to eleven o'clock p.m, six days per week. Other than the requirement to operate forty-four weeks pre year, the lease restrictions set forth in this paragraph 3, shall not apply to a tenant who has obtained a manufacturer's license from the State of Colorado to operate as a brewery. 4. Delivery of Copy of Lease to City. A copy of any and each lease for the Lower Level, or any part thereof, shall be provided to the City of Aspen, Attention Director of Planning or the Zoning Enforcement Officer within ten (10) business days after full execution thereof. 5. Entrance Plan. The Building shall include an entrance to the Lower Level on the west side of the Building. Such entrance shall include a stairwell and a lift that provides access to the Lower Level by persons with a physical disability, which stairwell and lift (the "Entrance Plan") shall cause the entrance to the Lower Level to be in compliance with the Americans with Disabilities Act of 1990, 42 USC §§ 12101 to 12213. The Entrance Plan shall be consistent in all material respects with the plan for the Building set forth on Exhibit A. 6. Noise. The use of the Lower Level shall at all times be restricted so that no amplified or unreasonably excessive noise is produced. Declazant's reasonable commercial discretion as to what constitutes "excessive noise" shall be binding on any tenant in the Lover Level. However, notwithstanding the above language, compliance with environmental health standards will be deemed acceptable. 7. Siens• The lower level business shall be allowed to place a sign on the street facing fapade of the main level. However, no sign, billboazd, decoration, poster board or advertising structure of any kind shall be placed, erected, displayed or maintained anywhere on or within the Building, including the Lower Level, until plans and specifications therefor showing the nature, shape, dimensions, color, materials, and locations for signage have been submitted to and approved in writing by Declarant, which approval shall not be unreasonably withheld. All signs shall be in compliance with the design standards of the City of Aspen. 8. Occupancy Declarant or any subsequent owner shall be permitted to leave the Lower Level vacant if, in its sole discretion, it deems any prospective tenant to be unsuitable. The Declazant agrees to utilize reasonable efforts to in good faith locate prospective tenants who aze reasonably agreeable to the Declarant. "Reasonable efforts" shall be defined as including, but not limited to, circulating lease terms and information to local commercial real estate brokers and advertising in a newspaper of general circulation continuously during the period in which the property is vacant. If the space remains vacant for a period of six months or greater, the City shall have the right to name a tenant for consent of the Declarant, whose consent shall not be unreasonably withheld. The City of Aspen may obtain a proposed tenant through a standard Request for Proposal (RFP) process. Furthermore, Declarant (or any affiliate or Declarant) or any subsequent owner of the Lower Level shall be allowed to use and occupy the Lower Level, or any part thereof, for so long as such use complies with the applicable terms and provisions of these Covenants. 9. Enforcement. These Covenants are for the benefit of, and aze enforceable solely by, the City of Aspen as to the provisions of Pazagraphs 1, 2, 3, 4 and 8 and by any then owner of any 317016_1 portion of the Building. There are no other beneficiazies or persons intended to have standing to enforce these Covenants. As an example of the foregoing, if the Building consists of condominiums or any other form of sepazate ownership and if the restrictions on the level of noise from the Lower Level set forth in Paragraph 5 hereof are violated, any owner of any space in the Building (or any association formed for the benefit of such owners) shall have the right to enforce the provisions of such noise restrictions against the owner of and/or tenant in the Lower Level. If court proceedings aze instituted in connection with the rights of enforcement and remedies provided in these Covenants, the prevailing party shall be entitled to recover its costs and expenses in connection therewith, including reasonable attorney's fees. Failure by any party to enforce any provision of these Covenants shall not operate as a waiver of any such provision, a waiver of the right to enforce such provision thereafter, or a waiver of any other provision of these Covenants. 10. Amendment or Revocation. Except as allowed in paragraph 1 above, these Covenants may be amended or revoked only by written instrument executed by all of the applicable benefitted parties (except the City of Aspen) and recorded in the office of the Clerk and Recorder of the County of Pitkin, State of Colorado. The consent of the City of Aspen shall be required only with respect to any material amendment, modification or revocation of the provisions of Paragraphs 1 - 8 of these Covenants. 11. Effect of Provisions of these Covenants. Each provision of these Covenants, and any agreement, promise, covenant and undertaking to comply with each provision of these Covenants: (i) shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any burdened portion of the Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument; (ii) shall, by virtue of acceptance of any right, title or interest in any portion of the burdened portion of the Property by an owner, be deemed accepted, ratified, adopted and declazed as a personal covenant of such owner and shall be binding on such owner and his heirs, personal representatives, successors and assigns; and (iii) shall be deemed a real covenant by Declarant, for itself, its administrators, successors and assigns, with respect to the Property and also an equitable servitude running in each case as a burden with and upon the title to each and every burdened portion of the Property for the benefit of the City of Aspen and the owner(s) from time to time of any other portion of the Property. In no event shall these Covenants be deemed to be for the benefit of or be enforceable by any third party. 12. Severability. Invalidity or unenforceability of any provision of these Covenants in whole or in part shall not affect the validity or enforceability of any other provision or any valid and enforceable part of a provision of these Covenants, which other or part of a provision shall remain in full force and effect. 13. Captions. The captions and headings in this instrument aze for convenience only and shall not be considered in construing any provisions of these Covenants. 14. Construction. When necessary for proper construction, the masculine of any word used in these Covenants shall include the feminine or neuter gender, and the singular the plural, and vice versa. 317016_1 15. Governing Law. These Covenants are made and executed under and aze governed by and shall be construed in accordance with the laws of the State of Colorado. IIV WITNESS WHEREOF, Declarant has executed these Covenants as of the _ day of 2008. JS COOPER STREET, LLC, a Colorado limited liability company By: STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 200_ by as of JS COOPER STREET, LLC. WITNESS BY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: [SEAL] Notary Public 317016_1 RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: Andy Hecht, Esq. Garfield & Hecht, P.C. 601 East Hyman Avenue Aspen, Colorado 81611 DECLARATION OF COVENANTS WHEREAS, JS COOPER STREET LLC, a Colorado limited liability company, AP MEADOWS, LLC, a Delaware limited liability company, COOPER STREET PIER, LLC, a Colorado limited liability company, RJH COOPER STREET LLC, a Colorado limited liability company, RSB COOPER STREET LLC, a Colorado limited liability company. RG COOPER STREET LLC, a Colorado limited liability company, and NH COOPER STREET LLC, a Colorado limited liability company, (collectively, "Declarant"), aze the owners in fee simple of the following described real estate (the "Pro er ") situate in the County of Pitkin and State of Colorado, to wit: THE EASTERLY 18 INCHES OF THE SOUTHERLY 68 FEET OF LOT L, THE SOUTHERLY 70 FEET OF LOT M, ALL OF LOT N, EXCEPT THE EASTERLY 18.75 FEET, BLOCK 95, CITY AND TOWNSITE OF ASPEN TOGETHER WITH THE PARTY WALL RESERVATIONS AND RIGHTS AS SET FORTH IN DEED RECORDED AUGUST 22, 1969 IN BOOK 243 AT PAGE 279. WHEREAS, Declazant wishes to establish certain restrictions (these "Covenants") on the use and occupancy of approximately eighteen hundred (1,800) square feet to be located in the below grade space in the building (the "Building") intended to be constructed on the Property, as such space (the "Lower Level") is generally depicted on Exhibit "A" attached hereto and incorporated herein by this reference. NOW THEREFORE, Declazant does hereby publish and declaze that the following terms, restrictions and limitations shall be deemed to run with the land comprising the Lower Level and be binding on each owner of the Lower Level, or any portion thereof, and shall be for the benefit of and enforceable by each owner of any other portion of the Building on the Property and the City of Aspen (the "City") and Declarant does declaze that these Covenants are made in furtherance of establishing and maintaining the character and value of real estate in the City. 1. Permitted Use. The Lower Level shall be restricted to the operation of a restaurant, on site food service, bar or a brewery. Other uses allowed in the CC Zone District as a matter of right shall be permitted only upon the agreement of the Declarant and the City. Other space on the same level as the Lower Level or space any place else in the Building ("Remaining Building Space") shall not be subject to these Covenants and any and all lawful uses of such space shall be allowed in accordance with the permitted uses (or conditional uses where approved by the City) within the CC Zone District. In the event that at any time the Building is subjected to a condominium regime, these Covenants shall automatically be amended be so that these Covenants only affect the Lower Level. These Covenants that apply only to the ownership, operation and use of the Lower Level and shall not burden in the Remaining Building Space. Upon recordation of the condominium map, Declarant may file a supplement to these Covenants for the sole purpose of substituting the condominium unit description for the current Exhibit "A" description. 2. Rent. If at any time and from time to time following the recording of these Covenants in the real property records of Pitkin County, Declarant enters into a lease with a tenant for the Lower Level, or any part thereof, the rent for the first year after a Certificate of Occupancy is issued for the Lower Level (the "Commencement Date") shall be an amount not to exceed the lesser of Fifty Dollazs ($50.00) per square foot of leased space or 75% of the avera eg rents paid by commercial tenants for similar spaces, plus the tenant's obligations, if any, to pay a share of the Common Area Maintenance Costs, as hereinafter defined (collectively the <`Rent"). u,....e..e. ..:«:,.t ..e.,« ..t,..tt ..,.. t.,. ,. ,....,._ .t..... -rcoi ,.~ «t,e .. o.,«.....,:,t ~., . The Declarant ~~«•~¢~pea shall have the obligation of providing evidence of the amount of rents paid by such commercial tenants. Common Area Maintenance Costs shall mean all costs and expenses (including, without limitation, insurance costs) attributable to the ownership operation, maintenance and repair of the Building, (or in the case of a condominium, the common elements) excluding however real estate taxes. To the extent costs of the ownership, operation, maintenance and repair of the Building and/or insurance costs aze included in assessments levied against the Lower Level by any unit or homeowners association to be formed, Rent shall include that portion of the assessments attributable to such costs. -Common Area Maintenance shall be in an amount that is reasonable for commercial space of this size and location within the commercial core. Rent shall be adjusted each calendar year after such first yeaz by increasing the amount payable per square foot for the applicable year by a percentage equal to the lesser of (i) the percentage increase, if any, in the U.S. Consumer Price Index (the "CPI") over the CPI in effect at the Commencement Date or (ii) five percent (5%). However, at no time shall rent exceed 75% of the average rents paid by commercial tenants for similaz spaces. 3. Lease Restrictions. The lease entered between Declazant and any prospective tenant shall include alimitation -on the prices of food, excluding alcoholic beverages,_-that may be chazged by the Tenant to its customers and the right to terminate the lease if the price limitation is violated. Such limitation shall require that the average price of food, excluding alcoholic beverages, that may be char eg d by the Tenant shall be reasonably comparable with the menu pricinf? of Bentlev's Restaurant within the Wheeler Opera House. Reasonably comparable shall be deemed to mean within ten percent of the average price of food products sold by Bentley's, so lone as Bentlev's maintains its current, 2008, operational format. If Bentley's ceases to operate in its current format, then the pricing of e~ the Tenant's menu, measured sepazately for lunch and dinner, shall be within the lower one-third of the average price of food, excluding alcoholic beverages, of all of the restaurants in the City of Aspen. This calculation shall include sit-down restaurants and exclude restaurants that would be deemed fast food restaurants. TThe Declarant ~'~'•~~ shall be required to provide the Tenant and the Citv of Aspen ~ with its calculations of the average price of food of all of the restaurants in Aspen, together with empirical data supporting such calculations, annually. The City of Aspen shall have the right to require that the Tenant comply with this restriction by providing notice to the Tenant of its violation. If the Tenant does not correct its pricing schedule within ten days of notice of 3 U016_I violation, then the Declarant shall terminate the lease. In addition, any Lease to the Lower Level shall include a requirement that the business operate for foarty-four weeks per yeaz and that the business maintain business hours of at least between eleven o'clock a.m. to eleven o'clock p.m, six days per week. Other than the requirement to operate forty-four weeks pre year, the lease restrictions set forth in this paragraph 3, shall not apply to a tenant who has obtained a manufacturer's license from the State of Colorado to operate as a brewery. 4. Delivery of Copv of Lease to City. A copy of any and each lease for the Lower Level, or any part thereof, shall be provided to the City of Aspen, Attention Director of Planning or the Zoning Enforcement Officer within ten (10) business days after full execution thereof. 5. Entrance Plan. The Building shall include an entrance to the Lower Level on the west side of the Building. Such entrance shall include a stairwell and a lift that provides access to the Lower Level by persons with a physical disability, which stairwell and lift (the "Entrance Plan") shall cause the entrance to the Lower Level to be in compliance with the Americans with Disabilities Act of 1990, 42 USC §§ 12101 to 12213. The Entrance Plan shall be consistent in all material respects with the plan for the Building set forth on Exhibit A. 6. Noise. The use of the Lower Level shall at all times be restricted so that no amplified or unreasonably excessive noise is produced. Declazant's reasonable commercial discretion as to what constitutes "excessive noise" shall be binding on any tenant in the Lover Level. However, notwithstanding the above language, compliance with environmental health standazds will be deemed acceptable. 7. S~ s. The lower level business shall be -allowed to place a sign on the street facing facade of the main level. However, no sign, billboard, decoration, poster boazd or advertising structure of any kind shall be placed, erected, displayed or maintained anywhere on or within the Building, including the Lower Level, until plans and specifications therefor showing the nature, shape, dimensions, color, materials, and locations for signage have been submitted to and approved in writing by Declarant, which approval shall not be unreasonably withheld. All signs shall be in compliance with the design standazds of the City of Aspen. 8. Occupancy Declarant or any subsequent owner shall be permitted to leave the Lower Level vacant if, in its sole discretion, it deems any prospective tenant to be unsuitable. The Declarant agrees to utilize reasonable efforts to in good faith locate prospective tenants who are reasonably agreeable to the Declazant. "Reasonable efforts" shall be defined as including, but not limited to, circulating lease terms and information to local commercial real estate brokers and advertising in a newspaper of general circulation continuously during the period in which the property is vacant. If the space remains vacant for a period of six months or greater, the City shall have the right to name }~regese a tenants for consent of the Declarant, whose consent shall not be unreasonably withheld. The Citv of Aspen may obtain a proposed tenant throueh a standard Request for Proposal (KEPI process. Furthermore, Declarant (or any affiliate or Declarant) or any subsequent owner of the Lower Level shall be allowed to use and occupy the Lower Level, or any part thereof, for so long as such use complies with the applicable terms and provisions of these Covenants. 317016_1 9. Enforcement. These Covenants are for the benefit of, and are enforceable solely by, the City of Aspen as to the provisions of Paragraphs 1, 2, 3, 4 and 8 and by any then owner of any portion of the Building. There are no other beneficiaries or persons intended to have standing to enforce these Covenants. As an example of the foregoing, if the Building consists of condominiums or any other form of separate ownership and if the restrictions on the level of noise from the Lower Level set forth in Paragraph 5 hereof aze violated, any owner of any space in the Building (or any association fonned for the benefit of such owners) shall have the right to enforce the provisions of such noise restrictions against the owner of and/or tenant in the Lower Level. If court proceedings are instituted in connection with the rights of enforcement and remedies provided in these Covenants, the prevailing party shall be entitled to recover its costs and expenses in connection therewith, including reasonable attorney's fees. Failure by any party to enforce any provision of these Covenants shall not operate as a waiver of any such provision, a waiver of the right to enforce such provision thereafter, or a waiver of any other provision of these Covenants. 10. Amendment or Revocation. Except as allowed in paragraph 1 above, these Covenants may be amended or revoked only by written instrument executed by all of the applicable benefitted parties (except the City of Aspen) and recorded in the office of the Clerk and Recorder of the County of Pitkin, State of Colorado. The consent of the City of Aspen shall be required only with respect to any material amendment, modification or revocation of the provisions of Paragraphs 1 - 8 of these Covenants. 11. Effect of Provisions of these Covenants. Each provision of these Covenants, and any agreement, promise, covenant and undertaking to comply with each provision of these Covenants: (i) shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any burdened portion of the Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument; (ii) shall, by virtue of acceptance of any right, title or interest in any portion of the burdened portion of the Property by an owner, be deemed accepted, ratified, adopted and declared as a persona] covenant of such owner and shall be binding on such owner and his heirs, personal representatives, successors and assigns; and (iii) shall be deemed a real covenant by Declarant, for itself, its administrators, successors and assigns, with respect to the Property and also an equitable servitude running in each case as a burden with and upon the title to each and every burdened portion of the Property for the benefit of the City of Aspen and the owner(s) from time to time of any other portion of the Property. In no event shall these Covenants be deemed to be for the benefit of or be enforceable by any third party. 12. Severability. Invalidity or unenforceability of any provision of these Covenants in whole or in part shall not affect the validity or enforceability of any other provision or any valid and enforceable part of a provision of these Covenants, which other or pazt of a provision shall remain in full force and effect. 13. Captions. The captions and headings in this instrument aze for convenience only and shall not be considered in construing any provisions of these Covenants. 317016_1 14. Construction. When necessazy for proper construction, the masculine of any word used in these Covenants shall include the feminine or neuter gender, and the singular the plural, and vice versa. 15. Governing Law. These Covenants are made and executed under and aze governed by and shall be construed in accordance with the laws of the State of Colorado. IN WITNESS WHEREOF, Declazant has executed these Covenants as of the day of 2008. JS COOPER STREET, LLC, a Colorado limited liability company By: Name: STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 200_ by LLC. as WITNESS BY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: [SEAL] day of , of JS COOPER STREET, Notary Public 317016_1 AP MEADOWS, LLC, a Delaware limited liability company By: Name: STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 200_ by as of AP MEADOWS, LLC. WITNESS BY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: [SEAL] Notary Public 317016_1 COOPER STREET PIER, LLC, a Colorado limited liability company By: Nar STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 200_ by as of COOPER STREET PIER, LLC. WITNESS BY HAND AND OFFICIAL SEAL. [SEAL] MY COMMISSION EXPIRES: Notary Public 317016_1 RJH COOPER STREET, LLC, a Colorado limited liability company By: STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 200_ by as of RJH COOPER STREET, LLC. WITNESS BY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: [SEAL] Notary Public 317016_1 RSB COOPER STREET, LLC, a Colorado limited liability company STATE OF COLORADO COUNTY OF PITKIN By: )ss. The foregoing instrument was acknowledged before me this 200_ by LLC. as day of , of RSB COOPER STREET, WITNESS BY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: [SEAL] Notary Public 317016_1 RG COOPER STREET, LLC, a Colorado limited liability company By: Title: STATE OF COLORADO COUNTY OF PITKIN )ss. The foregoing instrument was acknowledged before me this 200_ by LLC. as WITNESS BY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: [SEAL] day of , of RG COOPER STREET, Notary Public 317016_L NH COOPER STREET, LLC, a Colorado limited liability company Name: STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 200_ by as of NH COOPER STREET, LLC. WITNESS BY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: [SEAL] Notary Public 317016_1 . ~'~ ~~ a ' ~ ~' ~ °~ x' c 4 ~~ T c~ ~ fi E:...Cl~': <.... d..: r x w~. ' ~~'s.M .,~ ~ ~ ~.~ ~`i `Y~~° '~ ~:; .„ ~; .~, ` ~, ~; ~ ~ ~~ ~ ~ r ~~ ~> ~ : ° ,. ,~sv ~ ' ~< ,. f r ~;. ~'~~~.. ~: ~ x c =~~,~~ ,, .~I'~: ,~ x ~ ~~ i ~ a.;< ~ ~ am . ~ ` ~ ;~„ ~ ~ ','l ~ .~ ' ~ °.~ r ~ ~ ~ r~ ; ~ ' ~ • ~~~ ` y e r .:, I ~'~ N S~~r ,~ r i ~ ~ , ~ ~ ~~. ~ ~ . ~ I 3 } ~ ~ .. a .. .~ s .. ~.: .f, e~. ~ , ~ .,fix, ~a _.i Ff~bEi .._~.. ', ` ,4 ~,! 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I~ :1 (. - , I _ ... .... ~, .. ~~ {~i ~. w __,, ~. ~;~ _-- t :.~ l X aL MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Sara Adams, Historic Preservation Planner Amy Guthrie, Historic Preservation Officer THRU: Chris Bendon, Community Development Director DATE OF MEMO: September 15, 2008 MEETING DATE: September 22, 2008 RE: 1005 Waters Avenue, Ordinance #48 negotiation process REQUEST OF COUNCIL: Council is asked to use the information provided to determine the significance of 1005 Waters Avenue and subsequently what benefits they are willing to offer the property owner in exchange for landmark designation. FORMAT OF MEETING: Pursuant to Ordinance No. 48, Series of 2008, Council may negotiate directly with the property owners or chose to direct Community Development staff to negotiate with the property owners to reach a mutual agreement. The meeting(s) may occur during the regulazly scheduled Council meeting as an Action Item, or Council may chose to provide direction to staff in an Executive Session. These meetings aze not public heazings. Council review is scheduled for September 22"d and October 14`h . The 90 day period ends on October 14`h. Council may choose to extend the negotiation for an additiona130 days. BACKGROUND: In July 2007, Aspen City Council adopted an emergency ordinance, Ordinance #30, Series of 2007. That ordinance prohibited any exterior alterations, land use applications, or building permits affecting all non-landmazked buildings constructed at least 30 years ago, unless it was determined that no potential historic resource was negatively affected. The purpose of the Ordinance was to protect Aspen's significant architectural heritage; not only Victorians, but more modern structures as well. Ordinance #30 was in place for 5 months, during which time Council held numerous meetings to discuss the effect of the new regulations and potential amendments. In particular, Council wished to see the applicability of the Ordinance narrowed down dramatically from all properties over 30 years of age to a specific fist researched by staff and found to potentially qualify for landmark designation. In December 2007, Ordinance #48, Series of 2007 was adopted to replace Ordinance #30. 1005 Waters Avenue, Ordinance #48 negotiation Page 1 of 10 Ordinance #48 creates a formal list of potential historic resources in Aspen that may have historical, architectural, azchaeological, engineering and cultural importance. Detrimental development or demolition actions affecting these properties will be limited while the City undertakes an evaluation of the historic preservation program via the HP Task Force. 1005 Waters Avenue is identified on the List of Potential Historic Resources as part of Ordinance #48. Owners of property listed on Ordinance #48 can still move forward with proposed projects if they: A. Submit the plans and seek staff determination that the work is exempt from delay under Ordinance #48 (routine maintenance work for example); or B. Submit plans and seek staff determination that the work, while not exempt from Ordinance #48, can move forward by voluntazily complying with Staff or HPC review (depending on the scope of work) of the project, or C. Refuse the option for HPC review and submit plans with the intention of triggering a 90 day delay period, during which time City Staff and Council will negotiate for appropriate preservation of the property. If the negotiation does not result in an agreement to landmark designate the property, the building permits will be processed as requested. The owners of 1005 Waters Avenue have prepared plans to. remodel their home. The plans as proposed require Residential Design Standazd vaziances. The owners are not willing to work with Staff and HPC towards a design that preserves chazacter defining features of the building, and therefore Option C, the negotiation process must be undertaken. (The Residential Design Standazds vaziances are scheduled for review by the Planning and Zoning Commission next month.) During the 90 day negotiation period, meetings are scheduled with the HPC and the City Council. HPC discussed this issue on July 23`d, 2008 and on September l0ei, 2008 in addition to a site visit on September 10~'. After an extensive discussion of the property's merits, HPC voted 3-3 to recommend that Council negotiate for landmark designation of the property. A tie vote constitutes a failed motion and no other motion was introduced. The three members voting against the recommendation for further negotiation were primazily concerned that 1005 Waters Avenue is not an exemplary example of the modem chalet style. They recognized that the architect is important to Aspen, but found that other works that she contributed to aze more significant, for example the old Pitkin County library on Main Street. Minutes from the meeting aze attached. SUGGESTED APPROACH: Staff recommends that Council first answer the question: How important is this resource to Aspen's heritage? After Council determines the degree of significance, preservation tools and incentives that apply to this property may be presented and discussed to decide which benefits will be offered to the property owners in exchange for preservation. 1005 Waters Avenue, Ordinance #48 negotiation Page 2 of 10 APPLICANT: Nancy Bryant, 1005 Waters Avenue, represented by Gretchen Greenwood of Gretchen Greenwood & Associates, Inc. 520 Walnut Street, Aspen, CO 81611. Additional owners Chris Leverich and Andrew Dolan have consented to the application. PARCEL ID: 2737-182-82-001. ADDRESS: 1005 Waters Avenue, Lots A - C, Block 41, City and Townsite of Aspen, Colorado. ZONING: R-15, Moderate Density Residential „_~~ F ~4.. ~, _C, . !' ~~11 ~S, w ~ / IF'.. Ii•F4, ~..E .. 1005 Waters Avenue ~~ DISCUSSION: Council is asked to decide whether this property's significance warrants negotiations with the property owner for its preservation. The criteria for designation are listed below and staff's analysis follows. 26.41.5.030.B. Criteria. To be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures, an individual building, site, structure or object or a collection of buildings, sites, structures or objects must have a demonstrated quality of significance. The significance of properties will be evaluated according to the following criteria. When designating an historic district, the majority of the contributing resources in the district must meet the criteria described below: 1. A property or district is deemed significant for its antiquity, in that it is: a. In whole or in part more than one hundred (100) years old, and b. It possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association, given its age; or 2. A property or district is deemed significant as a representation of Aspen's 20th Century history, was constructed in whole or in part more than thirty (30) years prior to the year in which the application for designation is being made, possesses sufficient integrity of location, setting, design, materials, 100 Waters Avenue, Ordinance #48 negotiation Page 3 of 10 workmanship and association and is related to one (1) or more of the following: a. An event, pattern or trend that has made a significant contribution to local, state, regional or national history, b. People whose specific contribution to local, state, regional or national history is deemed important and the spedfic contribution is identified and documented, or c. A physical design that embodies the distinctive characteristics of a type, period or method of construction or represents the technical or aesthetic achievements of a recognized designer, craftsman or design philosophy that is deemed important. 3. A property that was constructed less than thirty (30) years prior to the year in which the application for designation is being made may be considered under Paragraph 2 above, if the application has been filed by the owner of the property at the time of designation or, when designating an historic district, the majority of the contributing resources in the district meet the thirty-year age criterion described above. Staff Finding: 1005 Waters Avenue was built starting in 1958, according to the architect, Ellen Harland. (Staff interviewed Ms. Harland by telephone.) It is located on Waters Avenue. Refer to the map, above. This house combines Chalet architecture with the modernist approach employed by trained architects practicing in Aspen during the 1950's and 1960's. Similar to other Chalet buildings, this residence is sited toward the mountain on an angle. The low pitched roof, deep overhangs, and simple form are characteristic of this era as is more glazing on the primary facade, typically carrying all the way up to the roof. 1005 Waters Avenue is pictured below. 1005 Waters Avenue, Ordinance #48 negotiation Page 4 of 10 The simple low pitched roof form is evident in both chalet architecture and "Modern Chalet" architecture that combines modern technology and chalet style elements. Chalet Lisl, 100 East Hyman, built in 1948. 949 Smuggler Street. built in 1946. Prospector Lodge, built in 1947. Demolished. Extending the glazing into the gable end refers to advancing construction technology and a modern aesthetic. 1005 Waters Avenue was built when Aspen was establishing itself as a vacation destination, and also during a time of exciting philosophical changes in architectural design. The structures illustrated below depict the character of buildings 1005 Waters Avenue, Ordinance #48 negotiation Page 5 of 10 Similar law pitched roof forms: commonly being constructed in Aspen during the decades immediately after World War II. Similar glazing into the gable roof: 626 West Francis Street, built in 1961 /2. 118 East Bleeker Street, built in 1965. 809 South Aspen Street, Shadow Mountain Condomiums, built in 1965. 1005 Waters Avenue, Ordinance #48 negotiation Page 6 of 10 615 Gillespie Street, built in 1957 by Fritz Benedict. Demolished in 2005. 219 South Third Street, built in 1965. As noted above, the house was the residence of Ellen Harland and her family from approximately 1958-1968. Ms. Harland graduated from MIT's School of Architecture in 1956, at a time when the school was very influential in Modern design. She moved to Denver seeking a new environment, then visited and fell in love with Aspen. Ms. Harland was hired by Fritz Benedict in 1958, and she and Robin Molny served as his draftsmen. She worked for Fritz Benedict for 20 years and took an active design role in many projects, including the Pitkin County Library. In addition she designed a number of homes such as the one pictured below. 1005 Waters Avenue, Ordinance #48 negotiation Page 7 of 10 1411 Crystal Lake Road, by Ellen Ms. Harland stated that the house on Waters Harland, 1976 Avenue was originally the 900 square foot structure that is in the center of the lot. In 1964, she built the front piece (which faces Waters Avenue.) She said that it was like a separate unit in form only and was used primarily for her children. In approximately 1968, the house was sold to Ki and John Davis. Several locals contacted about this property strongly associated the home with that family. Ki Davis was an artist and poet. She designed the sculpture that is in the fountain at the east end of the Hyman Avenue Mall. Local author Bruce Berger wrote of Ki in his book ``Notes of a Half-Aspenite," excerpt attached. Staff has attached records from the Assessor's Office to this memo. The Assessor's office lists the ``actual date of construction" for this house as 1964. During the last meeting, the property owner raised the topic of "actual date of construction" vs. "effective date of construction." The Assessor's Office puts the "effective date of construction" for 1005 Waters Avenue at 1979. Staff has confirmed that the latter term represents the condition of the property (meaning its current condition is similar to a property built in 1979.) This does not infer that earlier portions of the building were demolished. The last page of the Assessor's records provided in HPC's packet contains a plan view of the house, labeling the year each piece was built. This record does use the date 1960 for the rear piece. The element that faces Waters Avenue is identified as 1964, and there is an expansion towards the east in 1974. The building permit file for this property contains no permits from earlier than the 1990's, so documentation is difficult. Staff typically completes an integrity score sheet to determine the amount of original features and material that exists. Unfortunately, we are unable to do so because the 1005 Waters Avenue, Ordinance #48 negotiation Page 8 of 10 Modern Chalet style is one that has become recognized as potentially significant during the course of the Ordinance #30 and #48 discussions. At this point no context papers or scoring forms have been adopted for use. The house has been built in phases, in 1960, 1964 and 1974. We are not awaze of any other significant work that has taken place on the exterior of the structure. Ms. Harland viewed the home in 2004 and did not indicate that it looked significantly different. In terms of the proposed work that initiated the negotiation, the applicant would like to add a second floor to the residence and completely alter the street-facing (north) fagade, which Staff views as destructive to the integrity of the architecture and design. The two images below illustrate the existing street elevation (top) and the proposed street elevation with the added second story (bottom). It is Staff's opinion that the proposed alteration will destroy any important characteristics of the potential historic resource. The one story low gable roof and glazing style and placement convey a 1960s era Aspen home. These features are permanently destroyed with the proposed changes and render this building inelieible for landmazk desienation. EXISTING STET VIEWMORTN ELEVATION w . ra RRYODCISO AND YND RTORY •DDRD ~ NORTH SING NG TO RCYNN NO CRANG[ ~- STAFF FINDINGS: Staff finds that 1005 Waters Avenue is a good example of the Modern Chalet style, although it lacks some of the features important to others in the category, such as balconies, open carports, etc. We feel that Ellen Hazland can be 1005 Waters Avenue, Ordinance #48 negotiation Page 9 of 10 illustrated as a notable, trained modernist architect with a significant body of work in Aspen. CITY MANAGER COMMENTS: ATTACHMENTS: A -Existing and proposed drawings and information. B -HPC review and recommendation to City Council. C -HPC minutes dated September 10, 2008. D -Ordinance No. 48, Series of 2008. 1005 Waters Avenue, Ordinance #48 negotiation Page 10 of 10 Q l v ~ ~ i ~ O i i r . ~ v ' A ~ n m v, ~ i,: i _ $ x O til f . v r -+ ~ ~ ~ .. rn c -" -~ U t r ~ g i . 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E: ~. a I+ h ~ ~~ 1 ~ J/~/ /u F For Ki, then, collage represented no lack of discipline, but like her other two arts, it was feed by intuition. Showing a poem, she would say, "Isn't it wild? - I have no idea where it came from," her voice both proud and a little frightened. Her chazacter embraced such contradictions. Slender, delicate of feature, with a quiet and oddly transpazent manner of speech, she seemed at once earthy and. not quite attached to the earth. Her art grew from the same paradox, and she trusted the work to have meaning even when it resisted explanation. Our century has specialized in creation from the uncon- scious, ever since we decided we had one; the psychic core has become the credited source of our best recent art, as well as the alibi for most of our worst. It takes an artist like Ki to remind us that, beyond all fashion, to create a work of art one does not understand - or to be the agent of its creation - takes a kind of bravery. To sense where Ki's art was headed, one has only to compare a late collage with previous work. By happy chance I also came by an earlier piece. Ki had asked to borrow some records and I offered her a stack of favorites. A yeaz later she confessed, with embarrassment, that my records had gotten mixed up with hers and she no longer knew which was which: would I accept a collage in their place? I could easily have pulled my own records, but I leapt at the exchange. The piece she brought was a bright arrangement of browns and yellows, semi=representational, suggesting four oddly-shaped ceramics on a tabletop. It is harmonious, decorative, and particulazly clever in suggesting the glazes of ceramics by the placement of stains inherent in the paper. And a stranger, seeing it next to the night vision, could sense immediately the chasms of experience thatfell between. I{i is perhaps best known in Aspen for her sculpture ' `Interplay," at the east end of the Hyman Street Mall, created from the small wax model with which she won the mall sculpture contest only a year after taking up sculpture itself. Another sculpture and several col- lages are on permanent display at Aspen Valley Hospital. That is only the public fraction of what she has 1efr the town, and it is with a pang of recognition that a Ki Davis collage wffl suddenly leap out from a previously unseen wall - a gang, because the pleasure in the work is so mingled with the sense of someone extraordinary who slipped beyond us before she was fully revealed. It is chazacterisUc of her that when I unwrapped the collage I brought back from New York, neazly a year after her death, I found a gummed label on the inside of the cazdboazd backing on which she had, in fact, given the work a title. It is called "The Mysteries Remain." 122 Project: Applicant: Location: Zone District: Lot Size: ~ =y~. Lot Area: (foe the purposes of calculating Floor Area; Lot Area maybe reduced for areas within the high water mark, easements, and steep slopes- Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: ./~~/¢ Proposed.- ~I~! Number of residential units: Existing: / Proposed.- / Number of bedrooms: Existing:~Proposed: ,~ Proposed % of demolition (Historic properties only):~_ DIMENSIONS: Floor Area: Principal bldg. height: Access. bldg. height: On-Site pazking: Site coverage: % Open Space: Front Setback: Reaz Setback: Combined F/R: ~r ~ Side Setback: ~/~~ Side Setback: Combined Sides: Distance Between Buildings Existingv~ oK! ~ Allowable: 73~ Proposed.- l ~9/ Existing:~~~A1Towable:as,~N Froposed.•~~~ Existing:~_Allowable: M/A Proposed: N/A Existing:~_Required.~~_Proposed.~ 2 A/O C~N~ Existing: Nfi9 Required: N/A Proposed: " N~A Existing: A/TA Xequired.•~ProposecL ~(/~/A Existing: / ~ ,B "Required.- as •D N Proposed.- /g ~g /t!p L~/I~G£ Existing:Required: ~~ %O ~ Proposed.- ~ ~~ pj~/p G'ftl~A~floE Existing:~l/~Required: N//~ Proposed.- N~A I N ~ p ~ N o C~lJ9MGE Existing: ~p ^D Required: /D ' D Proposed.- ~p ^D /V Existing: 5 ! ~ Required: ~D ! 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V °z w U z x F O 4J a w a u1 U C 1L cf ; C Q. ~ai~tr ~ REVIEW BY THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC) OF THE PROPERTY LOCATED AT 1005 WATERS AVENUE LOTS A - C, BLOCK 41, CITY AND TOWNSITE OF ASPEN, COLORADO REGARDING NEGOTIATIONS FOR LANDMARK DESIGNATION PURSUANT TO ORDINANCE N0.48, SERIES OF 2007. PARCEL ID: 2737-182-82-001. The applicant, Nancy Bryant, 1005 Waters Avenue, represented by Gretchen Greenwood of Gretchen Greenwood & Associates, Inc., 520 Walnut Street, Aspen, CO 81611, and additional owners Chris Leverich and Andrew Dolan who have consented to the application, have requested and a ninety day review and negotiation of potential historic significance pursuant to Ordinance No. 48, Series of 2007 for the proposed alterations to the property located at 1005 Waters Avenue, Lots A - C, Block 41, City and Townsite of Aspen, Colorado; and The property located at 1005 Waters Avenue, Lots A - C, Block 41, City and Townsite of Aspen, Colorado, is included on Exhibit A to Ordinance No. 48, Series of 2007, as a potential historic resource; and Section 26.415.025 (e) of the Municipal Code states that "the Community Development Director shall confer with the Historic Preservation Commission, during a public meeting, regading the proposed building permit and the nature of the Potential Historic Resource. The property owner shall be provided notice of this meeting with the Historic Preservation Commission;" and The property owners were notified of the Historic Preservation Commission meeting via certified letter; and Sara Adams and Amy Guthrie, in their staff report dated September 10th, 2008, performed an analysis of the building and the impact of the proposed alterations to the potential historic significance of the building and found that the criteria for landmazk designation aze met; and At their regular meeting on September 10, 2008, the Historic Preservation Commission considered the application. A motion to recommend continuation of negotiations for landmark designation was made and seconded. Such motion failed by a vote of three to three (3 - 3.) No further action was taken. CONSEQUENTLY, The HPC makes no recommendation to City Council regarding negotiations to preserve the potential historic resource located at 1005 Waters Avenue, Lots A - C, Block 41, City and Townsite of Aspen, Colorado [signatures on following page] Page 1 of 2 ~E;/T.I~I t' G • ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 10, 2008 DRAFT Chairperson, Michael Hoffman called the meeting to order at 8:00 a.m. Commissioners in attendance: Ann Mullins, Jay Maytin, Brian McNellis, Sarah Broughton and Alison Agley. Nora Berko was excused. Staff present: Jim True, Special Counsel Amy Guthrie, Historic Preservation Officer Sara Adams, Historic Preservation Planner Kathy Strickland, Chief Deputy City Clerk 1005 Waters Avenue, Ordinance #48 negotiation Amy pointed out that this is the second review of this project under Ordinance #48 and a site visit occurred today. Everyone understands the process that the sites listed under ordinance #48 must go through a delay period before pursuing any kind of application that would potentially diminish the integrity of these resources that have been identified. That is the situation we are in right now. The property owners have proposed a remodel which staff believes would threaten the integrity of this potential historic resource. We have 90 days to be a negotiation process with the owners to determine if there is any other alternative that the City could offer. HPC need to let council know what they think the quality of the resource is. Staff has identified it has a potential resource. We do mention in the memo that our hope is to go to City Council Sept. 22"d. At the last meeting the board was not ready to make any kind of decision because we had not provided you with enough information about the history of the building and its integrity. We have provided you with that information in your packets. This property is in the group of modem chalet and it has features that are significant to the chalet style primarily the low long roof line. This style became integrated with some of the architectural trends that where happening on modern structures where glazing was much more dominant on the facades and the original gingerbread details where removed and details are much cleaner. Other structures are pictured in the memo and this pattern was very common in Aspen in the 50's and 60's. In terms of the architectural style that is how we address this building. There is nothing in the building department file for this site except an electric permit pulled in the 90's. Information from the Assessor's office is in the packet and we where able to locate the original architect Ellen Harland. Part of the difficult dealing with post war resources is the varieties and issues like who is the 1 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 10, 2008 DRAFT architect become more significant and the records are simply not in place. Even with Fritz Benedict we have not been able to get a handle on his full body of work. We where already aware of Ellen Harland who practiced architecture in Aspen. Ellen was contact and told the story of her arrival in Aspen. She was able to attend MIT as an architecture student in the mid 1950's probably in the extreme minority of women. She and Ellie Brickam where the only women architects for some period. She came to Denver for a change of scenery and to Aspen on the weekends and was aware of Fritz Benedict. Fritz interviewed her and hired her and offered to help move her to Aspen. She and Robin Molney where Fritz's draftsman. She worked for him for 20 years and she described a number of buildings that she was involved with; the 1960 public library on Main Street which is Design Workshop now. She produced a lot of the detailing on buildings that we have given recognition too. Ellen said this building we are reviewing was her personal residence and it was built between 1958 and 1960, the portion that is in the center of the lot and to the back of the existing house. That is supported by some of the records in the assessor's office. In 1964 she designed and built the portion that is right on Waters Avenue. I believe some time after that she sold the residence to the Davis family, Ki and John Davis. Ki Davis was a noted poet and artist and she did the sculpture on the Hyman mall. The Writers foundation has an award named in her honor. It was not the Davis family's original residence. There have been some modifications made to the house over time. On the front portion the building has been extended with an additional enclosed space and there are a number of small bump outs here and there. Gretchen Greenwood mentioned that the original portion of the house has been filled in under an eave line so there are definitely some alternations. How substantial those are is what HPC needs to determine and recommend to council. We did not fill out an integrity assessment form as mentioned in the staff memo. The modern chalet style was really not something that we discussed in 2002 when we wrote the historic context papers and the integrity assessment forms that we have in place now. It is really something that has developed more as several years have progressed and we have done more intensive surveying and have worked more on ordinance 30 and 48 so we don't have a scoring form and we didn't think it was important to suddenly create one now. We'll just rely on the records we have on the history of the building and determine if you still think it has architectural integrity. In the memo we tried to detail some of the currently existing benefits that would be available to the property for instance the expansion that would meet HPC criteria could be exempted 2 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 10, 2008 DRAFT from impact fees. There could be variances granted as needed. The building already has some encroachments into setbacks which is problematic in terms of expanding. We mention that the property size only allows for a single family house and there is possibly a duplex on the site and that is not allowed and there is no evidence that is a legal use but landmarks are allowed to have a duplex and that might be some incentive to work with if a duplex is something they want to have. There is also the floor area bonus and TDR's. Council might come up with other incentives because they have flexibility with ordinance #48. We are hoping some kind of recommendation can be made to Council. We do think this is a good example of modem chalet and the connection to Ellen Harland is important and with even more research we can document other structures of hers in town. We do know that there are some on Waters Ave. Gretchen Greenwood represented the owners Nancy Bryant and Chris Leverich. This is a new process for HPC and the applicants. It is difficult to understand or create a presentation with not knowing what the city or HPC is trying to do here. The house has been added onto a number of times and has been pushed out through the years from 1960 through 1974. In most cases with HPC that would effect its landmark status. Another thing about this property is that it is no secret that the owners are adamant about not being on an historic resource list both for reasons of not going through the process. Perhaps we can have some discussion as to what this negotiation is about. What are you offering the owners. You have to understand that most people look at their properties in terms of their best and fullest use. This property has about seven foot plate heights and it rises to about ten to eleven feet and it pretty much sits on the entire property casqued, so it has issues with current designs rules, standards and regulations but it also really in its present form takes up the entire property. In terms of review it would be difficult to create anything but what currently exists. It is not charming on the inside and has no energy. It is a split level and has been added onto in an unprofessional way regardless of what this architect did. She created a 900 square foot house and it has doubled in size and has five different levels in it. It is not worthy of something in terms of preservation. I have known the owners for 30 years and we pretty much want to keep the same form because the house would probably be torn down so we just went up on Waters Ave., the newest addition on the front part and went straight up. -The addition that is being proposed we are going in front of Planning and Zoning only for design rules and regulations is because it has non orthogonal type of 3 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 10, 2008 DRAFT windows on it and the new addition doesn't face perpendicular to the street. These are all solvable problems. We are not expanding the non-conforming of the addition and we are staying within our setbacks. The design regulations are really designed for Victorian west end type house and not created for buildings like this. In my opinion this building is not an expandable building and it would be a difficult process and it would reduce the value of the property considerably. They are not developers. We should have a discuss what you offer people who really have a building that can't be added onto. You can't do anything with this building. Michael asked the owners if they had any interest in the potential benefits listed in the memo. Chris Leverich said he did not recognize them as benefits and may HPC can explain why they are benefits. Amy said HPC role is to recommend to council what they thing the value of the preservation of the building is. HPC is not the board that will be getting into a dialogue about incentives that are existing or new incentives that council could come up with that are relevant. The intention in creating this negotiation period was to allow time for everyone to stop and talk about the value to the community as a whole and how can we come to a solution that works for everyone. Ultimately their permits will be issued assuming they comply with zoning and other regulations. This is a delay period but they ultimately can do the project that they want to do. We are just trying to have a chance to talk before something is lost. HPC is to make a recommendation to council. Jay asked if council could designate this property. Amy explained that designation can't occur without the owners consent. Ann said what we would be doing is recommending or not recommending that council try to negotiate the property. Amy said no matter what we still need to go to council and they can decide what to do. Amy addressed the benefits; anyone that adds bedrooms they are assessed a fee that is used to offset impacts in the community and in this case park. The fee that would be waived would be $14,781 for three 4 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 10, 2008 DRAFT bedrooms if the applicant worked with HPC and come up with a design that conformed to the guidelines. Variances are available. Gretchen said the house sits on the site and has a site reduction in FAR because of slope analysis. That would be at the southeast part of the property. There isn't really a lot of room to move around on this property because it is so large. I only say that from an architect's standpoint. Ton the older building the windows, floor etc. have been changed. It is a difficult structure to say this is a great pristine building. You can't add onto it and that is my professional opinion. Nancy and Chris aren't developers and are trying to keep the building in the family. Going through the HPC process is almost impossible. Amy went through the rest of the incentives. Part of the negotiation is too possibly find someway to add on that did less damage to the building. Gretchen pointed out about the site and when you have a site that has certain slopes to you certain FAR is taken away from you. Council could give it back to you and you could sell it as TDR's because it can't be carried on the site. Gretchen pointed out that we aren't proposing to go to the total FAR with the slope reduction at this point. Amy pointed out as an historic landmark you have the ability to not just give up and sacrifice that square footage but you might be able to sell it and get cash for it. There is also a 500 square foot bonus for landmarks. The most obvious is the legalization of the duplex if in fact that is a zoning violation on the property. Chris Leverich said he finds it ironic because his property has been picked because there are other house on the street and one of them in particular would love to be designated, Georgeann Waggaman's. We both have lived here for a long time and it was 20 years before I was able to buy a house when we bought this house. I like my house and I would like to do what I can do to make my house comfortable for my wife and myself. It was built cheap when it was built. I talked to Ellen Harland and she said she built the original house for $10,600. and then she added on and had her husband do the work. Ellen also said Fritz would roll over in his grave if he thought this 5 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 10.2008 DRAFT was something that was judged as an architectural monument because it has been added onto. Georgeann's house is the same thing. Nancy Bryant said we barely have three bedrooms, two of the bedrooms are called the cell. We have twelve of us in the family and it is a hardship for us when everyone comes. Our grandchildren are here to stay and they aren't going away. It is not a duplex. We have one little kitchen upstairs. Jay clarified that the new process allows for different incentives. Jay asked the applicants to look at the property in a different light knowing that some of the rules might be able to be broken if we recommend this property to be preserved. Gretchen said it is much more complicated than that. Frankly it is a financial burden. Going through an HPC process as we know is very difficult and lengthy and extremely expensive. If this property was a small chalet and you could isolate it that would different. This particular property doesn't follow the standards that HPC has come up with. The burden of this particular property, on this particular building and in this location within walking distance to the gondola could never be realized. HPC and City Council have to come to terms with certain properties where it is a real takings of the value of the property. That has to be discussed and brought up. This building may stay forever like this. We are doing an interim solution where they want a bedroom away from their grandkids. Chairperson, Michael Hoffinan asked for public comments. Jack Wilkie said he was here at the last meeting and his main issue was that the chair asked staff for an integrity assessment for modern chalets as it might apply to their unit. I have a modern chalet and I wanted to know what the integrity assessment is for modern chalets. Amy said we created the integrity scoring in 2002 when we re-wrote the whole preservation program. Jack said Michael asked for a modern chalet assessment and that is why I am annoyed because I have one and there are only six or eight of us. They are all different except mine which is a look-a-like to the neighbors. If you look 6 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 10, 2008 DRAFT at them all there is no common thread that runs through them. That is the fiustration. I am looking for information and I don't get it. Alison said she believe staff is waiting until the task force is finished. Amy said in the memo we did provide information in the memo trying to create that thread of showing other examples of buildings and what we think the influences are. We have not written a context paper in the depth that the other three styles have and we have not done an integrity assessment form because in 2002 we where not discussing this style and we didn't think it was appropriate to suddenly write one up now with no other involvement from any other parties. It is something that will come out of the task force. Gretchen said she has been watching the task force on TV and there will be buildings that are worthy of designation and there will be buildings that you will be having problems with and unfortunately this property is on. This is a financial situation with the value of this large property right near the gondola. It has no parking and an inadequate garage. It doesn't serve Aspen needs. I appreciate HPC and I have seen it come a long way. I see these buildings difficult to preserve. Michael said at our last meeting Ann said criteria should be predictable, understandable and defensible. Michael said how can we recommend to council when we don't have criteria. We probably have enough if we strongly feel this should be designated. Amy pointed out that we do have criteria in place, association with people, trends, and historical events. What you maybe feel you are lacking are the tool to judge how well the standards are met. Ann asked if this goes to council and we recommend negotiation to come up with a design that we felt was more sympathetic to the building what kind of process are we talking about. Amy said with ordinance #48 it opens up a lot of flexibility and possibly council might want to create a quickly simpler process for the design. ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 10, 2008 DRAFT Jay pointed out that the architect is significant and previous owners Ki and John Davis. The house has its history of strong blood lines. That warrants that there might be a great opportunity for the applicant and the City to come to an agreement to designate the structure. Alison said the house is not a good example of a chalet. It has the low slung roof and lacks balconies. I am not sure I would be proud to have this house on our historic list. The applicants need to understand all the incentives. Brian said he agrees with Alison. The most significant thing is its orientation. It is lacking some defining characteristics that we wanted preserved. The house doesn't quite measure up. We need to back up ordinance #48 and it needs to be a good example and this house is not. Sarah said she understands staff's concerns. This property is not a good example of modern chalet and she would not recommend land marking it to city council. Ann said this is a great example of a transition from chalet to a modern style. There are not many of these houses left in town. I feel it ought to be recommended to city council. In twenty years these properties might be like the Victorians. .Michael said he feels this property is defensible. MOTION: Ann made the motion to recommend to City Council to continue negotiations for the preservation of this property; second by Jay. Roll call vote: Alison, no; Brian, no; Jay, yes; Ann, yes; Sarah, no; Michael, yes. Vote 3-3. Michael pointed out that there is not a majority of members that endorses this. 204 N. Monarch -Final MOTION: Sarah moved to continue 204 N Monarch until Oct. 8`"; second by Alison. All in favor, motion carried. ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 10, 2008 DRAFT Meeting adjourned at 9:00 p.m. Kathleen J. Strickland, Chief Deputy Clerk ORDINANCE N0.48 (Series ot2007) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING CHAPTER 26.415 OF THE ASPEN MUNICIPAL CODE, DEVELOPMENT INVOLVING THE ASPEN INVENTORY OF HISTORIC LANDMARK SPfES AND STRUCTURES OR DEVELOPMENT IN AN "H," HISTORIC OVERLAY DISTRICT. WHEREAS, in light of the on-going demolition of buildings, structures or objects that may have historical significance for the City of Aspen, the City Council adopted an Emergency Ordinance, Ordinance No. 30, Series of 2007, on July 10, 2007. The Ordinance amended Title 26 of the Aspen Municipal Code, specifically Chapter 26.415 Development Involving the Aspen Inventory of Historic Landmazk Sites and Structures or Development in an "H" Historic Overlay District and established a new process for the identification and protection of potential historic resources. The Ordinance was adopted to address the negative impacts that the loss of landmazk eligible buildings would have on the health, peace, safety, and general well-being of the residents and visitors of Aspen, and the diminishment of Aspen's unique architectural chazacter, livability and attractiveness as a destination; and WHEREAS, City Council subsequently directed the Community Development De- partment toprepare further amendments to the historic preservation ordinance, including limit- ing the protection of potential historic resources to a list of properties which aze at least 30 years old and which, in staff's opinion aze associated with azchitectural styles and historical trends which represent Aspen's first one hundred years of history, most particularly Aspen's development since World War II. Said list is attached to this Ordinance as "Exhibit A;" and WHEREAS, the Community Development Director recommends approval of the pro- posed additions and amendments to Section 26.415 of the Municipal Code, as described herein; and, WHEREAS, the Planning and Zoning Commission held a public hearing to consider the proposed amendments to the above noted Chapter and Section on October 2, 2007, took and considered public testimony and the recommendation ofthe Community Development Di- rectorand recommended, by a 3-1 vote, City Council adopt proposed amendments to the land use code by amending the text of the above noted Chapters and Sections of the Land Use Code; and, WHEREAS, the geographical azea of the City of Aspen east of Castle Creek and south of the Roaring Fork River substantially defines the perceived character of Aspen's built environment and the buildings in this azea are visibly accessible and can be appreciated by the general public; and, WHEREAS, multi-family buildings aze typically owned by multiple parties and are subject to heightened development exactions upon demolition and are, therefore, less likely than other types of buildings to be demolished in the near future; and, Ordinance N48, Series 2007 Page 1 WHEREAS, the City Council finds that this Ordinance fiuthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CTl'Y COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1: Pursuant to Section 26.310 of the Municipal Code, the City Council hereby de- letes inits entirety Section 26.415.035, Designation of Historic Properties. (Note to codifier -this Section has been amended and recodified as Section 26.415.025.) Section 2: Pursuant to Section 26.310 of the Municipal Code, the City Council hereby amends Chapter 26.415 by adding Section 26.415.025, Identification of Potential Historic Resources, which section describes the process and criteria for the Identification of Potential Historic Resources to read as follows: 26.415.025 Potential Historic Resources A. Purpose. The purpose of this Section and identifying a List of Potential Historic Re- sources (alternatively, the "List") is to prevent the loss ofbuildings, sites, structures or objects, or collections ofbuildings, sites, structures or objects that may have historical, architectural, azchaeological, engineering and cultural importance, and to limit the detrimental effect of de- velopment or demolition of these potential resources on the character of the town during the time period that the City is undertaking revisions to the Historic Preservation Program. Pre- serving and protecting historic resources promotes the public welfaze by making Aspen a more attractive and desirable place in which to live, work, or visit. B. List of Potential Historic Resources. There is hereby identified a List of Potential His- toric Resources. The properties identified in Exhibit A of Ordinance No. 48, Series of 2007, shall constitute this List. The List shall be maintained and made available to the general pub- lic by the Community Development Department. C. Amendments to the List of Potential Historic Resources. No properties shall be added to the List of Potential Historic Resources by the City of Aspen for the effective period of Or- dinance No. 48, Series of 2007, while the City is undertaking an evaluation of the historic preservation program and a Citizen Task Force charged with making recommendations is in operation. Properties may be removed from the List pursuant to Section 26.415.025.E. If the primazy structure(s) on any property identified on the List ofPotential Historic Resources have been destroyed by an act of God or are otherwise declared unsafe and ordered demolished by the Chief Building Official, the property shall be removed from the List. D. Applicability and Exemptions. For those properties identified on the List of Potential Historic Resources no alterations shall be undertaken by the property owner and no building permits or land use applications for alterations, demolition or other similar development activ- itythat substantially alters the Potential Historic Resource may be accepted by the Community Development Department except as permitted pursuant to the provisions of Section 26.415.025.E. Ordinance #48, Series 2007 Page 2 Exempt from this restriction shall be alterations, land use applications, and building permits limited to interior remodeling, paint color selection, exterior repainting or replastering similar to the existing finish or routine maintenance such as caulking, replacement of fasteners, or re- pair ofwindow glazing. The Community Development Director may exempt other such exte- rioralterations which aze determined by the Community Development Director to be mini- mal lyintrusive or reversilileworkthat does not diminish the historic character of the property. Alterations, land use applications, and building permit applications which exclusively impact the interior of a building shall be exempt from this Section. An owner may volunteer to have any proposed work be reviewed by the Historic Preservation Commission pwsuant to the procedures and limitations of Chapter 26.415 of the Municipal Code, and if the work is found by HPC to be in conformance with the "City of Aspen Historic Preservation Guidelines," an application for building permit shall be issued. Work undertaken in conformance with the International Building Code provisions for emergency repairs, assum- ingthat the repair matches the surrounding exterior materials and chazacter to the extent prac- ticable, shall be exempt from this Section. E. Ninety-Day Negotiation Period. For those properties identified on the List of Potential Historic Resowces, building permits and land use applications for alterations, demolition, re- development, orother similar development activity that substantially alters the Potential His- toric Resowce shall be accepted by the Community Development Department. Only complete Land Use applications, as determined by the Community Development Director, shall be ac- cepted. A letter from the property owner indicating an understanding of this ninety-day nego- tiationperiod shall accompany the building permit or land use application. Upon acceptance, the building permit or land use application may be reviewed, but shall not be issued, fora pe- riod ofninety days to allow for a period of negotiation regazding the preservation of the Re- sowce. This period may be extended an additional thirty (30) days upon a resolution adopted by a majority of the Council. Within the ninety-day negotiation period, the following shall occw: 1. The Community Development Director shall offer to meet with the property owner to discuss the City's Historic Preservation Program and development and other benefits that the property may be eligible to receive upon designation as a Historic Landmark. 2. The Community Development Director shall confer with the Historic Preservation Commission, during a public meeting, regazding the proposed building petrnit and the natwe of the Potential Historic Resowce. The property owner shall be provided no- tice of this meeting with the Historic Preservation Commission. 3. The Community Development Director shall confer with the City Council regarding the proposed building permit, the natwe of the Potential Historic Resource, and the staff and Historic Preservation Commission's assessment of the Resowce and the ef- fects ofthebuilding permit upon the Resource. The property owner shall be provided notice of this meeting with the City Council. Ordinance It48, Series 2007 Page 3 4. The Ciry Council may negotiate directly with the property owner or may choose to di- rectthe Community Development Director, or other City staff as necessary, to negoti- atewith the property owner to reach a mutually acceptable agreement for the preserva- tion ofthe Resource. The City Council may choose to provide this direction in Execu- tive Session, pursuant to State Statute. As part of the mutually acceptable agreement, the City Council shall require that the property be designated as a Historic Landmark, pursuant to the standazds and limitations of Section 26.415.030, Designation of His- toric Properties. As part of the mutually acceptable agreement, the City Council may choose to require the affected building permit or land use application be withdrawn by the property owner. 5. If, upon the passage of 90 days or any extension thereof, the City and the property owner have failed to reach a mutually acceptable agreement, affected building permits shall be reviewed and shall be issued upon compliance with all applicable building codes. Affected land use applications shall be reviewed and shall be issued a Devel- opment Order upon compliance with all applicable provisions of the City of Aspen Land Use Code. The City Council, at its sole discretion, may choose to terminate ne- gotiations at any time and allow the permit or land use application to be reviewed. Nothing herein shall prevent the City from reviewing building permits or land use applications during the ninety-day period. If, in the opinion of the Community Development Director after completion of a building per- mitissued pursuant to this Section, the Potential Historic Resource has been demolished or so altered as to render the property no longer a Potential Historic Resource, the Community De- velopment Director shall remove the property from the List of Potential Historic Resources. F. Procedure to Confirm a Property is not included on the List of Potential Historic Resources. To request confirmation that a property is not included on the List of Potential Historic Resources, a property owner may submit a request to the Community Development Department. The request shall include the name and address of the property owner and any authorized agent acting on behalf of the owner. The confirmation letter shall be in a record- able format and indicate whether the subject property is on the List of Potential Historic Re- sources, shall include a current copy of the List of Potential Historic Resources, and shall con- firm that the property is exempt from the procedures and limitations of this Chapter for the effective period of Ordinance No. 48, Series of 2007, while the City is undertaking an evalua- tion ofthe historic preservation program and a Citizen Task Force chazged with making rec- ommendations is in operation. For structures between thirty (30) and forty (40) old, the con- firmation letter shall also exempt the property from the procedures and limitations of this Chapter for a period of one (1) year after the date of amendments to Chapter 26.415 adopted in response to the Citizen Task Force recommendations. The confirmation letter shall not create or constitute a vested right. Confirmation requests may be assessed an administrative review fee. An owner of the subject property aggrieved by the Community Development Director's determination may appeal the decision to the City Council pursuant to Chapter 26.316, Ap- peals. Ordinance #48, Series 2007 Page 4 G. Voluntary Designation. The City Council, the Historic Preservation Commission and the Community Development Director may not initiate an application for designation unless the property owner consents to designation for the effective period of Ordinance 48, Series of 2007. An owner of a property identified on the List of Potential Historic Resources who consents to Historic Designation may request the Community Development Director ini- tiate anapplication for designation pursuant to Section 26.415.030, Designation of Historic Properties. An owner of the subject property who consents to designation may concurrently submit any proposed redevelopment plans to be reviewed according to Chapter 26.415. H. Penalties. Any owner who takes action to alter or demolish a property identified on the List of Potential Historic Resources, including purposeful removal, change or damage to any exterior materials, features, portions of a building, or structural members of a building shall be subject to the penalties established in Section 26.415.140, Penalties. The Community Development Department must demonstrate to City Council, using date stamped photographs, that the exterior of the building has been altered afrer the adoption date of this ordinance in order to apply penalties. In addition, properties on the List of Potential Historic Resources aze required to receive rea- sonable caze,maintenance and upkeep as described in Section 26.415.100, Demolition byNe- glect. Repairs or minimally intrusive work permitted under Section 26.415.025.D or completed ac- cording to aDevelopment Order or Building Permit issued by the Community Development Department, as may be required, shall not be subject to penalties. Section 3. Notice to Property Owners. All owners of properties identified on the List of Potentially Historic Resources, as provided in Exhibit A to this Ordinance, shall be mailed a copy of this Ordinance by registered mail, within 10 days of the final City Council approval of this Ordinance. Property owners may submit to the Community Development Department alternate or additional addresses for this information to be mailed. (As opposed to or in addition to the address on file with the Pitkin County Assessor's Office.) SeMion 4. EffeM on Ezisting Ordinance No. 30 Determinations. This Ordinance shall not affect any Determination of No Historic Significance approved by the Community Development Director pursuant to Ordinance No. 30, Series of 2007. These determinations issued pursuant to Ordinance No. 30 shall continue to be valid for afive-yeaz period from their issuance date. Section 5. Policy Task Force. A Historic Preservation Policy Task Force shall be established in order to provide guidance on additional changes to the City of Aspen Historic Preservation Program. Membership of the Task Force shall be by appointment by City Council Duties of the Task Force shall be determined by City Council, but shall include a review of the following as a minimum: Ordinance it48, Series 2007 Page 5 • The criteria upon which designation applications are judged, including whether additional or different criteria should apply when the property owner objects to the designation and for 20"' century properties. • Changes to the Integrity Scoring System used to evaluate properties, including to the process by which the Scoring System is adopted. • Existing and additional benefits fot owners of historic properties. • Strategic policy level review of the historic preservation program objectives and benefits and congruence with community goals as outlined in the Aspen Area Community Plan. The City shall not proceed with property designations without owner consent until the Policy Task Force has made their recommendations and the City Council has considered proposed code changes. Section 6. Availability of Documeuts. The Community Development Department shall make available to the public all documents related to the List of Potential Historic Resources, criteria upon which properties shall be evaluated, research papers, scoring sheets, development and other benefits, and copies of this ordinance and shall diligently pursue timely inclusion of this information on the City of Aspen website. Section 7. Eftect on Existing Applications. This Ordinance shall not affect any active Land Use Application, existing Development Order, or Building Permit, as such terms are used in the Land Use Code, submitted and detemuned complete prior to the effective date of this ordinance. Pre-Application Conferences, Pre-Application Conference Summary reports, or formal or informal discussions with Community Development staff or review Boards shall not wnstitute a complete application or any other official status. Applications submitted after the effective date of this ordinance shall comply with the terms of this ordinance and of the Land Use Code, as amended. Section 8. Severability. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 9. Existing Litigation. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 10. Notice A public hearing on the ordinance was held on November 12, 2007, continued to November 26, 2007, and continued to December 10, 2007, in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. Ordiaaace #48, Series 2007 Page 6 INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 22"" day of October, 2007. ~, ' ~/C~~ ~ /2-i/ -G' Michael C. Ireland, Ma or ATTEST: (J~~ Kathryn Kqy i, City Clerk FINALLY, adopted, passed and approved this t~fifiay of ILL, , 2007. ~r // chae C. Ireland, Mayor ATTEST: ~/ '"~ Kathryn Ko ,City Clerk APPROVED ASS T-O-F-ORM-: Jim True, Special Cow ~uusel Ordinance #48, Series 2007 Page 7 EXHIBIT A ORDINANCE #48, SERIES OF 2007 114 E. Bleeker St: Parcel Id: 273512437010; 273512437009. Legal Description: BLOCK 65, 114 EAST BLEEKER CONDOMINIUMS. 118 E. Bleeker St: Pazcel Id: 273512437012; 273 5124370 1 1. Legal Description: BLOCK 65, HOGUET CONDOMINIUMS. 408 E. Cooper Ave: Aspen Sports Pazcel Id:2737-182-16-009, Legal Description:BLQCK 89, LOT PART OF L&M. Cooper Avenue, Hyman Avenue and Mill Street Pedestrian Malls 333 E. Durant Ave., Mountain Chalet: Pazcel Id: 273718245002, Legal Description: BLOCK 84, MOUNTAIN CHALET PUD SUBDIVISION. 100 E. Francis St., Given Institute: Pazcel Id: 273512419851, Legal Description: BLOCK 63, LOT A -LOT F, DESCRIPTION: A PARCEL OF LAND BEING ALL OF BLK 63 PART OF FRANCIS ST PART OF CENTER ST 8c PART OF THE NW4 OF THE S W4 OF SEC 7-10-84 & PART OF THE NE4 OF THE SE4 OF SEC 12-10-85 SAID PARCELS DESC AS BGNNG AT A PT OF THE N LINE OF FRANCIS ST & 24.00 FT ELY OF THE W LINE OF CENTER ST TH N 14 DEG 50'49" E 121.59 FT TH N 33 DEG 03' 19"E 42.21 FT TH N 7 DEG 19'05"E 112.35 FT TH S 70 DEG 18' 15"E 286.57 FT TH S 6 DEG 18'51 "W 103.11 FT TH 18 DEG 12'00"W 108.73 FT TH 9 DEG 25'21 "E 52.10 FT TH S 23 DEG 21'00"E 83.49 FT TO THE STHLY LINE OF FRANCIS ST EXTENDED ELY TH N 75 DEG 09' 11 "W 288.99 FT TO THE N W COR OF BLK 64 TH N 31 DEG 00'50"W 107.29 FT TO THE POB. 210 W. Francis Ave: Pazcel Id: 273512417005, Legal Description: BLOCK 48, LOT P & Q. 621 W. Francis St: Pazcel Id: 2735142426011; 2 7 3 5 1 424260 1 2, Legal Description: BLOCK 22, REEDS HOUSE CONDOMINIUM. 624 W. Francis St: Pazcel Id: 273512409012, Legal Description: BLOCK 21, STARRI CONDOMINIUMS, UNIT B. 626 W. Francis St: Pazcel Id: 273512409011, Legal Description: BLOCK 21, STARRI CONDOMINIUMS, UNIT A. 215 N. Garmisch St., Yellow Brick: Pazcel Id: 273512436850, Legal Description: BLOCK57, LOT A -LOT S, PLUS VACATED ALLEY. Ordinance #48, Series 2007 Page 8 233 Gilbert St., Skier Chalet Lodge: Parcel Id: 273513119002, Legal Description: BLOCK 9, LOTS 5 - LOT 10 AND LOTS 4 & 11 LESS THEW 22' EAMES ADDITION SUBDIVISION. 700 W. Gillespie St., Aspen Center for Physics: Parcel Id: 273512129803, Legal Descrip- tion: LOT 3, ASPEN MEADOWS SUBDIVISION. 110 E. Hallam St., Red Brick: Parcel Id: 273707313801, Legal Description: BLOCK 71, LOTS K,L,M & FRACTIONAL LOTS A, B, & C, BLOCK 64, LOTS A-I & LOTS K-S AND A STRIP OF LAND. 327 W. Hallam St: Parcel Id: 273512434001, Legal Description: BLOCK 43, LOTS A - C. 928 W. Hallam St: Parcel Id: 273512300015, Legal Description: BLOCK 4, LOTS PART K, L & M SECT,TWN,RNG:12-10-85, TRACT OF LAND IN SW4 (ALSO SOMETIMES KNOWN AS LOT 9) SEC 12-10-85 DESC BY M/B BK 385 PG 357 & TRACT FORMERLY KNOWN AS PARCEL C OF HERNDON SUB FIRST AMENDMENT. 122 W. Hopkins Ave: Parcel Id: 273512455004, Legal Description: BLOCK 59, LOTS M & N. 129 E. Hopkins Ave: Pazcel Id: 273512458004, Legal Description: BLOCK 68, LOTS G - I. 211 W. Hopkins Ave: Parcel Id: 273512463003, Legal Description: BLOCK 53, LOTS F & G. 100 E. Hyman Ave., Chalet Lisl: Parcel Id: 273 5 1 2458005, Legal Description: BLOCK 68, LOTS K - M, 322 W. Hyman Ave: Pazcel Id: 273512464005, Legal Description: BLOCK 46, LOTS N & 0. 334 W. Hyman Ave., St. Moritz: Pazcel Id: 273512464004, Legal Description: ST MORITZ LODGE MINOR PUD SUBDIVISION. 606 E. Hyman Ave: Parcel Id: 273718212003, Legal Description: BLOCK 99, LOT K & L. 610 E. Hyman Ave: Pazcel Id: 273718212004, Legal Description: BLOCK 99, LOT M. 630 E. Hyman Ave., Patio Building: Pazcel Id: 273718212007, Legal Description: BLOCK 99, LOTS R & S. 720 E. Hyman Ave., Aspen Athletic Club: Parcel Id: 2737 1 82 1 1 008 THROUGH 273718211019; 273718211021 THROUGH 273718211031, Legal Description: BLOCK 104, ALL UNITS, ASPEN ATHLETIC CLUB CONDOMINIUMS. 301 Lake Ave., Pazcel Id: 273512416003, Legal Description: HALLAM ADDITION SUBDIVISION BLOCK 40, EAST 1/2 OF LOT 5 -LOT 7. Ordinance q48, Series 2007 Page 9 120 E. Main St., Design Workshop: Pazcel Id: 273512438002, Legal Description: ELY 20 FT OF LOT M, ALL OF LOTS N & O BLOCK 66 & SLY ] 0 FT OF VACATED ALLEY ADJACENT ALSO LOT 2 OF US WEST SUBDIVISION. 200 W. Main St., Tyrolean Lodge: Pazcel Id: 273512440010, Legal Description: BLOCK 51, LOTS R & S. 220 E. Main St., Cortina Lodge: Parcel Id: 273707320707, Legal Description: BLOCK 73, LOTS P&Q. 420 E. Main St: Parcel Id: 273707322801; 273707322014; 273707322015, Legal Description: BLOCK 86, ALL UNITS, GALENA PLAZA CONDOMINIUMS. 435 East Main St., Gas Stationflocal's corner: Parcel Id: 273707330005, Legal Description: BLOCK 87, LOTS E - I. 630 W. Main St., Mountain Rescue: Pazcel Id: 273512444805, Legal Description: BLOCK 24, LOT M. 730 W. Main St., Hickory House: Pazcel Id: 273512445004, Legal Description: BLOCK 18, LOTS M - P. 745 Meadows Rd: Pazcel Id: 273512201003, Legal Description: BLOCK 1, LOT 3, SNOBBLE SUBDIVISION. 765 Meadows Rd: Parcel Id: 273512201002, Legal Description: LOT 2, SNOBBLE SUBDIVISION. 119 S. Mill St., Wells Fargo Bank: Parcel Id: 273707329009, Legal Description: BLOCK 80, LOTS P - S. 307 S. Mill St., D-19 Restaurant: Parcel Id: 273718217004, Legal Description: ASPEN COMMERCIAL CONDOMINIUM, UNIT:B. 536 W. North St., Christ Episcopal Church: Parcel Id: 273 5121 1 1 808, Legal Description: BLOCK 99, LOTS 11 - 15 HALLAM ADDITION. 411 Pearl Ct: Pazcel Id: 273 5 121 1 0002, Legal Description: BLOCK 101, LOTS 7 & 8 & A STRIP OF LAND SITUATED IN BLK 101 HALLAMS ADDITION BEING ONE HALF OF THE ALLEY WIDTH ADJ TO THE SLY BORDER OF LOT 7 & 8 HALLAM ADDITION. 434 Pearl Ct: Pazcel Id: 273512109002, Legal Description: BLOCK 100, SOUTH 1/2 OF LOT 2 AND LOT 3, HALLAM ADDITION. 850 Roaring Fork Rd: Pazcel Id: 273512126001, Legal Description: LOT 1, MERRIAM SUBDIVISION. Ordinance ii48, Series 2007 Page 10 500 West Smuggler St: Pazcel Id: 273512404006, Legal Description: LOTS Q, R &S, BLOCK 26. 949 W. Smuggler Ave: Parcel Id: 273512212001, Legal Description: BLOCK 3, LOT A - I. 300 S. Spring St., Hannah Dustin: Parcel Id: 273718227800; 273718227101, Legal Descrip- tion: BLOCK 105, LOTS A - D, ALL UNITS, HANNAH DUSTIN CONDOMINNMS. 219 S. Third St: Parcel Id: 273 5 1 2465005, Legal Description: BLOCK 39, LOTS O - S. 407 N. Third St: Pazcel Id: 273512413006, Legal Description: BLOCK 34, LOTS P - S. 615 N. Third St: Parcel Id: 273 5 12 1 1 0001, Legal Description: BLOCK 101, LOTS 9 & 10. 1000 N. Third St., Aspeo lostitute (area of Trustee Townhomes, Health Club, Doerr Ho- sier, Restaurant, Sculpture and Gardens: Pazcel Id: 273512129008, Legal Description: ASPEN MEADOWS, LOT IA. 1000 N. Third St., Aspen Institute (area of seminar buildings); Parcel Id: 273512129809, Legal Description: ASPEN MEADOWS, LOT 1 B. 1280 Ute Ave., Benedict Building: Parcel Id: 273718156001 tluu-003; 273718156005 thru- 020; 273718156023 thru -034; 273718156036; 273718156129; 273718156131; 273718156804; 273718156821; 273718156822; 273718156835, Legal Description: ALL UNITS, POWDERHOUSE CONDOMINIUMS. 1005 Waters Ave: Pazcel Id: 273718282001, Legal Description: BLOCK 41, LOTS A-C, EAST ASPEN ADDITION. 1102 Waters Ave: Parcel Id: 273718266001, Legal Description: LOT 14, CALDERWOOD SUBDNISION. Ordinance #48, Series 2007 Page 11