Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
agenda.council.regular.20090608
CITY COUNCIL AGENDA June 8, 2009 5:00 P.M. Call to Order 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) Councilmembers' and Mayor's Comments b) Agenda Deletions and Additions c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters may be adopted together by a single motion) a) Minutes — May 27, 2009 b) Resolution #32, 2009 — 745/765 Meadows Road Demolition Permit VII. Public Hearings a) Ordinance #13, 2009 — 219 S. Third Ordinance #48 Negotiation b) Ordinance #16, 2009 — 210 W. Francis Ordinance #48 Negotiation Continue to 6/22 Vill. Swearing In Mayor and Council IX. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) X. Special Orders of the Day a) Council members' and Mayor's Comments XI. Consent Calendar (These matters may be adopted together by a single motion) a) Resolution #33, 2009 — Contract Waste Removal/Recycling Services b) Resolution #34, 2009 — Gymnastics Service Agreement c) Resolution #35, 2009 — Contract Childcare Play Improvements Project XII. Public Hearings a) Resolution #36, 2009 - Dimensional Variance 1495 Homestake Drive b) Resolution #37 (A)(B) 2009 - Extension of Vested Rights — 300 S. Spring XIII. Adjournment Next Regular Meeting June 22, 2008 COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. VI b MEMORANDUM TO: Mayor Ireland and City Council I''M THRU: Chris Bendon, Community Development Director CAM JJ��YY FROM: Amy Guthrie, Historic Preservation Officer RE: 745 and 765 Meadows Road, Ordinance #48, Series of 2007 Negotiation DATE: June 8, 2009 SUMMARY: In July 2007, Aspen City Council adopted an emergency ordinance, Ordinance #30, Series of 2007. The ordinance prohibited any exterior alterations, land use applications, or building permits affecting all non-landmarked 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 list 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. Ordinance #48 creates a formal list of potential historic resources in Aspen that may have historical, architectural, archaeological, 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 Historic Preservation Task Force. 745 and 765 Meadows Road is identified on the List of Potential Historic Resources as part of Ordinance #48. Owners of a property listed on Ordinance 448 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 voluntarily complying with Staff or HPC review (depending on the scope of work) of the project, or C. 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. Westview Holdings, LLC, the property owner of 745 and 765 Meadows Road, has submitted demolition permits for these two properties. Westview Holdings is the owner of 7 abutting properties on Meadows Road and Sneaky Lane. Buildings on some of the sites in this ownership, such as the Tennis Townhomes which were once under construction at the Aspen Meadows, have been demolished and not replaced. Westview Holdings, LLC has indicated that they do not have any interest in negotiations (see attached letter.) Nonetheless, the City is entitled to delay issuance of the permits in order for the Historic Preservation Commission to weigh in, and for Council to promote incentives and/or demolition alternatives if appropriate. HPC reviewed this property on April 22, 2009. The Commission found that 745 Meadows Road and 765 Meadows Road have historic significance and are worth trying to preserve. The 90 day negotiation period expires on June 17, 2009. As discussed during the Executive Session on May 26, 2009, Staff recommends that Council authorize the city to issue the requested demolition permits with a ten (10) year (instead of the normal 1 year) expiration date so that the rush to act is put aside. At the Executive Session, the applicant's representative stated that the owner may cooperate with a relocation effort, which Staff intends to pursue. APPLICANT: Westview Holdings, LLC, owner. PARCEL ID: 2735-122-01-003. ADDRESS: 745 Meadows Road, Lot 3, Snobble Subdivision, City and Townsite of Aspen. ZONING: R-15, Moderate Density Residential. 2 SIGNIFICANCE OF THE POTENTIAL HISTORIC RESOURCE: The City cannot designate properties listed on Ordinance #48, Series of 2007 without the owner's consent. The criteria for designation are listed below and staff s analysis follows. 26.415.030.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, 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 specific 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. STAFF FINDINGS: 745 Meadows Road: Staff finds that criterion C is met due to the property's representation of the Modern Chalet style and apparent association with noteworthy Aspen architect Fritz Benedict. The house at 745 Meadows Road was constructed in 1961, according to the Assessor's Office. Unfortunately, no building permit file can be located. Staff has searched the file in the past and the only building permit found is attached to this packet. It is a remodel from 1969, with Benedict indicated as the architect. The house has many characteristics of the Modern style, however the pitched roof and other features, such as prominent outdoor decks, has led staff to distinguish similar examples as Modern Chalets. Examples of related homes built in Aspen in the 1950's and 60's have been documented. Three are known to have been designed by Fritz Benedict and his staff and several of this style have already been demolished. It should be noted that the family of local attorney John Kelly owned 745 Meadows for many years and has suggested that its design was from a plan book. They were not the original owners to staffs knowledge. We are continuing to search for documentation that confirms or denies Benedict as the original designer of this house. Other than the addition of a 247 square foot bedroom in 1969, we are not aware of any other significant work that has taken place on the exterior of the structure. Staff finds that 745 Meadows is a good representation of Modem architecture as it was practiced in Aspen in the late 1950's/early 1960's, particularly of the variation we have termed Modern Chalet. As stated, there are a number of similar buildings in the area. This house supports the historic character and setting of the adjacent buildings and entry to the Aspen Meadows. We believe demolishing it would be a loss to Aspen's small collection of potential historic resources remaining from the post-war period. 765 Meadows Road: Staff finds that criterion C is met due to the property's representation of the Rustic Style. The house at 765 Meadows Road was constructed between 1960 and 1962, according to the Assessor's Office, and information provided by the original owner. It is a log kit building, apparently not Pan Abode brand, purchased in Denver and constructed as a weekend home for a Front Range family. That family sold the property to Westview Holdings, LLC in 2005. rd The house combines the influences of two building styles that have been documented as prevalent, and arguably important to Aspen's postwar history. The log kit construction is consistent with Rustic homes that were built throughout town. Manufactured log kit homes gained popularity in postwar Aspen because they were cheap, quickly constructed buildings that were typically used as vacation homes. Manufactured log cabins were indicative of American's romanticized image of the Wild West that was fueled by series like the Lone Ranger (1933 - 1954) and Davy Crockett (1955.) The Chalet style was popular during an overlapping "period of significance" and decorative details commonly associated with this picturesque, alpine influenced style appeared in a few instances on log kit homes. 765 Meadows Road includes ornate fascias, shutters, trim, balcony railings, and window boxes. Staff finds that 765 Meadows is a very intact representation of what a second home in Aspen once was. Visually, it conveys many of the values that were influential in the developing ski resort of the time. The floor plans suggest a classic family ski lodge, with six bedrooms and a large common area focused on a fireplace. We believe demolishing this building would be a significant loss to Aspen's small collection of potential historic resources remaining from the post-war period. RECOMMENDATION: Staff recommends Council adopt Resolution � Series of 2009 to terminate negotiations pursuant to Ordinance #48, Series of 2007 and to direct staff to issue demolition orders, permit #0016.2009.ARBK and #0015.2009.ARBK, for the properties located at 745 and 765 Meadows Road to be valid for ten (10) years from the date of issuance. RECOMMENDED MOTION: "I move to adopt Resolution No V, Series of 2009." CITY MANAGER COMMENTS: Exhibits: Resolution #, Series of 2009 5 A RESOLUTION OF THE ASPEN CITY COUNCIL EXTENDING THE VESTING RIGHTS OF A DEMOLITION ORDER FOR THE PROPERTIES LOCATED AT 745 AND 765 MEADOWS ROAD Resolution No. �eries of 2009 WHEREAS, 745 and 765 Meadows Road, Lots 3 and 2, Snobble Sudivision, City and Townsite of Aspen, Colorado, are subject to Ordinance #48, Series of 2007. This Ordinance identifies potential historic resources and creates a review process for any proposed alterations. The Ordinance also establishes a framework for City Council to negotiate with the property owner to secure voluntary historic designation; and WHEREAS, Westview Holdings, LLC, P.O. Box 460567, San Antonio, Texas, 78266, has applied for demolition permits to remove the buildings located at 745 and 765 Meadows Road, Lots 2 and 3, Snobble Subdivision, City and Townsite of Aspen, Colorado. Under the provisions of Ordinance #48, Series of 2007, Westview Holdings, LLC has entered into a ninety day review and negotiation of potential historic significance of the subject houses; and WHEREAS, Section 26.415.025 (e) of the Municipal Code states that "the Community Development Director shall confer with the City Council regarding the proposed building permit, the nature of the Potential Historic Resource and the staff and Historic Preservation Commission's assessment of the Resource and the effects of the building permit upon the Resource. The property owner shall be provided notice of this meeting with the City Council;" and WHEREAS, the property owner was notified of the City Council meeting; and WHEREAS, Amy Guthrie, Historic Preservation Officer, 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 landmark designation are met; and WHEREAS, at their regular meeting on April 22, 2009, the Historic Preservation Commission considered the application and approved a motion to recommend Council pursue negotiations for landmark designation by a vote of 4 to 0; and WHEREAS, City Council discussed a possible negotiation with the property owner's representative during an Executive Session on May 26, 2009 the result of which is a proposed extension of the expiration date of the requested demolition order for a period of 10 years from the date of issuance; and WHEREAS, the City Council finds that this Resolution to terminate negotiation with conditions furthers and is necessary for the promotion of public health, safety, and welfare. Resolution # , Series of 2009 Page 1 of 2 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: City Council hereby terminates negotiations pursuant to Ordinance 48, Series of 2007, regarding the properties located at 745 and 765 Meadows Road; and hereby directs staff to issue the pending demolition orders, permit #0015.2009.ARBK and #00 1 6.2009.ARBK, for the properties located at 745 and 765 Meadows Road to be valid for ten (10) years from the date of issuance. APPROVED by the City Council at its regular meeting on June 8, 2009. Approved as to form: John Worcester, City Attorney Attest: Mayor: Kathryn Koch, City Clerk Michael C. Ireland, Mayor Resolution #, Series of 2009 Page 2 of 2 MEMORANDUM TO: Mayor Ireland and City Council THRU: Chris Bendon, Community Development Director C Y m FROM: Amy Guthrie, Historic Preservation Officer RE: Second Reading of Ordinance #13, Series of 2009, Historic Landmark Designation, Historic Landmark Lot Split, and Ordinance #48, Series of 2007 Negotiation (Continued from May 26, 2009) DATE: June 8, 2009 SUMMARY: 219 S. Third Street is a modern home constructed in 1965. It is identified on Ordinance 448, Series of 2007 as a "potential historic resource." Owners of property on Ordinance #48 have a few options if they wish to proceed with work. They can request staff or HPC approval for their immediate plans without actually agreeing to designation, they can volunteer for designation based on a package of incentives negotiated with City Council, or they can pass on designation and accept a 90 day delay period for the processing of a permit to alter or demolish the building. owners of 219 S. Third Street are willing to negotiate for designation. The This Council meeting is Second Reading of an Ordinance to establish incentives, if any, that Council will commit to the property owner to achieve voluntary designation. The City is not able to designate any properties listed on Ordinance #48 without the owner's consent. The owner of 219 S. Third Street plans to preserve the existing 1,700 square foot home, and to make an 900 square foot addition at the rear corner. The western half of the lot is to be subdivided into a new lot that will contain an approximately 2,400 square foot home to be designed in the future. To facilitate the proposed project, the applicant requests Council approval for Historic Designation and Historic Landmark Lot Split, as well as some additional incentives for voluntary 1 designation. These incentives were discussed at length on May 26a'. They include setback variances, an FAR bonus, and a Residential Design Standards variance. The property owner has dropped an earlier request for waiver of Affordable Housing Mitigation, instead asking that cash - in -lieu be locked in at the current rate. The owner has also dropped their proposal for 10 years, rather than 3 years, of vested rights. The incentives being requested of Council are not within HPC's purview. The proposed project does not increase development rights beyond what could be achieved through existing code processes. Council negotiation would however assure the applicant the entitlements and configuration they are seeking. On May 26`h, Council indicated some support for the overall proposal, but asked the applicant to re -visit the setback variances and FAR bonus. HPC discussed this property, and the owners' redevelopment goals, on January 28a', March, l It, May 13t' and May 27a', 2009. The board agreed that examples of the Modern Chalet style of architecture, particularly this example, are worthy of preservation. They recommended that City Council approved Designation and Lot Split. On May 27a', HPC granted Conceptual approval for work directly affecting the Modern Chalet structure, including a proposed addition. Setback variances for the side yard and rear yard were granted, after the applicant responded successfully to HPC feedback. A 500 square foot bonus was also awarded. HPC members have expressed concern that negotiated benefits could overload the site in a manner that defeats the value of designation. During the course of the HPC meetings, the property owner decreased the proposed floor area, variances, density, and bedrooms on the site. On May 27a' the board discussed their position on the Council negotiation, and concluded that there is not majority support for the FAR bonus being asked of Council, but there is majority support for the front yard setback variance for the proposed new house. They asked that their comments be provided to Council because there were many pro's and con's on these issues. HPC's draft resolution, and draft minutes from May 27`h are attached as "Exhibit A." 2 0 20 40 8o 120 160 Feet APPLICANT: YLP West, LLC, represented by Suzanne Foster. PARCEL ID: 2735-124-65-005. ADDRESS: 219 S. Third Street, portions of Lots O-S, Block 39, City and Townsite of Aspen, Colorado. ZONING: R-15, Moderate Density Residential. HISTORIC DESIGNATION 26.415.030.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 ki significance of 20a' century properties like 219 S. Third Street is evaluated according to the following criteria: 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, 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 specific 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. Staff Findine: 219 S. Third Street was built in 1965 as a vacation home for the family of Tom Cleary. It remained in the same ownership for over 40 years. The house was designed by Eric Friis, an architect from the area of the Cleary's residence in northern Wisconsin. Staff has been unable to find information about Eric Friis, and is continuing to try to find additional building history from relatives of the original owner. Regardless, staff finds that this house represents the character of typical vacation homes being built here in the 50's and 60's. Staff has termed houses like 219 S. Third "Modem Chalets." Buildings like this one combined classic Chalet architectural features, such as low pitched roofs, deep overhangs, balconies, simple form, and orientation towards the mountain with modern aesthetics such as much more glazing on the primary facade (typically carrying all the way up to the roof). Decoration was minimal, but still focused on the eaves, fascias, and balconies. To a degree, this style made the characteristics of modernism more sympathetic to the mountain environment and Aspen's architectural context. Examples of classic Chalet buildings in Aspen include: 91 Examples of Modem Chalets in Aspen include: Staff finds that 219 S. Third meets designation criteria "C." It is part of a collection of buildings that uniquely illustrates cultural and design influences that significantly changed the built environment of Aspen. In many ways, it conveys Aspen's maturation from a resort that attempted to copy the European models, to one that was developing its own identify as an American skiing destination. The neighborhood surrounding this property is a microcosm of the architectural influences that have dominated Aspen's history. To the north is perhaps the oldest residence in town, a circa 1885 log cabin. 1930's tourist cabins occupy the nearby L'Auberge property. Along Hopkins Avenue are The Boomerang Lodge and several 1960's era apartment structures. To the east, Chalets, Wrightian structures, and Victorians are common. As part of landmark designation review, staff typically completes an integrity score sheet to determine the amount of original features and material that exists. We are unable to do so for this property because the Modern Chalet style is one that has become recognized as potentially 5 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, although a draft statement is attached as "Exhibit B." This house appears to be unaltered from the original design, both on the exterior and interior. We did not locate building permits for any significant work on the exterior of the structure, therefore we feel that the building has a high degree of integrity and authenticity. Staff supports landmark designation for this structure finding that the review criteria are met. HISTORIC LANDMARK LOT SPLIT In order to complete a Historic Landmark Lot Split, the Municipal Code states that the application shall meet the following requirements of Aspen Land Use Code: Section 26.480.030(A)(2) and (4), Section 26.470.070(C), and Section 26.415.120(A). In preparing this review, staff has discovered that recent amendments to the code have rendered the latter two code citations inaccurate. Section 26.470.070(C) previously provided for Growth Management exemption of a new home on a Historic Landmark Lot Split parcel. The exemption is now found at Section 26.470.060(2). Section 26.415.120(A) refers to appeals of HPC decisions. The correct code citation is 26.415.110(A), which is procedures for review of Historic Landmark Lot Splits. The relevant code sections are addressed below. During the HPC reviews, a neighboring property owner raised concerns about whether the subject site is impacted by natural hazards due to its location at the toe of Shadow Mountain. Staff asked the applicant to provide a professionally prepared analysis of this question. A letter from Yeh Associates is attached as "Exhibit C." This letter was recently updated and stamped by the Engineer in response to a request from the City's Engineering Department. In addition, the neighbor raised concerns about adding another residential unit on what is a dead end alley. The alley currently serves the neighbor's home, a log cabin, and the Modern Chalet at 219 S. Third. Staff consulted with the Streets Department. The comment from Jerry Nye, Streets Director is: "We are required to remove the snow from the right of way no matter how many driveways take off of the alley. This particular alley at 219 S. 3`d Street isn't that different from some other alleys we have in town. We have to drive into the alley frontwards with our loader and go to the very end of it and back drag the snow back toward the entrance. (The process continues as) we push the snow out to the street and stack it in a pile on the corner of the alley and street that is our snow storage area. When the snow pile becomes too large that it interferes with the street traffic or becomes a site problem for vehicles leaving the alley, we haul it away to our snow dump site. This extra driveway at this location will not change how we have to do this alley already. We do not allow home owners to plow their snow from their driveways into the public alley ways, they must keep all their snow from their property on their site." For Council's information, it appears that the undeveloped portion of this alley has never been vacated, and could be opened in the future if that was desired. C Ed Van Walraven, Aspen Fire Department, is not concerned with providing service, particularly because the existing dead end alley is only half the length of the block. Fire is likely to require sprinklers for the new house on the Historic Landmark Lot Split as a precautionary measure, but would not ask for a truck turnaround or other mitigation. 26.480.030(A)(2), SUBDIVISION EXEMPTIONS, LOT SPLIT The split of a lot for the purpose of the development of one detached single-family dwelling on a lot formed by a lot split granted subsequent to November 14, 1977, where all of the following conditions are met: a) The land is not located in a subdivision approved by either the Pitkin County Board of County Commissioners or the City Council, or the land is described as a metes and bounds parcel which has not been subdivided after the adoption of subdivision regulations by the City of Aspen on March 24, 1969. This restriction shall not apply to properties listed on the Aspen Inventory of Historic Landmark Sites and Structures; and Staff Finding: The property is part of the original Aspen townsite, not located in a subdivision approved by the City or the County. b) No more than two (2) lots are created by the lot split, both lots conform to the requirements of the underlying zone district. Any lot for which development is proposed will mitigate for affordable housing pursuant to Section 26.470.070(B); and Staff Finding: The applicant proposes to create two lots. Both conform to the lot size requirements (minimum lot size of 3,000 square feet) and lot area per dwelling unit requirements (minimum area of 3,000 square feet per unit) for Historic Landmark Properties in the R-15 Zone District. With regard to affordable housing mitigation, Section 26.470.070(B), the Growth Management section has been revised and the correct standards are found at Section 26.470.060(2)(a) of the Municipal Code. New homes on vacant lots formed through a Historic Landmark Lot Split are required to provide affordable housing mitigation. The applicant originally asked for a waiver as part of the negotiation process, but has revised their position, as discussed later in the memo. c) The lot under consideration, or any part thereof, was not previously the subject of a subdivision exemption under the provisions of this chapter or a "lot split" exemption pursuant to Section 26.470.040(C)(])(a): and Staff Finding: The land has not received a subdivision exemption or lot split exemption. d) A subdivision plat which meets the terms of this chapter, and conforms to the requirements of this title, is submitted and recorded in the office of the Pitkin County clerk and recorder after approval, indicating that no further subdivision may be granted for these lots nor will additional units be built without receipt of applicable approvals pursuant to this chapter and growth management allocation pursuant to Chapter 26.470. Staff Finding: The subdivision plat shall be a condition of approval. It must be reviewed by the Community Development Department for approval and recordation within 180 days of final land use action. e) Recordation. The subdivision exemption agreement and plat shall be recorded in the office of the Pitkin County clerk and recorder. Failure on the part of the applicant to record the plat within one hundred eighty (180) days following approval by the City Council shall render the plat invalid and reconsideration of the plat by the City Council will be required for a showing of good cause. Staff Finding: The subdivision exemption agreement shall be a condition of approval. In the case where an existing single-family dwelling occupies a site which is eligible for a lot split, the dwelling need not be demolished prior to application for a lot split Staff Finding: No demolition is proposed. g) Maximum potential buildout for the two (2) parcels created by a lot split shall not exceed three (3) units, which may be composed of a duplex and a single-family home. Staff Finding: A single family home is the end result on each lot. The applicant intends to keep the duplex use in the existing house until, at the latest, the addition is constructed. The applicant has committed that once the duplex use is forsaken, it will not be re-established. This is a proposed condition of approval. 26.480.030(A)(4), SUBDIVISION EXEMPTIONS, HISTORIC LANDMARK LOT SPLIT a.) The original parcel shall be a minimum of six thousand (6,000) square feet in size and be located in the R-6, R-15, R-I5A, RMF or O Zone District. Staff Finding: The subject parcel is 9,942 square feet and is located in the R-15 Zone District. b.) The total FAR for both residences shall be established by the size of the parcel and the Zone District where the property is located. The total FAR for each lot shall be noted on the subdivision exemption plat. Staff Finding: FAR is based on lot size, in this case after areas of steep slopes created by an existing berm at the rear of the site are deducted. The lot size for purpose of determining FAR is 0 7,472 square feet, which equals a base allowable FAR of 4,042 square feet for a landmarked site. The applicant proposes to add 993 square feet of bonus FAR to that, in the form of 500 square feet from HPC and 493 square feet from Council. The FAR for each unit will be noted on the plat. c.) The proposed development meets all dimensional requirements of the underlying Zone District. The variances provided in Paragraphs 26 415.120.B.I.a, band care only permitted on the parcels that will contains an historic structure. The FAR bonus will be applied to the maximum FAR allowed on the original parcel. Staff Finding: The development meets the dimensional requirements of the zone district except for setbacks and FAR. Variance requests are detailed below. Section 26.470.060(2), Administrative Analications for Growth Management New houses on a landmark lot split property are exempt from Growth Management competition, but are deducted from the overall residential development ceiling levels. To receive an exemption, affordable housing mitigation is to be provided. The applicant plans to pay cash -in -lieu, which is allowable. 26.415.110(A), Benefits. This section describes the review process for Historic Landmark Lot Splits. The process is being properly followed. Both HPC and Council will hold noticed public hearings, with Council making their final determination based on a recommendation from HPC. ORDINANCE #48, SERIES OF 2007 NEGOTIATION Numerous aspects of the project are existing options for landmark properties, for instance the Historic Landmark Lot Split and an FAR bonus and variances recently granted by HPC. Following is a list of the incentives that the applicant is asking directly of Council through the latitude for negotiation provided in Ordinance #48. The applicant clearly understands that this is a negotiation that requires give and take. The applicant has expressed that two items being requested only of Council are "dealbreakers" for them in terms of the voluntary designation being offered. Those items are the 493 square foot FAR bonus, and the front yard setback variance for the proposed new house. As stated earlier, this is the first applicant to participate in a negotiation for landmark designation. There have been four public meetings to date that have involved lengthy discussions of the project. The applicant has continued to refine and reduce the FAR, density, and variance requests to respond to the specific feedback that has been provided. Since first reading, the applicant has decided to drop all requests for design review approval or exemption by Council. The applicant has developed a relationship with HPC and appropriate architectural solutions can be worked out. Council is asked to grant incentives as follows. W 1. Approval of a 493 square foot FAR bonus, allowing the new house on Lot 2 to be approximately 2,400 square feet of FAR in size. Staff Finding: Background on the allowable FAR is needed in order to address this item. The duplex at 219 S. Third is currently considered non -conforming because the parcel isn't large enough for two units (it is 9,942 square feet, instead of the minimum lot size of 15,000 square feet.) The duplex is legal because the original building permit issued for the property clearly indicated this use, however the undersized lot is penalized by restricting development to the maximum FAR allowed for a single family house (3,652 square feet, after deducting some lot area for steep slopes.) There are other development choices that could add FAR to a site like this one. The applicant has described the maximum build out (in a non -landmark scenario) as a single family or duplex, plus a voluntary carriage house, which is exempt from FAR up to 1200 square feet, and earns a 600 square foot FAR bonus. Landmarked properties have different minimum lot sizes, so with the proposed designation, the house can be designed to duplex FAR, which at 4,042 square feet is 390 square feet more than a non -landmark scenario is allowed. Within the framework of the negotiation for voluntary designation, the property owner intends to ask for floor area bonuses to achieve their desired program. The bonuses are the 500 square feet that HPC often considers for exemplary projects (approved on May 27`h), and an additional grant of 493 square feet from City Council. Of the total 5,035 square feet of FAR requested, approximately 2,400 square feet is to be allocated to a new house on a lot created through a Historic Landmark Lot Split, and no more than 2,625 square feet will be allocated to the historic house, to accommodate the existing approximately 1,700 square foot home and a 900 square foot addition to it. The allocation of a limited amount of FAR for an addition to the resource, and transfer of all remaining buildable area to a detached structure is very consistent with the intention of the Historic Landmark Lot Split. In general, staff finds the size and placement of the proposed addition to the Modern Chalet to be sympathetic, and successful in preserving the primary facades of the building with little direct alteration to them. Staff supports the 493 square foot bonus that is requested of Council. As described above, a property owner can receive FAR bonuses on this site through the Carriage House program. The owner is requesting the bonus without a required deed restriction. The owner has expressed a number of points to support their bonus request, noting that the preservation scenario does not allow below grade, heated space to be capitalized on (therefore representing a loss to the developer). Council should be aware that the applicant just discovered that the architect miscalculated the size of the existing Modern Chalet, underestimating it by approximately 250 square feet. This means that a portion of the requested bonus will simply cover that error, and less will be available for new construction in the new house. As a result, the bonus area is even more critical. 10 HPC has not been supportive of this incentive, voting 3-1 against it on May 27th. However, as one of the "no" votes, Sarah Broughton suggested that she would support Council allowing the maximum FAR for Lot 2 to be established by what an equivalent, non -historic landmark lot split parcel of its size in the R-15 zone district could support. Staff will walk Council through this calculation at the June 8th meeting. It appears to amount to an FAR bonus of about 183 square feet. This may not be acceptable to the applicant. A chart that compares the FAR that is allowed on the site without designation, with designation, and with the requested negotiated benefits is attached as "Exhibit D." In addition, at First Reading Council asked for a better understanding of the scale of the neighborhood. A map illustrating the surrounding conditions is attached as "Exhibit E." The surrounding conditions are expressed in terms of "Heated FAR," or gross square footage because this information is more easily accessible from the Assessor's office than a tabulation of actual FAR for the number of properties described. 2. Approval of a north (front) yard setback variance of 16'6" and an east (interior) setback variance of 5' for the new house on Lot 2. Staff finding: HPC does not have the authority to grant setback variances on the new parcel created through the lot split, however variances such as these could be requested of the Board of Adjustment. Instead, the applicant requests Council approval as part of the negotiation. The applicant is attempting to establish a building envelope for the new building. Please note that staff has identified the alley as the front yard on this property because of the placement of the Modern Chalet. Vehicles and people enter the property from the alley, into carports and doorways closely related to that corridor. We refer to the south yard as the rear of the site, Third Street and the western portion of the site as sideyards. This determination would likely be different if the house was torn down for redevelopment. Standards would likely require the new home to face Third Street. With regard to the vacant lot, the applicant asks for a 16'6" front yard setback variance (staff finds this particularly appropriate in order to be consistent with the placement of the Modern Chalet) and a 5' east sideyard setback variance. The east sideyard variance allows more flexibility in the footprint of the new house, and is "internalized" on the site; not directly affecting an adjacent property owner. Staff recommends Council support the variance requests for the vacant lot, as does HPC. 3. Exemption of the new house on Lot 2 from meeting the Residential Design Standards requirement to create a detached, "Secondary Mass." Staff finding: The applicant asks that Council waive compliance with the "Secondary Mass" requirement of the Residential Design Standards for the new lot. This request could be granted 11 by HPC during their Conceptual review of the new home, but Council is being asked to assure the waiver as part of the negotiation. The Residential Design Standard requires all new homes to place at least 10% of their mass in a detached structure. Staff can support waiver in this case because of the constrained building envelope and the fact that the property does not relate to the streets and alleys in the traditional manner (i.e. the primary building fronts on the alley and there is no rear access to the lot.) HPC also expressed some flexibility during their last meeting, however they seemed to conclude that it would be best handled when a specific building design is proposed and evaluated by them. 4. Exemption from affordable housing mitigation for the new house on Lot 2- REQUEST AMENDED Staff Finding: At 2,400 square feet, the new home would be required to provide an on -site Accessory Dwelling Unit, or to pay a cash -in -lieu fee of $171,888 (2,400 sq. ft. x $71.62/sq.ft.). The owner had requested a complete waiver, but is now asking that the mitigation rate be looked in at the current level. The property owner could receive a waiver of affordable housing requirements within the existing benefits program if the new house and existing house were condominiumized instead of separated through a Historic Landmark Lot Split. There are other affordable housing exemptions currently provided for landmarks, for instance waiver of affordable housing for the first 4 employees generated by new net leasable space in a designated commercial structure. The owner has responded to Council's concern on this issue and retracted the proposed waiver. 1 5. 10 year vesting for all approvals granted.- REQUEST DROPPED RECOMMENDATION: This applicant is the first property owner subject to Ordinance #48, Series of 2007 who has volunteered to designate subject to the negotiation process. Staff appreciates their effort to enter into a process that is new for the City. Staff recommends Council approve Ordinance #13, Series of 2009 as follows: 1. Approval of a Historic Landmark Lot Split, as represented on the proposed site plan dated June 8th and attached to the Ordinance as Exhibit B. The allowable FAR is no more than 2,625 square feet for a single family house on Lot 1 and 2,400 square feet for a single family house on Lot 2. 2. Approval of a 493 square feet FAR increase, available through the Carriage House program, but without the requirement to create a deed restricted affordable housing unit. 3. Approval of a 16'6" north (front) yard setback variance and a 5' east side yard setback variance on Lot 2. 12 4. Waiver of the "Secondary Mass" requirement of the Residential Design Standards for Lot 2. 5. Vesting of affordable housing cash -in -lieu mitigation at the current rate ($71.62/sq. ft.) 6. As a condition of approval, the applicant has committed that once the duplex use is forsaken, it will not be re-established. RECOMMENDED MOTION: "I move to adopt Ordinance #13, Series of 2009, Historic Landmark Designation, Historic Landmark Lot Split, and Ordinance #48, Series of 2007 Negotiation." ALTERNATIVE: If the City and the owner of 219 S. Third Street are ultimately unable to reach a mutually acceptable agreement that results in landmark designation of the property, staff recommends that the applicant's land use review fees be waived. A good faith effort is being made to volunteer designation and negotiate with HPC and Council. Should that fail, a fee waiver is appropriate. Review fees to date are approximately $9,000. CITY MANAGER COMMENTS: Exhibits: Ordinance #_, Series of 2009 A. Draft HPC resolution and minutes of May 27, 2009 B. Draft historic context statement for Modern Chalets C. Letter from Yeh Associates regarding natural hazards, dated May 6, 2009 D. FAR comparisons E. Neighborhood development characteristics F. Application G. Previously submitted comments from public 13 ORDINANCE #13 (Series of 2009) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO APPROVING LANDMARK DESIGNATION, HISTORIC LANDMARK LOT SPLIT, AN FAR BONUS, SETBACK VARIANCES, A RESIDENTIAL DESIGN STANDARDS VARIANCE, AND CASH IN LIEU PAYMENT FOR AFFORDABLE HOUSING MITIGATION BASED ON 2009 MITIGATION FEE FOR THE SITE SPECIFIC DEVELOPMENT PLAN OF THE PROPERTY LOCATED AT 219 S. THIRD STREET, PORTIONS OF LOTS O-S, BLOCK 39, CITY AND TOWNSITE OF ASPEN, COLORADO PARCEL ID: 2735-124-65-005 WHEREAS, the applicant, YLP West, LLC, represented by Suzanne Foster, has requested negotiation for landmark designation pursuant to Ordinance No. 48, Series of 2007 for the proposed alterations to the property located at 219 S. Third Street, portions of Lots O-S, Block 39, City and Townsite of Aspen, Colorado (legal description attached as Exhibit A); and WHEREAS, the property is included on Exhibit A to Ordinance No. 48, Series of 2007, as a potential historic resource; and WHEREAS, Section 26.415.025(E) of the Municipal Code states that, during the negotiation period set forth in the Code, "the Community Development Director shall confer with the Historic Preservation Commission, during a public meeting, regarding 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 WHEREAS, the property owners were notified of the Historic Preservation Commission meeting; and WHEREAS, Amy Guthrie, in her staff report to HPC dated March 11, 2009, 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 landmark designation are met; and WHEREAS, at their regular meeting on March 11, 2009, the Historic Preservation Commission considered the application and approved a recommendation that City Council negotiate for designation by a vote of 5-0; and WHEREAS, at their regular meetings of May 13 and May 27, 2009, the Historic Preservation Commission discussed the negotiation requests and provided recommendations to City Council; and 219 S. Third Street Ordinance #48 Negotiation Review Page 1 of 5 WHEREAS, Section 26.208.010.P of the City of Aspen Land Use Code authorizes City Council to take action not delegated to other review bodies as deemed necessary to implement the provisions of the Land Use Code; and, WHEREAS, the process and results of City Council negotiations pursuant to Section 26.415.025 of the City of Aspen Land Use Code are actions necessary to implement the provisions of the Land Use Code and are not otherwise delegated to a review body; and, WHEREAS, the City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1: Historic Designation Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, Aspen City Council hereby approves Historic Designation for 219 S. Third Street, portions of Lots O-S, Block 39, City and Townsite of Aspen, Colorado. Section 2: Subdivision Exemption Pursuant to Sections 26.480.030(A)(2) and (4), Section 26.470.070(C), and Section 26.415.110(A) of the Municipal Code, and subject to those conditions of approval as specified herein, the City Council finds as follows in regard to the subdivision exemption: 1. The applicant's submission is complete and sufficient to afford review and evaluation for approval; and 2. The subdivision exemption is consistent with the purposes of subdivision as outlined in Section 26.480 of the Municipal Code, which purposes include: assist in the orderly and efficient development of the City; ensure the proper distribution of development; encourage the well -planned subdivision of land by establishing standards for the design of a subdivision; improve land records and survey monuments by establishing standards for surveys and plats; coordinate the construction of public facilities with the need for public facilities; safeguard the interests of the public and the subdivider and provide consumer protection for the purchaser; acquire and ensure the maintenance of public open spaces and parks, provide procedures so that development encourages the preservation of important and unique natural or scenic features, including but not limited to mature trees or indigenous vegetation, bluff, hillsides, or similar geologic features, or edges of rivers and other bodies of water, and, promote the health, safety and general welfare of the residents of the City of Aspen. 219 S. Third Street Ordinance #48 Negotiation Review Page 2 of 5 Section 3: Subdivision Plat Within 180 days after final approval by City Council, or as otherwise extended pursuant to Section 26.480.070.E, and prior to applying for a Building Permit, the applicant shall record a Subdivision Plat. The Subdivision Plat shall comply with current requirements of the City Community Development Department. At a minimum, the subdivision plat shall: 1. Meet the requirements of Section 26.480 of the Aspen Municipal Code. 2. Depict any easements and signature blocks for utility mains not administered by the City of Aspen. 3. Contain a plat note stating that no further subdivision may be granted for these lots nor will additional units be built without receipt of applicable approvals pursuant to the provisions of the Land Use Code in effect at the time of application. 4. Depict the approved setbacks and allowable FAR assigned to each lot. Section 4: Subdivision Agreement and Ordinance #48, Series of 2007 Negotiation Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, Aspen City Council hereby grants the following Land Use entitlements, conditioned upon the voluntary landmark designation of 219 S. Third Street, portions of Lots O-S, Block 39, City and Townsite of Aspen, Colorado. Within 180 days after final approval by City Council, or as otherwise extended pursuant to Section 26.480.070.E, and prior to applying for Building Permit, the applicant shall record a Subdivision Agreement binding this property to this development approval. The Agreement shall include the necessary items detailed in Section 26.445.070, in addition to listing the following: 1. Approval of a Historic Landmark Lot Split, as represented on the proposed site plan dated June 8th and attached to the Ordinance as Exhibit B. The allowable FAR is no more than 2,625 square feet for a single family house on Lot 1 and 2,400 square feet for a single family house on Lot 2. 2. Approval of a 493 square feet FAR increase, available through the Carriage House program, but without the requirement to create a deed restricted affordable housing unit. 3. Approval of a 16'6" north (front) yard setback variance and a 5' east side yard setback variance on Lot 2. 4. Waiver of the "Secondary Mass" requirement of the Residential Design Standards for Lot 2. 5. Vesting of affordable housing cash -in -lieu mitigation at the current rate ($71.62/sq. ft.) 6. As a condition of approval, the applicant has committed that once the duplex use is forsaken, it will not be re-established. Section 6: 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. 219 S. Third Street Ordinance #48 Negotiation Review Page 3 of 5 Section 7: 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 8: Vested Rights The development approvals granted herein shall constitute a site -specific development plan vested for a period of three (3) years from the date of issuance of a development order. However, any failure to abide by any of the terms and conditions attendant to this approval shall result in the forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to properly record all plats and agreements required to be recorded, as specified herein, within 180 days of the effective date of the development order shall also result in the forfeiture of said vested property rights and shall render the development order void within the meaning of Section 26.104.050 (Void permits). Zoning that is not part of the approved site -specific development plan shall not result in the creation of a vested property right. No later than fourteen (14) days following final approval of all requisite reviews necessary to obtain a development order as set forth in this Ordinance, the City Clerk shall cause to be published in a newspaper of general circulation within the jurisdictional boundaries of the City of Aspen, a notice advising the general public of the approval of a site specific development plan and creation of a vested property right pursuant to this Title. Such notice shall be substantially in the following form: Notice is hereby given to the general public of the approval of a site specific development plan, and the creation of a vested property right, valid for a period of three (3) years, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the following described property: 219 S. Third Street, portions of Lots O-S, Block 39, City and Townsite of Aspen, Colorado. Nothing in this approval shall exempt the development order from subsequent reviews and approvals required by this approval of the general rules, regulations and ordinances or the City of Aspen provided that such reviews and approvals are not inconsistent with this approval. The approval granted hereby shall be subject to all rights of referendum and judicial review; the period of time permitted by law for the exercise of such rights shall not begin to run until the date of publication of the notice of final development approval as required under Section 26.304.070(A). The rights of referendum shall be limited as set forth in the Colorado Constitution and the Aspen Home Rule Charter. Section 9: Public Hearing A public hearing on the ordinance shall be held on the 26`h day of May, 2009, 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. 219 S. Third Street Ordinance #48 Negotiation Review Page 4 of 5 INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 11 th day of May, 2009. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk FINALLY, adopted, passed and approved this day of , 2009. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk APPROVED AS TO FORM: John Worcester, City Attorney Exhibit A: Legal Description of 219 S. Third Street. Lots O, P, Q, R and S, Block 39, City and Townsite of Aspen, excepting therefrom that portion of Lots O, P and Q that lies south of the northerly boundary of a right of way described as a 17 foot strip of land being 8.5 feet on each side of a centerline of the Colorado Midland Railway right of way and southerly 25 feet of Lot R and S as described and show in deed and map recorded February 27, 1950 in Book 175 at Page 628. 219 S. Third Street Ordinance #48 Negotiation Review Page 5 of 5 OVdtA r� jcln�lv�� Se a'g of 514'S0'49'W 47.00' - I I II 19,060 F,F. I f A 30 S.F. � 1 cwi I I I 10'0" :3 I �`---' --------------------� PROPOSED LOT 2 9 " it 3,985 s'ff. m 01 Q 1 Q (PROPOI SED F.A.R.= 2,400 s9•ttJ F f q / 250 F.F. (garage) 1 8'b' 1 I 1 ._______________ 2l f h/ / __-___-- 1 PROPOSED PROPERTY LINE 4 D. a I PROPOSED ADORION in W ----- rv' g � i rxlsr. uavatr n ] -wA P a�a I v I / 1 I i GMGM I I¢ I I E; I I I I oo l I EXISTING BUILDING PADPOSf� 46r. vaTu 4cca FOOTPRINT I n I n I / el I 1 1 f I 1 I 3I I I / o l sxnr, ' n I z uaPoar PROPOSED LOT 1 1 1 O 1 PRFA-R.- 2,625 sq.RJ (PROPOSED 1 1 � 1 LJ_ EXISTING PROPERTY LINE(TYP.) --- ---/ - --- N14'SW 49•E 75.00'---------_- . EDGE OF PAVEMENT SOUTH THIRD STREET PROPOSED LOT DIVISION/ BUILDING ENVELOPES A-1 FOSTER SCALE: 1 /20' 219 S3RD STREET, ASPEN CO 81611 DATE:04-15-09 A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC) SUPPORTING CITY COUNCIL APPROVAL OF HISTORIC LANDMARK DESIGNATION AND HISTORIC LANDMARK LOT SPLIT AND GRANTING MAJOR DEVELOPMENT (CONCEPTUAL) APPROVAL, FAR BONUS, SETBACK VARIANCES, AND RESIDENTIAL DESIGN STANDARDS VARIANCES FOR THE PROPERTY LOCATED AT 219 S. THIRD STREET, PORTIONS OF LOTS O-S, BLOCK 39, CITY AND TOWNSITE OF ASPEN, COLORADO RESOLUTION #15, SERIES OF 2009 PARCEL ID: 2735-124-65-005 WHEREAS, the applicant, YLP West, LLC, represented by Suzanne Foster, has requested Historic Landmark Designation, Historic Landmark Lot Split, Major Development (Conceptual), FAR Bonus, Setback Variances, Residential Design Standards Variances for the property located at 219 S. Third Street, portions of Lots O-S, Block 39, City and Townsite of Aspen, Colorado (legal description attached as Exhibit A); and WHEREAS, the property is included on Exhibit A to Ordinance No. 48, Series of 2007, as a potential historic resource; 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, determines sufficient evidence exists that the property meets the criteria; and WHEREAS, in order to complete a Historic Landmark Lot Split, the applicant shall meet the following requirements of Aspen Municipal Code: Section 26.480.030(A)(2) and (4), Section 26.470.070(C), and Section 26.415.010(D.), which are as follows: 26.480.030(A)(2), Subdivision Exemptions, Lot Split The split of a lot for the purpose of the development of one detached single-family dwelling on a lot formed by a lot split granted subsequent to November 14, 1977, where all of the following conditions are met: a) The land is not located in a subdivision approved by either the Pitkin County Board of County Commissioners or the City Council, or the land is described as a metes and bounds parcel which has not been subdivided after the adoption of subdivision regulations by the City of Aspen on March 24, 1969; and b) No more than two (2) lots are created by the lot split, both lots conform to the requirements of the underlying zone district. Any lot for which development is proposed will mitigate for affordable housing pursuant to Section 26.100.040(A)(1)(c). 219 S. Third Street HPC Resolution #_, Series of 2009 Page 1 of 6 c) The lot under consideration, or any part thereof, was not previously the subject of a subdivision exemption under the provisions of this chapter or a "lot split" exemption pursuant to Section 26.100.040(C)(1)(a); and d) A subdivision plat which meets the terms of this chapter, and conforms to the requirements of this title, is submitted and recorded in the office of the Pitkin County clerk and recorder after approval, indicating that no further subdivision may be granted for these lots nor will additional units be built without receipt of applicable approvals pursuant to this chapter and growth management allocation pursuant to Chapter 26.100. e) Recordation. The subdivision exemption agreement and plat shall be recorded in the office of the Pitkin County clerk and recorder. Failure on the part of the applicant to record the plat within one hundred eighty (180) days following approval by the City Council shall render the plat invalid and reconsideration of the plat by the City Council will be required for a showing of good cause. f) In the case where an existing single-family dwelling occupies a site which is eligible for a lot split, the dwelling need not be demolished prior to application for a lot split. g) Maximum potential buildout for the two (2) parcels created by a lot split shall not exceed three (3) units, which may be composed of a duplex and a single- family home; and 26 480 030(A)(4) Subdivision Exemptions Historic Landmark Lot Split The split of a lot that is listed on the Aspen Inventory of Historic Landmark Sites and Structures for the development of one new single-family dwelling may receive a subdivision exemption if it meets the following standards: a. The original parcel shall be a minimum of six thousand (6,000) square feet in size and be located in the R-6, R-15, R-15A, RMF, or MU (formerly O) zone district. b. The total FAR for both residences shall be established by the size of the parcel and the zone district where the property is located. The total FAR for each lot shall be noted on the Subdivision Exemption Plat. In the Mixed Use (formerly Office) zone district, the following shall apply to the calculation of maximum floor area for lots created through the historic landmark lot split. Note that the total FAR shall not be stated on the Subdivision Exemption Plat because the floor area will be affected by the use established on the property: If all buildings on what was the fathering parcel remain wholly residential in use, the maximum floor area will be as stated in the R-6 zone district. If any portion of a building on a lot created by the historic landmark lot split is in commercialloffice use, then the allowed floor area for that lot shall be the floor area allowed for all uses other than residential in the zone district. If the adjacent parcel created by the lot split remains wholly in residential use, then the floor area on that parcel 219 S. Third Street HPC Resolution #_, Series of 2009 Page 2 of 6 shall be limited to the maximum allowed on a lot of its size for residential use according to the R-6 standards. If there is commercial/office use on both newly created lots, the maximum floor area for all uses other than residential in the zone district will be applied. C. The proposed development meets all dimensional requirements of the underlying zone district. The variances provided in Section 26.415.120(B)(1)(a),(b), and (c) are only permitted on the parcels that will contains a historic structure. The FAR bonus will be applied to the maximum FAR allowed on the original parcel; and 26.470.070(C), GMOS Exemption, Historic Landmark Lot Split The construction of each new single-family dwelling on a lot created through review and approval of a Historic Landmark Lot Split shall be exempt from the scoring and competition procedures. The exemption is to be approved by the Community Development Director, but is not to be deducted from the respective annual development allotments or from the development ceilings; and 26.415.010(D), Historic Landmark Lot Split A Historic Landmark Lot Split is a two step review, requiring a public hearing before HPC and before City Council; and WHEREAS, Section 26.415.070 of the Municipal Code states that "no building or structure shall be erected, constructed, enlarged, 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: 219 S. Third Street HPC Resolution # , Series of 2009 Page 3 of 6 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 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 WHERAS, for variances from the Residential Design Standards, Section 26.410.040, which do not meet Section 26.410.020.D, the HPC shall find that the variance, if granted, would: a) Provide an appropriate design or pattern of development considering the context in which the development is proposed and the purpose of the particular standard. In evaluating the context as it is used in the criteria, the reviewing board may consider the relationship of the proposed development with adjacent structures, the immediate neighborhood setting, or a broader vicinity as the board deems is necessary to determine if the exception is warranted; or b) Be clearly necessary for reasons of fairness related to unusual site -specific constraints; and WHEREAS, Amy Guthrie, in her staff reports to HPC dated May 13 and May 27, 2009, performed an analysis of the application based on the standards, found that the review standards had been met, and recommended approval with conditions; and WHEREAS, at their regular meeting on May 13, 2009, the Historic Preservation Commission considered the application for Historic Landmark Designation and Historic Landmark Lot Split and recommended Council approval. Major Development (Conceptual), FAR Bonus, Setback Variances, and Residential Design Standards Variances were continued to May 27`h, at which time HPC found the application was consistent with the review standards and recommended approval by a vote of 4 to 0. The board also discussed and clarified their recommendations to Council regarding incentives being negotiated through Ordinance #48, Series of 2007. NOW, THEREFORE, BE IT RESOLVED: That HPC hereby recommends Council approval of Historic Landmark Designation and Historic Landmark Lot Split, and grants Major Development (Conceptual), FAR Bonus, Setback Variances, and Residential Design Standards Variances for 219 S. Third Street, portions of Lots O-S, Block 39, City and Townsite of Aspen, Colorado with the following conditions: 219 S. Third Street HPC Resolution #_, Series of 2009 Page 4 of 6 1. HPC hereby grants a 500 square foot FAR bonus. 2. HPC hereby grants the following setback variances; a 16'6" north yard setback reduction for the existing location of the house, a 20'6" north yard setback reduction for new lightwells (may not be required if the lightwells are the minimum size required by Building Code), a 2' east yard setback reduction for the east carport, a 4' west yard setback reduction for the west carport, a 3' west yard setback reduction for the proposed addition, and a 5' south yard setback reduction for the proposed addition. 3. HPC hereby grants waivers from the following Residential Design Standards; 216.410.040.A.1 Building Orientation and 216.410.040.D.1 Street oriented entrance and principal window. 4. The applicant is required to restudy the roof of the new addition for Final review, specifically in terms of HPC Guideline 10.7. The board is seeking a more distinct connector piece between the new and old construction, and a reduction in overall height of the addition. With regard to Council's negotiation of incentives under Ordinance #48, Series of 2007, HPC's recommendation, initially made on May 131h, then amended on May 27`h, is as follows: 1. Three of four board members present on May 27`h, 2009, do not support Council granting the 493 square foot FAR bonus. One of these three members is open to the idea of a bonus that would allow a new structure on Lot 2 to be equal to that afforded a standard property of its size in the R-15 zone district. 2. Three of the four board members present on May 27`h, 2009, do support Council granting a front yard setback variance as requested for the new house on Lot 2. 3. The board has a mixed opinion on the sideyard setback variance requested for Lot 2, and the Residential Design Standards variance requested for Lot 2. Some feel this can be addressed during the HPC Conceptual review for Lot 2. 4. The board asked that Council be provided with their verbatim discussion of these issues. APPROVED BY THE COMMISSION at its regular meeting on the 27th day of May, 2009. Approved as to Form: Jim True, Special Counsel Michael Hoffman, Chair 219 S. Third Street HPC Resolution #_, Series of 2009 Page 5 of 6 ATTEST: Kathy Strickland, Chief Deputy Clerk Exhibit A: Legal Description of 219 S. Third Street. Lots O, P, Q, R and S, Block 39, City and Townsite of Aspen, excepting therefrom that portion of Lots O, P and Q that lies south of the northerly boundary of a right of way described as a 17 foot strip of land being 8.5 feet on each side of a centerline of the Colorado Midland Railway right of way and southerly 25 feet of Lot R and S as described and show in deed and map recorded February 27, 1950 in Book 175 at Page 628. 219 S. Third Street HPC Resolution # , Series of 2009 Page 6 of 6 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF MAY 27, 2009 DRAFT- Not yet adopted (Please note that these minutes only cover the portion of the meeting when HPC discussed the Ordinance #48 negotiation. Before that, they discussed and approved Conceptual design for an addition to the Modern Chalet at 219 S. Third. The board asked the Clerk to prioritize completion of minutes re: Ordinance #48 so that they could be provided to Council for reference on June 81h ) Vice -chairperson, Sarah Broughton called the meeting to order at 5:00 p.m. Commissioners in attendance: Brian McNellis, Nora Berko and Jay Maytin. Ann Mullins and Michael Hoffman were excused. Staff present: Jim True, Special Counsel Amy Guthrie, Preservation Officer Sara Adams, Historic Preservation Planner Kathy Strickland, Chief Deputy City Clerk 219 S. Third Street — Historic Landmark Designation, Lot Split, Conceptual, FAR bonus, Variances Discussion of the Front Yard variance and 493 FAR request Public Comment: Junee Kirk — e-mail — Exhibit III Junee commented that preservation should not be used as a tool for FAR. Heidi Hoffman — Recommendations to City Council should include re- evaluation the front yard setback. I don't agree with the contention that it should line up with the existing duplex especially with the bonus given for the FAR. Junee stated that there is a lot of opposition to ordinance #30 and #48. Jim pointed out that there was no vote taken on Modern Chalet. Junee said in our committee of 8 or 10 two voted for it. Amy clarified that the task force is an evolving process and there have been no conclusions. They have broken into small groups that are studying ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF MAY 27, 2009 issues. The criteria committee is the one that is most focused on style and which ones merit. They took a vote, 8 in favor, two opposed that Modern chalets, that there are examples in town that are worthy of preservation. It wasn't a decision specific to this project. Junee said it was for exemplary project. Amy pointed out that the committee has no conclusion; they are still working on it. Vice -chair Sarah Broughton closed the public hearing. Committee discussion on the two incentives: front yard variance and 493 FAR bonus. Nora said we spent four hours at the last meeting and came up with conclusions that we wanted to send to City Council and in all due respect my decision has not changed. The motion was very specific. This is the first negotiation and it is really important that we have clarity. We need to be very careful in setting a precedence. Jay said maybe a board members feeling has changed seeing and approving the conceptual design. Amy went over the motion from the last meeting, May 131h 2009. HPC voted 5-0 to recommend designation and the lot split. HPC did not award the 500 square foot bonus but expressed some support for it and support for variances to legalize the existing structure; setbacks and Residential Design Standards just to make the situation conforming. HPC did not support the 493 square foot bonus. HPC was divided whether setback variances were appropriate for lot 2. HPC did not support waiving the ADU mitigation which is off the table. HPC did not support the vested rights extension which is off the table. HPC through the Residential Design Standards, primary and secondary mass for Lot 2 should be determined during the conceptual review. Jay said his feelings have not changed. I was in favor of the front yard setback, the alignment to the new project. I am even more inclined to be a louder voice because of the alterations that were made in order to save this structure. I am a bit troubled by some of the comments I heard tonight by the public that the house had no integrity and wasn't worth preserving. And the second public comment made by the same person said that this ruins the 2 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF MAY 27, 2009 integrity of the house and how could you allow this to happen. I keep hearing contradictory arguments from the public and it confuses me. The bottom line when it comes down to how I feel, is this house worth preserving. The commission spoke that it was. I haven't asked the applicant this question and I am not sure I will but if the second option or the scrape and replace option is left there, Mick said it best, be careful what you wish for. What is allowed to be built after that house is scraped is a lot more detrimental to the neighborhood. A lot more mass and a lot more scale. We as a commission need to look at all possibilities. I fall back on preservation of this structure because of its condition and I feel that the incentives should be used in a proper way to preserve this structure. The addition that the applicant has proposed is small and sympathetic and seems to be less and smaller than what we typically see. As far as the 493 square feet, which is now 213 square feet, Mr. Young, the way I took your comment was that you don't care what is up there as long as they keep the 25 yard setback. Does that me he doesn't care if we or council allows the property building envelope to crowd our public amenity and our protected railroad and the open space that goes behind there. It concerns me that that would be OK as long as it is pushed away from the alley. As far as the crowding in the alley and parking, David Bentley and all the other stuff that was mentioned, in my opinion the project sitting in front of me would help alleviate a lot of the randomly parked cars and it would probably clean up that alley which is not very clean right now. That is why I support the front yard setback and I support this project for the preservation of this Modern Chalet. If we had the ability to look at this property without historic task force final conclusion I can't take comments of here say and am frankly offended by it. To be told what direction the task force is going is inappropriate. I am not using that as a reason to approve this project or setback and the square footage for financial reasons for this project to go forward. I just want that heard, here say is not appropriate here at all. I would like to see this house preserved and would give Council my recommendation to use the tools that they have to legally approve the setback. The bottom line is if they don't approve the setback and someone scrapes the house you are getting 1.5 feet more of setback legally that you cannot do anything about. I do not see the benefit the neighborhood is arguing for so much. I am for the 493 square feet as I was at the last meeting. My concern is protecting this structure and these two incentives I find just. Nora agreed that we are here to preserve structures that we can preserve. When I look at the incentives that have already come, the historic lot split, 3 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF MAY 27, 2009 one FAR bonus and variances on that site, it is a lot. Philosophically I cannot support another FAR. I don't believe that variances should be used for private. Variances are there for public use and I don't think they should be used for private gain. Respectfully, if between 2100 square feet and 2600 square feet if that is the square footage that the property can support maybe that is how it has to look. There is nothing wrong with small. The numbers game doesn't guide me, it is the philosophy of what kind of precedence's are we setting and how do we save something without over burdening something else, the entire neighborhood and property and if we are really about preserving something sometimes we have to be more modest in what we take. I have to go back to the community plan AACP and say we want neighborhoods with scale. Hopefully something small, modest and discrete could land there without lots of variances. I know that is not our purview at this point. I would vote the same way I voted the last time, no on the variance and no on the FAR. Brian said both Nora and Jay had good comments. I am more in keeping with the motion that was crafted the last time. I do feel that this is an architectural style worth preserving. It is an important era in the development of this town and an important fabric of this neighborhood as well as many neighborhoods within Aspen. That is what makes this neighborhood eclectic and great, the fabric of different architecture and styles. That said, do I feel that this is an exemplary model of that era, not necessarily, but I do feel it is something worth preserving. So that weights in on my view what might be reasonable on incentives to give for the preservation of this project. One of the things that have always bugged me was this house's orientation to the street. This is coming from someone who has a background in landscape architecture. One of the things that have always concerned me was how that house or any house speaks to the vitality of the streetscape and unfortunately this particular house really shuts down a lot of that vitality that should be oriented toward Third Street. Although, I would like to see this house preserved, my hope is that if this project didn't go through and something else is built there it would be built at the vitality or orientation of Third Street which is really lacking in that section of town. Regarding the alleyway we are looking at this as the front yard and will continue to act as an alleyway from an aesthetic point and functional point. 1 really don't have a problem with the setback variance requested. If you look at all the other conditions of alleyways throughout the town, especially through the West End, what is being created here is no different from that. All the buildings etc. are butted to the alleyway. A building closer to the 0 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF MAY 27, 2009 alleyway won't be any different then what people are dealing with throughout the rest of the town. This is an urban area and those are the constraints that people deal with in those areas. Despite the fact that you people are living in a dense situation and a very concentrated situation you have some of the best open space in the entire town within the media proximity to you; Shadow Mountain and the trail etc. To allow that concentration in an area I am not opposed to it. Based on those arguments I am OK granting a variance in the alleyway; however the incentive to preserve this is not enough for me to go toward granting the 493 square feet of additional FAR. Sarah said she echoes many of the same comments. Given the fact that we as a commission want to preserve this structure I would be willing to grant a variance off the alley. A part of me is interested in making it ten feet so to give a little relief from the preserved structure and ten feet is what it would be allowed if it were a side yard setback so we are at least conforming to that portion of the code. I would be willing to give the variance off the north side of the property. I think the property should be allowed it's FAR by its zoned district, by its lot size without an addition FAR bonus. The applicant has determined the lot line based on the addition and from that you have determine the lot size and therefore the FAR has been determined by that lot line. Susanne Foster, applicant asked what happens if I have 1907 square feet left over and I can get 2300 square feet. Are you in support of a bonus that would bring it into that level. Sarah said she is not in favor of a bonus. She is in favor of the lot being built to what it is allowed as per the R-15 zone district for the lot size. Suzanne explained if she has 1907 square feet and after you do the topol and it ends up to 2300 square feet would you allow the awarding of a bonus of the extra FAR to bring it up to that number. Sarah said yes I am willing to allow and discuss the FAR that can be put onto this lot that is what is allowed by the zone district. Amy said the fathering parcel is allowed a certain amount of FAR. To keep it simple let's just say 4,000 square feet. When you do a subdivision it may end up that each smaller lot is allowed 2500 square feet which would total 5 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF MAY 27, 2009 more. Sarah is suggesting that she would be OK with Lot 2 being allowed to have what a subdivided lot would be allowed to carry with the slope reduction and normal calculations. Amy said Jake has suggested it would be around 2100 square feet if you took into account of the slope reduction. That might mean that the bonus is in the range of 150 to 200 square feet which might or might not satisfy the applicant. Suzanne said she is clear on what her requirements are for the front yard setback and the 493. You can recommend to council and based on their decision we will move forward or not. Sarah recommended since the commission is varied that each of our comments is submitted to City Council on the topics of the FAR and setbacks. Suzanne mentioned to the Young's that the new structure would be under HPC review. People have come to me after they knew what is going on in support of the project. Sarah said the resolution will reference the verbatim minutes. Jay said council is clear that they are looking for where the HPC stands as a board. In summary three of us said we would agree on the setback variance and three said they would not agree on the FAR bonus but for different reasons. Jim True, Special Counsel requested a motion for clarity. Amy said the draft resolution in front of the board describes HPC support for historic landmark and lot split. The May 131h recommendation will be included. I will include the discussion of May 271h as Jay stated, three were in support of the front yard and three were not in favor of the FAR bonus; however, this will be better defined by the comments that will be specifically provided to city council. MOTION: Brian moved to approve the above recommended motion stated by Amy; second by Jay. All in favor, motion carried 4-0. 0 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF MAY 27, 2009 MOTION: Sarah moved to adjourn; second by Jay. All in favor, motion carried. Meeting adjourned at 8:00 p.m. Kathleen J. Strickland, Chief Deputy Clerk ASPEN'S 20" CENTURY ARCHITECTURE: MODERN CHALET STYLE BUILDINGS The Modem Chalet style in Aspen describes buildings constructed in the 1950's to early 1970's that combined the influences of Chalet architecture with the modernist approach employed by trained local architects, typically within the offices of Fritz Benedict, Herbert Bayer, Rob Roy, and their associates. The low pitched roof, deep overhangs, balconies, simple form, orientation towards the mountain and other aspects of the Chalets were re -visited with much more glazing on the primary fagade, typically carrying all the way up to the roof. Decoration was minimal, but still focused on the eaves, fascias, and balconies. To a degree, this style made the characteristics of modernism more sympathetic to the mountain environment and Aspen's architectural context. CHALET PRECEDENTS tea' ✓�'^ �. ,r'� Mir 1946 Vftr 1965 �f I I INYeh and Associates, Inc. Consulting Engineers & Scientists May 6, 2009 Ms. Suzanne Foster 7 S. Main Street Yardley, PA 19067 Project 28-211A Revision #1 Subject: Geological Hazards Evaluation, Cleary Property, 219 S. Third Street, Aspen, Colorado. Dear Ms. Foster: This letter presents the results of Yeh and Associates geological hazards evaluation for the subject property. This evaluation is intended to provide an assessment of the geological hazards which may affect development of the property. This evaluation consisted of field reconnaissance and review of existing literature. Although the site is located within the City of Aspen, our investigation was conducted in accordance with Section 7-20-20 Steep and Potentially Unstable Slopes and Section 7-20-50 Geologic Hazards, Sections (a) through (i) of the Pitkin County Development Standards. This evaluation does not include environmental assessment. INVESTIGATION AND LITERATURE REVIEW Our investigation consisted of a site visit and review of five map sets: • "Geologic Map of the Aspen quadrangle, Pitkin County, Colorado' prepared by Bruce Bryant, U.S. Geological Survey, 1971 • "Geologic Map of the Roaring Fork and Crystal Valleys", 1974 by F. M. Fox and Associates, Inc. • "Map Showing Areas of Selected Potential Geologic Hazards in the Aspen Quadrangle, Pitkin County, Colorado" prepared by Bruce Bryant, U.S. Geological Survey,1972 • "Environmental and Geologic Constraints Map of the Roaring Fork and Crystal Valleys", by F. M. Fox and Associates, Inc. 1974 • "Pitkin County Colorado, Lower Roaring Fork Valley, Potential Geologic Hazards" 1974 by Colorado State University SITE CONDITIONS We conducted a site visit to the property on April 21, 2009. The study area included the northeast -facing slope on the northwestern most extremity of Aspen Mountain (Ajax) that is also known as Shadow Mountain. Two parcels are included in this study. The parcels are located within the City of Aspen and are bounded on the north by an alley and on the east by Yd Street. There is an existing house on the northeast part of the parcel. An old railroad bed, bike trail, existing earth berm and heavily treed area lay to the south of the parcels. We understand that the planned development will occur to the north side of the old railroad grade. 5700 East Evans Avenue, Denver, CO 00222, (303) 781-9590, Fax (303) 781.9583 170 Mel Ray Road, Glenwood Springs, CO 81601, (970) 384-1500, Fax (970) 384-1501 570 Turner Drive, Suite D, Durango, CO 81303. (970) 382-9590, Fax (970) 382-9683 28-21 IA Cleary Property, 219 South T4 Street, Aspen, Colorado The topography above the site is relatively steep, mountainous terrain. The elevation of the slope above the study area ranges from about 7900 to 8900 feet. The slope above the site consists of exposed bedrock cliffs with local slope gradients greater than 150% interrupted by talus slopes which have developed due to rocks dislodging from the bedrock cliffs and depositing at the base of the cliffs. This part of the slope is heavily vegetated with conifers as well as low forest undergrowth and grasses. The outcropping bedrock areas consist of very hard, dolomitic sandstone, shale and quartzite bedrock with some shallow rocky talus covered bedrock. Most of the slope, except for the outcropping bedrock, consists of soft, shallow colluvial soil deposits with cobble and boulder sized dolomitic sandstone clasts partially to completely buried in the soil matrix. The bedrock is estimated to have several feet of soil cover and will likely possess rockfall characteristics more like rocky soil than bedrock. This portion of the slope is moderately to heavily vegetated with conifers and light forest undergrowth. The conifers are typically 20 to 30 feet in height and have trunk diameters of 6 to 18 inches. Mine access and activities above the parcel have resulted in a slope that is softer, flatter and more irregular than the natural slope higher up the mountain. The bike path which runs along the base of the bill to the south of the parcels creates a flat area that is approximately 30 to 50 feet wide. 28-211A Cleary Property, 219 South YJ Street, Aspen, Colorado There is also a five-foot high, man-made earth berm located to the south of the proposed development. The outcropping dolomitic sandstone units show evidence of potential future rockfall. The frequency of rockfall from the cliffs is moderate, with multiple rockfall events greater than one half cubic yard occurring annually. Although a potential source area exists, we believe that any rockfall originating from this area will stop on the slope above the pedestrian trail and will not impact the subject parcels. 28-21 lA Cleary Property, 219 South 3"' Street, Aspen, Colorado RESULTS Section 7-20-20 Steep and Potentially Unstable Slopes The parcels are relatively flat except for the slope formed by the old railroad grade which is well vegetated and stable in its current configuration. The site is not impacted by steep and potentially unstable slopes. Section 7-20-50 (c) Rockfall There is a potential source of rockfall several hundred feet above the site which does not affect the proposed development due to the characteristics of the slope above the site. The remnants of past mining have created an area, which will stop any rockfall that originates from the northeast facing slope of Shadow Mountain. The slope configuration resulting from the historic mining activity as well as the existing earth berm will protect the site and the proposed development from rockfall hazards. Section 7-20-50 (d) Alluvial Fan Hazard There is a potential for small, infrequent debris flow and debris flood events to originate from Shadow Mountain during intense precipitation events. These small events will not affect the proposed development due to the characteristics of the slope above the site where the remnants of past mining have created an area which is less steep in addition to the protection provided by the flat area and berm near the existing bike path. Future debris events will not affect the proposed development. Section 7-20-50 (e) Talus Slopes One of the maps that we reviewed showed the parcel at the boundary of Quaternary talus deposit. Our site visit indicated that the actual boundary was several hundred feet to the south of the mapped boundary and that the site is not impacted by talus slopes. Section 7-20-50 (a). (b). (c). (d). (e). (fl, (e). (h), (i) This site is not impacted by Section 7-20-50 (a) Avalanche; (b) Landslide Hazard; (c) Rockfall Hazards; (d) Alluvial Fan Hazard; (e) Talus Slopes; (f) Mancos Shale; (g) Faults; (h) Expansive Soil and Rock; (i) Ground Subsidence. SUMMARY Our research and evaluation indicates that the proposed development at this site is not impacted by potential geological hazards and is suitable for the proposed development. LIMITATIONS This report has been prepared in accordance with generally accepted geological practices in this area for use by the client for preliminary planning purposes. If geological hazard mitigation is included in the site -specific development plan, Yeh and Associates, Inc. should review the 28-211A Cleary Property, 219 South P Street, Aspen, Colorado proposed design and construction procedure. The preliminary conclusions and recommendations submitted in this report are based upon data obtained from the observations made in the field. The findings and recommendations given in this report are site -specific, and are only valid for the subject site. INC. Reviewed by: .y A. PihT'li.G., (WY #PG-3353) )al Scientist Ridhard D.Johnson, P Senior Geotechnical E r Ymed- �/�/off ; r' C E 13 6 O Q) _, 00 v 5�p O q M S O C 7 00 d' O U pV O N — L E E 3 cl O O w 0 L >, Q N N Yl — E OA o •5 � 4. o � W °' • � i cOi cOi V1 p vi O p bA « Y C w °o = E U c-0 N ti ^� O O N = d a v s g on C] w o c v d co C C 3 tU. V V o O C a. Q. > N 3 N y L Ln C u f] ono o.n•N E os� c o cG w O a CCIL U s a< s e! C •d N b9 r- O O O al �. E '> .O C O O �. 7 vi V O _ bll w x o � •y 'C •� 3 � w a c U o-w. 2rq c Lo 3 N bq >� N U E .0 p � ro � •p _T I W Q w 3 N z OU w• Q: G: C, N U M in O h C eo oj 99 u Eo41 L p V y L R co i Legend N Address Lot Size Use Heated Area Ni- +E 1) 431 W Hopkins 12.000 sq ft SF 4 124 sq ft 2) 413 W Hopkins 7-500 SF 5,227 sq ft S 3) 205 Third Street T500 SFIADU 1.471 sq ft 4) 333 W Hopkins 3,000 SF 3.087 sq ft 5) 218 Third Street 3.000 SF under construction 6) 325 W Hopkins 6.000 SF 1 691 sq ft 7) 315 W Hopkins 7.500 SF 4.998 sq ft 8) 303 W Hopkins 7.500 SF 4.559 sq ft 9) 334 Hyman 9.000 Lodge 12,306 sq ft 10) 334 Hyman 6.000 4 Units 4A40 sq ft 11) 312 W Hyman 6.000 SF 1.536 sq ft 12) 300 W Hyman 6.000 9 units 3.718 sq ft 13) 315 W Hyman 1.102 SF 921 sq ft 14) 301 W Hyman 3.600 4-8 units 2240 sq ft 15) 432 W Hopkins 12M0 Duplex 4211 sq ft 16) 400 W Hopkins 15.000 7 units 10.154 sq ft Key 17) 500 W Hopkins 27.000 Lodge 45,000 sq ft proposed - SF — 18) 334 W Hopkins 6.000 SF 2-948 sq ft Single Family House 19) 324 W Hopkins 9-000 4 Units 6-600 sq ft -1 st Plumber is the lot size 20) 308 W Hopkins 6.000 2 Units 1.284 sq ft -2nd Number isthe heated 21) 300 W Hopkins 6.000 SF 5 002 sq ft area (sq ft) 219 S Third Street * -AII numbers taken from the Assesors Data Existing with addition 6.005 SF 3500 sq ft Proposed New Lot 3-985 SF TBD o w w tso zao azo Feet i V& ATTACHMENT 2 - Historic Preservation Land Use Application PROJECT: THE CRY OF ASPEN Name: Y1- P w1 ?sf- L I-C_ Location: cl S . 3.n1 51-4-e.ei- Block 3g Fo4 t T-S OPQ RS -ear a kAs iz+S (Indicate street address, lot & block number or metes and boundy description of property) Parcel ID# (REQUIRED) APPLICANT: Name: `f L P bjest- Lt-c- Address: % S • lY�ra iv. Slv �� c rdley 4 19oc� g Phone #: a l 5-- y 9 3-% l oo Fax#: _;k, 9 3 G SS ol E-mail: C. REPRESENTATIVE: Name: O-P_ TV ka'_ Address: -1 S mar S k �f a Jd1 Pa N Dee -7 Phone#: 1907 Fax#: a1S-493 -65Sj E-mail: u24,+nne CT +Yp,�a r�•c.i P I a.rs . Caws TYPE OF APPLICATION: lease check all that apply): 21 Historic Designation ❑ R-location (temporary, on ❑ Certificate of No Negative Effect ❑ 01 off -site) 0 Certificate of Appropriateness ❑ D molition (total ❑ -Minor Historic Development dc molition) -Major Historic Development H S storic Landmark Lot lit ® -Conceptual Historic Development ❑ -Final Historic Development -Substantial Amendment EXISTING CONDITIONS: (description of existing buildings, uses, previous a rovals, etc. t T) -ex PROPOSAL: (description of proposed buildings, uses, modifications, etc. 14011C_ Lot 5 1,F ro zs�d ku o I A Slh ie ha -me rn ru e. t-c pen Historic Preservation Land Use Application Requireme s, Updated: May 29, 2007 ! § & � , . . ...., ]EA TII � ;! ��� | . e H•� W S`$ 7�� | 2§•F%% �&• - .A,! CV Ot Title Insimini _ Issued by Lawyers Title Insurance Corporation l LandAnierica AW Lawyers Title Lawyers Title Insurance Corporation is a member o/ the LandAmerica family of title insurance underwriters. Lawyers Title Insurance Corporation 5600 Cox Road Glen Allen, Virginia 23060 File No.: PCT221481-6 Policy No.: C29-Z102631 Address Reference. 219 S 3RD ST.. ASPEN, CO 81611 Amount of Insurance: $4,050.000.00 Premium. $ 6,911,00 Date of Policy: December 2, 2009 @ 10:11 AM 1. Name of Insured: YLP WEST, LLC 2. The estate or interest in the Land that is insured by this policy is IN FEE SIMPLE 3. Title is vested in. YLP WEST, LLC 4. The Land referred to in this policy is situated in the County of PITKIN. State of Colorado and is described as follows. LOTS O, P, Q, R AND S. BLOCK 39. CITY AND TOWNSITE OF ASPEN Excepting therefrom that portion of Lots O, P and Q that lies south of the northerly boundary of a right of way described as a 17 foot strip of land being 8.5 feet on each side of a centerline of the Colorado Midland Railway right of way and southerly 25 feet of Lot R and S as described and shown in deed and map recorded February 27, 1950 in Book 175 at Page 628, Countersigned Authorized officer or agent ALTA Owner's Policy Schedule A (Rev 6/06) Form 1190-134L I I 5 14' SO' 49' W 47.00' 1 I 8 I 1 1,060 F.F. p 930 S.F. ---__________________T �V ------ ! II PROPSED LOT 2 39OE.9 OP (PROFA.p/ 'm /CT K � A! i 250 F.F. I 1 1 / g�i' I (garage) 1 PROPOSED PROPERTY LINE(TYP.) 1 --- 9 �.—��-- o Z g I O PRO POSED ADDITION I q I / N GRPORT Z Q T-j/ v 1 I €l � ly I I 1 I r 1 wwvosso eIusr. EXISTING BURRING ao I / 1 aAT,o BEcx FOOTPRINT I / al 1 EIIIST, uvvoar 1 I ! i I PROPOSED LOT 1 6,005 sq.ft. -- I (PROPOSED FAR.- 2,62S sq.R) , I EXISTING PROPERTY LINE (TYP.) LLLLLL___ N14'S0'49'E 7S.00'-----------—_— EDGE OF PAVEMENT SOUTH THIRD STREET PROPOSED LOT DIVISION/ BUILDING ENVELOPES A-1 FOSTER SCALE: 1120' . r-0' 219 S.3RD STREET, ASPEN CO 81611 DATE 04-15-09 A7"1'ACI-IM) NT 3 _ Dimensioil at Requicen,ents 7Porm (item tilU on the submittal requirements kep. Nat necessary for all projects.) Applicant: 5OZ 4A//t/f Ptgjcc[ Location: 021 Q ST2-E- N t.> Zone — — —ti_ LT �C s l Y�Gr�� r�bciM%� District: � - I s --- Lol Area (For the purposes of calculating Floor Aica, Lot Area ntay be reduced for areas wi(hin the high water mark, easements, and steep slopes. Pleasc- refer to the definition of Lot Arca in the Municipal Code.) Connnetctal net leasable Existing. O Number of residential units: h I roposed.'_ 0Eeisting Proposed: _ t Number of bedroomsExtstin g 0 _I ) oposed. Proposed % of demolition: DIMENSIONS: (write n/a where no requirenrcul exists in the zone (1, !Cl) Floor Ai(;a existing. g' t .4//owrtblC: _ l') opnsed al(00, He__i yr�hl Principal Bldg.: Accessory Bldg. On -Site parking a/n Sltc covcl age. 'yo Open Space. Front Sc(liacic Rear Setback Existing 'Allowuh(e: z 5 Proposer E.risNiiX _ Allmvable. /U//j Proposed /t, F.iistifig. Re uired: 9 �/ 1 mpnsed: ELtsfing �--- C'C/ llll'' —. ,//� /�( /'�/---- PIU/Joa ed' E12,Stl.n R-?_Required N�� Proposed:_ Existing, lequired. 2 S i Proposed: Existing: Required /O Proposed: /42 Combined Front/Rca---A lndtcm N S E �! Gxis'ting' Required: 3 S Propose(.i: f 16, re Side Setback Existing: Requited /O' Proposed S Side Setback W Existing:,��,_/le 4 w}ed' /0 P roposed Combined Sides. Existing: ?e uired' 9 IC-) ' - Propa.red ./ ( } Distance between Existing IL)IA Re uired: /i huddings: 9 _Ptopos-ed_ /0 Existing non -conformities or encroachments and nolc if encroachment licenses have been issued aiiauu„a rcyueslec (luentily the exact variances needed): v a Y t e( Y) c. c 5-r,... Fve ,+ Aspcn Historic Prescivrlioo 'nci Usc Appliralion PugiMcancnls, Updalcd May 29, 2001 wet -so aLra t l9 L8 07 N3dSV 'J33N1S 01lE'S 61Z 2131soi =.I/ tams y-d SNOI-LVA313 DISVS L 101 03SOdObd I I I LL I I I I w I p z I a ao I J _J _J 6o 91-so:uva .o-, i -.ei L :ams I I9t8 07 N3dSV '133U1S ONE'S 6tZ aatsod . S-y SNOIIVA313 DISVE 1101 03SOd021d a 0 � 0 z 0 ,7777 Q W J W +� 7 LA S 0�� .. .� � • • . •.•. I�� I '�� �� ���� ��� �� �� �-- i111111 � �, �,IIIIIII -I �� ��'�.II C I 0 ..��.....,C DII I��'�11111111111� Wei -so -divo IMS OJ MdSV'133USObE'S6LZ V31SOJ .o-,i -.v t -divas g-V SNOIIVA313 JISVO 1101 03SOdObd I I ❑ I I III I j I a� I I a I I o I I w I I � I 3 I ° I o a � I I I I I I I I I i I I I I I J — —I I KLEIN, COTE & EDWARD5, LLC ATTORNEYS AT LAW HERBERT S. KLEIN hsk&celawnet LANCE R, COTE, PC' kc®kcelawmet JOSEPH E. EDWARDS, III, PC jee'@ImelaWjW COREY T. ZURBUCH clz(a)k 1 W.uet EBEN P. CLARK gc@kcelaw.uet MADHUB.KRLSHNAMURn mbk@kcelaw=t DAVID C. UHUG dcuQakwlawnct dso edvutted is Celifmoia May 20, 2009 Honorable Members of the City Council City of Aspen 130 S. Galena St. Aspen, Co. 81611 RE: Ord. 48 Negotiation — 219 S. Third St. Dear Honorable Council Members, 201 NORTH 1,1LL STREET, STE. 203 ASPEN, COLORADO 81611 TELEPHONE, (970) 925-8700 FACSIIvt LP-- (970) 925-3977 w Acelawmct I represent Paul and Angela Young, neighbors of the property at 219 S. Third St. At the first reading on this matter on May 11, I provided some oral comments which Councilman Skadron requested that I provide in writing. The purpose of this letter is to comply with his request. This has been an unusual process. The negotiation set up by Ordinance 48 has no guidelines or stated limitations. The typical score sheets and criteria used to evaluate whether or not designation is appropriate are not available. Staff has been an advocate for historic preservation and so has the HPC. That is fine, but when the typical criteria are not available, there is a strong sense that this process has no boundaries and that reliance on the existing land use code is out the window. The land use code is the mainstay of protection for our community's values. Its restrictions and benefits are the result of hard fought political battles. These standards for development should not be cast aside unless there is a clear and overwhelming public benefit and lawful processes are followed. In this application, valuable development rights are being sought in exchange for voluntarily designating as an historic structure, an existing house built in 1965. Numerous exemptions, variances and floor area bonuses are requested by the applicant. We believe they have a value of to the developer of a couple of million dollars. Between the absence of specific designation criteria and the open ended nature of the negotiation process, my clients have been experiencing a very high level of anxiety because the whole process so far has seemed very arbitrary. Members of the City Council May 20, 2009 Page 2 of 3 For example, at the January 28 HPC hearing, another modem chalet, with very similar characteristics was found by the HPC not to be worthy of proceeding through the negotiation process — in other words, they did not find it worthy of protection. The current application was the next matter on the HPC agenda and the HPC found that it was worthy of protection. Since it was so similar to the previous house, it appeared to us that this was not for any particular reason relating to its features, but because the applicant here seeks a voluntary designation and the other applicant did not want its property designated. There should not be two different standards — but this is what happens when there are no criteria. The absence of standards extends beyond HPC and into your Ord. 48 negotiation process. For example, the applicant's request for an additional 493 sq. ft. in floor area as an "economic incentive" is not allowed by the land use code or applicable law. While the Council has flexibility to grant waivers of fees and other monetary charges, which are real economic incentives, additional floor area that is not provided for in the code is a defacto rezoning which would by pass the required processes for a rezoning. The staff s rationalization for it support of this additional floor area is that additional floor area is allowed for a deed restricted affordable housing carriage house, and here the applicant is seeking this footage "but without the deed restriction" (see page 9 of the staff memo). You have to wonder about this one and it may help you to appreciate the anxiety generated in the neighborhood by this request. You should also be aware that the applicant originally proposed to transfer 1900 feet of floor area off of a nearby out -parcel that she probably does not own. Once we debunked that situation, the applicant took that off the table. So if you hear that the applicant has greatly reduced the amount of square footage she originally asked for — well she was not entitled to that anyway. And if you hear that the City could get a quit claim deed to the out -parcel if things go well for the Applicant, please don't take the bait. I will give you a quit claim for it if you want one. This applicant has also raised the anxiety level by threatening to build the maximum amount of square footage as possible if the Applicant does not get what she wants out of this process. Her alternative is to build the maximum free market square footage available plus a 1200 sq ft carriage house (a for sale AH unit) and obtain a floor area bonus for that. While this may represent more floor area, at least the community is getting a for sale AH unit. And if that is the outcome, that is fine with us. My client's feeling is that if they are going to have their views blocked and their dead end alley further congested, at least there will be some tangible community benefits. And when you see in staff's memo the statement that the proposed project does not increase development rights beyond what could be achieved through the existing code processes (pg 2 staff memo), keep in mind that this statement seems directed to floor area and density, but is not taking into account that the landmark proposal generates nothing but free market square footage Members of the City Council May 20, 2009 Page 3 of 3 and the non -historic alternative generates a significant amount of AH square footage. It is no wonder that the applicant is choosing the Ord. 48 process. There is more money to be made there. And when you hear about the Applicant's non -historic alternative, please keep in mind that with it the city gets meaningful affordable housing. However, in her historic proposal, there is no affordable housing and she seeks a waiver of the $172,000 housing mitigation fee for the house to be built on the lot split parcel. So there are real trade offs. If you feel that this property is worthy of designation, we will get almost the same amount of square footage, but no affordable housing. Although HPC was an advocate for landmark designation, they were not an advocate for it at any cost. It is important to emphasize HPC's discomfort with proposed incentives — as stated in the HPC resolution.: "WE URGE CITY COUNCIL NOT TO OVER BURDEN THE HISTORIC RESOURCE AND RESPECT THE CHARACTER OF THE NEIGHBORHOOD. HPC IS UNCOMFORTABLE WITH THE PACKAGE OF INCENTIVES PROPOSED. Due to the lack of clear processes, the lack of typical designation criteria, zealous advocacy by staff and several changes to the original proposal, the process to date with the HPC has been somewhat kafka-esc. We are happy to have arrived at City Council - the trade offs are worth protecting the structure. We hope and expect that you will restore confidence in the process by being very circumspect in doling out benefits and the detrimental impacts that result from them. Please ask yourselves what sacrifices should the neighbors and the public at large be expected to endure when additional development is allowed to protect an historic building. If you feel this is a marginal property, then please do not agree to its landmark designation. if you feel it is worthy of designation, then please be careful and frugal with the benefits you bestow. Very truly yours, KLEIN, COTE & EDWARDS, LLC By: P' el T �, Herbert S. Klein ((Jf May 26, 2009 TO: City Council & City Clerk Please enter this petition into record. Approximately 5 other petition pages w/ signatures were previously entered into record at HPC meetings on January 28, 2009 and March 11, 2009. These petitions in total should be part of City Council record. 219 S. Third Street Petition I OPPOSE HISTORIC LOT SPLIT THAT WOULD ALLOW: -Violation of STANDARD DENSITY (Increase from 4 BEDROOMS To 12 BEDROOMS) and create 2"o NON -CONFORMING LOT -MAX OUT LOTS thru SET BACK VARIANCES on ALL SIDES -Maintain NON -CONFORMING DUPLEX on undersize lot -INSUFFICIENT vehicle parldng -NO building plan REVIEW -EXEMPT from GROWTH MANAGEMENT Quota System -MULTIPLE WAIVERS of required CITY FEES May 22, 2009 TO: ASPEN CITY COUNCIL and HPC I/We oppose historic designation and lot split at 219 South Third St. We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant. The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, Address��% May 22, 2009 TO: ASPEN CITY COUNCIL and HPC I/We oppose historic designation and lot split at 219 South Third St We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, Address SV.A5'GI May 22, 2009 TO: ASPEN CITY COUNCIL and HPC I/We oppose historic designation and lot split at 219 South Third St. We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant. The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, Address May 22, 2009 TO: ASPEN CITY COUNCIL and HPC I/We oppose historic designation and lot split at 219 South Third St We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant. The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, Address PuLk"n6 ✓� May 22, 2009 TO: ASPEN CITY COUNCIL and HPC 1/We oppose historic designation and lot split at 219 South Third St We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant. The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, Address 3/ 2 G�. ff�fA1A,✓ s�-S��Nj l'dco.�A-Da May 22, 2009 TO: ASPEN CITY COUNCIL and HPC I/We oppose historic designation and lot split at 219 South Third St We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant. The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, �fII /n,�� Address V �" May 22, 2009 TO: ASPEN CITY COUNCIL and HPC I/We oppose historic designation and lot split at 219 South Third St. We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant. The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, Address `t � s U3, u� May 26, 2009 To: CITY COUNCIL & HPC My name is Angela Young and 1 live at 413 W. Hopkins Ave with my husband Paul and our two children; we have been full time residents for the last 5 years and our son and daughter attend Aspen Public Schools. We, like so many of our neighbors, work hard for the privilege to live here. Like other Aspenites, I respect and enjoy the beauty and rich history of our town and certainly, we must be guardians of both. But since the first HPC meeting on January 28u, regarding this particular applicant and her proposed development, I have become increasingly skeptical that the current historic preservation process has become nothing more than a tool for real estate developers to use the system to flip speculative homes and market newly created lot split properties. If this proposed development is allowed to go forward, our neighbors and neighborhood will inevitably suffer the lasting and permanent effects, such as increased mass and density, overcrowding, parking issues, no affordable housing, negative aesthetic impacts, and overburdening of city services and resources. Right now, we have two separate, abandoned development projects behind chain link fences within a half block of our home. As a developer, Mrs. Foster's application does not functionally work within our neighborhood. The project is too big and too much for the area, it creates overcrowding and leaves no open space. Simply put, this project not only has immediate negative impacts on the neighbors but most importantly, it will forever adversely change the true nature and character of our neighborhood. There is OVERWHELMING neighborhood opposition to this project. The true historic value of this designation has been broached at the two previous HPC meetings and I think it is fair to say that it is not necessarily a stellar example when held to the closest scrutiny; indeed, Mrs. Foster, the owner, has characterized it as a "flophouse" ---owner's opinion included, does it truly merit all the incentives, bonuses and waivers the applicant is requesting in exchange for designation? It increasingly seems the City and neighbors are being held hostage for a marginal historic designation that will become an unwieldy albatross tied to the neighborhood's neck for future generations! Is this the kind of historic preservation bargaining legacy we want to implement? Respectfully, i Ange March 7, 2009 Dear HPC Members/ Aspen City Council: While I am not Inclined to get involved with City Government and its workings, I feel compelled to weigh in on 219 S Third St and the proposed historical lot split I am very familiar with this property and I think it is ludicrous to grant a lot split even if you feel that the duplex is worthy of designation, which in my opinion, it is not I question the logic of what seems to be considered an "automatic incentive in the form of an'automatic lot split' in this town. Anyone familiar with this property knows the unusual, irregular shape of the lot and a cursory glance leaves one with the question, "Where is this extra lotr As a devoted Midland Trail hiker, I am terribly upset with the increased density and mass burdens in terns of encroachment this will put upon the trail. While I have always honored the worthwhile work of organisations such as yours, I feel you are in jeopardy of losing hard-earned credibility within the community if this type of senseless `give -backs' continue. Respectfully, Sally Matkin DDS 119 S Spring St Aspen, CO 81611 March 10, 2009 Attn: Sara Adams Aspen Historic Preservation Commission Re 219 S. Third Street, Aspen, CO petition Scheduled: Wednesday, March 11, 2009 Dear Historic Preservation Commission members: As you review the Third Street development application, please consider all possible negative ramifications it will have on an important Aspen mining era landmark. The historic 1880's'Midland railroad right-of-way is a success story of converting "rails to trails." Together with the Rio Grande railroad right-of-way on the north side of Aspen, it is the southern half in Fritz Benedict's "necklace trail system encircling Aspen," envisioned and advocated by him. His vision, along with At Bloomqulfs and others, helped Aspen lay the foundation for this trail "necklace" around the perimeter of town. Any new historic designation should not compromise or degrade the quality of this vital pedestrian/bike/ and cross country trail linkage to and from town. Although neither time nor resources allow us to contact the over 1,000 members of "Friends of Shadow Mountain" on this individual issue; one of the three key tenants we guard is "preservation of the integrity of the Midland Trail." Any new development, including this one, should not diminish the community investment and on -going efforts to expand the trail and open space experience on Shadow Mountain. Allowing any greater density, reducing set back requirements or allowing building heights above two stories will have an irreversible adverse impact. Sincerely, FRIENDS of SHADOW MOUNTAIN Board members Carole Bloomquist Martha Madsen Donna Fisher Michael Behrendt Fonda Paterson TO: Aspen Historic Preservation Commission — Meeting - i ]March 2009 Re: 219 So. Third Street, Ordnance # 48 Negotiation Exhibit: color photos of the alley between 219 So Third St and 211 So Third St. Subject the alley between 219 and 211 South Third St. From: David E Bentley - 38 year resident of 211 So. Third St who lives on that alley Messieurs: In the attached photos, I have lived in the tiny house across the alley from # 219 since November 1971. Note the skylight on the roof of the tiny house. The ridge towering over this neighborhood is called Shadow Mtn for a good reason. The sun doesn't come thru my skylight from early November until the end of February. This is truly the shadiest part of Aspen. The snow comes harder and stays much longer. While the Street Department does plow the alley, the plowed and packed portion of the roadway never goes to the edges. Dozens of time over the last 38 years, I have seen residents park close to the duplex to allow traffic to go past to the second west carport of 219, and in the last decade to Paul Young's house. One side of their vehicle will sink into the unpacked snow, requiring great time and exasperation to get the vehicle back into the center of the alley. No matter who lives in #219 or in the proposed 2"" house to the west, the residents will always have more czars than the 2 carport parking space designed into the footprint of the existing building # 1 (219) or building # 2 (proposed). Currently, the renters at 219 have between them at least 5 cars. The St Moritz Lodge across Third St has only a small proportion of parking spaces compared to the total number of rooms. When the St Moritz is even half full, the entire part of Third St abutting 219 South Third is taken up by the vehicles of tourists and construction crews. This guarantees that some of the residents of 219 have to park alongside the house because the two carports only take two vehicles. At present, the renters of 219 have between them, four cars. The proposed 2'd building will make it much worse since it has no direct access to either P St or W Hopkins. This is a DEAD-END alley_ The photographs are my argument against the proposed lot split. Sincerely, David E Bentley (davidebentley@comcest.net (Fax: 925-4443) PO Box 3024 Aspen CO 91612-3024 LIST OF NEIGHBORS WITHIN 300 ` WHO ARE OPPOSED TO 219 S. THIRD ST. HISTORIC DESIGNATION AND LOT SPLIT 1. David Bentley-207 S. Third St. 2. Paul and Angela Young-413 W. Hopkins Ave. 3. John and Kathleen Callahan-205 S. Third St. 4. Jennifer Sherwin-205 S. Third St 5. Dan and Tita McCarty-333 W. Hopkins Ave. 6. Steve and Cheryl Goldberg-430 W. Hopkins Ave. 7. Dan Verner-432 W. Hopkins Ave. 8. John Staton-431 W. Hopkins Ave. 9. Jordy Gerberg-312 W. Hyman Ave. 10. Michael Berhendt-334 W. Hyman Ave. 11. James K Jackson -312 W. Hyman Ave. 12. Paul Young IV -413 W. Hopkins Ave KING SC SPAT mNG King & Spalding LLP 1180 Peachtree Street, NE Atlanta, Georgia 30309-3521 www.kslaw.com John C. Staten Retired Partner Direct Dial: (404) 572-4985 Direct Fax: (404) 572-5134 jstaton@kslaw.com May 26, 2009 Aspen City Council City Council Chambers City Hall 130 S. Galena Street Aspen, Colorado 81611 Re: 219 S. Third Street Ordinance #48 Series of 2007 Dear Mayor and Council Members: I. MY NAME IS JOHN STATON. I am opposed to the potential historic designation for 219 S. Third Street. Since 1993, I have owned a home at 431 W. Hopkins at the comer of Fourth Street, next door to Mr. and Mrs. Paul Young. II. THE PROPERTY AT 219 S. THIRD STREET IS NOT HISTORIC. (a) The March 11, 2009 Memorandum prepared by Ms. Amy Guthrie, Historic Preservation Officer, contains six examples of "Classic Chalet buildings" in Aspen. The May 26, 2009 Memorandum prepared by Ms. Guthrie and filed with Mayor Ireland and City Council now includes twelve examples of the "Modern Chalet Style" in support of the staffs definition. It should be noted that at least seven of the cited examples were not included in the original March 11, 2009 Memorandum. (b) A casual review of the six (now twelve) examples and a comparison to the property in question, clearly shows 219 S. Third Street is not worthy of a historic designation. Aspen City Council May 26, 2009 Page 2 III. ASSUMING YOU FIND IT IS HISTORIC, THE PROPOSED ADDITION TO THE EXISTING BUILDING WILL DESTROY ANY HISTORIC VALUE THAT THE BUILDING HAD. (a) If a building is designated historic, then it stands to reason its look as a "classic chalet building" must be maintained after the designation. To allow the proposed addition would eliminate its "classic chalet' look and therefore nullify its historic designation. (b) Any external modification should result in losing the historic designation. IV. THE PROPOSED VARIANCES ARE NOT SUPPORTED BY THE HISTORIC DESIGNATION. (i) The building is not of such historic significance that it would support all of the variances that have been requested. (ii) The variances, if granted, would permit construction or remodeling of two buildings that otherwise would not be permitted without the requested variances. Respectfully submitted, /s/ John C. Staton, Jr. John C. Staton, Jr. JCS/ds Thanks, Angela young From: junee.kirk@comcast.net To: turtlemom02@hotmail.com Subject: Fw: Historic Preservaton 3rd& Hopkins Date: Fri, 22 May 2009 18:14:04 -0600 ----- Original Message ----- From: skadron@comcastnet To: lunee Kirk <mailto:junee.kirk@comcast.net> Sent: Friday, May 22, 2009 5:15 PM Subject: Re: Historic Preservaton 3rd& Hopkins Junee- I should tell you that I'm meeting with Sara in HP Tuesday morning to discuss these issues. Specifically, I asked to see what development impact TDRs are having, specifically on density and character. Were going over plans and visiting actual landing sites. Thanks again. ----- Original Message ----- From: "Junee Kirk" <junee.kirk@comcast.net> To: "Steve Skadron" <skadron@comcast.net> Sent: Friday, May 22, 2009 2:38:21 PM GMT -07:00 US/Canada Mountain Subject: Fw: Historic Preservaton 3rd& Hopkins Dear Coucilman Steve: As a member of the historic task force I urge the council to deny the application at 312 S. Third, for voluntary history designation under Ordinance #48. We have not yet decided on the specific criteria for preservation or even if this type of style is worthy of designation. To give a developer all these incentives to preserve a style of house, which has little, or no merit, in the historical context to Aspen's history or preservation, would be a mistake It is common knowledge that the majority of the task force does NOT agree in designating "modern chalets" and have voted in committee to preserve only the most exemplary, if this style were even deemed consideration for preserving. The Weinerstube, a well known structure, because it was a former post office in the 60' and 70's, which has since become a well known restaurant over the decades, would be an exemplary example of this "modern chalet" style. However, this has not even been considered for preservation by HPC staff. The majority of the task force, in criteria committee, has voted against preserving this architectural style. Council should take notice that when we cannot even preserve the Victorian mining cottages in the West End historic neighborhood, why are we preserving this! Why is this coming to council now? Is this because staff is anxious to valid an ordinance #30 & 48 before it could be turned down by the entire task force? Historic Preservation should NOT be used as a TOOL for increasing FAR! The developer/owner on this site presently has a duplex the size of 1533 sq. ft. Under the existing land use codes they can build a duplex 3652 sq. ft. They are asking for a lot split to expand their FAR to 5,025 sq. ft. (under the guise of historical designation.) With all these incentives: lot splits, additional FAR, variance for set back requirement, request to build lot line to lot line that negatively impacts the neighborhood and neighbors, both in density and architecturally, this application serves NO COMMUNITY BENEFIT. IT is not only a poor example of this chalet style, but is not providing employee housing on site, and is only taking advantage of every incentive staff has provided to preserve a very un-noteworthy structure. The inappropriate incentives staff has provided are: lot split, 500 additional square footage for this house being "exemplary", 390 sq. for a separate building on the property, and 493 sq ft for an economic incentive bonus, variance for a 16 ft set back so a new structure can be built lot line to lot line, a waiver of cash -in lieu of affordable housing and 10 years vesting rights for future development. If this is such an exemplary, style then the owner/develop should preserve it as it is with NO incentives. Let the owner/developer provide the necessary affordable housing, but there should be no cash -in- lieu. Let the owner/developer preserve it under the existing land use codes with no incentives and build affordable housing on a cabin. HOW WE GOT HERE: When the Chalet styles came up for a vote for preservation in the Committee for Criteria, only the best of Chalets were deemed important for preservation. Under consideration were how well they related to the ski era of the well-known ski lodges at the foot of Lift One A where Aspen's Skiing history developed. When the "modern chalet " or Wrightian style, came up for discussion as a style to preserve, only the most exemplary was deemed necessary to be preserved. Criteria for this are continually being discussed and have not yet been voted on by the entire task force. To many of us, it is an important notion that for preservation of any style, mining cabin or other, it should either fit in with Aspen's history and neighborhoods or it should be exemplary by being a well known structure and with much frequentation, like the Sardy House or The Weinerstube. 312 S. Third is not an exceptional style or house. As having been "cherry picked like many other of these houses, off the beaten path, its style is commonplace to most cities and adds little to any historical aspect to Aspen. Aspen has been renowned as a Mining town, full of small mining cabins and Iconic Mining buildings for past 100 years. The mining cabins were surrounded by much open space. Throughout the decades Aspen's land use codes have striven to protect the open space while it encouraged appropriate development in height mass and scale, to preserve and protect Aspen's "character". Many feel "the chalet", and "modern chalet" are not representative of Aspen's character and history, and that it is Victorian mining town that we should be concentrating on first and foremost. There might be a better argument for "chalet style" in the Lift to neighborhood where skiing took place in Aspen post World War II or the buildings of the Institute which gave Aspen's historical prominence in the arts sciences and music culture. These are distinctive periods in our history which can be identified with a particular architectural style. Not "modern chalet." When there is a collection of these styles, the entire neighborhood or a district should be preserved. We are not doing this. We should be preserving our character, as a Victorian mining town, not inventing styles of architecture which are commonplace and seen everywhere, and which are not unique to the Aspen Character. What is preserved in Arizona, should not be preserved in Aspen. Besides, entire neighborhoods of moderns" are being preserved in Arizona. This is their character, not Aspen's character or any part of our history. HPC staff is not even preserving our historic neighborhoods or even Iconic buildings! The best examples of this is the Armory, our own Town Hall, which is experiencing an inappropriate oversized, out of scale new fire station which protrudes onto the sidewalk with a 52 ft, wall blocking most of the view of our iconic Town Hall from the street. Therefore, if we are NOT even SAVING our existing historic districts, this ordinance 48 and this particular application for this style, with all its incentives, surely SHOULD NOT be put to the test! Truly it puts our historic designation program to shame. The majority of the citizens want preservation and many on the task force see preservation as important, but not in this way or this manner. I urge you not to make a mockery of our preservation program by approving this application, until the entire task force can vote on these issues and present its majority and minority views. Thank you for your time. Thank you, Junee Kirk Insert movie times and more without leaving Hotmail(@. See how. <http://windowslive.com/Tutorial/Hotmaii/QuickAdd? ocid=TXT_TAGLM_ WL HM_Tutorial_QuickAddl_052009> VVA c5j'7,40 26- gl<.OzS Preservation Guidelines," an application for building permit shall be issued. Work undertaken in conformance with the International Building Code provisions for emergency repairs, assuming that the repair matches the surrounding exterior materials and character to the extent practicable, shall be exempt from this Section. E. Ninety -Day Negotiation Period. For those properties identified on the List of Potential Historic Resources, building permits and land use applications for alterations, demolition, re- development, or other similar development activity that substantially alters the Potential Historic Resource shall be accepted by the Community Development Department. Only complete Land Use applications, as determined by the Community Development Director, shall be accepted. A letter from the property owner indicating an understanding of this ninety -day negotiation period 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, for a period of ninety days to allow for a period of negotiation regarding the preservation of the Re- source. 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 occur: 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 maybe 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, regarding the proposed building permit and the nature of the Potential Historic Resource. 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 nature of the Potential Historic Resource, and the staff and Historic Preservation Commission's assessment of the Resource and the effects of the building permit upon the Resource. The property owner shall be provided notice of this meeting with the City Council. O 4. The City Council may negotiate directly with the property owner or may choose to direct the Community Development Director, or other City staff as necessary, to negotiate with the property owner to reach a mutually acceptable agreement for the preservation of the Resource. The City Council may choose to provide this direction in Executive 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 standards and limitations of Section 26.415.030, Designation of Historic 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 Development 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 negotiations at any time and allow the permit or land use application to be reviewed. increase. (Ord. No. 56-2000, §§ 1, 7 [part], 10; Ord. No. 25-2001, §§ 1, 5 [part]; Ord. No. 1-2002, § 20 [part]; Ord. No. 54-2003, § 6; Ord. No. 48-2004, § 1; Ord. No. 50-2005, § 1) ZSec. 26.710.050. Moderate -Density Residential (R-15). A. Purpose. The purpose of the Moderate -Density Residential (R-15) Zone District is to provide areas for long-term residential purposes with customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Moderate - Density Residential (R-15) Zone District typically consist of additions to the Aspen Townsite and subdivisions on the periphery of the City. Lands within the Townsite which border Aspen Mountain are also included in the Moderate -Density Residential (R-15) Zone District. B. Permitted uses. The following uses are permitted as of right in the Moderate -Density Residential (R-15) Zone District. 1. Detached residential dwelling. 2. Duplex. 3. Two detached residential dwellings. 4. Home occupations. 5. Accessory buildings and uses. 6. Accessory dwelling units and carriage houses meeting the provisions of Chapter 26.520. C. Conditional uses. The following uses are permitted as conditional uses in the Moderate -Density Residential (R-15) Zone District, subject to the standards and procedures established in Chapter 26.425: 1. Arts, cultural and civic uses. 2. Academic uses. 3. Agricultural uses. 4. Recreational uses. 5. Group home. 6. Child care center. 7. For historic landmark properties: bed and breakfast and boardinghouse. D. Dimensional requirements. The following dimensional requirements shall apply to all permitted and conditional uses in the Moderate -Density Residential (R-15) Zone District. 1. Minimum lot size: fifteen thousand (15,000) square feet. For lots created by Subsection 26.480.030.A.4, Historic landmark lot split: three thousand (3,000) square feet. 2. Minimum lot area per dwelling unit: a. Detached residential dwelling: fifteen thousand (15,000) square feet. For historic landmark properties: three thousand (3,000) square feet. b. Duplex: seven thousand five hundred (7,500) square feet. For historic landmark properties: three thousand (3,000) square feet. c. Bed and breakfast, boardinghouse: No requirement. 3. Minimum lot width: seventy-five (75) feet. For lots created by Subsection 26.480.030.A.4, Historic landmark lot split: thirty (30) feet. 4. Minimum front yard setback: a. Residential dwellings: twenty-five (25) feet. b. Accessory buildings and all other buildings: thirty (30) feet. 5. Minimum side yard setback: ten (10) feet. 6. Minimum rear yard setback: a. Principal buildings: ten (10) feet b. Accessory buildings: five (5) feet. 7. Maximum height (feet): twenty-five (25) feet. 8. Minimum distance between detached buildings on the lot: ten (10) feet. 9. Percent of open space required for building site: No requirement. 10. External floor area ratio (applies to conforming and nonconforming lots of record): Lot Size Allowable Floor Area for Allowable Floor Area for Two (Square Feet) Single -Family Residence* Detached Dwellings or One Duplex* 0-3,000 80 square feet of floor area for each 100 90 square feet of floor area for each 100 square feet in lot area, up to a maximum of square feet in lot area, up to a maximum of 2,400 square feet of floor area 2,700 square feet of floor area 3,000-9,000 2,400 square feet of floor area, plus 28 2,700 square feet of floor area, plus 30 square square feet of floor area for each additional feet of floor area for each additional 100 100 square feet in lot area, up to a maximum square feet in lot area, up to a maximum of of 4,080 square feet of floor area 4,500 square feet of floor area. 9,000-15,000 4,080 square feet of floor area, plus 7 square 4,500 square feet of floor area, plus 7 square feet of floor area for each additional 100 feet of floor area for each additional 100 square feet in lot area, up to a maximum of square feet in lot area, up to a maximum of 4,500 square feet of floor area 4,920 square feet of floor area 15,000-50,000 4,500 square feet of floor area, plus 6 square 4,920 square feet of floor area, plus 6 square feet of floor area for each additional 100 feet of floor area for each additional 100 square feet in lot area, up to a maximum of square feet in lot area, up to a maximum of 6,600 square feet of floor area 7,020 square feet of floor area 50,000+ 6,600 square feet of floor area, plus 2 square 7,020 square feet of floor area, plus 3 square feet of floor area for each additional 100 feet of floor area for each additional 100 square feet in lot area square feet in lot area • Total external floor area for multiple detached residential dwellings on one (1) lot shall not exceed the floor area allowed for one (1) duplex. Total external floor area for multiple detached residential dwellings on a lot less than twenty thousand (20,000) square feet listed on the inventory of historic landmark sites and structures shall not exceed the floor area allowed for one (1) detached residential dwelling. would result in undue and unnecessary hardship. Variances shall only be granted in accordance with the terms of this Chapter. Sec.26.314.020. Authority. 3 The Board of Adjustment, in accordance with the procedures, standards and limitations of this Chapter shall approve, approve with conditions or disapprove a development application for variances to the terms of this Title. If the application for a variance is part of a consolidated application process authorized by the Community Development Director pursuant to Subsection 26.304.060.13.1, the Planning and Zoning Commission or the Historic Preservation Commission may review the application for a variance using the standards and procedures set forth in this Chapter. Sec. 26.314.030. Authorized variances. Variances may only be granted from the following requirements of this Title 26: A. Dimensional requirements. B. Permitted uses, but only to allow for the temporary off -site location or storage of materials, structures or equipment pursuant to building construction or construction staging. Sec. 26.314.040. Standards applicable to variances. A. In order to authorize a variance from the dimensional requirements of Title 26, the appropriate decision -making body shall make a finding that the following three (3) circumstances exist: 1. The grant of variance will be generally consistent with the purposes, goals, objectives and policies of the Aspen Area Community Plan and this Title; 2. The grant of variance is the minimum variance that will make possible the reasonable use of the parcel, building or structure; and 3. Literal interpretation and enforcement of the terms and provisions of this Title would deprive the applicant of rights commonly enjoyed by other parcels in the same zone district and would cause the applicant unnecessary hardship, as distinguished from mere inconvenience. In determining whether an applicant's rights would be deprived, the Board shall consider whether either of the following conditions apply: a. There are special conditions and circumstances which are unique to the parcel, building or structure, which are not applicable to other parcels, structures or buildings in the same zone district and which do not result from the actions of the applicant; or b. Granting the variance will not confer upon the applicant any special privilege denied by the Aspen Area Community Plan and the terms of this Title to other parcels, buildings or structures, in the same zone district. B. In order to authorize a variance from the permitted uses of Title 26, the appropriate decision - making body shall make a finding that all of the following circumstances exist: 1. Notice by publication, mailing and posting of the proposed variance has been provided to surrounding property owners in accordance with Subparagraphs 26.304.060.E.3.a.—c. 1. The present Zone District classification and existing land uses of the real property proposed to be amended. 2. The area of the property proposed to be amended, stated in square feet or acres or a major fraction thereof. 3. An accurate survey map of the real property proposed for amendment. See. 26.310.040. Standards of review. 01 In reviewing an amendment to the text of this Title or an amendment to the Official Zone District Map, the City Council and the Planning and Zoning Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Community Plan. C. Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land use and neighborhood characteristics. D. The effect of the proposed amendment on traffic generation and road safety. E. Whether and the extent to which the proposed amendment would result in demands on public facilities and whether and the extent to which the proposed amendment would exceed the capacity of such public facilities including, but not limited to, transportation facilities, sewage facilities, water supply, parks, drainage, schools and emergency medical facilities. F. Whether and the extent to which the proposed amendment would result in significantly adverse impacts on the natural environment. G. Whether the proposed amendment is consistent and compatible with the community character in the City. H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. 1. Whether the proposed amendment would be in conflict with the public interest and whether it is in harmony with the purpose and intent of this Title. Sec. 26.310.050. Temporary suspension of building permits — pending ordinance. A. Whenever the Planning and Zoning Commission adopts a resolution recommending to the City Council an amendment to the text of this Title or the Official Zone District Map or the City Council pursuant to Subsection 26.310.030.1) passes a proposed ordinance on first reading, whichever shall occur first, the proposed ordinance shall be considered a pending ordinance. Unless the Planning and Zoning Commission resolution or the proposed ordinance passed by City Council on first reading states that the proposed ordinance shall not be considered a pending ordinance, no building permit shall be issued by the chief building official which would be prohibited by the proposed amendment for a period of six (6) months. B. Following a recommendation by the Planning and Zoning Commission to the City Council for an amendment to the text of this Title or the Official Zone District Map, the City Council may by motion or resolution declare that the proposed ordinance shall not be considered a pending ordinance and any permit applied for which otherwise conforms to this Title shall be issued by the chief building official. 26. no 050(,9) Dbn CZ� 4. Historic L dmark lot split. The split of a lot that is listed on the Aspen Inventory of 5 Historic Landmark S es and Structures for the development of one (1) new single-family dwelling. The Historic Landm k lot split shall meet the requirements of Subsections 26.480.030A.2 and 4, Subsection 26.47 and Subsection 26.415,W.A of this Code and the following standards: D a. The original parcel shall be a minimum of six thousand (6,000) square feet in size and be located in the R-6, R-15, R-15A, RNIF or O Zone District. b. The total FAR for both residences shall be established by the size of the parcel and the Zone District where the property is located. The total FAR for each lot shall be noted on the subdivision exemption plat. In the Office Zone District, the following shall apply to the calculation of maximum floor area for lots created through the historic landmark lot split. Note that the total FAR shall not be stated on the subdivision exemption plat because the floor area will be affected by the use established on the property: If all buildings on what was the fathering parcel remain wholly residential in use, the maximum floor area will be as stated in the R-6 Zone District. If any portion of a building on a lot created by the historic landmark lot split is in commercial/office use, then the allowed floor area for that lot shall be the floor area allowed for all uses other than residential in the Zone District. If the adjacent parcel created by the lot split remains wholly in residential use, then the floor area on that parcel shall be limited to the maximum allowed on a lot of its size for residential use according to the R-6 standards. If there is commercial/office use on both newly created lots, the maximum floor area for all uses other than residential in the Zone District will be applied. %!D c. The proposed development meets all dimensional requ' ments of the underlying Zone District. The variances provided in Paragraphs 26.415. .B.l.a, b and c are io permitted on the parcels that will contains an historic structure. The FAR bonus will be applied to the maximum FAR allowed on the original parcel. 5. Exempt timesharing. The creation of time -span estates that comply with the requirements for exempt timesharing, pursuant to Section 26.590.030 of the Code. This subdivision exemption shall not be used to create any new lots or dwelling units. (Ord. No. 55-2000, §11; Ord. No. 1- 2002, §11, 2002; Ord. No. 9-2002, §9; Ord. No. 21-2002, §7; Ord. No. 34-2003, §1) See.26.480.040. Procedures for review. A development application for a subdivision approval or exemption shall be reviewed pursuant to the procedures and standards in this Chapter and the common development review procedures set forth at Chapter 26.304. A. Lot line adjustment and exempt timesharing. After an application for a lot line adjustment or exempt timesharing has been determined complete by the Community Development Director, the Director shall approve, approve with conditions or deny the application. B. Exempt subdivisions. 1. Steps required: One— a public hearing before City Council. SZ40. 4_1 6. /10 2. The procedure for the review of a historic lot split application is a two-step process including a public hearing before the HPC and the City Council. Notice for these hearings includes publication, mailing and posting pursuant to Subsection 26.304.060.E3 Paragraphs a, b and c. 3. Staff will review the submittal material and prepare a report with relevant information and a recommendation to continue, approve, approve with conditions or disapprove and the reason for the recommendation. 4. The HPC may approve a resolution, recommending that City Council approve, approve with conditions or disapprove the application. 5. The City Council may, by ordinance, approve, approve with conditions or disapprove the application. B. Variances. Dimensional variations are allowed for projects involving designated properties to create development that is more consistent with the character of the historic property or district than what would be required by the underlying zoning's dimensional standards. 1. The HPC may grant variances of the Land Use Code for designated properties to allow: a. Development in the side, rear and front setbacks; b. Development that does not meet the minimum distance requirements between buildings; c. Up to five percent (5%) additional site coverage; d. Less open space than required for the on -site relocation of commercial historic properties. 2. In granting a variance, the HPC must make a finding that such a 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. C. Parking. Parking reductions are permitted for designated historic properties on sites unable to contain the number of on -site parking spaces required by the underlying zoning. Commercial designated historic properties may receive waivers of payment -in -lieu fees for parking reductions. The parking reduction and waiver of payment -in -lieu fees may be approved upon a finding by the HPC that it will enhance or mitigate an adverse impact on the historic significance or architectural character of a designated historic property, an adjoining designated property or a historic district. D. Conditional uses. A variety of conditional uses are allowed for designated historic properties. These uses are identified in Chapter 26.710. E. Floor area bonus. JZ(,,410.02-0 A. Determination of applicability. Applicability shall be determined at the time of building permit submittal. The applicant may request a preapplication conference to determine as to whether the proposed project is exempt from the requirements of this Chapter. B. Determination of consistency. Consistency with the residential design standards shall be determined at the time of building permit review. The applicant may request a preapplication conference to determine consistency with the requirements of this Chapter. C. Appeal of adverse determination. If an application is found to be inconsistent with any item of the residential design standards, the applicant may either amend the application or seek a variance as set forth below. D. Variances. 1. Administrative variances. The applicant may seek an administrative variance for not more than three (3) of the individual requirements. An applicant who desires a variance from the residential design standards shall demonstrate, and the Community Development Director shall find that the variances, if granted, would: a. Provide an appropriate design or pattern of development considering the context in which the development is proposed and the purpose of the particular standard. In evaluating the context as it is used in the criteria, the director may consider the relationship of the proposed development with adjacent structures, the immediate neighborhood setting or a broader vicinity as the director feels is necessary to determine if the exception is warranted; or b. Be clearly necessary for reasons of fairness related to unusual site -specific constraints. The Community Development Director shall provide the Planning and Zoning Commission an annual report of approved administrative variances. 2. Variances from the Residential Design Standards, Section 26.410.040, which do not meet this Section may be granted by the Planning and Zoning Commission, the Board of Adjustment or the Historic Preservation Commission, if the project is subject to the requirements of Chapter 26.415. An applicant who desires to consolidate other requisite land use review by the Historic Preservation Commission, the Board of Adjustment or the Planning and Zoning Commission may elect to have the variance application decided by the board or commission reviewing the other land use application. An applicant who desires a variance from the Residential Design Standards shall demonstrate and the deciding board shall find that the variance, if granted would: a. Provide an appropriate design or pattern of development considering the context in which the development is proposed and the purpose of the particular standard. In evaluating the context as it is used in the criteria, the reviewing board may consider the relationship of the proposed development with adjacent structures, the immediate neighborhood setting or a broader vicinity as the board feels is necessary to determine if the exception is warranted; or b. Be clearly necessary for reasons of fairness related to unusual site -specific constraints. (Ord. No. 52-2003, § 5; Ord. No. 20-2005, § 1) Sec. 26.410.030. Administrative checklist. The Director of Community Development shall create a checklist for use by applicants and Community Development staff in identifying the approvals and reviews necessary for issuance of a development order for an application that is consistent with the residential design standards. (Ord. No. 20-2005, § 1) f Z-6. q70.D60 landmark and which contains an historic resource shall be approved by the Community Development Director. This review applies to the rehabilitation of existing structures, reconstruction after demolition of existing structures and the development of new structures on historic landmark properties. No affordable housing mitigation shall be required, provided that all necessary approvals are obtained, pursuant to Chapter 26.415, Development Involving the Inventory of Historic Landmark Sites and Structures, and provided that the parcel contains an historic resource. Development of single-family or duplex structures on an historic landmark property that does not contain an historic resource (for example, a new house on a vacant lot which was subdivided from an historic landmark property) shall be subject to the provisions of Paragraph 26.470.060.2, Single-family and duplex dwelling units. 2. Single-famil and duplex dwelling units. The following types of development of single-family or duplex structures sit require the provision of affordable housing in one (1) of the methods described in Subparagraph c: a. The development of a new single-family, multiple detached residential units when permitted in the zone district or a duplex dwelling on a vacant lot in one (1) of the following conditions: 1) A vacant lot created by a lot split, pursuant to Subsection 26.480.060.C. 2) A vacant lot created by an historic lot split, pursuant to Paragraph 26.480.030.A.4, when the subject lot does not itself contain an historic resource. 3) A vacant lot that was subdivided or was a legally described parcel prior to November 14, 1977, that complies with the provisions of Subsection 26.480.020.E, Aspen Townsite lots. These new residential units shall be deducted from the development ceiling levels established pursuant to Section 26.470.030, but shall not be deducted from the respective annual development allotments for residential development. b. The replacement after demolition of an existing single-family, multiple detached residential units when permitted in the zone district or a duplex dwelling, regardless of when the lot was subdivided or legally described. These redeveloped units shall not require a growth management allocation and shall not be deducted from the respective annual development allotments or development ceiling levels established pursuant to Section 26.470.030. c. Affordable housing requirements for the types of single-family and duplex development described above shall be as follows: Single-family. In order to qualify for a single-family approval, the applicant shall have five (5) options: 1) Providing an above -grade, detached accessory dwelling unit (ADU) or a carriage house pursuant to Chapter 26.520, Accessory Dwelling Units and Carriage Houses; 2) Providing an accessory dwelling unit, or a carriage house, authorized -through -special review to be attached and/or partially or fully subgrade, pursuant to Chapter 26.520; 3) Providing an off -site affordable housing unit within the Aspen Infill Area accepted by the Aspen/Pitkin County Housing Authority and deed -restricted in accordance with the Aspen/Pitkin County Housing Authority Guidelines, as amended; E. Official record. The Community Development Director shall maintain an official record of all interpretations in the Community Development Department, which shall be available for public inspection during normal business hours. Once an interpretation is rendered, public notice describing the interpretation shall be published in the legal notice section of an official paper or a paper of general circulation in the City. Such notice shall be provided within fifteen (15) days of the interpretation being rendered and shall be substantially in the following form: "A code interpretation to Section 26,xx.xx of the City of Aspen Land Use Code, requested by xx, was rendered on xx/xx/xx and is available for public inspection in the Community Development Department." F. Appeal. Any person who has made a request for interpretation may appeal the interpretation of the Community Development Director to the City Council in accordance with the appeal procedures set forth at Chapter 26.316. (Ord. No. 12, 2007, § 13) Chapter 26.308 VESTED PROPERTY RIGHTS See.26.308.010. Vested property rights. A. Rights conferred. A development order constitutes a site specific development plan and subject to a vested property right. A vested property right is subject to expiration (See Subsection 26.304.070.D), revocation (See Subsection 26.304.070.E) and all rights of referendum and judicial review. A vested property right shall preclude any zoning or land use action by the City or by an initiated measure which would alter, impair, prevent, diminish or otherwise delay the development or use of the property as set forth in the development order, except as set forth in Section 24-68-105, C.R.S., as amended. B. Exemption from expiration of vested rights. 1. The City Council may by resolution at a public hearing noticed by publication, mailing and posting (See Subparagraphs 26.304.060[E][3][a][b] and [c]) approve an exemption of the expiration of vested rights in accordance with this Section. Only subdivisions composed of detached residential or duplex units shall be eligible for the exemption from the expiration provisions of Subsection 26.304.070.1). To obtain an exemption, an application for exemption shall be submitted at any time prior to the third (%,) anniversary of the effective date of the development order which shall demonstrate to the satisfaction of City Council that: a. Those conditions applied to a project at the time of final approval that were to have been met as of the date of application for exemption have been complied with; and b. Any public or private improvements that were required to be installed by the applicant prior to construction of any dwelling unit have been installed. 2. An exemption from the expiration of vested rights shall have no time limit. C. Extension or reinstatement of vested rights. The City Council may, by resolution at a public hearing noticed by publication, mailing and posting (See Subparagraphs 26.304.060[E][31[a][b] and [c]) approve an extension or reinstatement of expired vested rights or a revoked development order in accordance with this Section. 1. In reviewing a request for the extension or reinstatement of vested rights the City Counci shall consider, but not be limited to, the following criteria: a. The applicant's compliance with any conditions requiring performance prior to the date of application for extension or reinstatement; b. The progress made in pursuing the project to date including the effort to obtain any other permits, including a building permit and the expenditures made by the applicant in pursuing the project; c. The nature and extent of any benefits already received by the City as a result of the project approval such as impact fees or land dedications; d. The needs of the City and the applicant that would be served by the approval of the extension or reinstatement request. 2. An extension or reinstatement may be in the form of a written agreement duly authorized and executed by the applicant and the City. Reasonable conditions may be imposed by the City Council including, but not limited to, compliance with any amendments to this Title adopted subsequent to the effective date of the development order and associated vested rights. 3. If the request is for reinstatement of a revoked development order, the City Council shall determine the financial impacts of the investigation and may require the applicant to pay the reasonable costs of investigation, enforcement and reporting by City staff. D. Expiration of vested rights. Pursuant to Section 26.304.070 a vested property right is initiated on the effective date of a development order for a site specific development plan and expires on the day after the third ('/]) anniversary of said effective date. After expiration, a development order remains valid, excluding any allotments granted pursuant to Chapter 26.470, Growth Management, but shall be subject to any changes in the Land Use Code that have been adopted since the development's original approval. The period of vested rights may be extended or the development exempted from expiration pursuant to this Section. E. Revocation. The City Council may by resolution at a public hearing noticed by publication, mailing to the applicant and posting (See Subparagraphs 26304.060[E][3][a][b] and [c]) revoke a development order and associated vested rights upon a finding that: 1. The terns and conditions of the development order have not been met; or 2. The development order is void within the meaning of Section 26.104.050. (Ord. No. 5-2000, §8; Ord. No. 27-2002, §§3-5) Chapter 26.310 AMENDMENTS TO THE LAND USE CODE AND OFFICIAL ZONE DISTRICT MAP See.26.310.010. Purpose. The purpose of this Chapter is to provide a means for amending the text of this Title and the Official Zone District map. It is not intended to relieve particular hardships or confer special privileges or rights on any person. Sec. 26.310.020. Procedure for amendment. A. General. An application for amendments to the Land Use Code or the Official Zone District Map may be initiated by the persons and decision -making bodies identified in Section 26.304.040 below and shall be processed in accordance with the common development review procedures set forth at Chapter 26.304. FAX COVER DATE: 5-20-09 TO: Amy Guthrie FAX: 920-5439 RE: 219 South Third — Presentation boards ATTACHMENTS Note: As requested, here are copies of the exhibits I presented or referred to at CC on 5/11/09 and HPC on 5/13/09. V-1: Rating Sheet — Historical Significance - 219 South Third V-2: Comparison Rating work sheet w/621 & 626 West Francis V-3: Photo —219 South Third - South Elevation (Street) V-4: Photo — 626 West Francis - South Elevation (Street) V-5: Photo — 621 West Francis - South Elevation (Alley) V-6: Site Plan (original from Application) — added are RI setbacks, Lot 1: existing footprint (white) and proposed addition footprint in dark grey, open areas in light grey; Lot 2: building envelope without requested variances in white, setback/yard areas shown light grey V-7: Site Plan (original from Application) — added are RI setbacks shown in grey shading, corresponding building envelope (white), areas of requested variances shown in dark grey V-8: Incentives worksheet — Valuation (draft, subject to verification) V-9: Vicinity map (from review packet) V-10: Enlargement of portion of site survey (from Application) V-11: Photo of Proposed Lot 2; Spring 2009 V-12: Pho#ofAlley; Spring 2009 V-13: Photo of Alley with parking and snow, Winter 2009 V-14: Photo of Alley with City's snow removal tractor; Winter 2009 YA, Historic Significance Rating Sheet - Character and Merit - Historical Value Eligibility Considerations - Uniquely illustrates significant design influences Property: 219 South Third St - Aspen exemplary, outstanding 0.9 high standard, definitive 0.75 Max medium standard 0.5 219 s Third Points Scoring low standard, ubiquitous 0.25 non-existent, insignificant 0 Location 5 3 Primary fagade not oriented toward street Main access is alley Not in grouping Design Building Form 10 8 Primary gable not oriented toward street Integrated garage not typical representation Roof Form 10 8 Lacks cantilevered beams, not post & beam Medium depth overhangs Scale 5 2 ? Doors & Windows 10 8 Exterior Balconies 5 2 Altered, crude rails, wing walls, post no cant. Other Character defining features 5 0 None, Duplex, carport, wing walls, walk out Setting 5 1 Primary fagade not oriented toward street Main access alley, minimum site relationship 1 Oriented towards mountain Materials _._... Exterior Surfaces 15 5 Commonplace, generic, readily available Stucco base, wood siding Doors & Windows 10 3 Commonplace, generic, readily available North facing "front' windows undistinguished Workmanship Detailing and Ornamentation 15 5 Crude, minimal or non existent Finishes & Colors 5 2 Crude, minimal or non existent Lacks decoration, crude construction Association 1 0 TOTAL 100 (75 necessary for landmark) NOTES: Category as a whole:43.83; Low relative ranking; 63 is median rank; 219: 44-52; hold up in peer review Marginal at best, certainly not unique or significant, end of period (1930-1960); late cycle Derivative from Arizona, California; Not designed for site; Commonplace in Snowmass Village & many other Banal, generic building, does not have the necessary distinguishing qualities or caliber for landmarking Easy to recreate, windows and materials currently readily available There are better examples that would be rated higher, can't be valued for what it lacks Not a clear category, no pedigree; transitional; (see classic chalet context paper - last paragraph) Historic Significance Rating Sheet - Character and merit Property: 219 South Third St, Aspen Location Design Building Form Max Points 621 626 219 5 4 5 3 10 5 9 7 Roof Form 10 6 10 8 Scale 5 2 3 3 Doors & Windows 10 6 10 8 Exterior Balconies 5 4 5 2 Other Character defining features 5 0 Setting 5 4 5 2 ,- Materials Exterior Surfaces Doors & Windows Workmanship Detailing and Ornamentation Finishes & Colors Association Vintage TOTAL 15 3 8 5 10 2 8 3 15 5 10 5 5 2 3 2 ,rlt10MI SCALE exemplary, outstanding 0.9 high standard, definitive 0.75 medium standard 0.5 low standard, ubiquitous 0.25 non-existent, insignificant 0 100 43 76 48 (75 necessary for landmark) �.-- .;17 ----MWR'WMWW=W4j- . ; 431 43 MMA 9 y "Ib r p e s I�i i MAR-02-2009 17:20 From:215 493 6559 Paae:419 Incentives Worksheet - Valuation PROPERTY: 219 SOUTH THIRD STREET Requested Incentives •Assume: 250sf FAR TDR = $250,000 VALUE* 1 Increase FAR from single family to duplex: 390 sf FAR $1000/sfk $ 390,000 2 FAR Increase from HPC 500 sf FAR $1000/sf* $ 5001000 3 Waiver of Affordable Housing Mitigation $ 171,888 4 Waiver of park dedication fees $ 8,858 5 FAR Increase form City Council 493 sf FAR $1000/sf* $ 493,000 SUB -TOTAL 6 Density Increase, Lot Split & Variances Assume - minimum 1 $ 500,000 TOTAL A .� ih� ac 0 All, YIN: 14 NY lo' 41 1. i t h � h . -• � f �, [ !!e tl I iey c qq .�upxd �� v � , L 1 �1�1 » ! i e yf lyll�6 4yliN.., .a �Y�fbl w�i " it //I� �.r J..,Ywra1�...� F'a"y 5 k WifsH�.{-03`,j�,5,�••5'�l.,flta. p 1 INAp Y� r.�. i.yM•�y��,,_ �. � 1� F Yvis III N ^n .i I(• K ♦ i II IIS, � I�,i MI Ini y1� 4 aI y�f I ) r � _� »q.� - \:�`� \ _ \,ƒ.� � . :. ��� \22 \:<� «\»:2 � « ±?\. � . . .y,: » � � .� »� «d « �� � � � � � � \ . .>,� y� �� ^ % 2 ~� . . d&� ° §� t: « . . . w� ,. � . < � y � % m� . d y?.,a� � ?. ��°� .� » » C� � � »` � � � � ���������dd2��.�\k Lisa Purdy Consulting st,m"." Ibr Ili.nn i. 1..... rc at io n. 1'Iaunin,, (ummuni.ation, 121 Pearl Street DenA er CO 80203 phone: a03.733.7796 email: punk lisa@marxout March 11, 2009 (Regarding 219 S. Third Street, Aspen, CO) Dear members of the Aspen Historic Preservation Commission and staff Since talking with you on January 28, 2009, 1 received staffs' attachment to their original memo defining "modern chalet" style. I also received the accompanying photos and the list of 16 "modern chalets" in Aspen. I still have a fundamental problem with designating this duplex and approving this proposal. I don't believe the category of "modern chalet" is worthy of a style for historic designation. It does not exist as an historic category elsewhere in the state or country, and I don't believe it has enough distinction to justify itself. This is a style that is often called A - frame. (Indeed, some of the buildings you included in the list of 16 Modern Chalets in Aspen, were called A- frames in prior lists.) This style of building is found throughout the mountains, and in vacation areas throughout the United States. In my opinion we don't have enough distance from the style to determine which of these, if any, are worthy of historic designation. There's a difference between liking a certain style versus deciding it's significant enough to merit being called an "historic style". As mentioned in my previous memo (January 28, 2009) 1 strongly believe it is premature to recommend designation of a building for which there is no adopted context paper or scoring sheets. This violates your own ordinance and it is not a good practice. It would be advisable to hold a noticed public hearing and discussion of this style before including modern chalet as an accepted style for historic designation. 1 also rind it hard to understand why 621 W. Francis was deemed not worthy for designation, while 219 S. 3rd is still being considered. 621 W. Francis meets the same number of criteria for qualification under this category. According to staff descriptions, the one on Francis was built in the same year, has glazing in the gable end, has deep overhanging roof eaves, and defined balconies. Staff also said "this type of architecture signifies the progression of Aspen as a tourist destination with modest vacation homes that pay homage to the mountain lifestyle..." So what distinguishes the duplex on 3"' from 621 W. Francis? The building on Francis certainly has more character defining features on the front of the building than 219 S. Yd , which largely features two non -distinguished windows. 1 would argue that lack of consistency in applying the standards for designation creates a slippery slope for the future and makes it hard to argue for designation of 219 S. 3 to Additionally, the orientation of 219 S. 3' largely hides its distinguishing features from public view. The view seen most often (and in your photos) is from the alley. This back side has become the functional front of the building (as confirmed by staff when commenting on the "rear" deck), yet it contains only two windows that staff has said "do not have any distinctive character". When looking at the other 15 Modern Chalets, the dominant public view is of the character -defining features including a long balcony, glazing up to the gabled end of the roof and the other criteria cited. While the balcony side of the duplex can be seen briefly while rounding the corner on 3', for the most part the public sees the undistinguished functional front of the duplex on the alley . The requested screening from and street will only aggravate this issue. I would argue that the orientation of the duplex makes the building less distinguished than any of the other buildings in Aspen's "modern chalet" category. I find it hard agree with staff that the duplex has a high degree of historic integrity for the following reasons: • There are no photos or drawings of the original building to compare to existing features. • The applicant stated that the long balcony is not original. This is one of the few character -defining aspects of the duplex. Another aspect of this issue is one of preservation policy and the incentives in Aspen's ordinance. I'm almost always in favor of offering incentives for historic designation, because the prospect of retaining and rehabilitating historic buildings can be costly and onerous to the property owner. The preservation of historic buildings is usually beneficial to the community at large, so it makes sense to offer incentives to encourage owners to preserve them. (Indeed, the constitutional basis for allowing government to make decisions about private property is that the action will benefit the community as a whole.) In Aspen, however, there's a twist. The ramifications of historic designation can sometimes impact neighbors in negative ways. This most often occurs with the lot split which can create a number of potential problems: Not all designated properties are configured in a way that would allow the owner to take advantage of the lot split. Since this is by far the most valuable incentive, this creates an issue of inequity for some owners of designated properties. The historic site can become crowded when another home is added, detracting from the historic structure and increasing density within a neighborhood. And, thirdly, there are times when the lot splits can cause specific negative impacts on neighbors. In the case of 219 S. Third, items 2 and 3 apply. The addition of a second structure on this already undersized lot through a lot split would be detrimental to the duplex and the neighborhood. Normally a duplex in this zone district would require a 15,000 square foot minimum lot. In this case the duplex has been ushered in as a legally non -conforming structure on a lot about 1/3 smaller — 9,942 square feet. • Under the requested proposal, the lot assigned to the duplex shrinks yet again to 5,292 square feet. In addition, bonuses would increase the size of the duplex from 1533 s.f. to 2465 s.f. This is equivalent to cutting the lot almost 2/3 from what would normally be allowed while increasing the size of duplex by almost 2/3. This severely crowds the duplex and its addition on a much smaller -than -normal lot. In addition, the new house would add an additional 2400 square foot building to this same undersized original lot, which in addition to requiring new waivers for setbacks, increases the density of the entire lot many -fold and overwhelms the duplex substantially. The multiple variance requests point to how difficult it is to fit this second home in. Many of the requested variances and the request for additional FAR is based on the fact that the proposed project is "exemplary". 1 would ask what makes this project exemplary when (1) the applicant is asking for numerous changes to the duplex (including an overwhelming addition), and, (2) the applicant asks that the project not be subject to design review? Many of the points 1 make in this letter would portray this project as just the opposite of exemplary. The other issue relates to the negative impacts of these incentives on the neighbors. This duplex fronts on a dead-end alley as there is no street access. In addition, two houses on W. Hopkins Street use the alley for access to their garages and parking. According to the owners of these neighboring houses, the number of parties using this alley has already created numerous problems: • The duplex has been occupied by renters that come and go —so each new tenant has to be trained not to block the entrance to the alley with their cars, allowing neighbors further down the alley access to their homes. • When snowfalls, the cars have to be moved and the excess snow is dumped on what would be the site of the new house. Because the alley ends at this site, there is little room to maneuver the plows, let alone if there was some emergency vehicle needing access. If a second house were built on what now is the empty part of the duplex lot, it would front on this same dead-end alley, and the owner/renters would have no other access. In other words, the new house with its additional density, attendant cars, need for access, and parking would make a bad situation even worse. SUMMARY From my perspective, the balance between public benefit (preservation) and private gain (variances and bonuses far exceeding normal development that is damaging to the historic resource) is not in sync here. If the duplex is granted historic designation, the designated duplex will be added onto, altered, and squeezed on a very small lot with another new house that is on a less -than -normal sized lot. The community retains a historic building, but the character defining features are largely hidden from public view on the rear. And, by taking advantage of additional bonuses, FAR, and other incentives —the owner ends up both disrespecting the historic resource, and causing numerous additional headaches and problems for their neighbors. It's not clear how many of the issues the HPC can address, but I would hope someone takes into account the big picture, to see if some aspects of the preservation incentive program make sense in this case. Thank you for considering my thoughts on this. Sincerely Lisa Purdy, Lisa Purdy Consulting Representing Angela and Paul Young Lisa A. Purdy 121 Pearl, Denver, CO 80203 phone: (303) 733-7796 purdylisa@mac.com Work History: 1996- present Lisa Purdy Consulting - President Consultant in historic preservation and planning. Projects include historic research, preparation of designation applications, managing certified rehabilitation of historic properties, designing strategies to preserve neighborhood character, and preservation planning for municipalities. 1998 -1999 The Keystone Center - Senior Associate (Part-time) Was responsible for the facilitation and mediation of a variety of public policy and land -use issues around the country for non-profit organizations and federal agencies. 1996-97 Harvard University - Loeb Fellow Awarded a one year research and study fellowship at Harvard. Major studies included community consensus building, political leadership, urban design, and public policy. 1992 -1996 Greenberg Baron Simon & Miller (GBSM) - Principal Consultant in community and government relations, historic preservation, facilitation, strategic communications, and public involvement. 1989-1992 City of Denver, Gateway/Stapleton Development Office - Assistant Director In Gateway /StaRleton Officeworked on Master Plan for 45011-acre neighborhood next to Denver International Airport. Also worked on developing planning principles for the redevelopment of Stapleton Airport Worked in Mayor's Office on revitalization of downtown pertaining to retail, housing, and real estate issues. 19WI989 Citiscape Ltd - President President of a consulting firm providing consulting services in historic preservation, community and government relations, urban planning, and design. 1982-1983 The Denver Partnership - Project Manager, Development Packaging Was responsible for attracting new retailers into downtown Denver and for assisting developers with numerous historic real estate projects Was principle writer and editor of The Preservation Handbook- a guide to incentives and regulatory matters pertaining to rehabilitation projects. 1981-1992 Historic Denver Inc. - Historic Specialist Was the lead advocate for historic preservation issues citywide. Major projects: • Spearheaded a citywide committee to pass the country's first Transfer of Development Rights (MR) ordinance for the preservation of historic buildings. • Established a citywide consortium of preservation organizations. • Administered the preservation easement program and low-income rehabilitation program in Curtis Park 1978-1981 Citiseape Ltd. - President Owner of a real estate development business that renovated several inner-city properties. 1976-1978 Center for Community Development & Design, University of Colorado - Community Development Specialist Worked on the development of a comprehensive plan for a small mountain community. Established an accredited continuing education program for the design and planning professions. 1972-1976 Various jobs in the teaching and construction industry including teaching on the Pine Ridge Indian Reservation, and general labor and superintendent jobs in construction. Also worked as an Assistant Editor at Harcourt Brace)ovanovich in New York City. Education: • Harvard University, (Cambridge, MA), Loeb Fellow, 1996-1997. • University of Colorado (Boulder, CO), M.A. Educational Administration,1974. • University of Michigan (Ann Arbor, MI), B.A. Education (with honors), 1971. Additional Studies: • Public Market conference (Seattle). Financing, managing, & designing urban food markets. • Urban Land Institute (New York City). "Co -Development: City Rebuilding by Business & Government'. Authored Articles and Books: • "The Making of LoDo", Historic Denver News, Fall 2008 • "The Anatomy of Creating a Local Historic District", URBAN DESIGN & PRESERVATION QUARTERLY, volume 13, Number 2, Spring 1990. • Preservation Forum, Volume 4, Number 2, Summer 1990; Adaptation of speech given at National Trust Preservation Conference on mainstreaming historic preservation into the planning process. • Guide to Denver's Lower Downtown (B-7) Zoning Ordinance' The Denver Partnership, 1985. • "Environmental Management (historic preservation) in the United States' for the Japanese Institute of Urban Planning, 1993. • "An Update on Denver's TDR Ordinances", REAL ESTATE ISSUES, Spring, 1985. Co-authored with Peter Bowes. • Appraising Easements, a booklet on valuing historic preservation conservation easements, prepared by the National Trust for Historic Preservation and the Land Trust Exchange, 1984. Was on the national Easement Preservation Panel that formulated the guidelines in the book. • The Preservation Handbook - A comprehensive guide to the economic benefits of renovating older buildings with a description of the historic designation and tax credit processes. The Denver Partnership, Funded by United Bank of Cherry Creek, 1983. • "Denver's Transferable Development Rights Story", REAL ESTATE ISSUES,1982. Co-authored with Peter Bowes. Media references to my work: • "Heart of the Queen", film produced by Havey Productions, funded principally by the Colorado Historical Society, presented at the Colorado Preservation Inc. conference, 2007 and aired on PBS. • America's Downtowns: Growth Politics and Preservation by Richard E. Collins, Elizabeth B. Waters, and A. Bruce Dotson, The Preservation Press, 1991. • Preserving the Great Plains and Rocky Mountains by Elaine Freed, University of New Mexico Press, 1992. • The Economics of Historic Preservation: A Community Leader's Guide by Donovan D. Rypkema, National Trust for Historic Preservation, 1994. • Changing Places: Rebuilding Community in the Age of Sprawl. by Richard Moe (President of the National Trust for Historic Preservation) and Carter Wilkie; Henry Holt and Company,1997. • "Reclaiming Neighborhoods by Design", PBS documentary, production of the American Architectural Foundation. Includes section on my work to create the Lower Downtown historic district, 2001. • Smart Communities: How Citizens and Local Leaders Can Use Strateeic Thinkine to Build a Briehter Future by Suzanne W. Morse, The Pew Partnership for Civic Change, published by John Wiley & Sons, Inc., 2004. • Profiled in Historic Preservation Magazine. September/October 1981. Appointments & Civic Work: Major projects: 1982-88 Led the community -wide effort to enact the Lower Downtown historic district. Created political strategy and lobbied to gain community and city council consensus for the historic district. 1984-86 Mayoral appointee to the Downtown Area Plan Committee creating a new plan for central Denver. Plan has won numerous awards and is the basis of major planning and development decisions for the city. Represented the historic preservation community on the Committee. Other Civic Work: • Invited to participate in 3-day charrette: "Assessing Future Visions of Annapolis", with other Loeb Fellows from Harvard University, June, 2008 • Initiated and worked on City Council Committee to create demolition review ordinance for historic buildings, Denver, 2006 • Mayor's Downtown Summit: Planning and Zoning Committee (Denver), 1995 • Advisory Committee to Mayor's Office of Regulatory Reform (Denver), 1994 • Board of Directors, Denver Civic Ventures (Downtown Denver Partnership), 1994-1997 • Board of Directors, Hospice of Metro Denver, 1993-1996 • National Trust for Historic Preservation appointee to a national symposium on the economic and zoning hardship issue (NYC), 1992 • The Downtown Denver Partnership award jury, 1990 • Scenic America Inc. appointee to the "Economics of Aesthetics" panel to oversee a study of the financial implications of aesthetic controls (Washington D.C.), 1989 • Lower Downtown Capital Improvements Committee to allocate city funds for public and private property improvements (Denver), 1988 • Appointed to the Speer Boulevard Committee to formulate design guidelines for future development along Speer Boulevard. (Denver) 1987 • Member of the Professional Resource Committee -- a volunteer group of professionals offering expertise to businesses and developers located in Lower Downtown Denver,1987 • Denver Community Leadership Forum -- a one-year program of seminars and an Outward Bound outing to develop leadership skills, 1986 Awards: • "Honor Award" from The Downtown Denver Partnership for leadership in gaining community -wide consensus for the Lower Downtown historic district. • "Community Achievement Award" from the Denver Chapter of the American Institute of Architects (AIA) for active involvement in bettering the community. • "Award of Honor" from Historic Denver, Inc. • "Honor Award" from the National Trust for Historic Preservation for leadership in the formation of Denver's historic district in Lower Downtown, the top award in the country for historic preservation. • Denver Chapter of the American Planning Association (APA) award for Speer Boulevard design guidelines. • Several awards from APA, AIA and the Downtown Executives Association for the Downtown Area Plan. • "Wagner Award" from the American Institute of Real Estate Appraisers in recognition of a contribution to the advancement of appraiser knowledge. • "Inner -City Elegance Award" from the Denver Board of Realtors for the restoration of an old multi- family building into six town homes. Speaking Engagements: Frequent speaker both locally and nationally on historic preservation, mediation, water negotiations, and planning since 1982. Taught a series of workshops for the American Planning Association on the revitalization of cities. Been a guest lecturer at several universities and a speaker at national conferences and events including The National Trust for Historic Preservation, American Planning Association, Rocky Mountain Land Use Institute, Congress for New Urbanism, Preservation Law Conference, NEPA Conference, Ohio Historic Preservation Office, Utah Heritage Foundation, and, The Institute of Real Estate Appraisers. Lisa Yurcly Consulting .l'i ru rKlre Ln Hi.a.n �a !'n�ecn �a hro. 1'InnmuK, C.nv nuin�a au..u. Ili Nall Sliccl Denver CO 8020.3 ph,me: 303.733.7796 cnim]: pnnlcli�aGilnyu'.rum Memo to: Aspen Historic Preservation Commission From: Lisa Purdy of Lisa Purdy Consulting Date: January 28, 2009 Re: Historic qualification of 219 W. Third St. I've been asked to provide an evaluation of the historic significance of 219 S. Third Street by Angela and Paul Young who live across the alley from the subject property. After receiving photos of the duplex last week t went to the site to see the context of the property and to examine it firsthand. I also reviewed the information contained in the staff memo dated January 28, 2009. 1 was not able to view a context paper or scoring sheet because they are in the process of being developed. 219 S. Third Street is listed as a "potential historic resource" in Aspen's 2007 survey and I understand the applicant, YLP West, LLC, would like to formally designate the property. The applicant has also requested numerous bonuses and incentives should landmark designation occur that would almost double the FAR; obtain what appear to be significant rear, front and side setbacks; eliminate design review on the new house behind the duplex; and limit the design review of the duplex itself. After careful review I find it difficult to support historic designation of the duplex for the following reasons. 1 will not comment on the proposed incentives and bonuses. I believe it is premature to designate this property. There are no context papers and no scoring forms that have been adopted by the city to establish a basis for review. Without this, irs hard to have a conversation about the historic significance as currently required in the ordinance. In addition irs possible the public task forces working on refining and characterizing buildings in the post World War era could change or establish criteria that differ from what staff now proposes. 2. Staff finds that the duplex meets designation criteria C, stating "it is part of a collection of buildings that uniquely illustrates cultural and design influences that significantly changed the built environment of Aspen as it developed into a ski resort." In my opinion, the duplex is not unique, and it is unremarkable as a repreeentative nF ndtural inFluences in Ascen. This style of this duplex is ubiquitous in mountain areas and other areas of the country. Even though staff finds the duplex "represents the character of typical vacation homes being built here in the 50s and 6050, it also represents a style of vacation homes all over the country. The question is whether the building is either unique to Aspen or illustrative of a design influence that significantly changed the built environment of Aspen? To me this building is too removed from the time period of the development of Aspen's ski area from the 19305 to 1960 to have been a part of a design influence that changed Aspen. In relation to other chalet buildings in Aspen, this duplex does not come to the top. 3. Staff cites criteria for "Modern Chalet" in its memo even though the criteria have not yet been adopted. I don't know how anyone can determine if a building meets the criteria when criteria don't exist. However, if one ignores this fact and follows the criteria cited by staff or looks at an old staff context paper on Modern Chalet, the building still doesn't measure up. The 1965 duplex is lacking many of the characteristics of chalet design, most particularly its complete lack of decoration in the eaves, fascias and/or balconies. The most visible view of the duplex (shown in the staff memo) lacks almost all of the characteristics. Even though the duplex might deserve scrutiny as part of the historic inventory it doesn't have enough rtistic cultural or grchitectural merit to qualify for historic designation. To date, little, if anything, is known about the architect and he did not play a prominent role in Aspen. 4. Lastly, I don't believe it is enough for a building to be "part of an era" or "part of a rnllartinn of huildings" to nualifv for individual historic designation. Most communities around the country require buildings of individual distinction for that honor. Unlike buildings that are grouped together in an historic district, individual landmarks should achieve or embody something of higher architectural or historic value than merely being part of a class of buildings. Aspen has created a district like this in the downtown area. And, Denver has done this in its LoDo area. Many of the buildings in the LoDo historic district would not hold up to individual designation, but they qualify as a group or collection of buildings as a historic district. Based on my 30+ years of experience in the field of historic preservation, I do not see enough evidence in the staff memo to support historic designation of the duplex. My own analysis, as well, concludes the building does not exhibit historic significance to the point where designated is warranted. I appreciate the opportunity to share my opinions about this property and am happy to answer any questions you may have. C K W I L K E � jl�- AL It C'( ;( Air \��y t/� VAO-e�A v • J A C K W I L K E x 1. It shall be unlawful for any person to develop, lease or sell any parcel of land, including any separate interest in a parcel of land (including leasehold interest or condominium interest) in the City until it has been subdivided and a plat recorded in the office of the County Clerk and Recorder pursuant to the terms of this Chapter. 2. A written agreement to sell or lease an interest in a parcel of land which is expressly conditioned upon full compliance by the seller with this Chapter within a specified period of time and which expressly recites that seller's failure to satisfy such condition within said period of time shall terminate the agreement and entitle the buyer to the prompt return of all consideration paid by the buyer, shall not constitute a violation of this Chapter. B. Development allotment. No development order for a subdivision shall be approved pursuant to the provisions of this Chapter unless the applicant has been awarded a development allotment or has obtained a GMQS exemption pursuant to Chapter 26.470, Growth Management Quota System. Subdivisions of land zoned Affordable Housing Planned Unit Development (AH-PUD) are exempt from this prohibition. C. Prohibited conveyances. No interest in a parcel of land shall be transferred, conveyed, sold, subdivided or acquired to create or extend a nonconformity or to avoid or circumvent any provision of this Chapter. D. Prohibited development. All structures shall be located on a subdivision lot. The lot lines established in a subdivision shall not be altered by conveyance of a part of a lot, nor shall any part of a lot be joined with a part of any other lot for conveyance or construction, unless the application has been made pursuant to the terms of this Chapter. E. Aspen Townsite lots. If two (2) or more lots within the Original Aspen Townsite or additions thereto have continuous frontage and are in single ownership (including husband and wife) on October 27, 1975, the lots shall be considered an undivided lot for the purposes of this title and conveyance of any portion shall constitute subdivision. An Aspen Townsite lot or addition thereto includes all lands depicted on the Aspen incorporation plat of record, dated 1880, plus any lot or parcel annexed to the City since that time which constitutes a nonconforming lot of record, plus any lot or parcel which has not received subdivision approval by the City or County, but excludes any subdivided lot in the City which conforms to the requirements of this Title. (Ord. No. 44-2001, § 1) Sec.26.480.030. Exemptions. The following development shall be exempted from the terns of this Chapter: A. General exemptions. 1. Lot line adjustment. An adjustment of a lot line between contiguous lots if all the following conditions are met: a. It is demonstrated that the request is to correct an engineering or surveying error in a recorded plat or is to permit an insubstantial boundary change between adjacent parcels; and b. All landowners whose lot lines are being adjusted shall provide written consent to the application; and c. The corrected plat will meet the standards of this Chapter and conform to the requirements of this Title, including the dimensional requirements of the Zone District in which the lots are located, except in cases of an existing nonconforming lot, in which the adjustment shall not increase the nonconformity of the lot. The plat shall be submitted and recorded in the office of the County Clerk and Recorder. Failure to record the plat within a period of one hundred eighty (180) days following approval shall render the plat invalid and reconsideration of the plat by the Community Development Director will be required before its acceptance and recording; and d. It is demonstrated that the lot line adjustment will not affect the development rights, including any increase in FAR or permitted density of the affected lots by providing the opportunity to create a new lot for resale or development. A plat note will be added to the corrected plat indicating the purpose of the lot line adjustment and the recognition that no additional FAR will be allowed with the adjustment. 2. Lot split. The split of a lot for the purpose of the development of one (1) detached single- family dwelling on a lot formed by a lot split granted subsequent to November 14, 1977, where all of the following conditions are met: a. The land is not located in a subdivision approved by either the Board of County Commissioners or the City Council or the land is described as a metes and bounds parcel which has not been subdivided after the adoption of subdivision regulations by the City on March 24, 1969. This restriction shall not apply to properties listed on the Aspen Inventory of Historic Landmark Sites and Structures. b. No more than two (2) lots are created by the lot split, both lots conform to the requirements of the underlying Zone District. Any lot for which development is proposed will mitigate for affordable housing pursuant to Subsection 26.470.070.B. c. The lot under consideration or any part thereof, was not previously the subject of a subdivision exemption under the provisions of this Chapter or a "lot split' exemption pursuant to Subsection 26.470.040.C.1.a. d. A subdivision plat which meets the terms of this Chapter and conforms to the requirements of this Title, is submitted and recorded in the office of the County Clerk and Recorder after approval, indicating that no further subdivision may be granted for these lots nor will additional units be built without receipt of applicable approvals pursuant to this Chapter and growth management allocation pursuant to Chapter 26.470. e. The subdivision exemption agreement and plat shall be recorded in the office of the County Clerk and Recorder. Failure on the part of the applicant to record the plat within one hundred eighty (180) days following approval by the City Council shall render the plat invalid and reconsideration of the plat by the City Council will be required for a showing of good cause. f. In the case where an existing single-family dwelling occupies a site which is eligible for a lot split, the dwelling need not be demolished prior to application for a lot split. g. Maximum potential build -out for the two (2) parcels created by a lot split shall not exceed three (3) units, which may be composed of a duplex and a single-family home. 3. Approved subdivision. All subdivisions approved prior to the effective date of this Chapter, except those lots contained within an approved subdivision which are intended or designed to be resubdivided into smaller lots, condominium units or multi -family dwellings. 4. Historic Landmark lot split. The split of a lot that is listed on the Aspen Inventory of Historic Landmark Sites and Structures for the development of one (1) new single-family dwelling. The Historic Landmark lot split shall meet the requirements of Subsections 26.480.030.A.2 and 4, Subsection 26.470.070.0 and Subsection 26.415.120.A of this Code and the following standards: a. The original parcel shall be a minimum of six thousand (6,000) square feet in size and be located in the R-6, R-15, R-15A, RMF or O Zone District. b. The total FAR for both residences shall be established by the size of the parcel and the Zone District where the property is located. The total FAR for each lot shall be noted on the subdivision exemption plat. In the Office Zone District, the following shall apply to the calculation of maximum floor area for lots created through the historic landmark lot split. Note that the total FAR shall not be stated on the subdivision exemption plat because the floor area will be affected by the use established on the property: If all buildings on what was the fathering parcel remain wholly residential in use, the maximum floor area will be as stated in the R-6 Zone District. If any portion of a building on a lot created by the historic landmark lot split is in commercial/office use, then the allowed floor area for that lot shall be the floor area allowed for all uses other than residential in the Zone District. If the adjacent parcel created by the lot split remains wholly in residential use, then the floor area on that parcel shall be limited to the maximum allowed on a lot of its size for residential use according to the R-6 standards. If there is commercial/office use on both newly created lots, the maximum floor area for all uses other than residential in the Zone District will be applied. c. The proposed development meets all dimensional requirements of the underlying Zone District. The variances provided in Paragraphs 26.415.120.B.1.a, b and c are only permitted on the parcels that will contains an historic structure. The FAR bonus will be applied to the maximum FAR allowed on the original parcel. 5. Exempt timesharing. The creation of time -span estates that comply with the requirements for exempt timesharing, pursuant to Section 26.590.030 of the Code. This subdivision exemption shall not be used to create any new lots or dwelling units. (Ord. No. 55-2000, §11; Ord. No. I- 2002, §11, 2002; Ord. No. 9-2002, §9; Ord. No. 21-2002, §7; Ord. No. 34-2003, §1) See.26.480.040. Procedures for review. A development application for a subdivision approval or exemption shall be reviewed pursuant to the procedures and standards in this Chapter and the common development review procedures set forth at Chapter 26304. A. Lot line adjustment and exempt timesharing. After an application for a lot line adjustment or exempt timesharing has been determined complete by the Community Development Director, the Director shall approve, approve with conditions or deny the application. B. Exempt subdivisions. 1. Steps required: One — a public hearing before City Council. 2. Notice requirements: None except for an application for a lot split which shall require publication, mailing and posting (See Section 26.304.060[E][3] Paragraphs [a],[b] and [c].) 3. Standards of review: Section 26.480.050. 4. City Council action: Ordinance approving, approving with conditions or disapproving application for subdivision exemption. C. Subdivisions. Approval of a development order for a subdivision shall require review and recommendation for approval, approval with conditions or disapproval by the Planning and Zoning Commission followed by a review and approval or approval with conditions by the City Council. This application may be consolidated with a development application for conditional use, special review, ESA review, GMQS allotment, code amendment and/or rezoning. 1. Step One — Public hearing before Planning and Zoning Commission. a. Purpose: To determine if application meets standards for subdivision. b. Notice requirements: Publication, posting and mailing. (See Section 26.52.060 [E][3] Paragraphs [a],[b] and [c]). c. Standards of review: Section 26.480.050. d. P & Z action: Resolution recommending approval, approval with conditions or disapproval of subdivision. 2. Step Two — Public hearing before City Council. a. Purpose: To determine if application meets standards for subdivision. b. Notice requirements: Publication, mailing and posting in addition to the requisite notice requirements for adoption of an ordinance by City Council. c. Standards of review: Section 26.480.050. d. City Council action: Ordinance approving, approving with conditions or disapproving subdivision. (Ord. No. 21-2002, §8; Ord. No. 27-2002, §§18, 19) Sec 26.480.050. Review standards. A development application for subdivision review shall comply with the following standards and requirements: A. General requirements. 1. The proposed subdivision shall be consistent with the Aspen Area Comprehensive Plan. 2. The proposed subdivision shall be consistent with the character of existing land uses in the area. 3. The proposed subdivision shall not adversely affect the future development of surrounding areas. 4. The proposed subdivision shall be in compliance with all applicable requirements of this Title. B. Suitability of land for subdivision. 1. Land suitability. The proposed subdivision shall not be located on land unsuitable for development because of flooding, drainage, rock or soil creep, mudflow, rockslide, avalanche or snowslide, steep topography or any other natural hazard or other condition that will be harmful to the health, safety or welfare of the residents in the proposed subdivision. 2. Spatial pattern efficient. The proposed subdivision shall not be designed to create spatial patterns that cause inefficiencies, duplication or premature extension of public facilities and unnecessary public costs. C. Improvements. The improvements set forth at Chapter 26.580 shall be provided for the proposed subdivision. These standards may be varied by special review (See, Chapter 26.430) if the following conditions have been met: 1. A unique situation exists for the development where strict adherence to the subdivision design standards would result in incompatibility with the Aspen Area Comprehensive Plan, the existing, neighboring development areas and/or the goals of the community. 2. The applicant shall specify each design standard variation requested and provide justification for each variation request, providing design recommendations by professional engineers as necessary. D. Affordable housing. A subdivision which is comprised of replacement dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.520, Replacement housing program. A subdivision which is comprised of new dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.470, Growth Management Quota System. E. School land dedication. Compliance with the School land dedication standards set forth at Chapter 26.620. F. Growth management approval. Subdivision approval may only be granted to applications for which all growth management development allotments have been granted or growth management exemptions have been obtained, pursuant to Chapter 26.470. Subdivision approval may be granted to create a parcel(s) zoned Affordable Housing Planned Unit Development (AH-PUD) without first obtaining growth management approvals if the newly created parcel(s) is required to obtain such growth management approvals prior to development through a legal instrument acceptable to the City Attorney. (Ord. No. 44-2001, §2; Ord. No. 12, 2007, §§29, 30) Sec.26.480.060. Application. A. Review by the Planning and Zoning Commission. The contents of a development application for a subdivision approval for review by the Planning and Zoning Commission shall include the following: 1. The general application information required in common development review procedures set forth at Section 26.304.030. TO: ASPEN CITY COUNCIL FROM: JAKE VICKERY RE: 219 SOUTH THIRD ST. HISTORIC DESIGNATION, LOT SPLIT, VARIANCES — TEXT OF STATEMENT DATE: 6-08-09 For the record, I am Jake Vickery, architect. I have a local planning and design studio that specializes in historical properties. I served on HPC for 6 years, helped write many of the historical guidelines currently in use, and was instrumental in the creation of historic lot split program. I am here on behalf of Paul and Angela Young, neighbors living at 413 West Hopkins, directly across the alley from this project. Before I begin my comments, I would like to ask for clarification of the representations on the applicant's exhibits. The applicant is showing a footprint for a house located on Lot 2. The garage is called out as 250 FF. The lower and upper floors add up to 1990 FF. I assume FF is meant to mean SF. Do these drawings, footprints, and numbers represent what the applicant is seeking approval for? Also, the square footages of the two lots add up to 9,990 sf. The applicant's survey indicates the total should be 9942 sf. The applicant is using 2 models to support her application, but there are no dimensioned drawings of what these models represent. How do we know what they are and that they are accurate? The applicant has not provided any dimensioned plans of the existing building or proposed new structures. The applicant has not provided accurate FAR calculations. These items are requirements for a valid land use application involving an historic resource. As you know, you are being asked to consider both a negotiation for designation and a land use approval at the same time. I don't see how you can move forward on this land use approval at this time without a complete and accurate application. None the less, in past meetings, I addressed my reservations about the landmark designation of this property. I documented why designation of this property is highly questionable and poorly supported. At this point, I would like to focus a few brief comments on the proposed lot split and structure on Lot 2: 1. After careful review, I would like to submit to you that a reasonable maximum size for a structure (in terms of FAR, mass, and scale) on Lot 2 would be around 1600 sf FAR The existing "resource" is in the range of 1700 sf to 1800 sf FAR The HPC Guidelines for an historic lot split call for a structure on the new lot that is "similar or subordinate in mass and scale" and "compatible with the existing historic resource". The new structure is proposed on a lot that is 33% smaller than the lot containing the existing structure. 2. A building of 1600 A FAR could be adequately accommodated in the base building envelope available by right for the new lot as required by the land use code governing the historic lot split. This envelope contains approximately 1200 A and will accommodate a house of this size and, with a full basement, could yield a house of up to 3600 gross sf without any variances. In this situation, there is no demonstrated need or hardship for any variance and this base building envelope provides reasonable and appropriate use of the property. The criteria for granting a variance on Lot 2 have clearly not been met. 3. The requested front yard variance for Lot 2, if granted, would effectively eliminate all useable open space from Lot 2 which is inconsistent with the R15 zone district. Keeping the 25 foot alley setback assures the residents and owners of Lot 2 and the surrounding properties reasonable and appropriate open space and separation. This yard area would provide critical space for landscaping, on -site parking, front entry, alley service, and snow storage functions. The new structure on Lot 2 would be the last piece in a chess board of existing interdependent properties and uses. It is reasonable to ask that it fit into its immediate context in a sensitive and responsible way. It is a requirement of the historic guidelines that a variance "not have any negative impact on surrounding properties" — which would clearly be the case with the variance. There is also a requirement that a variance be the "minimum necessary to achieve reasonable use" which has not been established. 4. I submit to you that it would be reasonable and desirable to restrict the allowable height on Lot 2 to at or below that of the historic resource as a condition for granting historic designation. Without this restriction, you are being asked to grant a structure that could be 25 feet high and 52 feet long, located on a line 8.5 feet from the alley, which is clearly in gross conflict with the project's surrounding context. You can see why the neighbors are up in arms. 5. For the record, the historic resource is 1.5 stories high, with a ridge height of 18 feet and average roof height of 12 feet. It would be reasonable and desirable that the height of the new structure on Lot 2 be similar or lower to this height. This stipulation should be made a condition of the historic lot split. This restriction would achieve a desired public purpose supported by the neighbors and consistent with historical preservation guidelines — i.e. it would result in a new structure with mass, scale, and height compatible with the historic resource. This would provide the safeguard against over- development that the neighbors are seeking. Please keep in mind that the applicant could sell this lot off and an entirely different person with a different mindset could purchase it. 6. To conclude, I submit to you that the requested 493 FAR bonus and 2,400 sf FAR proposed for Lot 2 can NOT be reasonably and appropriately accommodated on Lot 2 and would result in too large a structure and overcrowding of the site and the setting of the historic resource and neighborhood context. This would offset and defeat any net community value from the preservation of this existing structure. As you know, HPC did not support your granting this 493sf FAR bonus. If the CC is inclined to grant the applicant additional FAR beyond what can be appropriately and reasonably accommodated on this site for an economic incentive, I submit to you that it would best be handled in the form of one or more TDR's which would place the excess FAR off -site on a site better configured to accommodate it. I would be pleased to answer any questions you may have. I appreciate your consideration on this issue and look forward to an outcome that supports and balances all community values. Thank you for the opportunity to speak before you. Jake Vickery, Architect 970-309-7722 jakevickery@comcast.net n 2.51 ado, II�III�IIVI�IIC,'°�� I➢ I ' L - -- PROPOSED NOR M ELEVATION 1-- Ll &T l Lcrr 2 22 51. cm uproar DUST. cn n Heidi H. Hoffinann AIA HS Architects 504 Midland Pk. Pl. Aspen, CO 81611 970 925 9420 For the record, my name is Heidi H. Hoffmann (2 fs and 2 n's). I am an architect with a small local practice, H3 Architects. I am very familiar with this neighborhood having worked on several projects nearby, including this site: One project at 431 W. Hopkins (due west of this subject property), I was able to carve out of the existing floor area of my client's house (who is a second homeowner), a new bunkroom and bath for the grandkids and at a later date, additional kitchen/family area space, now we are working on rotten front porch. The other project was for a local, working couple at 218 S. Third (which is across the street from this property, north of the St. Moritz Hotel and on a legal 3000 SF subdivided lot), we were not granted approval to save a pre-existing Pan -Abode. Lastly, I was engaged by Tom Cleary (the original owner of this property) back in early 2003 to design a new duplex and associated affordable housing. This was before Ordinance 30 and 48. Tom Cleary made me very aware of his Quit Claim Deed giving a portion of his property to the City of Aspen for the Midland Trail public access in my calculation for the gross lot area square footage, and after his death I helped the Cleary heirs obtain an up-to- date improvement survey and search for a title insurance policy in the sale of this complicated piece of land to a future buyer. With all due respect to the Applicant for her work in preserving the existing structure, I do not support the current proposed Floor Area requested for Lot 2 as outlined in the June 8, 2009 Memorandum for Historic Landmark Designation, Historic Landmark Lot Split and other negotiation items. This is too much proposed square footage on too small a lot to reward as an "exemplary bonus" for the preservation of a not -so -remarkable modern chalet design with an insensitive addition (As a follow up to my prior remarks to HPC, the design addition could be greatly improved, more sympathetic and distinct from the historic structure); Second, the new, subdivided lot should abide by the required front yard setback of 25' at the Alley because it is now the front yard setback due to its neighbor adjacency. (For reference to those who know where I live at 504 Midland Pk.PI., our front door is less than 24' including roof overhang to the public Smuggler Mountain trailhead.): Three, abide by the City of Aspen Residential Design Standards and/or modify to limit roof height, secondary mass/front porch/garage setback, work with the neighbors, etc. The "Not So Big House" (Sarah Susanka, Taunton Press), "building better, not big" should be a model for our community and real estate developers on our smaller, infill city lots Thank you, Heidi H. Hoffmann AIA FLOOR AREA ONLY Above Grade Lot 1 and Lot 2 Allowable prior to landmarking +3652 sq ft Lot 1 Existing Structure -1801 1533+268=1801 Adjustment for S.F. carport + storage -225 Calculation on separate page Revised proposed addition -900 Remaining floor area +726 Lot 2 Transfer remainder floor area lot 1 +726 City code landmarking bonus +390 HPC exemplary bonus +500 TOTAL ALLOWABLE FLOOR PLAN +1616 sq. ft V 'i n City Code ---- Chapter 26.575.020 A3 Storage 26"(2.33) x 18' = 42 x 2 sides = 84 sq, it Carport I 6" (12.5) x 24W (24.66) = 308 x 2 Was = 616 sq. it ( This is all under roof) total = 700 sq. It 700 sq. ft -250 exempt 450 -250112 exempt Duplex conversion to single family 700 sq. it -500 exempt 20012 exempt Deduction for previously counted FAR's 125 200 325 sq. ft -100 adjustment 225 sq, ft YIa TO: MAYOR AND CITY COUNCIL MEMBERS FROM: Paul Young III, 413 W. Hopkins Ave. Aspen, CO My name is Paul Young, I live at 413 W. Hopkins. As a long-standing member and financial supporter of Friends of Shadow Mountain. I have paid dearly to financially defend the City's rightful ownership of Midland Trail from this developer's claim of partial ownership. I would like to address council member Romero's question, "What would the Youngs like to see ?" assuming that a lot split and designation are a forgone conclusion". The answer is, without waiving our other objections, "We respectfully request Lot #2 which is less than 3000 sq ft of lot area: < NO front yard setback variance <LIMIT FAR's to a maximum of 1616 sq ft <REQUIRE a height restriction of 18 ft. A standard front yard setback as required by Code for the Lot 2 free-market home will allow for a snow storage area and modest landscaped green belt. A height restriction of 18 ft on the new free market home will protect the public Trail and immediate neighborhood. Most importantly, NOT granting a front yard setback variance, keeping FAR's at 1616 sq ft and the height to 18 ft UPHOLDS the mission statement of the Historic Designation Guidelines, Chapter 11, while NOT setting a dangerous precedent for future designations. The June 8th memo states that "the proposed project does not increase development rights beyond what could be achieved through existing code processes." This statement would only be true if duplex is scraped and a deed - restricted carriage house, along with a home or duplex was rebuilt. The proposed project in front of us tonight consists only of free market FAR's. Staffs statement is comparing apples to oranges in an attempt to justify the developer's demand for 493 to 784 sq ft of incentive/bonus Far's, that if granted, is in violation of the City Code process. This is not an exemplary property, and HPC members have previously acknowledged this. A number of benefits have already been granted by HPC, including re -orientations with setback variances on all four sides for the original structure, including economic incentives in the range of $3,000,000 that you are considering tonight for the total project Please carefully weigh the concern of HPC members in their resolution to council that says, "NEGOTIATED BENEFITS COULD OVERLOAD THE SITE, DEFEATING THE VALUE OF DESIGNATION." Please do NOT grant the 161h ft front yard variance and Please DO limit the roof height. These are the key elements that insure proper balance of this project as it relates to Midland Trail, the historic structures and the character of the neighborhood. Chapter 11 New Buildings on Landmarked Properties/ Historic Landmark Lot Splits Poircy; In some tides s new primary structure may be constmotedd-on a Vveal that includes a landmorked strucIure. In such cAsee, KIN lmpoftaritftt the now building be compeftle with the historic structure such that Ks ItiWW is maintained. The City provides several Incentives For residential property owners to divide the square footage that could be built on a landmark parcel Into two separate houses in order to reduce the size or both buildings, to reduce the size MIan addition made to a historic house and to reinforce the original character of many of Aspen's nsighlmrhoods, which had small houses on 3.000 square foot lots. 7b determine We property is eligible for a historic lot split, refer to both the Standards for Landmark Designation and the Land Use Code. >It Is also Important that a new building In clan proximity not impede one's ability to Interpret the characterof the historic property; therefore, a new structure should be compatible in sole. site relationship and style. Simplicity and modesty in design are encouraged, Mass and Scale 11.3 Constructermwbulldingtoappenratmllar, In kale wlththa historic buildings ontheparcal. • Subdivide larger mosses Into smaller •modules• that are similar In size to the historic buildings an the original sire. 11A Design a front elevation to be slmUar In scale to the historic building. • Tlie primary plane of the Front should not appear tatter than Me historic structure. • The front should Include a one-story element, such as a porch. Key Features of an Individually Landmarked Property Mass and scale The mass and Sale of is new building is also an ftnporUnt design Issue. A now building should he compatible in mass and wait with Its historic neighbor and not overwhelm it. { 3 n COMPARISON OF 219 SOUTH THIRD AND 413 WEST HOPKINS FAR 413 W Hopkins 219 S Third Base Allowable 3660 3652 Actual 3603 Proposed 5033 Difference % Difference g`ga/e IBM My name is Paul Young, I live at 413 W. Hopkins. Our neighbor, David Bentley and my family are the most impacted by the Foster application. >Negative impacts to my family and neighbors include illegal parking as shown on developer's survey since it encroaches into the alley right of way. >Illegal parking complicates and creates a real bottleneck due to the deeded LEGAL, encroachment of David Bentley's home directly across the alley from the 219 S Third St property. >Snow removal in the winter is sometimes NOT accomplished as a direct result of the illegal parking: at 219 S. Third St and the dead end alley situation. >Packed snow and snow pushed to the end of our dead end alley does not allow a turn radius out of our garage necessitating my family to back out of alley during winter months. >Trash pickup is sometimes not accomplished due to alley not being snow plowed or because of partial blockage by illegally parked vehicles or a combination of both. SAFETY ISSUES INCLUDE: >Snow storage and parked cars in the right of way in front of David Bentley's home create a dangerous blind spot when driving out of alley due to the fact that there is no line of sight to the north. >David Bentley, who is legally deaf, has his front door entrance leading into the alley. >Three families with a total of 7 kids share the dead end alley. ON A DIFFERENT NOTE: >HPC at the May 131h meeting questioned the size of my home being 3606 sq ft of FAR's. The fact is, our lot area is larger than the developer's newly acquired property lot area for which Mrs. Foster is asking for 1383 sq ft OF FAR'S above what is allowed without landmarking. This is a 40% increase of FAR's over what our family built. YES, 40% MORE ON LESS LOT AREA! >The requested front yard setback variance of 161/2 It for lot 2 should NOT be approved because: 1. HPC Board members did not approve this request 2. City of Aspen code 26314 does not authorize this particular variance approval 3. It should be the developers' responsibility to make their project work without this major variance. fi r >This 161/2 ft setback variance is the single most important consideration we BEG City Council NOT to grant. City Council suggested that we negotiate with Mrs. Foster and we did reach out to Mrs. Foster, but she did not respond. Therefore, we sincerely request that City council keep the height, mass and scale of the new structure consistent with the 1533 sq ft duplex FAWs, if our neighborhood is forced to accept the negative impact of a lot split !/r LIST OF NEIGHBORS WITHIN 300' WHO ARE OPPOSED TO 219 S. THIRD ST. HISTORIC DESIGNATION AND LOT SPLIT 1. David Bentley 207 S. Third St. 'D �� A & � 61� 2. Pa & Angela Young 413 W. Ho ins Ave. J � 6Cj 3. Joh7& Kathleen Callahan 20 S. Third St. 4. ?an& Tita McCarty 333 W. Hopkins Ave. Gf,�l br lltl`e � Ob Pr S. :ante & Che Goldberg 430 W. Hopkins Ave. 6. Verner 432 W. Hopkins Ave. 7. J Sherwin 0 .Third St. ENTIRE] r110=624 Q is 11. James K Jackson 312 W. Hyman Ave un W of 5epf (6te &P 4� W ng IV 413 . Hopkins Ave. LIST OF NEIGHBORS WITHIN 300' WHO ARE OPPOSED TO 219 S. THIRD ST. HISTORIC DESIGNATION AND LOT SPLIT 1. David Bentley 207 S. Third St 2. Pa)\& Angela Young 413 W. Ho kins Ave. 3. job,v& Kathleen Callahan 20 S. Third St 4. ran& Tita McCarty 333 W. Hopkins Ave. S. Steve & Cheryl Goldberg 430 W. Hopkins Ave. 6. Dan Verner 432 W. Hopkins Ave. 7. Jennifer Sherwin 205 S. Third St 8. JohnStaton 431 W. Hppkins Ave. 9. Jordy Gerberg 312 W. Hyman Ave. 10. Michael Berhendt 33 . HyrrjaAve. 11. James K. Jackson 312 W. Hyman Ave W Hopkins Ave. May 22, 2009 I�III� TCIiIl ► rK Y M'ZK/lil ► L11 i 1 FTi T f :ill l I/We oppose historic designation and lot split at 219 South Third St. We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant. The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, NUV% � , , � i,T i ©Ni JIZ Address 4-3 ( Q • 5 96/08/2009 00:03 9199564643 PAGE 02 SUN-0-2009 lA;A1P rmi 117:19199564643 P.2 May 22, 2 109 Tiff: ASK If CITY COUNOL and NPC I/We an ow blow ledesyeatlan and lDk,qdk at 219 SOUM Third St We do eot Wkntb )wdsftdnpldrIswwftordaf wdoftandIkatItdour4*$ fjrthe idCMth c lka OM re9SWW hyaP*=Ikt. The lnoeadM and %MM= as proposed vmid wifrOVAd the se a nvwwWm the edWnp st UMre and nepdwdt Lopmodwnaldhhorhaa# Thank yow Name� ��/tiU�rj�._p2yt2 r�cr�LliyitG. GGC C Address 1-7, g V f S V• plwke 7 % ?0/ May 22, 2009 TO: ASPEN CITY COUNCIL and HPC I/We oppose historic designation and lot split at 219 South Third St. We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant. The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, Address Zo -D1 l✓� 5�1Z May 22, 2009 TO: ASPEN CITY COUNCIL and HPC I/We oppose historic designation and lot split at 219 South Third St. We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant. The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, Address 3i 2 W. ffjf,&,o / May 22, 2009 TO: ASPEN CITY COUNCIL and HPC I/We oppose historic designation and lot split at 219 South Third St. We do not believe the existing duplex is worthy of designation and that it does not justify the incentives/bonuses requested by applicant. The incentives and bonuses as proposed would overcrowd the site, overwhelm the existing structure and negatively impact the neighborhood. Thank you, Address `l MEMORANDUM v1tbp TO: Mayor Ireland and City Council p THRU: Chris Bendon, Community Development Director FROM: Amy Guthrie, Historic Preservation Officer 764a- RE: Second Reading of Ordinance #16, Series of 2009, 210 W. Francis Street, Ordinance #48, Series of 2007 Negotiation DATE: June 8, 2009 SUMMARY: Council approved First Reading of Ordinance 416, Series of 2009, on May 26`n Notice for Second Reading was properly published in the newspaper, but posting and mailing was not completed. Staff requests that Council open and continue the hearing to June 22"d to allow time for all noticing requirements to be fulfilled. rLI FaCTAI;.0lt TO: Mayor and City Council FROM: Rebecca Hodgson THRU: Randy Ready DATE OF MEMO: May 28, 2009 MEETING DATE: June 8, 2009 RE: Contract approval for waste removal and recycling services REQUEST OF COUNCIL: Staff requests Council's approval of a contract with Waste Solutions for waste removal and recycling services. PREVIOUS COUNCIL ACTION: None BACKGROUND: Prior to this waste removal contract, departments were independently contracting for waste removal services for their locations. DISCUSSION: The City of Aspen has used services from a Waste Management, Waste Solutions and Rocky Mountain Disposal for the past 5 to 15 years for trash removal and recycling services. The contract for the small trash cans throughout the downtown core expired this spring and staff recognized it as an opportunity to save money on services city-wide. An Invitation to Bid was issued for trash removal and recycling services for all departments or buildings that were not currently under a contract. After completing the competitive bid process, Waste Solutions was found to be the lowest responsive bidder. Purchasing will issue an Invitation to Bid for the five remaining locations once the current contract(s) expire. FINANCIALBUDGET IMPACTS: The City was paying a total of $75,764.64 per year for service for the departments listed in the contract alone: Wheeler, City Hall, ARC, Yellow Brick, Parks, Old Youth Center, Recreation and the Ice Gardens. The new contract with Waste Solutions is $65,712 per year saving the City $10,052.64. The largest percentage of savings realized with the Waste Solutions contract (78%) is in the General Fund. Additional savings will be realized once the other existing contracts expire. Page I of 2 RESOLUTION #� (Series of 2009) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND WASTE SOLUTIONS SETTING FORTH THE TERMS AND CONDITIONS REGARDING WASTE REMOVAL AND RECYCLING SERVICES 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 Waste Solutions, 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 Waste Solutions regarding waste removal and recycling services 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 May 11, 2009. Kathryn S. Koch, City Clerk City of Aspen SERVICE AGREEMENT THIS AGREEMENT made this 27th day of April, 2009, by and between the City of Aspen ("City") and the Vendor identified hereinbelow. WITNESSETH, that whereas the City wishes to purchase the services described hereinbelow and Waste Solutions wishes to provide said services to the City as specified herein. NOW THEREFORE, in consideration of the following covenants, the parties agree as follows: Wally Graham Waste Solutions 1058 County Road 100, Unit B Carbondale, CO 81623 970-963-1842 970-963-0583 Fax VENDOR DESCRIPTION OF SERVICE Service shall include waste removal from compactors, dumpsters, and various small cans throughout the downtown core and as well as recycling at all the locations in accordance with Chapter 12.06 Waste Reduction of the Municipal Code of the City of Aspen, Ordinance #17, 2008. Waste Solutions shall provide the appropriate containers at each location with the exception of locations with City owned containers. DURATION OF AGREEMENT AND SCHEDULE OF SERVICES TO BE PROVIDED The contract period is for a period of two (2) years period beginning either May 1s` or November 1n, 2009 and ending October 30, 2011. LOCATIONS AND FREQUENCY OF SERVICE Location Compactor Dumpster Frequency per week Date Service to Begin ARC 2 (two) - 4 yard 3 5/1/2009 Yellow Brick Bldg 2 yard rear load 6 5/1/2009 Parks 20yard approximately 13xper yea, 5/1/2009 30 Waste Cans in the Downtown Core 7 5/1/2009 Ice Garden 2 yard rear 3 5/1/2009 Recycle bin across from Zele 5/1/2009 Recycle bin in front of City Hall 5/1/2009 City Hall compactor 3 11/1/2009 455 Rio Grande 2 yard 3 11/1/2009 Recreation 2 yard rear load 1 11/1/2009 Wheeler compactor 3 11/1/2009 2 DESCRIPTION OF AMOUNT, METHOD OR MANNER OF COMPENSATION Waste Solutions shall provide a monthly statement to each City department for services rendered. Waste Solutions shall not raise their prices during the contract period unless authorization is given by the City of Aspen Attorney or the Purchasing office. Should the City change the terms of the service, the Vendor will be allowed to negotiate the rates. ARC 3 $50.38 $650.00 Yellow Brick Bldg 6 $21.31 $550.00 approximately Parks 13 x per year 200 + 200 30 Waste Cans in the Downtown Core 7 $69.10 $2,080.00 Ice Garden 3 $15.50 $200.00 every other Recycle bin across from Zele day $0.00 $0.00 every other Recycle bin in front of City Hall day $0.00 $0.00 City Hall 3 $23.25 $300.00 455 Rio Grande 3 $15.50 $200.00 Recreation 1 $22.32 $96.00 Wheeler 3 $93.00 $1,200.00 Monthly Total $5,476.00 Waste Solutions prices include fuel surcharges, bear proof containers, and container repair if needed. The prices do not include a tipping fee for Parks large roll off dumpster or bulks items such bed frames, white goods, tires, or carpet. If recycle containers become contaminated to the point the items cannot be recycled; a $10 to $15 fee will be assessed to have the trash truck pick up the contaminated items. 3 AMENDMENTS TO GENERAL CONDITIONS The City of Aspen is a resort community that relies on its exemplary customer service and impeccable beauty. It is imperative that trash removal and recycling services are conducted on a timely basis and that trash is not left lying around after emptying the containers. The City will conduct random weekly inspections to ensure servicing of each location. Waste Solutions shall be notified immediately if any location fails the inspection and must service the location within 24 hours or less of notification. Waste Solutions will be placed on probation after 3 failures to rectify/service locations. Inadequate servicing of the locations may result in contract termination. Waste Solutions shall maintain and provide a copy of the following certificates of insurance in the amounts specified in Exhibit A: Automobile, Workman's Compensation, and General Labiality. The parties acknowledge and understand that this Service Agreement is, except as specifically amended hereinabove, subject to all of the terms and conditions set forth in the City of Aspen General Conditions for Service Agreements, a copy of which is appended hereto as Appendix "A" and by this reference made a part hereof. Having agreed to the above and foregoing, the parties hereto do affix their signatures. City of Aspen: By: Wai-2 olutions: By: tilillD� Title: Title: c� EXHIBIT "A" CITY OF ASPEN GENERAL CONDITIONS FOR SERVICE AGREEMENTS These General Conditions have been prepared by the City of Aspen to be incorporated by reference into Service Agreements entered into between service providers ("Contractor") and the City of Aspen ("City"). The provisions herein may be interrelated with standard provisions of the Service Agreement customarily used by the City of Aspen to contract for services. A change in one document may necessitate a change in the other. Any amendments to the following terms and conditions mutually agreed to by the Contractor and the City shall be specifically noted on the Service Agreement. 1. Completion. Contractor shall commence the provision of services as described in the Service Agreement in a timely manner. Upon request of the City, Contractor shall submit, for the City's approval, a schedule for the performance of Contractor's services which shall be adjusted as required. This schedule, when approved by the City, shall not, except for reasonable cause, be altered by the Contractor. 2. Payment. In consideration of the services provided, City shall pay Contractor the amounts set forth in the Service Agreement. Contractor shall submit, in timely fashion, invoices for services performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Contractor within ten days from receipt of the Contractor's billing. Contractor's invoice shall be for the period ending the last day of each month and submitted to the City no later than the 5th day of each month. 3. Non -Assignability. 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 Contractor of any of the responsibilities or obligations under this agreement. Contractor shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractor's officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Contractor to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any subcontractor unless agreed to in writing beforehand by the City. 4. Termination. The Contractor or the City may terminate this Agreement upon thirty (30) days notice, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. The City shall have the right to terminate the Service Agreement upon three (3) days notice if Contractor fails to comply with the terms and conditions set forth in Sections 1, 3, 5, 6, 7, 10, 13, 14, 16, 19 or 21. For breach of any other term and condition of the Service Agreement, City may terminate the Service Agreement with ten (10) days prior notice to cure and failure by Contractor to so cure. No compensation shall be earned after the effective date of the termination. Notwithstanding the above, Contractor 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 Contractor, and the City may withhold any payments to the Contractor for the purposes of set-off until such time as the exact amount of damages due the City from the Contractor may be determined. 5. Covenant Against Contingent Fees. The Contractor warrants that s/he has not been employed or retained any company or person, other than a bona fide employee working for the Contractor, 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. 6. Equipment, Materials and Supplies. Unless otherwise agreed to by the City, Contractor shall acquire, provide, maintain, and repair at Contractor's expense such equipment, materials, supplies, etc., as necessary for the proper conduct of the services to be provided in accordance with the Service Agreement. 7. Contract Monitoring. Contractor agrees to allow City to reasonably monitor the services to be provided in accordance with the Service Agreement. 8. 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. Contractor 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 Contractor 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 Contractor. 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 Contractor. Contractor shall be solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, servants and subcontractors during the performance of this contract. Contractor 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 Contractor and/or Contractor's employees engaged in the performance of the services agreed to herein. 6 9. Indemnification. Contractor 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 Service Agreement, 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 Contractor, any subcontractor of the Contractor, or any officer, employee, representative, or agent of the Contractor or of any subcontractor of the Contractor, or which arises out of any workmen's compensation claim of any employee of the Contractor or of any employee of any subcontractor of the Contractor. The Contractor agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Contractor, 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. The Contractor also agrees to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any such liability, claims, or demands alleged are groundless, false, or fraudulent. 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 Contractor for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 10. Contractor's Insurance. (a) 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 Section 9 above. Such insurance shall be in addition to any other insurance requirements imposed by the Service Agreement or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 9 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) Contractor shall procure and maintain Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under the Service Agreement, 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. (c) If the Service Agreement requires any insurance in addition to that referenced above at subsections (a) and (b), or a particular type of coverage, Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance coverages referenced in the Service Agreement. All insurance coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be 7 continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor pursuant to Section 9 above. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (d) 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 carried by the City, its officers 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 Contractor. No additional insured endorsement to the policies 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. (e) The certificate of insurance provided by the City shall be completed by the Contractor's insurance agent as evidence that policies providing the required coverages, conditions, 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 certificate shall identify the Service Agreement 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. (f) Failure on the part of the Contractor to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may terminate the Service Agreement as provided by Section 4 above, 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 Contractor to City upon demand, or City may offset the cost of the premiums against monies due to Contractor from City. (g) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (h) 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 protection provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 11. 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 CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Contractor for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. 8 City shall provide Contractor reasonable notice of any changes in its membership or participation in CIRSA. 12. Waiver of Presumption. The Service Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Service Agreement. 13. Certification Regarding Debarment, Suspension, Ineligibility. and Voluntary Exclusion. Contractor certifies, by acceptance of the Service Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that vendor or any lower tier participant was unable to certify to this statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 14. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. 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 advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefor. Contractor represents that no official, officer, employee or representative of the City during the term of the Service Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in the Service Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of the Service Agreement. In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel the Service Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Contractor, vendor, or sub -contractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Contractor; and 4. Recover such value from the offending parties. 15. Termination for Default or for Convenience of City. The services contemplated by the Service Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 16. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If the Service Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, the Service Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of the Service Agreement. 17. City Council Approval. If the Service Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 18. Notices. Any written notices as called for herein may be hand delivered or mailed by certified mail, return receipt requested to the respective person or address listed for the Contractor in the Service Agreement. 19. Non -Discrimination; penalty. 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. Contractor agrees to meet all of the requirements of City's municipal code, Section 13- 98, pertaining to non-discrimination in employment. 20. City of Aspen Procurement Code. Notwithstanding anything to the contrary contained herein or in the Contract Documents, the Service Agreement shall be subject to the City of Aspen Procurement Code, Chapter 3 of the Aspen Municipal Code. 21. Compliance With All Laws and Regulations. Contractor shall give all notices and comply with all laws, regulations, and ordinances applicable to the provision of the services contemplated by the Service Agreement. Contractor shall obtain all necessary business licenses and permits, and shall pay all requisite occupation taxes levied by the City of Aspen upon persons engaged in business within the City limits. 22. 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 the Service 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 Contractor to which the same may apply and, until complete performance by Contractor of said term, covenant or condition, the City shall 10 be entitled to invoke any remedy available to it under the Service Agreement or by law despite any such forbearance or indulgence. 23. Execution of Service Agreement by City. The Service Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, the Service Agreement shall not be binding upon the City unless duly executed by the City Manager of the City of Aspen (or a duly authorized official in his or her absence). 24. 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 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 employing or contracting with an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly employs or contracts 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. "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 does not knowingly employ or contract with an illegal alien; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. d. Professional hereby certifies 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 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 earlier. 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 performing work under the Public Contract for Services knowingly employs or contracts with a new 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 12 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 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. 25. General Terms. (a) It is agreed that neither the Service 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 the Service Agreement 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 acknowledge 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) The Service Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. 13 u. u iei YI om nL sienwuou iTMIice ngI ranw: blenwaoo In wrance P. 10: ViRI EOIUnon Date: 4=009 04:09 PM Page: 2 of 3 ACORD CERTIFICATE OF LIABILITY INSURANCE OP ID CS WASTE-1 DATE(MMIDDMM') 04/21/09 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION GIA Group/Glenwood Ins. Agency ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P O Box 1270 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Glenwood Springs CO 81602-1270 Phone:970-945-9161 Fax:970-945-6027 INSURERS AFFORDING COVERAGE NAIL# INSURED INSUR A- Pinnacol Assurance RESURERS INUnited Fire & Casualty INSUPERC Waste Solutions dba Wally's 1058 County Rd. 100 Unit B ' Carbondale CO 81623 wsuRERD ._ NSURER E THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED -O T-E INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NONVCHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCJMENT WITH RESPECT TO WiHCH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSJRAN'CE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBeECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES AGGREGATE LIMITS SHI MAY HAVE SEEN REDUCED BY PAID CLAIMS. LTR SR TYPE OF INSURANCE POLICY NUMBER DATE(MMMDM) DAM(MMIDDM') LIMITS GENERAL LIABILITY EACH OCCURRENCE I$1000000 B X COMMERCIAL GENERAL Lne'Ln' CLAIMSMADE IX-1OCCJR 60330298 12/08/08 12/09/09 PREMiSES(Ee see .... ce) $ 100000 MFD EXP(My onooa[aor) $5000 PERSONAL ADV INJURY 11000000 GENERAL AGGREGATE $2000000 GEDL AGGREGATE LIMIT APPJES PER PRODUC>S-COMPIOP AGG $2000000 TO -ICY PE0. LOT AUTOMOBILE LIABILITY B X ANY AUTO 60330298 12/08/08 12/08/09 COMBINED SINGLE LIMIT IEa aaldsrrtH ,$1000000 ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per Parson) $ HIRED AUTOS NONOWNED AUTOS BODILY INJURY Pe-eccicenp $ FROPERTf DAMAGE I Per n1 dellll $ GARAGE LIABILITY AJTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN EAACC $ $ Au-o Gw-v AGO EXCESSIUMBRELLA LIABILT' EACH OCCURRENCE $ 1000000 B OCCUR CLAIMS MADE 60330298 12/08/08 12/08/09 AGGREGATE $ R I DEDUCTIBLE $ X RETENTION $ 10000 'A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY MY PROPRI[TORiPARTNERIEXECUTVE 3527142 07/01/08 07/01/09'EL tORY LIMITS X ER EACH ACCIDENT $1,000,000 OFFICERR,4EMBER EXCLUDED' I yes, II udder EL DISEASE-AEMP_C'EE $1,000r000 EL CREASEPOI-CY JMIT $1, 000, 000 SPECIAL PROVISIONS'"Iow OTHER B Property Section 60330298 12/08/08 12/08/09 H Equipment Floate 60330298 12/08/08 12/08/091 DE6CRIPTION OF OPERATIONS I LOCATIONSI VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT SPECIAL IFP V IONS CITYASP SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRITTEN City of Aspen & Pit$in County NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL Fax: 920-5439 130 South Galena IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR Aspen CO 91611 REPRESENTATI'VES. L )(tb MEMORANDUM TO: MAYOR & CITY COUNCIL FROM: TIM ANDERSON, RECREATION DIRECTOR CC: JEFF WOODS, MANAGER OF PARKS & RECREATION ASHLEY ERNEMANN, FINANCE DEPARTMENT JOHN BAKKEN, ASPEN GYMNASTICS LLC DATE: APRIL 23, 2009 RE: GYMNASTICS AGREEMENT MEETING DATE: JUNE 8, 2009 Summary: Staff and John Bakken; owner and operator of Aspen Gymnastics, LLC, are requesting the approval of the attached service agreement for the operations of the Gymnastics program in the Red Brick Gym. John has operated the gymnastics program in the Red Brick since opening in the fall of 1994. In the past the Recreation Division collected all fees for the program and under a professional services contract John was paid a percentage of the revenues collected and the City kept the rest. John was responsible for payment to all instructors under the past contract and the city provided the administrative support and equipment for the program. Over the last couple years revenues received looked like this: 2007 - $155,347 collected, Recreation net $23,302 2008 - $172,910 collected, Recreation net $25,877 Under this new agreement the gymnastics program will be operated completely by John Bakken meaning that he will take all registrations, perform all administrative tasks, f�d all questions and calls regarding the program, and pay all operational costs for the program. In turn the Recreation Department will charge the gymnastics program rent to use the gym space. John will now be renting the gym approximately, 1,200 hours annually generating $30,000/year for the Recreation Division. In addition the reduced administrative costs to Recreation will be r approximately $65,000 annually in part time labor, phones, and office equipment costs. The agreement before you today allows the Recreation Division to meet the new budget goals which were recently set for 2009. Discussion: Under this agreement the City will continue to supply and maintain the equipment for the Gymnastics program. There is also a CPI calculation to the rent such that it increases to keep up with the City's increased utility and maintenance costs for the gymnasium. One major change to this agreement is that John will set his own fees for the program with approval from the Parks & Recreation Department and City Council. While some may fear that fees will increase to a point where locals can no longer afford the program, staff doesn't feel this is going to happen as John realizes that he needs to keep his fees reasonable to maintain his program numbers. Also find attached a new fee schedule which staff and Aspen Gymnastics LLC would like to see implemented as of September 1, 2009 so that John Bakken may cover his increased operational costs. Staff feels these increases are fair and warranted to cover the operational cost of Gymnastics. All scheduling of gymnastics programs must be approved in writing by the Recreation Division, but this has always been the case in the past and of no issue. The recreation division will ensure that John has the time necessary to run a growing program and at the same time maintain the other popular fitness programs and tot programs which exist in the Red Brick Gym. Financial Impacts: This agreement allows each party to benefit financially. John will be able to react to the market needs, program as such and generate more revenue. At the same the recreation division is able to meet 2009 budget goals through reduced operational costs and increased revenues as well. The Recreation staff has worked closely with the finance department is breaking down the cost to operate this program and how to benefit both parties in the future. This agreement is a result of that work and a recommendation not by the Parks & Recreation Department but the Finance Department as well. Alternatives: Alternatives would include maintaining the current contractual agreement, but the gymnastics program is so large that handling the administration of the program would require additional part time labor to be subsidized once again in the Recreation budget. Recommended Action: Staff is recommending the approval of this agreement for the benefit of the Aspen Gymnastics program as well as the Recreation Division operations. Manager's Comments: Attachments: • Service Agreement by and between the City of Aspen and John Bakken, d/b/a Aspen Gymnastics, LLC • Proposed Fee changes by Aspen Gymnastics LLC as of September 1, 2009 12. RESOLUTION NO. Series of 2009 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A GYMNASTICS SERVICE AGREEMENT, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there exists between the City of Aspen and ASPEN GYMNASTICS LLC a mutual interest in providing Recreational Gymnastic activities at the Red Brick Recreational Facility; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves this Service Agreement for the operation of Gymnastics; and does hereby authorize the Mayor or City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 8th day of June , 2009. 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 on the day hereinabove stated. Kathryn S. Koch, City Clerk C:\Documents and Settings\jackiel\Local Settings\Temporary Internet Files\Content.Outlook\G6CRTE49\Resolution.doc SERVICE AGREEMENT THIS AGREEMENT made this _ day of 2009, by and between the City of Aspen ("City") and the Contractor identified hereinbelow. WITNESSETH, that whereas the City wishes to purchase the services described hereinbelow and Contractor wishes to provide said services to the City as specified herein. NOW THEREFORE, in consideration of the following covenants, the parties agree as follows: CONTRACTOR NAME: John Bakken/Aspen Gymnastics, LLC, ADDRESS:P 0 Box12064 Aspen, CO 81612 CONTACT PERSON: John Bakken PHONE NUMBERS: HOME: 970-544-0487 WORK: 970-309-4855 SOCIAL SECURITY NUMBER OR FEDERAL I.D. NUMBER: 05-0598331 DESCRIPTION OF SERVICE Recreational Gymnastics Program to include but not limited to: instructional classes, team workouts, accompanying of teams to meets, recommendations of new equipment purchases, proper use and maintenance of equipment, hiring of additional Instructors as needed and appropriate training as needed. Responsible for all necessary affiliations and certifications needed to safely maintain a gymnastics program. DURATION OF AGREEMENT AND SCHEDULE OF SERVICES TO BE PROVIDED This agreement shall run consecutive years beginning September 1, 2009. The agreement shall automatically renew annually unless changes are in writing, dated, and signed by each party. This agreement may be terminated in writing with 60 days prior written notice to the other party. The schedule of services may be flexible to accommodate demand. DESCRIPTION OF AMOUNT, METHOD OR MANNER OF COMPENSATION Aspen Gymnastics, LLC shall be responsible for the operation of the Gymnastics program located at the Red Brick Arts and Recreation Center. This includes registration, collection of monies, and payment to instructors. Fees for services will be established by Aspen Gymnastics, LLC. Registration will be approved by the City of Aspen Recreation Division. All changes to the fees charged by Aspen Gymnastics LLC shall be approved by the Aspen City Council before they are implemented. The City Council shall not unreasonably withhold its approval of any increase proposed by Aspen Gymnastics if it can be shown to the satisfaction of the Aspen City Council, in its sole discretion, that the changes in fees are warranted due to an increase in operational costs of providing gymnastics programming as set forth in this Agreement. The City of Aspen will charge Aspen Gymnastics, LLC $25.00 per hour for use of the gym to be reevaluated annually and subject to CPI increase (See Exhibit "A"). The City of Aspen shall provide the Gymnastics program space and supply and maintain the equipment. The terms of billing for Aspen Gymnastics are net 30 days. A bill is submitted to Aspen Gymnastics by the 10`h of the following month. Aspen Gymnastics has 30 days to bring up any discrepancies in writing (email - date stamped). The discrepancies will be handled as soon as possible. The amount of the discrepancy can C:\Documents and settings\lackiel\Local Settings\Temporary Intlrrrlet Files\Content.Outlook\G6CRTE49\Gymnastics service Agreement doc.doc be subtracted from the rest of the month's bill until there is an agreement on the billing difference. The rest of the month's bill must be paid in full to avoid the 1.5` o month interest payment. SCHEDULING OF RED BRICK GYM Aspen Gymnastics, LLC and the City of Aspen will schedule the use of the Red Brick Gym on a monthly basis. All schedule changes must be approved the Red Brick staff five days prior to the change, including private lessons. Gymnastics clinics and gymnastics meets must be scheduled and approved by the Red Brick staff two months prior to the events. Additional Gym time: The City agrees to make available to Aspen Gymnastics, if they request, any additional time that is not scheduled for any other activities. The same rates will apply. The City reserves the right, no matter who has rented or contracted for the gym, to use the gym for what the City determines is the highest and best use. If Aspen Gymnastics gym time is allocated to others, the City may offer alternative gym time or compensation. Reasonable notice will be provided regarding changes in gym allocations. Aspen Gymnastics will notify the City for any gym time that they will not need for the following Monday through Sunday by Thursday at noon of every week. If the City is able to rent the gym to another user group, Aspen Gymnastics will not be charged for that gym time. If both the City and Aspen Gymnastics determine that the gym time cannot be utilized due to circumstances beyond the control of either entity, then the gym time will not be charged to Aspen Gymnastics. C:\Documents and Settings\jackiel\Local Settings\Temporary Int1rrot Files\Content.Outlook\G6CRTE49\Gymnastics service Agreement doc.doc Please invoice using CRv's Purchase Order Number: AMENDMENTS TO GENERAL CONDITIONS Exhibit "A" Gymnastics Equipment 1 - Stratum Floor Exercise system and carpet 1 - Power Trak Trampline 1 - Standard Trampoline 1 - All Elite Uneven Bars 1 - AAI Uneven Bars 1 - AAI Elite Beam 3 - AAI Standard Beams 2 - Low Beams 1 - AAI Vault Table 5 - 16 inch Carolina Resi Mats 1 - 8x16 Resi Mat (extra large) 2 - 5x10 Resi Mats 9 - 5x10x8 landing mats 4 - 7x16 Beam Mats 5 - 7x12 Bar Mats 4 - 5x8 Mini Bar Mats 10- Panel Mats 5 - Sting Mats 1 - New Vault Board 3 - Old Vault Boards 1 - Set Norbert Spotting Blocks 1 - Vault Runway 1 - Vault Zone Safety Mat 1 - Power Trak Vault 2 - Sets of Rings/webbing/cables 1 - Old Poma Horse 1 - Old Gym Master Parallel bars 1 - Training Bar 1 - Mini Trampoline Variety of shaped mats for tots C:\Documents and Settings\ ackiel\Local Settings\Temporary Int(Impt Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc The parties acknowledge and understand that this Service Agreement is, except as specifically amended hereinabove, subject to all of the terms and conditions set forth in the City of Aspen General Conditions for Service Agreements, a copy of which is appended hereto as Appendix "A" and by this reference made a part hereof. Having agreed to the above and foregoing, the parties hereto do affix their signatures. City of Aspen: 12 Serv-981.doc Contractor: By: Title: Owner, Operator, Aspen Gymnastics, LLC C:\Documents and Settings\jackiel\Local Settings\Temporary Int(Irapt Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc The parties acknowledge and understand that this Service Agreement is, except as specifically amended hereinabove, subject to all of the terms and conditions set forth in the City of Aspen General Conditions for Service Agreements, a copy of which is appended hereto as Appendix "A" and by this reference made a part hereof. Having agreed to the above and foregoing, the parties hereto do affix their signatures. City of Aspen: By: Contractor: By: ". , Operator, Aspen Gymnastics, LLC Serv-981.doc H:\Red-Yellow Brick\Red Brick\Gymnastics service Agreement dddts}oc EXHIBIT "A" CALCULATION OF CHANGES IN URBAN INDEX The term "Urban Index" used herein shall refer to the consumer Price Index - All Urban Consumers (CPI-U), U.S. City Average, All Items (1967 = 100) compiled by the United States Department of Labor, Bureau of Labor Statistics. By way of identification, the parties agree that the CPI-U index number for July 1993 = 432.6. If at the time of computation of rental increases as provided below the Urban Index as defined is not then being currently published, the parties shall mutually select a substitute index which has historically approximated the Urban Index as defined. The parties further agree that the methodology they will use for calculating index changes in the Urban Index is that described in the instruction sheet from the Bureau of Labor Statistics, U.S. Department of Labor, which reads as follows: CALCULATING INDEX CHANGES Movements of the indexes from one month to another are usually expressed as percent changes rather than changes in index points, because index point changes are affected by the level of the index in relation to its base period while percent changes are not. The example in the accompanying box illustrates the computation of index point and percent changes. Percent changes for 3-month and 6-month period are expressed as annual rates and are computed according to the standard formula for compound growth rates. These data indicate what the percent change would be if the current rate were maintained for a 12-month period. INDEX POINT CHANGE CPI 315.5 Less previous index 303.5 Equals index point change 12.0 PERCENT CHANGE Index Point difference 12.0 Divided by the previous index 303.5 Equals 0.040 Results multiplied by one hundred 0.040 x 100 Equals percent change 4.0 C:\Documents and Settings\jackiel\Local Settings\Temporary Intgn7t Files\Content.0utlook\G6CRTE49\Gymnastics Service Agreement doc.doc - EXHIBIT "A" CITY OF ASPEN GENERAL CONDITIONS FOR SERVICE AGREEMENTS These General Conditions have been prepared by the City of Aspen to be incorporated by reference into Service Agreements entered into between service providers ("Contractor") and the City of Aspen ("City"). The provisions herein may be interrelated with standard provisions of the Service Agreement customarily used by the City of Aspen to contract for services. A change in one document may necessitate a change in the other. Any amendments to the following terms and conditions mutually agreed to by the Contractor and the City shall be specifically noted on the Service Agreement. C:\Documents and Settings\ ackiel\Local Settings\Temporary Internet F1Jes\Content.0utlook\G6CRTE49\Gymnastics Service Agreement doc.doc I. Completion. Contractor shall commence the provision of services as described in the Service Agreement in a timely manner. Upon request of the City, Contractor shall submit, for the City's approval, a schedule for the performance of Contractor's services which shall be adjusted as required. This schedule, when approved by the City, shall not, except for reasonable cause, be altered by the Contractor. 2. Payment. In consideration of the services provided, Contractor shall pay the amounts set forth in the Service Agreement. 3. Non -Assignability. 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 Contractor of any of the responsibilities or obligations under this agreement. Contractor shall be and remain solely responsible to the City for the ads, errors, omissions or neglect of any subcontractor's officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Contractor to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any subcontractor unless agreed to in writing beforehand by the City. 4. Termination. The Contractor or the City may terminate this Agreement upon thirty (30) days notice, without specifying the reason therefore, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. The City shall have the right to terminate the Service Agreement upon three (3) days notice if Contractor fails to comply with the terms and conditions set forth in Sections 1, 3, 5, 6, 7, 10, 13, 14, 16, 19 or 21. For breach of any other term and condition of the Service Agree- ment, City may terminate the Service Agreement with ten (10) days prior notice to cure and failure by Contractor to so cure. No compensation shall be earned after the effective date of the termination. Notwith- standing the above, Contractor 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 Contractor, and the City may withhold any payments to the Contractor for the purposes of set-off until such time as the exact amount of damages due the City from the Contractor may be determined. 5. Covenant Against Contingent Fees. The Contractor warrants that s/he has not been employed or retained any company or person, other than a bona fide employee working for the Contractor, 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. C:\Documents and Settings\jackiel\Local Settings\Temporary Inte.Met Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc 6. Equipment, Materials and Supplies. Unless otherwise agreed to by the City, Contractor shall acquire, provide, maintain, and repair at Contractor's expense such equipment, materials, supplies, etc., as necessary for the proper conduct of the services to be provided in accordance with the Service Agreement. (The City agrees to provide and maintain the equipment identified in attachment "A" under this contract) 7. Contract Monitoring. Contractor agrees to allow City to reasonably monitor the services to be provided in accordance with the Service Agreement. 8. 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. Contractor 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 Contractor 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 Contractor. 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 Contractor. Contractor shall be solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, servants and subcontractors during the performance of this contract. Contractor 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 Contractor and/or Contractor's employees engaged in the performance of the services agreed to herein. 9. Indemnification. Contractor 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 Service Agreement, 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, profes- sional error, mistake, negligence, or other fault of the Contractor, any subcontractor of the Contractor, or any officer, employee, representative, or agent of the Contractor or of any subcontractor of the Contractor, or which arises out of any workmen's compensation claim of any employee of the Contractor or of any employee of any subcontractor of the Contractor. The Contractor agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Contractor, 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. The Contractor also agrees to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any such liability, claims, or C:\Documents and Settings\jackiel\Local Settings\Temporary InteDet Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc demands alleged are groundless, false, or fraudulent. 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 Contractor for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 10. Contractor's Insurance. (a) 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 Section 9 above. Such insurance shall be in addition to any other insurance requirements imposed by the Service Agreement or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 9 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) Contractor shall procure and maintain Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under the Service Agreement, 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. (c) If the Service Agreement requires any insurance in addition to that referenced above at subsections (a) and (b), or a particular type of coverage, Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance coverage referenced in the Service Agreement. All insurance coverage shall be procured and maintained with forms and insurance acceptable to the City. All coverage shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor pursuant to Section 9 above. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (d) 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 carried by the City, its officers 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 Contractor. No additional insured endorsement to the policies 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. C:\Documents and Settings\jackiel\Local Settings\Temporary Inteipet Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc (e) The certificate of insurance provided by the City shall be completed by the Contractor's 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 prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify the Service Agreement 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. (f) 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 City may terminate the Service Agreement as provided by Section 4 above, 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 Contractor to City upon demand, or City may offset the cost of the premiums against monies due to Contractor from City. (g) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (h) 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 protection provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 11. 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 CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Contractor for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverage offered by CIRSA. City shall provide Contractor reasonable notice of any changes in its membership or participation in CIRSA. 12. Waiver of Presumption. The Service Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Service Agreement. 13. Certification Regarding Debarment Suspension Ineligibility, and Voluntary Exclusion. Contractor certifies, by acceptance of the Service Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or C:\Documents and Settmgs\jackiel\Local Settings\Temporary Inte!pet Files\Content.outlook\G6CRTE49\Gymnastics Service Agreement doc.doc State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that vendor or any lower tier participant was unable to certify to this statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 14. Warranties Against Contingent Fees Gratuities Kickbacks and Conflicts of Interest. Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. 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 advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. Contractor represents that no official, officer, employee or representative of the City during the term of the Service Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in the Service Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of the Service Agreement. In addition to other remedies it any have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel the Service Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Contractor, vendor, or sub -contractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Contractor; and 4. Recover such value from the offending parties. 15. Termination for Default or for Convenience of City. The services contemplated by the Service Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. C:\Documents and Settings\jackiel\Local Settings\Temporary Inteoet Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc 16. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If the Service Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, the Service Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of the Service Agreement. 17. City Council Approval. If the Service Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 18. Notices. Any written notices as called for herein may be hand delivered or mailed by certified mail, return receipt requested to the respective person or address listed for the Contractor in the Service Agreement. 19. Non -Discrimination: penalty. 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. Contractor agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 20. City of Aspen Procurement Code. Notwithstanding anything to the contrary contained herein or in the Contract Documents, the Service Agreement shall be subject to the City of Aspen Procurement Code, Chapter 3 of the Aspen Municipal Code. 21. Compliance With All Laws and Regulations. Contractor shall give all notices and comply with all laws, regulations, and ordinances applicable to the provision of the services contemplated by the Service Agreement. Contractor shall obtain all necessary business licenses and permits, and shall pay all requisite occupation taxes levied by the City of Aspen upon persons engaged in business within the City limits. 22. 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 the Service 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 Contractor to which the same may apply and, until complete performance by Contractor of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under the Service Agreement or by law despite any such forbearance or indulgence. 23. Execution of Service Agreement by City. The Service Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, the C:\Documents and Settings\ ackiel\Local Settings\Temporary Internet Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc Service Agreement shall not be binding upon the City unless duly executed by the City Manager of the City of Aspen (or a duly authorized official in his or her absence). 24. Illeeal 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 Owner, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a Contractor 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 Owner. 1. "E-verify program" means the electronic employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is jointly administered by the United States Department of Homeland Security and the social security Administration, or its successor program. 2. "Department program" means the employment verification program established pursuant to Section 8-17.5-102(5)(c). 3. "Public Contract for Services" means this Agreement. 4. "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, Contractor certifies and represents that at this time: 1. Contractor shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services; and 2. Contractor has participated or attempted to participate in either the e-verify program or the department program in order to verify that new employees are not illegal aliens. d. Contractor hereby confirms that: C:\Documents and Settings\jackiel\Local Settings\Temporary Inteeet Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc 1. Contractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 2. Contractor shall not enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 3. Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the e-verify program or the department program. 4. Contractor shall not use the either the e-verify program or the department program procedures to undertake pre -employment screening of job applicants while the Public Contract for Services is being performed. 5. If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall: i. Notify such subcontractor and the Owner within three days that Contractor has actual knowledge that the subcontractor is employing or subcontracting with an illegal alien; and ii. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not stop employing or contracting with the 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. 6. 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. 7. 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 Owner may terminate this Agreement. If this Agreement is so terminated, Contractor shall be liable for actual damages to the Owner arising out of Contractor's violation of Subsection 8-17.5-102, C.R.S. C:\Documents and Settings\ ackiel\Local Settings\Temporary Inte[get Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc 25. General Terms. (a) It is agreed that neither the Service 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 the Service Agreement 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 acknowledge 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) The Service Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. C:\Documents and Settings\ ackiel\Local Settings\Temporary Int(rot Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc MEMORANDUM TO: Mayor and City Council FROM:/ Scott Chism, Project Manager, Parks and Recreation Dept. THRU: Shirley Ritter, Kids First Director Nancy Nichols, Kids First Program Coordinator DATE OF MEMO: May 28, 2009 MEETING DATE: June 8, 2009 RE: Resolution #2009-Approval of the Contract for Construction and Supply Procurement Agreement for the Yellow Brick Child Care Play Improvements Project REQUEST OF COUNCIL: At this time we are requesting you to authorize two linked agreements: a Supply Procurement Agreement and Contract for Construction for the SUPPLY OF PLAYGROUND EQUIPMENT AND CONSTRUCTION OF THE YELLOW BRICK CHILD CARE PLAY IMPROVEMENTS PROJECT for the total amount of $82,929.00. PREVIOUS COUNCIL ACTION: The Kids First Department identified improvements for a portion of the existing fenced child care designated play area in 2007-2008 and prepared a funding request in the 2009 AMP to fund the project. City Council approved the funding request in the Kids First 2009 budget for play improvements at the Yellow Brick. BACKGROUND: The project includes the reconfiguration of approximately 2,240 square feet of existing playground dedicated to child care play. The existing configuration of playground space has created some programming challenges to the current child care programs that operate at the Yellow Brick. The challenges are significant enough to affect organized child care operations. A play space with a play structure located on the northeast corner of the park that was originally built as a "shared" play space between child care provider and general public use will be opened completely to public use with separation from the child care play areas to significantly reduce conflicts between child care and general public daytime use. The reconfigured play area has been designed for children aged 2-5 years and will be utilized exclusively for the Yellow Brick child care programs. DISCUSSION: Staff developed play design concepts that were presented to parents, caregivers, children and interested citizens at the Yellow Brick in late March/early April. Comments generated from the week long play concept displays were integrated into a preferred option and Page 1 of 3 became the basis of the design program that was issued in a request for proposals for playground equipment supply and installation. Four (4) viable proposals were received and the most creative and comprehensive solution was selected. FINANCIALBUDGET IMPACTS: A project budget of $136,000.00 was established in mid 2008 and approved by City Council. Staff has prepared a comprehensive project budget (Attachment C) that illustrates staff costs that have been spent as well as anticipated construction costs, including the play equipment supply. The Contractor, Children's Playstructures and Recreation, Inc. proposes to supply playground equipment for Sixty-four Thousand Nine Hundred Sixty-seven Dollars ($64,967.00) and install the playground equipment for Seventeen Thousand Nine Hundred Sixty-two Dollars ($17,962.00) for a total contracted Scope of Work of Eighty-two Thousand Nine Hundred Twenty-nine Dollars ($82,939.00). The contracted Scope of Work area is illustrated in yellow on the plan graphic (Attachment D). ENVIRONMENTAL IMPACTS: The equipment manufacturer of the selected play equipment, Playworld Systems, is ISO-14001 certified, which means that they have met the highest standards for environmental responsible manufacturing. The steel components that will be utilized in the play equipment are "made from up to 50% recycled materials and are 95% recyclable." The plastic components and rubber surfacing that will be utilized in the play equipment are "made from 100% recycled materials and are 100% recyclable." The equipment manufacturer has further eliminated 99.9% of PVC's from the Playworld Systems equipment, which is very positive. RECOMMENDED ACTION: Staff is recommending Council approval of Supply Procurement Agreement and Contract for Construction for the SUPPLY OF PLAYGROUND EQUIPMENT AND CONSTRUCTION OF THE YELLOW BRICK CHILD CARE PLAY IMPROVEMENTS PROJECT in order to allow the project to be completed during summer 2009. ALTERNATIVES: Council could choose not to approve this Supply Procurement Agreement and Contract for Construction, which would delay play equipment installation work intended to minimize the current use conflict between child care operations and general public at the Yellow Brick. PROPOSED MOTION: I move to approve the Supply Procurement Agreement and Contract for Construction between the City of Aspen and the Playground Contractor, Children's Playstructures and Recreation, Inc. for the Yellow Brick Child Care Play Improvements Project for the amount of Eighty-two Thousand Nine Hundred Twenty-nine Dollars ($82,939.00). Page 2 of 3 ATTACHMENTS: Attachment A: Supply Procurement Agreement for playground equipment Attachment B: Contract for Construction Attachment C: Comprehensive Project Budget Attachment D: Plan graphic of work scope Page 3 of 3 RESOLUTION NO.)5 Series of 2009 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A SUPPLY PROCUREMENT AGREEMENT AND CONTRACT FOR CONSTRUCTION FOR THE YELLOW BRICK CHILD CARE PLAY IMPROVEMENTS PROJECT BETWEEN THE CITY OF ASPEN AND CHILDREN'S PLAYSTRUCTURES AND RECREATION, INC. AND AUTHORIZING THE MAYOR OR CITY MANAGER TO ACCEPT SAID AGREEMENT AND CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council, a supply procurement agreement and contract for construction between the City of Aspen and Children's Playstructures and Recreation, Inc., a true and accurate copy of which is attached hereto as Exhibit "A" and Exhibit "B." NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves a supply procurement agreement and contract for construction, between the City of Aspen and Children's Playstructures and Recreation, Inc. for the Yellow Brick Child Care Play Improvements Project, copies of which are annexed hereto and incorporated herein, and does hereby authorize the Mayor or City Manager to approve said supply procurement agreement and contract for construction on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the day of , 2009. 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 on the day hereinabove stated. Kathryn S. Koch, City Clerk Attachment A SUPPLY PROCUREMENT AGREEMENT THIS AGREEMENT, made and entered into, this 8th day of June 2009 between the City of Aspen, Colorado, herein after referred to as the "City" and Children's Playstructures and Recreation,her einafter referred to as the "Vendor". WITNESSETH, that whereas the City wishes to purchase a PLAYWORLD SYSTEMS PLAYGROUND SYSTEM hereinafter called the UNIT(S) being more fully described and attached herewith as 'Exhibit A', in accordance with the terms and conditions outlined in the Contract Documents and any associated Specifications, and Vendor wishes to sell said UNIT to the City as specified in its Bid. NOW, THEREFORE, the City and the Vendor, for the considerations hereinafter set forth agree as follows: 1. Purchase. Vendor agrees to sell and City agrees to purchase the UNIT(S) as described in the Contract Document and more specifically in Vendor's Bid for the sum of Sixty-four Thousand Nine Hundred Sixty-seven Dollars ($64,967.00). Delivery. Yellow Brick Neighborhood Park; 215 North Garmisch Street, Aspen, CO 81611. 3. Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Request for Proposals and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties. Vendor agrees to warrant all components of playground equipment products and playground surfacing materials against any defects in workmanship or materials for at least one year from date of delivery. Vendor agrees to repair or replace, free of charge all parts found defective. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. 6. Third Parties. This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Vendor or City may assign this Agreement in accordance with the specific written permission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 7. Waivers. No waiver of default by either party of any of the terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. 8. Agreement Made in Colorado. The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 9. Attorney's Fees. In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 10. Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Agreement. 11.Certification Regarding Debarment, Suspension. Ineligibility, and Voluntary Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 12. Warranties Against Contingent Fees Gratuities KICKbaCKS ano Gonnicts OT Interest. Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. Vendor agrees not to give any 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 advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. Vendor represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a vendor, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor; and 4. Recover such value from the offending parties. 13. Termination for Default or for Convenience of City. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 14. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 15. City Council Aporoval. If this Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 16. 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 under this Agreement. Vendor agrees to meet all of the requirements of City's municipal code, section 13-98, pertaining to nondiscrimination in employment. Vendor further agrees to comply with the letter and the spirit of the Colorado Antidiscrimination Act of 1957, as amended, and other applicable state and federal laws respecting discrimination and unfair employment practices. 17. Integration and Modification. This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, vendor understands that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terns of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 18.Authorized Representative. The undersigned representative of Vendor, as an inducement to the City to execute this Agreement, represents that he/she is an authorized representative of Vendor for the purposes of executing this Agreement and that he/she has full and complete authority to enter into this Agreement for the terns and conditions specified herein. IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement to be duly executed the day and year first herein written in three (3) copies, all of which, to all intents and purposes, shall be considered as the original. FOR THE CITY OF ASPEN: ATTEST: City Clerk VENDOR: C By: Title City Manager c1f(4, .� P S G / r� 1 +9 ed v EXHIBIT 'A' PLAYEQUIPWNT SUPPLYAND INSTALLATION SER VICES FEE PROPOSALIBID FORM The proposal must include the following breakdowns of cost. The Supply/Installation Team shall bill the City on a percent complete basis not to exceed total fees for each phase as listed below. Progress payments shall be billed on a monthly basis. DESIGNDEVELOPMENT/PLAYEQUIPMENT SUPPLY ........................... ........................................... $ DEMOLITION/ INSTALLATION .......................... $ 1-1 19 (Oc2 TOTAL...........5 TOTAL FEE WRITTEN.- EXHIBIT 'A' (continued) Quote Number. 44419 Quotation Recreation Project Management, Quote Date: May 18, 2009 Equipment, Design, Installation and Fun Sales Rep: Sootl A. Gorman v .chlldnonsplaystnwtures.00m Quoted To: _.. City of Aspen Packs & Recreation 130 S Galena Street Aspen, CO 81611 Cust ID: Aspen P&R ... Proposed For: Yellow Brick Child Can: 215 North Garmisch Street Aspen, CO 81611 Qty Item Description 1 PWCH PlayworldSystems Challenger Series Custom Playstructure- 092521.dwg 1 PW 0059 Playworld Systems Diggables Rapfor Rock Head, model 0059 1 PW 0060 Playworld Systems Diggables Raptor Rock Tag, model 0060 1 PW 0594 Playworld Blast Off, model PW 0594 1 PW 1051 Playworid The Triple Shootout, model 1051 11 PW 1270 1 Playworld 2 Basin Accessible Sand Table w/plugs & Cover, model 600 PIP-EPDM EPDM 2 Layer Rubber Safety Surface for 600 sf at 1" in depth with 50%Color and 50% Black standard color ma, includes Sub Base 8 Sand - 200 sq it @ 9' depth - 8 tons 1,440 Field Turf -1,440 sq It 1 Remove and relocate existing engineered wood filer 1 Relocate 33'of fencing 1 Less Valued Customer Discount EFI Price includes equipment, freight and factory certified instalation by our professional in-house crew. the woW iwdsplay heQus mate hhgaper, Contact Narm _.. Rebecca Hodgson Phone _.... Fax 970-9205119 I _ Unit Price $ 45,372.00 $ 1,638.00 $ 1,638.00 $ 3,123.00 $ 4,075.00 $ 1,904.00 $ 19.29 $ 154.13 $ 14.70 $ 1,100.00 $ 2,200.00 $-12,097.00 $ 1,638.00 $ 1,638.00 $ 3,123.00 $ 4,075.00 $ 11 $ 1,233.00 $ 21,168.00 $ 1,100.00 $ 2,200.00 $-12,097.00 Please review end mtm vial a copy of ymr Pucnese Order and bx sompt kxririoate. If epWl®da Ouobd pbw ale wtd for Subtotal $ 82, 929.00 bity(30) days tan the date ofpnpasal. Quob Exclude loxes, prevaling wages andsas pmperetan udess dhawsenated. Oe srewmsblefabc*V&Uiaigedmwdtreinapsysbmcarpmwk WomnotrespmeNetrsystemdaneges ceusedbyfaaaetopapedy sxels oDmixobm. Owm Is mponsibletr praikrng water, pow and sect tack access to ails Sales Tax 'xiwfellefm.UNessothemissnaledsite pepnotbnistherespmdbi@yoftleownerandfaiwetopropwypepemthe siteby ascheWdetoofinsWWjonwMresukinkpkWWdemeMinU*smowdd$325pw(by.0usbtmwdetbnbaol _ TOTAL $ 82,929.00 oonA = in motmloka s a rocky areas, thequoteNcroseclod ewta7efoo figures may needtobe Moemaxi if wa mmunters problem wrh rigging,"wlt nail] you immetlistey and subod a dlerge mWpda b omamwq. 989211han Park Circe, Unit 1 Littleton, CO 80125 Office:303.791.7626 Fax: 303.791.3314 Page: 1 Attachment B 13 CONTRACT FOR CONSTRUCTION (Short Form) THIS CONTRACT, made and entered into on June 8`L' 2009, by and between the CITY OF ASPEN, Colorado, hereinafter called the "City", and Children's Playstructures & Recreation, 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 Seventeen Thousand Nine Hundred Sixty-two ($17 962.00 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 to completion, and in any and all events to substantially complete the same not later than Aueust 31st, 2009, subject to such delays as are permissible under the "Extension of Time for Completion" section of this Contract. CC5-971.doc 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 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, furnish 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 Proposal/Scope 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, CC5-971.doe Page: 2 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 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. Ldoc 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 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 after 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 CC5-971.doc Page. 4 any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. I. Workmen'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 occurrence 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 Contractor's 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 5 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 City 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 least 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 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. 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 Paragraph 14 above, City shall have the option to cancel this Contract and, in such event, Contractor shall be paid the reasonable cost, including Page net profit to Contractor in the amount of ten (10%) percent, of all work performed by Contractor before such cancellation. 16. Notices. Any notice which any party is required or may desire to give to any other party shall be in writing and may be personally delivered or given or made by United States mail addressed as follows: To City: Aspen, Colorado 81611 To Contractor: 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. 17. Inspections; Warranties. (a) Contractor shall conduct an inspection of the Project prior to final 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 incurred 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). 18. 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 CC5-971 if applicable, in the County of Pitkin. The Contractor further represents and warrants to the City that Contractor is duly licensed by the International Playground Contractors Association. (Refer "Exhibit B") 19. 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 agrees 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 City. The City 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 ENTITLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE CONTRACT. 20. Assignment. This Contract is for the personal services of Contractor. Contractor shall not transfer or 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. 21. Successors and Assigns. Subject to paragraph 22, above, this Contract shall be binding on, and shall inure to the benefit of, City and Contractor and their respective successors and assigns. 22. 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. 23. 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 City 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. CC5-971.doc 24. 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. 25. 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. 26. 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 prevailing party in such action shall be entitled to receive its attorneys' fees in connection with such action from the non -prevailing party. 27. 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 declared to be severable. 28. 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, national origin, age, marital 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 are employed, and that employees are 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. 29. 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. 30. 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. Page 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 particular matter, pertaining to this Contract or to any solicitation or proposal therefor. C. It shall 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 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. 31. Payments Subject to Annual Appropriations. If the contract awarded extends beyond the calendar year, nothing herein shall be construed 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. 32. 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. CC5-971.doc Page: "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, 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)Cont ractor 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. IF (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: (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 affirms 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. Page: 12 IN WITNESS WHEREOF, the parties agree hereto have executed this Contract For Construction on the date first above written. ATTESTED BY: RECOMMENDED FOR APPROVAL: City Engineering Department a—MH�l 011W CITY OF ASPEN, COLORADO By: APPROVED AS TO FORM: By: City Attorney CONTRACTOR: p l y By: G Title: S� 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. that said instrument was signed and sealed in behalf of authority of its board of directors, and said deponent instrument to be the free act and deed of said corporation. CERTIFICATE OF INCORPORATION (To be completed if Contractor is a Corporation) STATE OF �ela��,�� ) COUNTY OF� SS. On this Z'l day of me appeared 20 , before personally known, who, being by me first duly sworn, did say �45; 1`3 w � of to me that s/he is IfPV\`S VkA- Kv�cr�cmo.1 and that affixed to said instrument is the corporate seal of said corporation, and said corporation by acknowledged said WITNESS MY HAND AND NOTARIAL SEAL the day and year in first above written. ,18cf2- N-t"an may_ f U�fcfvvijl (0 Sol Z� My commission expires: S Notary Publi }-1 this certificate; C CC5-971.dm Page: 14 CC5-971.dm Page: 14 EXHIBIT 'A' PLAYEQUIPWNT SUPPLYAND INSTALLATION SERVICES FEE PROPOSAILBID FORM The proposal must include the following breakdowns of cost. The Supply/Installation Team shall bill the City on a percent complete basis not to exceed total fees for each phase as listed below. Progress payments shall be billed on a monthly basis. DESIGNDEVELOPMENT I PLAYEQUIPMENT SUPPLY ...................... .... .................. ... ...... ... ....... $ DEMOLITION/INSTALLATION ... ....................... $ TOTAL ........... $ S� iqa 1 TOTAL FEE WRITTEN: EXHIBIT 'A' (continued) Quotation Quote Number. Q-4419 Recreation Project Management, Quote Date: May 18, 2009 Equipment, Design, Installation and Fun Sales Rep: Scoff A. Gorman vww chlldrenepleyswekurea coon the waklnareisplay heQus mate ithg7pen Quoted To....... _._ _.. Proposed For....... • Contact Nance City of Aspen Parks & Recreation 130 S Galena Street Yellow Bride Child Care Rebecca Hodgson Aspen, CO 81611 215 North Garmisch Skeet Phataa Fax As CO 81611 Cust ID: Aspen P&R Qiy Itean _1 PWCH 1 PW 0059 1 PW 0060 1 PW 0594 1 PW 1051 1 PW 1270 Pen, 970-920-5119 _. Description _... Unit Price Playworld Systern-a Challenger Seder Custom Playstructure - $ 45,372.00 092521.dwg Playworld Systems Diggables Raptor Rock Head, model 0059 $ 1,638.00 Playworld Systems Diggables Raptor Rock Tad, model 0060 $ 1,638.00 Blast Off, model PW 0594 The Triple Shootout, model 1051 2 Basin Accessible Sand Table wlplugs & Cover, model $ 3,123.00 $ 4,075.00 $ 1,904.00 $ 1,638.00 $ 1,638.00 $ 3,123.00 $ 4,075.00 $ 1,904.00 600 PIP-EPDM EPDM 2 Layer Rubber Safety Surface for 60D of at 1' in depth with $ 19.29 $ 11, 575.00 50% Color and 50% Black standard color ma, includes Sub Base 8 Sand - 200 sq ft @ 9' depth - 8 tons $ 154.13 $ 1,233.00 1,440 Field Turf -1,440 sg ft $ 14.70 $ 21,168.00 1 Remove and relocate existing engineered wood fiber $ 1.100.00 $ 1,100.00 1 Relocate 33' of fencing $ 2,200.00 $ 2,200.00 1 Less Valued Customer Discount $-12,097.00 $-12,097.00 EFI Price includes equipment, freight and factory certified installation by our professional in-house crew. Plessemmwand reemlawawpymywrwdeseonferandtaxwenpcelumte,ifenumae. QuoledomareveNtr Subtotal $ 82,929.00 brty(s0) days tom thedsteofproposal.QumEsdudeslases,prevathgwagesadsbprepsab Weesothemiserrawl. ower� e�onsauefarb�tng�u:dgeaananddre regesystsmso ponems wasnanareeponaneforsye<emd Sales Tax camedMfaillaastopWarlyiwauemmponeras. owrwemspamwabrprovangwater, puearandma hckameastosib hr istallefon. Unless kxherwlsenoted, siteprep ratimis therespaaCiitydtle caner andfaUstoprapery preperewe siteby _ _ .... esahaduleddmorimb¢euonwill reswtbks:deteddamanesinthesmoamof$Mper day. asbbaw,dassnbsal TOTAL $ 82,929.00 •. mditw inmmmiahim or rocky am thequotedti:mtecsd hstellelon lgures may need to be brresaw. Ifwem=mtaa problem with dggkg, wewll notify you imeftefy and submit a drage orderpdor b omfimig. 9892 Titan Park Circle, Unit 1 Littleton, CO 80125 Office: 303.791.7626 Fax: 303.791.3314 Page: i wk '�.-� .i�'an►�"./'_.�u�ii.�--.,a�IL�O�iriSL—...:+�.�11.�►...f ,l� � ::+.��iL�'�. �ir �,. G; a tCAIL* 1 # rr 0i ., _.., : oT If Attachment C YELLOWBRICK CHILD CARE PLAY IMPROVEMENTS Estimate of Probable Construction Costs Aspen Parks & Recreation Department 29-May-09 CONSTRUCTION ITEM QTY UNIT UNIT COST TOTAL COST WORK ITEM: DESIGN, COA scope Project Management/In House Design Coord. 1 LS 4,019.76 4,019.76 (expenditure to date 5/22/09) Design & Project Management budget 1 LS 7,200.00 7,200.00 Project Reprographic Services-2009 1 Allow 157.50 157.50 (public open house) Subtotal Design, COA scope 11,377.26 PLAY AREA CONSTRUCTION: COA scope Demoliton: concrete 1 LS 1,200.00 1,200.00 (59 sy area-2 days Construction Labor Parks) Dump Fees: concrete 1 LS 250.00 250.00 Construction Fencing 120 LF 11.00 1,320.00 Demoliton: tree removals 1 LS 1,000.00 1,000.00 (5 Crabapples dug/chipped) Demoliton: shrub removals 1 LS 1,200.00 1,200.00 Excavation: topsoil/circular sod area 1 Allow 1,415.00 1,415.00 (expose exist. Drainage: 18 cy) (2 days 2 man Restoration Labor) Demolition: turf removal 1 Allow 1,415.00 1,415.00 (2 days 2 man Restoration Labor) Turfgrass sod replacment/delivery 865 SF 0.43 371.95 (surrounding compass rose pavement) Turfgrass sod installation 1 Allow 800.00 800.00 (1 day 3 man Restoration Labor) Subtotal Play Area Construction: COA scope 8,971.95 PLAY AREA CONSTRUCTION: Contracted Play Equipment Soppy 1 LS 64,967.00 64,967.00 (by Children's Playstructures & Recreation) Play Equipment Installation 1 LS 17,962.00 17,962.00 (inluding fence relocation) Subtotal Play Area Construction: Contracted 82,929.00 Subtotal YB Play Area Design & Construction 1 103,278.21 Contingency 10.00% 10,327.82 YB Play Area (PROJECT FUND SOURCES AMOUNT Kids First Dept. appropriated funds: 2009 136,000.00 Subototal 136,000.00 Grand Total Yellowbrick Day Care Improvements Project 136,000.00 Concrete sidewalk and ork Area H4LLAM r,Ry� "�LL�EI�R 0 PARK _ Existing play equipment to remain. Playground area to be fully accessible to the public. Red indicates sections of aluminum fence to be removed / relocated. Landscape shrub removal N.I.C. Aspen Parks and Recreation Department SCHEMATIC PLAY SITE PLAN Yellow Brick Child Care Play Improvements f I rt Ct T 3 W 3 rt ,I 62'-6" OU Relocated Fence. Elite Ornamental Picket Fence, model EFF-20 Flat Top 3 rail, 4'-0" high fence, matte black enamel finish. Available from Elite Fence Products 800-783-1331 www.elitefence.com Refer to the AutoCAD drawing for exact dimensions of play space. Aspen Parks and Recreation Department " SCHEMATIC PLAY DESIGN PLAN Yellow Brick Child Care Play Improvements TO: THRU: FROM: RE: 1105-1 DidLei :7:101I1001 Mayor Ireland and City Council Chris Bendon, Community Development Director I IIII, n Jessica Garrow, Long Range Planner li��"�/� 1495 Homestake Drive — Dimensional Variance Resolution No.310, Series of 2009 DATE OF MEMO: May 29, 2009 MEETING DATE: June 8, 2009 APPLICANT /OWNER: Philip Pine REPRESENTATIVE: Matthew Ferguson and Ryan Pardue of Garfield & Hecht P.C. LOCATION: 1495 Homestake Drive; Unit 2, Homestake Condominiums. The property is located on the fairway of the 2nd hole at the Aspen Municipal Golf Course. CURRENT ZONING: R-15, Moderate Density Residential SUMMARY: The Applicant requests a dimensional variance from the height requirements for fences in order to construct a fourteen (14) foot high golf - netting fence. STAFF RECOMMENDATION: Staff recommends approval of the requested dimensional variance. Photo of Subject Property: REQUEST OF THE CITY COUNCIL: The Applicant, Philip Pine, is requesting Council approval of a dimensional variance to erect a fourteen (14) foot fence made of golf netting. The applicant is making this request to address property damage and safety issues related to golf balls landing on the property from the Aspen Municipal Golf Course. REQUIRED REVIEWS: Dimensional variances for height are reviewed by City Council. The Applicant requests the following reviews: • Dimensional Variance from the height requirements to erect a fourteen (14) foot high fence pursuant to Land Use Code Chapter 26.314, Variances (City Council is the final review authority). Other applicable code sections include: • Fences, section 26.575.050 of the Land Use Code. This section states, "Fences shall be permitted in every zone district provided that no fence shall exceed six (6) feet above natural grade or as otherwise regulated by the Residential Design Standards..." BACKGROUND: The property is located adjacent to the Aspen Municipal Golf Course's second hole fairway. The Applicant has provided pictures illustrating the damage caused to the property from golf balls being hit from the second hole. The Applicant would like to install a seasonal fence made of golf netting to protect the home from the golf balls. PROJECT SUMMARY: The Applicant requests a dimensional variance to permit a seasonal fence made of golf netting to be constructed along the western property line. The fence is proposed to be fourteen (14) feet high and run approximately eighty (80) feet along the one - hundred and twenty (120) foot long western property line. The Proposed fence would not go forward of the garage, which is the front -most fagade of the house. The fence is proposed to be made of similar material as the existing golf netting near the driving range on the golf course, and will be seasonal in nature. The applicant would install holes in the ground that the fence posts and the netting would be connected to during golf season (approximately May through October) — both the posts and netting would be removed when the golf course is not in operation for golfing activities. The Applicant requests that the proposed fence be located along the western property line. Staff from the Community Development, Parks, and Golf departments conducted a site visit to determine how the proposed fence placement would impact the golf course. Staff comments can be found in Exhibit B. Due to a significant stand of mature trees located in the south-western portion of the site, placing the golf -netting fence along the property line would create an encroachment into the golf course (City) property. Staff does not recommend the fence be permitted to encroach on the City property, and does not recommend approval of the application if the fence would encroach on City property. The Application (Exhibit D) includes a site plan illustrating the location of the fence in this alternative. Staff discussed an option of running the proposed fence along the property -line until it reaches the stand of trees, and then turning the fence into the property and weaving it through the property. Exhibit C includes a staff illustration of the approximate location of the fence in this scenario. Because the fence is flexible, staff believes it can be weaved through the tree stand without damaging the trees. Staff also believes this solution will better conceal the proposed fence from view, as the trees are taller than fourteen (14) feet and will provide visual relief. This is staffs preferred alternative, which staff recommends approval of. Pursuant to Land Use Code section 26.410.040.A.3, Residential Design Standards, Site Design - Fences, fences forward of the front fayade of a residential building cannot exceed 42 inches in height. Because the proposed fence does not go forward of the front facade of the building, the Residential Design Standards are not triggered. 4 STAFF COMMENTS: Staff comments and findings related to the Variance review criteria are included below. Detailed staff findings are found in Exhibit A. VARIANCE: Variances from the Land Use Code are deviations that "would not be contrary to the public interest when, owing to special circumstances or conditions, the literal enforcement of the provisions of this Title would result in undue and unnecessary hardships." Staff finds that this lot is uniquely situated to warrant a dimensional variance for fence requirements. The parcel is located adjacent to the second hole on the Aspen Municipal Golf Course, and is located in such a way that drives from the tee box enter the property. While there are other parcels adjacent to the golf course, there are no other properties that are in "line -drive" territory when golfers tee off. This is a unique situation that encumbers this lot and no others. Staff finds that because of this parcel's location in relation to the golf course, that it is uniquely situated to be impacted by errant golf balls. The proposed golf netting makes sense in this context. RECOMMENDATION: Staff recommends approval of the variance to allow the fence to be located along the property line, and then enter the property through the cluster of trees in the south-western portion of the property. PROPOSED MOTION: (all motions are worded in the affirmative) "I move to approve Resolution #'&, Series 2009, approving a variance allowing the construction of a fourteen (14) foot high golf -netting fence on the property located at 1495 Homestake Drive." Attachments: EXHIBIT A — Variance Review Criteria, Staff Findings EXHIBIT B — DRC Comments EXHIBIT C — Staff illustration of Staffs preferred fence location EXHIBIT D — Citizen Letters EXHIBIT E — Land Use Application ki RESOLUTION NO. ' (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING A VARAICNE FOR A FOURTEEN FOOT FENCE MADE OF GOLF NETTING FOR THE PROPERTY LOCATED AT 1495 HOMESTAKE DRIVE CITY OF ASPEN, PITKIN COUNTY, COLORADO. Parcel ID: 2735-024-030-03 WHEREAS, the Community Development Department received an application from Philip Pine, represented by Matthew Ferguson and Ryan Pardue of Garfield & Hecht P.C, requesting approval of a variance to allow a fourteen foot fence made of golf netting; and, WHEREAS, pursuant to Section 26.314, the City Council may approve a Variance, during a duly noticed public hearing after considering a recommendation from the Community Development Director, and recommendations from relevant referral agencies; and, WHEREAS, upon review of the application and the applicable code standards, the Community Development Department recommended approval of the requested variance with conditions; and, WHEREAS, during a duly noticed public hearing on June 8, 2009, the City Council approved Resolution No. _, Series of 2009, by a to L — vote, approving a Variance; 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 the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing; and, WHEREAS, the City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Resolution No , Series 2009 Page I of 3 Section 1: Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City Council hereby approves a variance to permit a fourteen foot high fence made of golf netting be constructed on the property. The fence shall only be erected when the Aspen Municipal Golf Course is running golf operations. Section 2: Fence Location & Material The fence shall be located on the Applicant's property along the western property line of the property until it reaches the existing wood fence, at which point the golf netting fence will enter the property and be woven through the existing stand of trees. The fence is not permitted to encroach on the City's golf course property. Section 3: Parks Department The Applicant is required to acquire an approved work under the drip line permit (tree removal permit) prior to installation of the fence. Any trimming of tree branches must be kept to a minimum and all tree work should be accomplished by a professional tree care company. All work on trees must comply with city tree code #13.20. The Parks Department shall verify compliance with this requirement. Section 4: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 15: This resolution 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 resolutions or ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions or ordinances. Section 16: If any section, subsection, sentence, clause, phrase, or portion of this resolution 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. FINALLY, adopted, passed and approved this 8th day of June, 2009. Michael C. Ireland, Mayor Resolution No _, Series 2009 Page 2 of 3 ATTEST: Kathryn S. Koch, City Clerk APPROVED AS TO FORM: John P. Worcester, City Attorney Resolution No , Series 2009 Page 3 of 3 Exhibit A Sec. 26.314.040. Standards applicable to variances. A. In order to authorize a variance from the dimensional requirements of Title 26, the appropriate decision -making body shall make a finding that the following three (3) circumstances exist: 1. The grant of variance will be generally consistent with the purposes, goals, objectives and policies of the Aspen Area Community Plan and this Title; Staff Finding: Staff finds that the proposed variance is generally consistent with the Aspen Area Community Plan (AACP) and the Land Use Code. The AACP is an aspirtational document that does not address specific circumstances such as fence height variations. The AACP states that it is "broad in scope and does not address every issue or parcel individually. The plan should be interpreted to apply generally to all properties and issues in Aspen...", The Design Quality section of the AACP discusses the importance of context when making decisions about form, mass, color, materials, etc. This proposal is generally consistent with the plan in general, and with this idea of paying attention to context in design situations. The property is located adjacent to the golf course, and is uniquely situated to be impacted by errant golf balls. The proposed golf netting makes sense in this context, much more than a fourteen foot high fence made of wood or stone. The proposal is also generally consistent with the Land Use Code. The proposal does not trigger a Residential Design Review or any other land use review. Staff finds this criterion to be met. 2. The grant of variance is the minimum variance that will make possible the reasonable use of the parcel, building or structure; and Staff Finding: Staff finds that the request is the minimum variance that will allow reasonable use of the parcel. The proposed fence is temporary in that it would only be erected during the golf season. There are other golf netting fences that are available for purchase, but these are higher in height, and are not temporary. The applicant is requesting a fence material that is relatively transparent, and is flexible so it can be inter -woven between existing vegetation. Staff believes that individuals have a reasonable expectation to be safe when on their property. The current condition of the property does not protect the parcel, building, or people that might be on the property at any given time from errant golf balls. Staff finds that the proposed fence will create a safer environment on the parcel by preventing errant golf balls from impacting the property and any people on the property. Staff fins this criterion to be met. Exhibit A, Staff Findings Page 1 of 2 Exhibit A 3. Literal interpretation and enforcement of the terms and provisions of this Title would deprive the applicant of rights commonly enjoyed by other parcels in the same zone district and would cause the applicant unnecessary hardship, as distinguished from mere inconvenience. In determining whether an applicant's rights would be deprived, the Board shall consider whether either of the following conditions apply: a. There are special conditions and circumstances which are unique to the parcel, building or structure, which are not applicable to other parcels, structures or buildings in the same zone district and which do not result from the actions of the applicant; or Staff Findina: Staff finds that there are unique circumstances on this parcel that are not the result of any action by the applicant. This parcel has been adjacent to the golf course since the golf course was created. The parcel is located adjacent to the second hole on the Aspen Municipal Golf Course, and is located in such a way that drives from the tee box enter the property. While there are other parcels adjacent to the golf course, there are no other properties that are in "line -drive" territory when golfers tee off. This is a unique situation that encumbers this lot and no others. Staff finds this criterion to be met. b. Granting the variance will not confer upon the applicant any special privilege denied by the Aspen Area Community Plan and the terms of this Title to other parcels, buildings or structures, in the same zone district. Staff Finding: Staff finds that because of the unique circumstances of this lot, the proposal will not confer any special privileges on this lot that are denied by the Aspen Area Community Plan or the Land Use Code. The AACP does not address this kind of situation specifically. Staff believes this situation is unique and warrants a variation in the height requirements imposed by the land use code. Staff finds this criterion to be met. Exhibit A, Staff Findings Page 2 of 2 Exhibit B MEMORANDUM To: Development Review Committee From: Jessica Garrow, Long Range Planner Date: May 15, 2009 Re: 1495 Homestake Drive DRC Comments The Development Review Committee (DRC) has been asked to review the proposed golf netting fence on 1495 Homestake Drive. Community Development staff met on site with Parks and Golf staff on May 6`h. DRC has compiled the following comments: Parks 1. Applicant will be required to acquire an approved work under the drip line permit (tree removal permit). 2. Trimming of tree branches should be kept to a minimum and all tree work should be accomplished by a professional tree care company. 3. The Parks Department would prefer if the fence would remain on the applicant's property. Golf 1. The fence should only be built on the homeowners property, there should not be variance option. 2. The 14 ft height is OK with the Golf Department. 3. Although the Golf Department is OK with building the fence on the homeowners property this does not mean that we approve of it with regards to other neighbors around this property. I'm sure the neighbors will object heavily to both its height, appearance etc. Exhibit B, DRC Comments Page 1 of 1 Jessica Garrow From: David Azouz [dazouz@1stLondon.net] Sent: Friday, May 29, 2009 12:24 PM To: Jessica Garrow; mhoffman@garfieldhecht.com, 'Ryan L. Pardue'; drsmile4u@aol.com Subject: FW: 1495 Homestake Drive: Public Notice of Variance - Review Attachments: Golf Net 1495 Homestake .pdf; 1495 Homestake netting plan NOT approved 5_29_09.pdf Follow Up Flag: Follow up Flag Status: Flagged 5/29/09 City Of Aspen Community Development Dept, Attn: Jessica Garrow 130 S. Galena St, Aspen, CO Mr. Phillip Pines 1495 Homestake Drive Aspen CO 81611 Re: Lot 2 Homestake Condominiums AKA 1495 Homestake Drive Aspen, CO 81611 Dear Ms. Garrow and Mr. Pines, In light of my recent conversations with all involved, I want to make my position clear on this issue. I am the owner of Homestake Condominiums, Lot 1, AKA 1485 Homestake Drive, Aspen, CO 81611. i.e. the only other association member in this association. Section 6.1 (b) states that " ...without the prior written consent of all Owners, no Owner shall:(d) modify or remove any of the fences on the property. The addition of this netting fence is a modification. Notwithstanding the above, it is my belief that the addition of this netting is a safety issue, and should be approved by the City of Aspen, however, NOT as designated in the attached plan above that is entitled "Homestake netting plan NOT approved". Allowing this fence to be built alongside the 1495 side fence, could also decrease the liability of the Golf Course in the event of a debilitating accident, if the City of Aspen has attempted to mitigate the dangers, by allowing this netting fence to be constructed. The safety issue can be addressed just as effectively if the netting fence is wrapped around the outside of the property, along the 1495 side fence, and not through the trees. It can even be wrapped around the outside of the tree, if necessary, or, as we discussed, if that tree extends over the Golf course, it can be reduced in height at that section, or the tree could be trimmed as gently as possible, to allow for it. If directed through the trees, it will be an unsightly addition to an otherwise idyllic view from the property,(a large part of my reason for purchasing it) actually not only for me, but also for the owner of Lot 2 (Mr. Pines), while not creating any additional effectiveness that could not be achieved as above stated. It would therefore decrease the value of both properties, as it would visually create concerns J about the Golf Course dangers every time we look out of our windows onto the Golf Course or back yards. In regards to the City hearing, I am therefore hereby voicing my opposition to the 2nd plan above that goes through the trees, and indicating my approval of the 1 st plan above, that goes along the 1495 side fence. As the only other member of the Homestake Condominiums, I am hereby declaring my refusal of consent to construct the netting fence through the trees, but will give my consent to its construction along the 1495 Side of the property. I would be grateful if Ms. Garrow could acknowledge the receipt of this letter and confirm it's inclusion in the hearing package for June 8`h, 2009. It is possible that I will send a representative to the hearing as I am unable to make a trip to Aspen myself for June 8`h. Alternatively, if my attendance is necessary I will be in Aspen in the second half of August, and would like to request an extension of the hearing date until that time. All correspondence to me can be emailed to my above address, faxed to 818 505 9671 or if Mailed, should go to: 12441 Ventura Court, Studio City, CA 91604. Sincerely, David Azouz Owner of 1485 Homestake Drive, Aspen, CO 81611 SITE PLAN CONDOMINIUM MAP OF THE HOMFSTAKE CONDOMINIUMS S o 4-fSN c1-4 VICINITY NAP CLERK ACID RE ORDER S AC{ AWE UNIT 2 JNIT 1 HIRED GUN SURVEYING, LTD v.0. d 9 CCLO�0 �5� (9701923 279z Not. SURWNOWS CERML(All c7l 3 2?AJEa i Ota - y4'ia .�• � �,, a.sy�• was47, Ya m •' i e d ?AP' 03. �o 0 e-' I THE WITHIN \ \ 110 *s [IF \ kxc 4 ).5 1DR, LO 6-3 1519 LCE �! EDGE OF PAND'off \ / / 1 CONC. DRIVE I LCE CONC. (`t41L.Ti STORY FRAME DUPLEX / UNIT 2 MULTI SMRY FRAME DUPLEX UNIT 1 \� J-� N S`)S ! FOUND NO.5 REBAR k LCE ! ALU. CAP ILLEGIBLE 1Q©00 4`; ` as 6fllF COURSE FOUND NO.S ALU. CAP IL 9 TO: FROM: THRU: DATE OF MEMO: MEETING DATE: MEMORANDUM )(% k Mayor Ireland and Aspen City Council Ben Gagnon, Special Projects Plannerlr� Jennifer Phelan, Community Development Deputy Director June 151, 2009 June 8th, 2009 RE: 300 S. Spring St. Unit A, Hannah Dustin Subdivision — Extension of Vested Rights Public Hearing of Resolution No.J4eries of 2009 SUMMARY: The Applicant requests City Council approve an extension of vested rights of an approval to build the Commercial Phase of the Hannah Dustin project, including 2,440 square feet of office space and one Category 2 affordable housing unit. APPLICANT /OWNER: The Snowmass Corporation REPRESENTATIVE: David Myler Esq. LOCATION: 300 S. Spring Street.; Legal Description — Unit A, Hannah Dustin Subdivision; Parcel Identification Number — 2737- 18-2-27-001 CURRENT ZONING & USE Located in the Mixed Use (MU) zone district. PROPOSED LAND USE: The Applicant proposes an extension of vested rights for three (3) years. STAFF RECOMMENDATION: Staff recommends denial of the proposed three-year extension of vested rights. However, staff supports a compromise in the form of a one-year extension of vested rights. LAND USE REQUEST AND REVIEW PROCEDURES: The applicant is requesting the following land use approvals from the City Council: Extension of Vested Rights The City Council may by resolution at a public hearing noticed by publication, mailing and posting [see section 26.308.010(B)] approve an extension of vested rights in accordance with this section. City Council is the final review authority who may approve or deny the proposal. PROJECT SUMMARY: The Hannah Dustin Subdivision was approved by Ordinance No. 16, Series of 2006, which allowed for the development of two free market units, three Category 2 affordable housing units and 2,440 square feet of office space at the Hannah Dustin building. This approval was vested for a period of three (3) years from the date when the Development Order was issued, on July 31, 2006. The vesting period allows a developer to build what was approved without having to meet any regulation changes that may occur during the vesting period. The time period also protects the municipality by ensuring that an approved development is constructed in a timely manner -- or the development is required to meet regulation changes after the vesting period has expired. Several significant events related to the construction of the Hannah Dustin project have occurred since it was approved in June 2006. As typically occurs, a Subdivision Agreement was adopted in September 2006, specifying the various required public improvements ranging from affordable housing to fee payments, drainage plans etc. An Amendment to the Subdivision Agreement was adopted in November 2006 that split construction into two phases: The Residential Phase/Unit B (two free market units and two affordable housing units) and the Commercial Phase/Unit A (2,440 sq. ft. of office space and one affordable housing unit). The splitting of phases accommodated the sale of the Commercial Phase/Unit A to the Snowmass Corporation. RP6dentia1 Phase/tinit R Commercial Phase/Unit A Two Free Market Units Two Category 2 Units 10-unit One Category 2 Unit 2,440 sq. ft. Office Space Part of the intent of the November 2006 Amendment to the Subdivision Agreement was to assure that when one phase of the project is being built, the other phase would be completed soon thereafter. The Amendment to the Subdivision Agreement stated that one phase of the project would be granted a Certificate of Occupancy only if the other phase of the project had been issued a building permit and was 50% complete i.e. had received a framing inspection approval. The Residential Phase/Unit B obtained a building permit in 2007 and construction has been ongoing since then. In order to get a Final Certificate of Occupancy for the Residential Phase/Unit B, a building permit would have to be issued for the Commercial Phase/Unit A, and work would have to be 50% complete. Last summer and fall, the Snowmass Corporation worked with the Building Department to obtain a building permit for the Commercial Phase/Unit A, which could be issued at any time. However, when the global economy slid into recession during the past six months, the Snowmass Corporation determined that "it was not ... prudent to commence construction," according to a letter from representative David Myler. As a result, the Snowmass Corporation asked for a Second Amendment to the Subdivision Agreement. Approved by City Council as Resolution No. 13 on February 23, 2009, the Second Amendment to the Subdivision Agreement effectively lays out the terms by which Snowmass Corporation would apply for a three-year extension of vested rights. At the same time, Resolution No. 13 assures that the third affordable housing unit will be provided either on -site or elsewhere, by requiring a $500,807 letter of credit from Snowmass Corporation. If Snowmass Corporation obtains a building permit before the July 31, 2009 expiration of its vested rights, the $500,807 letter of credit would be reduced by 25% when a framing inspection of the Commercial Phase/Unit A is approved (when the project is 50% complete) The balance of the letter of credit would be released if Snowmass Corporation obtains a Certificate of Occupancy (C.O.) within two years of receiving the building permit. If a C.O. is not issued before the two-year period, the City would retain the balance of the deposit. If the current vested rights period is extended to July 31, 2012, and if Snowmass Corporation obtains a building permit before July 31, 2012, the same arrangement would apply: The $500,807 letter of credit would be reduced by 25% when a framing inspection of the Commercial Phase/Unit A is approved (at 50% completion of the project) — and the balance of the letter of credit would be released if Snowmass Corporation obtains a Certificate of Occupancy within two years of receiving the building permit. Snowmass Corporation has recently delivered the $500,807 irrevocable letter of credit to the City of Aspen. The only scenario in which the City of Aspen would convert the $500,807 letter of credit into cash is if Snowmass Corporation fails to obtain a building permit before its vested ri htg s expire — whether that occurs under the current schedule on July 31, 2009, or on July 31, 2012, if Council chooses to extend the vested rights until that date. If Snowmass Corporation fails to obtain a building permit before its vested rights expire and the City converts the letter of credit to cash, Snowmass Corporation would still be able to obtain a building permit for the Commercial Phase/Unit A — but would be subject to the Land Use Code requirements in place when Snowmass Corporation applies for the building permit. Section 5 of the Second Amendment of the Subdivision Agreement addresses this scenario. Titled "Housing Mitigation Credit," Section 5 would allow Snowmass Corporation to apply some or all of the $500,807 to pay for any new mitigation that may be required if the Land Use Code is changed after the vested rights expire and before Snowmass Corporation applies for a building permit. Although Section 5 allows for Snowmass Corporation to request that some or all of the $500,807 be used in this manner — "the City is under no obligation to issue any credit," according to the agreement. STAFF COMMENTS: The fundamental question before City Council is one of timing. Does the Council acknowledge the applicant's desire to delay construction due to the weak financial climate, or does the Council wish to see the Commercial Phase constructed as soon as possible? In terms of the third affordable housing unit required as mitigation — it will either be delivered in the form of $500,807, or as a third affordable housing unit in the Commercial Phase. The fundamental question is: When will the mitigation be provided? If the Council extends the applicant's vested rights for three years, the third of three affordable housing units would either be built and ready to occupy by July 31, 2014 — or the City would get $500,807 at that time to provide an affordable housing unit elsewhere. If the Council does not extend the applicant's vested rights, the third of three affordable housing units would be built and ready to occupy by July 31, 2011 -- or the City would get $500,807 at that time to provide an affordable housing unit elsewhere. From the City's perspective, staff prefers to see the affordable housing unit constructed sooner rather than later, particularly since the three affordable housing units were mitigation for the free market residential units in the Residential Phase, which has obtained a Conditional Certificate of Occupancy and is expected to obtain a final C.O. by mid -June. The criteria for evaluating an application for extension of vested rights includes weighing "the needs of the city and the applicant ..." (emphasis added; please see Exhibit A.) With a substantial amount of empty office space available for lease in the downtown area, staff understands why Snowmass Corporation does not want to proceed with the Commercial Phase of the project. However, staff must weigh the need to mitigate for free market units that are already completed against the desire of the applicant to delay construction in the hope that the economy improves. The First Amendment to the Subdivision Agreement purposefully ties the two phases of the project close together in time. The Second Amendment to the Subdivision Agreement outlines the terms of a potential extension of vested rights, but does not explicitly endorse such an extension. Staff believes that criterium d) under Section 26.308.010(C)l Extension or Reinstatement of Vested Rights, which asks whether the "needs of the City ... would be served" intentionally allows for some discretion in rendering a decision on extending vested rights. Staffs opinion is that "the needs of the city" would not be served by granting a three-year extension of vested rights, which could result in mitigation being provided five years after the impact is created. In addition, criterium c) under Section 26.308.010(C)I asks the Council to address "The nature and extent of any benefits already received by the City as a result of the project approval such as impact fees or land dedications." Staff finds that the City has not "already received" the full extent of the benefits required in Ordinance No. 16, Series of 2006, and under an extension of vested rights, might not receive those full benefits until July 31, 2014. However, staff is cognizant of the difficult economic times, and would support a one-year extension of vested rights. Included with this memo are two Resolutions, one would approve a three-year extension of vested rights as requested by the applicant and the alternative resolution would approve a one-year extension of vested rights as recommended by staff. RECOMMENDATION: Staff recommends denial of a three-year extension of vested rights, but asks Council to consider a one-year extension, as outlined in Resolution No. B. CITY MANAGER'S COMMENTS: RECOMMENDED MOTION: "I move to adopt Resolution No.3�-B, Series of 2009, with conditions." ATTACHMENTS: Exhibit A — Staff Findings Exhibit B — Application Exhibit C — Ordinance No. 16, Series of 2006 Exhibit D — Subdivision Agreement Exhibit E— First Amendment to Subdivision Agreement Exhibit F — Second Amendment to Subdivision Agreement RESOLUTION NO.5 A (SERIES 2009) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, TO APPROVE AN EXTENSION OF VESTED RIGHTS GRANTED BY ORDINANCE NO, 16 SERIES OF 2006 BY THE CITY OF ASPEN CITY COUNCIL FOR THE PROPERTY COMMONLY DESCRIBED AS THE HANNAH DUSTIN PROPERTY, 300 S. SPRING STREET, LEGALLY DESCRIBED AS UNIT A, HANNAH DUSTIN SUBDIVISION, CITY OF ASPEN, PITKIN COUNTY, COLORADO Parcel Identification Number 2735-18-2-27-001 WHEREAS, the Community Development Department received an application from the Snowmass Corporation, requesting an Extension of Vested Rights pursuant to Ordinance No. 16, Series of 2006; and WHEREAS, The Aspen City Council adopted Ordinance No. 16, Series of 2006, which approved the Hannah Dustin Subdivision, and awarded Vested Property Rights status for two free market residential units, three deed -restricted affordable housing units and 2,440 square feet of office space, until July 31, 2009; and, WHEREAS, the applicant submitted the application for a three (3) year Extension of Vested Rights before the vested rights expired in 2009; and, WHEREAS, pursuant to Section 26.308.010 Vested Property Rights of the Land Use Code, City Council may grant an Extension of Vested Rights after a public hearing is held and a resolution is adopted; and, WHEREAS, the Community Development Director has reviewed the application and recommended an approval for a one (1) year Extension of Vested Rights rather than a three (3) year Extension of Vested Rights, for Unit A (Commercial Phase) of the Hannah Dustin Subdivision; and WHEREAS, the Aspen City Council has reviewed and considered an Extension of Vested Rights for Unit A (Commercial Phase) of the Hannah Dustin Subdivision under the 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 a three (3) year Extension of Vested Rights proposal is consistent with the applicable land use standards; and, WHEREAS, the City Council finds that this resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN COUNCIL AS FOLLOWS: Section 1: Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the City Council hereby approves a three (3) year Extension of Vested Rights for Unit A of the Hannah Dustin Subdivision that was approved by Ordinance No. 16, Series of 2006 by the Aspen City Council, with a new vested rights expiration date of July 31, 2012, with the following conditions: That the establishment herein of a vested property right shall not preclude the application or regulations which are general in nature and are applicable to all property subject to the land use regulation by the City of Aspen including, but not limited to, building, fire, plumbing, electrical, and mechanical codes, and all adopted impact fees that are in effect at the time of building permit, unless an exemption granted in writing. Section 2: The date upon which vested rights expire according to this resolution is July 31, 2012, which will be considered the "Commencement Deadline" as described in the Second Amendment to Subdivision Agreement for the Hannah Dustin Subdivision, approved by Aspen City Council as Resolution No. 13, Series of 2009. Section 3• All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 4: This resolution 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 resolutions repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions. Section 5: If any section, subsection, sentence, clause, phrase, or portion of this resolution 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 hearing on this resolution was held the 8`h day of June, 2009, in the City Council Chambers, 130 S. Galena, 15 days prior to which public notice was published in a newspaper of general circulation within the City of Aspen. FINALLY adopted, passed and approved this 8`h day of June, 2009 by a vote. Michael C. Ireland, Mayor Attest: Kathryn S. Koch, City Clerk Approved as to form: John P. Worcester, City Attorney RESOLUTION NO.J 13 (SERIES 2009) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, TO APPROVE AN EXTENSION OF VESTED RIGHTS GRANTED BY ORDINANCE NO. 16 SERIES OF 2006 BY THE CITY OF ASPEN CITY COUNCIL FOR THE PROPERTY COMMONLY DESCRIBED AS THE HANNAH DUSTIN PROPERTY, 300 S. SPRING STREET, LEGALLY DESCRIBED AS UNIT A, HANNAH DUSTIN SUBDIVISION, CITY OF ASPEN, PITKIN COUNTY, COLORADO Parcel Identification Number 2735-18-2-27-001 WHEREAS, the Community Development Department received an application from the Snowmass Corporation, requesting an Extension of Vested Rights pursuant to Ordinance No. 16, Series of 2006; and WHEREAS, The Aspen City Council adopted Ordinance No. 16, Series of 2006, which approved the Hannah Dustin Subdivision, and awarded Vested Property Rights status for two free market residential units, three deed -restricted affordable housing units and 2,440 square feet of office space, until July 31, 2009; and, WHEREAS, the applicant submitted the application for a three (3) year Extension of Vested Rights before the vested rights expired in 2009; and, WHEREAS, pursuant to Section 26.308.010 Vested Property Rights of the Land Use Code, City Council may grant an Extension of Vested Rights after a public hearing is held and a resolution is adopted; and, WHEREAS, the Community Development Director has reviewed the application and recommended an approval for a one (1) year Extension of Vested Rights rather than a three (3) year Extension of Vested Rights, for Unit A (Commercial Phase) of the Hannah Dustin Subdivision; and WHEREAS, the Aspen City Council has reviewed and considered an Extension of Vested Rights for Unit A (Commercial Phase) of the Hannah Dustin Subdivision under the 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 a three (3) year Extension of Vested Rights proposal is not consistent with the applicable land use standards; however, a one (1) year Extension of Vested Rights is consistent with the applicable land use standards; and, WHEREAS, the City Council finds that this resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN COUNCIL AS FOLLOWS: Section 1: Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the City Council hereby approves a one (1) year Extension of Vested Rights for Unit A of the Hannah Dustin Subdivision that was approved by Ordinance No. 16, Series of 2006 by the Aspen City Council, with the new vested rights expiration date of July 31, 2010, with the following conditions: That the establishment herein of a vested property right shall not preclude the application or regulations which are general in nature and are applicable to all property subject to the land use regulation by the City of Aspen including, but not limited to, building, fire, plumbing, electrical, and mechanical codes, and all adopted impact fees that are in effect at the time of building permit, unless an exemption granted in writing. Section 2• The date upon which vested rights expire according to this resolution will be July 31, 2010, which will be considered the "Commencement Deadline" as described in the Second Amendment to Subdivision Agreement for the Hannah Dustin Subdivision, approved by Aspen City Council as Resolution No. 13, Series of 2009. Section 3• All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 4: This resolution 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 resolutions repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions. Section 5: If any section, subsection, sentence, clause, phrase, or portion of this resolution 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 hearing on this resolution was held the 81h day of June, 2009, in the City Council Chambers, 130 S. Galena, 15 days prior to which public notice was published in a newspaper of general circulation within the City of Aspen. FINALLY adopted, passed and approved this 81h day of June, 2009 by a vote. Michael C. Ireland, Mayor Attest: Kathryn S. Koch, City Clerk Approved as to form: John P. Worcester, City Attorney Exhibit A Review Criteria & Staff Findings 26.308.010(C)1 Extension or Reinstatement of Vested Rights. The City Council may by resolution at a public hearing noticed by publication, mailing and posting approve an extension or reinstatement of expired vested rights or a revoked development order in accordance with this Section. 1. In reviewing a request for the extension or reinstatement of vested rights, the City Council shall consider, but not limited to, the following criteria: a The applicant's compliance with any conditions requiring performance prior to the date of application for extension or reinstatement. Staff Finding: All fees have been paid and most public improvements have been completed as required under Ordinance No. 16, Series of 2006, with regard to work on the Residential Phase/Unit B. The Building Department has issued a conditional Certificate of Occupancy (CO) for the Residential Phase/Unit B. The conditions of approval include a series of minor corrections that must be completed before a CO is issued. All required public improvements will have been completed before a Final CO is issued. However, the record indicates that the three affordable housing units required under Ordinance No. 16, Series of 2006, were to mitigate the residential free market units that are nearing completion in the Residential Phase. While two affordable housing units are also nearing completion in the Residential Phase, the third is to be built as part of the Commercial Phase. Due to this condition, the City has required Snowmass Corporation to provide a $500,807 irrevocable letter of credit, so that a similar housing unit could be provided elsewhere if Snowmass Corporation does not obtain a building permit for the Commercial Phase before its vested rights expire. For this reason, staff finds this criterium has been met. b. The progress made in pursuing the project to date including the effort to obtain any other permits, including a building permit and the expenditures made by the applicant in pursuing the project. Staff Finding: Snowmass Corporation has gone through the building permit process with the Building Department for the Commercial Phase, and may obtain such a permit at virtually any time. Snowmass Corporation has chosen not to obtain the building permit due to economic conditions. Staff finds this criterium has been met. c. The nature and extent of any benefits already received by the City as a result of the project approval such as impact fees or land dedications. Staff Finding: The three affordable housing units required in Ordinance No. 16, Series of 2006, were mitigation for the two residential free market units that are soon to be completed. Under an extension of vested rights, the third of these affordable housing units might not be ready for occupation until July 31, 2014. Staff finds this criterium has not been met. d. The needs of the City and the applicant that would be served by the approval of the extension or reinstatement request. Staff Finding: If the Council extends the applicant's vested rights for three years, the third of three affordable housing units would either be built and ready to occupy by July 31, 2014 — or the City would get $500,807 at that time to provide an affordable Housing unit elsewhere. If the Council does not extend the applicant's vested rights, the third of three affordable housing units would be built and ready to occupy by July 31, 2011 -- or the City would get $500,807 at that time to provide an affordable Housing unit elsewhere. This application for an extension of vested rights is apparently based on the applicant's concern about current economic conditions. When the global economy slid into recession during the past six months, the Snowmass Corporation determined that "it was not ... prudent to commence construction," according to a letter from representative David Myler. Staff believes the city's need for affordable housing, in this case to mitigate for two free market residential units that will be completed within a matter of weeks, outweighs the needs of the applicant to wait and see if the economic climate improves. The fact that the economy is in a poor condition does not alleviate the applicant of the underlying responsibility to mitigate for a project's impacts. The strength or weakness of the national/global economy is part of the fundamental risk and reward for any developer, and not a condition that local government is responsible to ameliorate. Staff finds this criterium has not been met. 2. An extension or reinstatement may be in the,form of a written agreement duly authorized and executed by the applicant and the City. Reasonable conditions may be imposed by the City Council including, but not limited to, compliance with any amendments to this Title adopted subsequent to the effective date of the development order and associated vested rights. Staff Finding: This is not a criteria, but outlines an option for City Council to impose conditions on an extension of vested rights. Staff is recommending denial of the extension of vested rights. E'A W� + B DAVID J. MYLER' RoevN J. MYLERI ADh9TmD M co', Nr, CV RHONDA E. NE , LEGAL ASSISTANT CoN A. WOOD, LEGAL ASSISTANT Aspen City Council 130 South Galena Street Aspen, CO 81611 THE MYLER LAW FIRM, P.C. A Colorado Professional Corporation 211 MIDLAND AvENuE SUITE 201 BASALT, COLORADO 81621 March 25, 2009 RE: Application for Extension of Vested Rights for Construction of Commercial Phase of Hannah Dustin Subdivision Ladies and Gentlemen: TELEPHONE (970) 927-0456 FACSDAME (970) 927-0374 EMAILS dmyler@mylerlawpc.com myler@myIerlawpc.com meff@mylerlawpc.com cwood@mylerlawpc.com Pursuant to Ordinance No. 16, Series of 2006, the City Council approved a mixed use development known as Hannah Dustin. The project consists of a Residential Phase and a Commercial Phase. The Residential Phase contains two (2) free market units, two (2) deed restricted units and ten (10) underground parking spaces, eight (8) of which are to be available for use by the owners or tenants of the Commercial Phase. The Commercial Phase consists of 2,440 square feet of office space and one (1) deed restricted unit. In 2006, the initial developer conveyed the parcels on which the Residential Phase and the Commercial Phase are to be developed to separate developers. Hyman Street Brownstones, LLC purchased the property on which the Residential Phase was to be developed and the Snowmass Corporation purchased the property on which the Commercial Phase was to be developed. Contemplating that the phases would not be undertaken and completed simultaneously, but recognizing that certain community benefits (in particular, affordable housing and structured parking) for the entire project were located in each of the phases, the owners and the City amended the initial Subdivision Agreement to provide that a Certificate of Occupancy for one phase would not be issued until the other phase was at least 50% complete and that the owner of the incomplete phase was able to provide evidence of financing sufficient to complete that phase. The Residential Phase, including two (2) affordable housing units and all of the underground parking, is nearing completion. However, the Snowmass Corporation has not been able to begin construction of the Commercial Phase and, thus, will not be able to satisfy the 50% completion requirement by the time that the Residential Phase will be eligible for a Certificate of Occupancy. The Snowmass Corporation spent several months last summer and fall processing its application for a building permit. The process was substantially delayed in order to work with the THE MYLER Law FiRm, P.C. Aspen City Council March 25, 2009 Page 2 Building Department to redesign significant elements of the office addition to accommodate new requirements and requests relating to handicap access. That process has been completed and the Building Department is prepared to issue a permit for construction of the Commercial Phase at any time. In addition, Snowmass Corporation obtained, last fall, a commitment from Bank of America for construction financing sufficient to complete the Commercial Phase. Snowmass Corporation was prepared to commence construction with the expectation that they could achieve 50% completion prior to the time that the Residential Phase would be eligible for a Certificate of Occupancy when the financial climate began to change for the worse. Although the financing remains available, it was not considered prudent to commence construction last fall or at the present. The Subdivision Agreement was amended in February 2009 to obtain additional time to commence and complete the Commercial Phase in order to better understand the economic situation, while at the same time removing obstacles to the issuance of a Certificate of Occupancy for the Residential Phase. A new deadline for commencement of the Commercial Phase was created. In addition, Snowmass Corporation provided a cash deposit in the amount of $500,807.25, which can be replaced with an irrevocable letter of credit. The deposit will be forfeited if the Snowmass Corporation does not commence construction of the Commercial Phase, including a two -bedroom Category II affordable housing unit, by July 31, 2009. The amount of the deposit is equal to the cash -in -lieu fee for the number of employees to be housed by the Commercial Phase and, thus, will provide the City with the full mitigation required by the project if the Commercial Phase is not constructed. Snowmass Corporation fully intends to begin construction of the Commercial Phase as soon as financial and market conditions permit. Pursuant to the Second Amendment to Subdivision Agreement, if we begin before the deadline, the deposit will be refunded. If not, the deposit will be forfeited. In short, Snowmass Corporation is attempting to achieve some flexibility in determining when to begin its project and, at the same time, to provide financial assurances that the project's mitigation requirements will be satisfied. We do not perceive that the City has any risk. Two (2) of the three (3) affordable housing units and all ten (10) of the parking spaces are complete. The third affordable housing unit will be constructed when the Commercial Phase is completed and, in the meantime, the City has an adequate financial assurance that the project's housing mitigation requirements will be satisfied even if the Commercial Phase is not constructed. An important aspect of flexibility in this case is the extension of the current vested rights period from July 31, 2009 to July 31, 2012. A three-year extension will afford the opportunity to gain a better understanding of market conditions in order that there will be a reasonable likelihood of attracting new tenants to the new space once it is completed. It is not in the best interest of either THE MYLER Law FiRm, P.C. Aspen City Council March 25, 2009 Page 3 Snowmass Corporation or the City for the space to be vacant for too long. We would greatly appreciate your willingness to accommodate this request. Very truly yours, THE MYLERW FIRM, P.C. By: ZZ, 1—�' David J. Myler P312 1p;xH4/ C ORDINANCE NO.16 (SERIES OF 2006) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING WITH CONDITIONS THE HANNAH DUSTIN BUILDING SUBDIVISION TO ADD 2,440 SQUARE FEET OF NET LEASABLE SPACE, TWO FREE MARKET RESIDENTIAL UNITS, AND THREE AFFORDABLE HOUSING UNITS TO THE PROPERTY LOCATED AT 300 SOUTH SPRING STREET, CITY OF ASPEN, PITION COUNTY, COLORADO, Parcel ID: 2 73 7-182-2 7-001 WHEREAS, the Community Development Department received an application from Hyman Avenue Holdings, LLC, represented by Stan Clauson Associates, LLC, requesting approval of subdivision, various growth management reviews, commercial design review, and condominiumization to add 2,440 square feet of net leasable space, two (2) free-market residential units, and three (3) affordable housing units to the Hannah -Dusting Building located at 300 S. Spring Street; and, . WHEREAS, the subject property contains 12,000 square feet and -is zoned MU (Mixed Use); and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended approval, with conditions, of the proposed subdivision and associated land use requests; and, WHEREAS, during it public hearing on April 4, 2006, the Planning and Zoning Commission approved Resolution No. 09, Series of 2006, by a six to zero (6-0) vote, approving a growth management review for expansion of mixed use development, a growth management review for fi-ee-market residential units within a mixed use development, a growth management review for affordable housing, commercial design review, a commercial design standard variance, special review to vary the utility/tmsh/recycling area, and recommending that City Council approve with conditions, the proposed Subdivision and condominiumization to add 2,440 square feet of net leasable space, two (2) i=ee- market residential units, and three (3) affordable housing units to the Hannah -Dusting Building located at 300 S. Spring Street; and,. WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein; and, WHEREAS, the Aspen City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Planning and Zoning Commission finds that this resolution furthers and is necessary for the promotion of public health, safety, and welfare. IIIII�IIIIlNlIIIIl�IIII�IIII�IIININ I{IIINllilapage: I 07/1221200� 3:55 P313 Now, THEREFORE, BE rr ORDAINED BY THE CIrIY OF ASPEN CITY COUNCIL. AS FOLLOWS: Section 1 Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Mumcipal'Code, (and whereas the Planning and Zoning Commission approved with conditions, a growth management review for expansion of mixed use development, a growth management review for free-market residential units within a mixed use development, a growth management review for affordable housing, commercial design review, a commercial design review variance, and special review to vary the utility/trash/recycling area dimensions), the City Council approves, the proposed Subdivision and condomirliumization to add 2,440 square feet of net leasable space, two (2) free market residential units, and three (3) affordable housing units to the Hannah - Dusting Building located at 300 S. Spring Street, with the conditions contained herein. Section 2: Plat and Agreement The Applicant shall record a subdivision plat and agreement that meets the requirements of Land Use Code Section 26.480, Subdivision, within 180 days of approval. Section 3: Buildine Permit Application The building permit application shall include the following: a. . A copy of the final City Council Ordinance and P&Z Resolution. b. The conditions of approval printed on the cover page of the building permit set. C. A completed tap permit for service with the Aspen Consolidated Sanitation District. d. A drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which maintains sediment and debris on -site during and after construction. If a ground recharge system is required, a soil percolation report will be required to correctly size the facility. A 5-year storm frequency should be used in designing any drainage improvements. e. A construction management plan pursuant to the Building Department's requirements. The construction management plan shall include an identification of construction hauling routes for review and approval by the City Engineer and Streets Department Superintendent. f. A fugitive dust control plan to be reviewed and approved by the City Engineering Department. g. A detailed excavation plan that utilizes vertical soil stabilization techniques for review and approval by the City Engineer, IIIIIIIIIIII�IIIIIINIIIIIIIIIIIIIIIfIIIIIIIIIII� 5a63eg 0a.55 JANICE K VDS CAUDILL PITKIN COUNTY CO R 31 .00 D 0.00 P314 Section 4: Dimensional Requirements The Hannah -Dustin building shall continue to be. in compliance with the dimensional requirements of the Mixed Use (MU) Zone District. The City of Aspen Zoning Officer shall verify compliance "with the allowed dimensional requirements at the time of building permit submittal. Section 5: Off-street Parking The project shall provide sixteen (16) off-street parking spaces, four (4) of which shall be designated for the use of.the free market residential units, three (3) of which shall be designated for use by the affordable housing units, and nine (9) of which shall be designated for the use of the commercial space and guest parking. Section 6: Sidewalk and Landscaping Improvements The Applicant shall install a sidewalk detached from the curb with a parkway strip along East Hyman Avenue for the length of the property frontage that meets the City Engineer's standards prior to issuance of a certificate of occupancy on any portion of the development. Appropriate street tree plantings shall occur in the parkway strip along the property frontage on both East Hyman Avenue and South Spring Street. The Applicant shall submit a landscaping plan for plantings in the right-of-way for review and approval by the City Parks Department prior to installation of right-of-way plantings. Section 7: Trash/Utility Service Area A trash/utility service area with a En= footage of fourteen (14) feet and a depth of ten (10) feet shall be provided between the existing building and the alleyway. A trash compactor shall be installed to justify the reduction in the trash/utility/recycling area. Section 9: Affordable Housine Unit The Applicant shall record a deed restriction on each of the affordable housing units prior to the issuance of a certificate of occupancy on the building classifying the units as Category 2 units. If the Applicant chooses to deed restrict the affordable housing units as rental units, the Applicant shall convey a 1/10 of a percent, undivided interest in the units to the'Aspm/Pitkin County Housing Authority prior to the issuance of a certificate of occupancy on any portion of the building. The units may be deed -restricted asrental units, but the units shall become ownership units at such time as the owners would request a change to "for -sale" units or at such time as the Aspen/Pitkin County Housing Authority deems the units to be out of compliance with the rental occupancy requirements in the Affordable Housing buidelines for a period of more than year. Section 9: Fire Mitigation The Applicant shall install a fire sprinkler system and alarm system that meets,the requirements of the Fire Marshal in the entire building, including existing spaces. Section 10: Water Department Reaulrements The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Page: 3 526319 005 03:sr, JPNICE K VOS CAUDILL PITKtN COUNTY GO R 31.00 D 0.00 P315 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 The Applicant shall comply with the Aspen Consolidated Sanitation District's rules and regulations. No clear water connections (roof, foundation, perimeter drains) to ACSD lines shall be allowed. All improvements be16w grade shall require the use of a pumping station. If more than one unit is to be served by a single service line, the Applicant shall enter into a shared service line agreement. Section 12: Electrical Department Requirements The Applicant shall have an electric connect load summary conducted by a licensed electrician in order to determine if the existing transformer on the neighboring property has sufficient capacity for the Hannah -Dustin Redevelopment. If a new supplemental transformer is required to be installed on the Hannah -Dustin property, the Applicant shall provide for' a new transformer and its location shall be approved by, the Community Development Department prior to installation. The Applicant shall dedicate an easement to allow for City Utility Personnel to access the supplemental transformer for maintenance purposes, if a supplemental transformer is installed. Section 13. Exterior LiehtinQ 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 14: School Lands Dedication Fee Pursuant to'Land Use Code Section 26,630, School lands dedication, the Applicant shall pay a fee -in -lieu of land dedication prior to building permit issuance, The City of Aspen Zoning Officer 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 market value of the land including site improvements, but excluding the value of structures on the site. Section 15: Park Develonment Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a park development impact fee in the amount of $19,176.20 prior to building permit issuance. The fee is assessed based on the following calculation: Proposed Commercial: 2,440 SF of new net leasable square feet multiplied by $1,530.00 per 1,000 SF=$3,733.20 Proposed Residential 2 (four -bedroom) Free Market Residential Unit multiplied by $3,634 per unit-- $7,268.00 3 (two -bedroom) Residential Units multiplied by $2,725 per unit-- $8,175.00 Total: $19,176.20 Pa263196 JANIM K V05 CAUDILL PITKIN COUNTY Co 07/r2/2005 08:55 R 33,00 D 0.00 P316 Section 16: Imnact Pees All other impact fees, as applicable, at the time of building permit submission shall be paid prior to the issuance of a building permit. Section 17: Emalovee Housine Mfti¢ation The development shall contain gross affordable housing floor area equal to or greater than 300/c of the gross free-market residential floor area. This percentage shall be verified by the City Zoning Officer prior to building permit issuance. Section 18- All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 19• This ordinance shall not effect 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, please, or portion of this resolution 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 21: A public hearing on the ordinance shall be held on the 12* day of June, 2006, in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen days prior to which, a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as pro' 'ded by law, by the City Council of the City of Aspen on the 24 s day ofApril, 200 (� �v) Hen 1{I Mayor FINALLY, a ed, pasged and approve this Ze day of Tune, 2006. A t: ICathrn S. ch, C. Clerk Helen Ira ayor IIIII{ III{{IIIII[I811{IlNllll�llllll{IIIBNII 071122526319 20of 6 05 06:55 JANICE K V05 CAUDILL PITKIN COUNTY 00 9 31.00 0 0.00 P317 APPROVED AS TO FORM: Je&n-Woreester, City Attorney L 171 �Kf � �[��'��,ffM��f l ltl �����1p I'�� 07/Zj2 6 9 5 COUNTY CO R 31.00 750 08,55 D 0,00 SUBDIVISION -AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION THIS SUBDIVISION.AGREEMENT is made and entered Into this I� day of ^� 2006, by and between THE CITY OF ASPEN, COLRADO, a municipal limited likability coherein mpany (hereinafter to as the °City+') and Hyman Avenue Holdings, referred to sometimes as the Applicant" and sometimes as 'Hyman Avenue HDldings'. WITNESSETFI: WHEREAS, Hyma Avenue Holdings has submitted to the City an "Application" consisting of a request for approval from subdivision, various growth management reviews, commercial design revie , and condominiumizaton to add 2,440 square feet of net lesseable space, two (2) free market residential units, and three (3) affordable housing units to be consolidated, platted and known as the Hannah Dustin Subdivision (the "Proper[y'), which Application requested the approval, execution and recordation of a Final SubdMsion Plat of the Property (the "Final Plat'; and WHEREAS, the City has fully considered and approved heoOrdinance Application, Final No. Plat, and the proposed development and improvement of the Property pursuant (Series of 2006) , and the effects of the proposed development and improvements of said Property on adjoining or neighboring properties and property owners; and WHEREAS, the City has; imposed certain conditions and requirements in connection Wth its approval of the Application, and its execution and recordation of the Final Plat, such matters being necessary to promote, protect, and enhance the public health, sabty, and general welfare; and WHEREAS, Hyman Avenue. Holdings is willing to acknowledge, accept, abide by, and faithfully perform the conditions and requirements imposed by the City in approving the Application, and the Final Plat; and WHEREAS, under the authority of Sections 26.445.070 (C and D) and 26.460.b70 (C and D) of the Aspen Municipal Code, the City is entitled to certain financial guarantees to ensure that the required public facilities are installed and Hyman Avenue Holdings is prepared to provide such guarantees that hereinafter set forth; and WHEREAS, contemporaneously with the execution"and recording of this Subdivision Agreement he City and'H!�an Avenue Holdings have executed and recorded the Final Plat in Plat Book at Page T, Reception No.S� in the ofice of the Clerk and Recorder bf Pitkin County, Colorado. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution, and acceptance of this Subdivision Agreement for recordation by the City, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: '\+ (DD036009.DOG1} II IIIEEllr llllll I�I III III �BI III I� I00 528933 00069:72t P300 ARTICLE I PURPOSE AND EFFECT OF SUBDMSION AGREEMENT 1.1 purpose. The purpose of this Subdivision Agreement is to, along oath the Final Plat, set forth he complete and comprehensive understanding and agreement of the parties with respect to the development of the Hannah Dustin Subdivision and to enumerate all terms and conditions under which such development may occur. 1.2 Effect. it Is the intent of he parties that this Subdivision Agreement and the Final Plat shall effectively supersede and replace in their entirety all previously recorded and unrecorded subdivision, condominium, and other land use approvals and related plats, maps, declarations; and other documents and agreements encumbering the Property, including and without', limitation those matters identified in Article V below (collectively, the "Prior Approvals and Instruments"), but expressly excluding the following which shall not be superseded and replaced (a) The terms and conditions of City of Aspen Ordinance No. 16, Series of 20D6, recorded on July 12, 2006 as Reception No. 526319, Pitkin County, Colorado; (b) The terms and conditions of the Amended and Restated Condominium Declaration of Hannah Dustin, a Condominium, recorded on August 29, 2006 as Reception No. 527925, Pitkin County, Colorado (including any subsequent amendments thereto); and (c) The terms and conditions of the First Amended Plat of the Hannah Dustin Condominiums, recorded on August 29, 20D6 in Plat.Book 80 at Page 3, Reception No. 627927, Pitkin County, Colorado Qnciuding any subsequent amendments thereto). ARTICLE it ZONING AND REGULATORY APPROVALS 2.1 Approval Ordinances. Pursuant to Ordinance No. 16 (Series of 200), the Aspen City Council granted Subdivision approvals, providing for the development an additional 2,440 s.' f. of net leasable space, two (2) free-market residential units, and three (3) deed -restricted affordable housing units, on the Property located at 300 South Spring Street, Aspen, Pitkin County, Colorado (collectively, the "Project"). This Subdivision Agreement and the. Final Plat incorporate all of the pertinent provisions of Ordinance No, 16 (Series of 2006). In the event of any inconsistencies between the provisions of Ordinance. No. 16 (Series of 2006) and the provisions of this Subdivision Agreement and the Final Plat, the provisions of this Subdivision Agreement and the Final Plat shall control. 2,2 Dimensional Requirements. Ordinance No. 16 (Series of 2006) established and approved a multi4amily building consisting of two (2) free-market residential units and three (3) identia deed-restricted affordable housing units of the Hannah Dustin Subdivision. The redevelopment of the building as presented complies with the dimensional requirements of the Mixed Use (MU) Zone tandards Distract. The structure Complianceshall meet l% ith these requireof the requiredments will bea verified by he City ofapplicable to a Aspen multi -family building. Zoning Officer at the time of building permit review. 2.3 off-street et Parking. The project shall provide sixteen (16) off-street parking spaces, four 1(4) of which -shall be designated for the use of the free market residential units, three (3) of which (00036009DOCr 1)528933 09/ 51 05S 09:121 ANIC� DILL PITKIN CDUNTY CO R 51.00 D 0.60 P301 shall be use sof designated for use byc al pace and guest affordable parking.and nine (9) required spares which shall 4 Affordable [aUjno• The affordable housing units shall be in compliance with the 2. Aspen/PiCounty Housing Authoritys Employee Housing Guidelines. The Applicant shall record a deed restriction on each of the affordable housing units at the time of recordation the condominium map and prior to the issuance of a Certificate of Occupancy for the buitlding, classifying the units as Category 2 units. Included in the governing documents shall be language reflecting the potential for the units to become ownership units. if the Applicant chooses to deed restrict the affordable housing units as rental units, the Applicant shall convey a ill of a percent, undivided interest in the units to the AspenlPiikin County o the issuance of a certificate of occupancy on any portion of the building. Housing Authority prior t ts, but the units shall become ownership units at such The units may be deed -restricted as rental unior-sale" units or at such time as the Aspen/Pitkin time as the owners would request a change to "i County Housing Authority deems the units to be out of compliance with the rental occupancy requirements In the Affordable Housing Guidelines for a period of more than year. ARTICLE III APPROVALS AND EXEMPTIONS 3.1 Sidewalk a a andscaoina Improvements. Prior to issuance of a certificate of occupancy for any portion of the development, the Applicant shall have installed a- sidewalk with a parkway strip meeting the City Engineer's design requirements along the entire lot frontage abutting East Hyman Avenue. Appropriate street tree plantings shall occur in the parkway strip along the ahall submit landscaping plan both plantiEast ngs in thevright-of-way or rnue and South eview and eapprovat. The l by theicant sCity Parks a landscaping p Department prior to installation ofright-of--way plantings. 3.2 Trash/Utility Service Area. A trash/utility service area with a linear footage of fourteen (14) feet ad —adepth of ten (10) feet shall be provided between the existing building and the alleyway. A trash compactor shall be installed to justify the reduction in the trashlutility/recycling area. 3.3 School Lands Dedication Fee. Pursuant to Land Use Code Section 26.630, School Lands Dedication, the Applicant shall pay a fee -In -lieu of land dedication in conjunction with any residential development in the subdivision. The Applicant shall pay the school lands dedication fee associated with the building subdias vision issuancecalculated as et forth in Land Use Code Section 26.630.030, the dedication schedule n sr to building p School Lands Dedication: Dedication Schedule. The Applicant shall provide the market value of the land including site improvements, but excluding the value of structures on the site. 610, rk 3.4 Park Development Impact Fee. Pursuant tment feCode e aa in the -'amount park develop of Developmt Impact enFee, the Applicant shall pay a P $19,176.20 prior to building permit issuance. The fee is assessed based on the following calculation: Proposed Commercial: 2,440 s. f. of new net leasable square feet multiplied by $1,530.00 per 1,000 s.f. _ $3,733.20 {60036009.1)OCr 1)52119313 3 I I���IIIII��IIII�III�C�I�I� �II ���� III II 4 0 0 0.00 :121 JANIC- P302 Proposed Residential: 2 (four -bedroom) Free Market Residential Units multiplied by $3,634 per unit = $7,26B.00 3 (two -bedroom) Residential Units multiplied by $2,725 per unit = $8,175.DD Total: $19,176.20 3.5 impact Fees. The Applicantwili pay all impact fees shall be paid prior to the issuance to the issuance of a building permit. 3.6 Employee Housin4 Mitioation. The development shall contain gross affordable housing floor area equal to or greater than 30% free-market residential floor area. This percentage shall be verified by the City Zoning Officer prior to building permit issuance. 3.7 Water Department Standards. Hyman Avenue Holdings shall comply.with the City of Aspen Water System Standards, with Title 25 of the City of Aspen Municipal Code, and with applicable standards of Title 8 of the cit/s Municipal Code (Water Conservation and Plumbing Advisory Code), as required by the City of Aspen Water Department. Each of the units within the building shall have individual water meters. 3.8 Sanitation District Standards. The. Applicant shall comply with the Aspen Consolidated Sanitation District's rules and regulations with respect to the Project: (a) Sanitation service is contingent upon Hyman Avenue Holdings compliance with ACSD rules, regulations, andspecifications at the time of construction; (b) All clear water connections are prohibited, i.e., ground water (roof, foundation, perimeter, patio drains), including entrances to underground parking garages (If any); (c) All improvements below grade development shall require installation of a pumping station; (d) Shared service line agreements are required where more than one unit is served by a single service line; (a) All ACSD total cohnectfon fees must be paid prior to the issuance of a building permit. 3.9 Electrical Department Requirements. The Applicant shall have an electric connect load summary conducted by a licensed electrician in order to determine if the existing transformer on the neighboring property has sufficient capacity for the Hannah Dustin Redevelopment. If a new supplemental transformer is required to be installed on the subject property, the Applicant shall provide for a new transformer and its location shall be approved by the Community Development Department prior to installation. The Applicant shall dedicate an easement to allow for City Utility Personnel to access the supplemental transformer for maintenance purposes, if a supplemental transformer is installed. 3.10 Subdivision Plat. The Final Plat shall be recorded in the Office of the Clerk and Recorder of Pftkfn County, Colorado within 180 days after City Council's final approval of Ordinance No. 16(Series of 2006). [D0036D093 Id Subdivision Agreement. This Subdivision Agreement shall be recorded within 180 4 _ gI 512005 3:IZ1 JANICE K '008 CgUDILL PITKIN 00014TY CO R 51'. 00 D 0.00 P303 days after the Citys grant of final approval of the Project (Ordinance No. 16, Series 2D06). 3.12 Fire Deoartment Requirements. The Applicant shall install a fire sprinkler system and alarm system that meets the .requirements of the Fire Marshal. 3.13 Buildinq Permit Requirements. Any building permit application for the Project shall include and/or depict the following information: (a) A signed copy of Resolution No. og (Series of 20D6) and Ordinance No. 16 (Series of 20D6) granting final land use approval.. (b) The conditions of approval of Ordinance No. 16(Sedes of 2006) shall be printed on the cover page of the building permit set. (c) A completed tap permit for. sewer service from ACSD. (d) A drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which maintains sediment and debris on -site during and after construction. If a ground recharge system is required, a soil percolation report will be required to correctly size the facility. A 5-year storm frequency should be used in designing any drainage improvements. (a) Construction Management Plan pursuant to the Building Department's requirements. The Construction Management Plan shall include an identification of construction hauling routes, construction phasing, and a Construction Traffic and Parking plan for review and approval by the City Engineer and Streets Department Superintendent. The Construction Management Plan shall conform to the standards and requirements for construction management plans in effect at the time of building permit submission. (f) A fugitive dust control plan to be reviewed and approved by the City. Engineering Department. (g) A detailed excavation plan that ubli2es vertical soil stabilization techniques for review and approval by the City Engineer. 3.14 Vested Riqhts. The development approvals granted by the City pursuant to Ordinance No. '16(Seties of 2006) shall constitute a site$pecifle development plan, which is vested for a period three (3) years from the date of issuance of a development order by the City. Arti Cie IV Prior Approvals and instruments There are no recorded prior approvals for this Subdivision. Article V Subdivision improvements? 528933 `00036009.DOC/ I) 89% 51z 06 09:121 5 IlJ ttANICEEE.iiKtt,JOl65 ffCAUDIILL PITKIN COUNTY CO R 51.09 D 0.00 P304 Prior to the issuance of any Certificate of Occupancy with respect to the Project, Hyman Avenue Holdings shall accomplish the following subdivision improvements (collectively, the "Subdivision improvements'), all as further depicted and described on the Final Plat: (1) installation of a detached sidewalk, location of the existing driveway entrance, with a parkway strip meeting the .City Engineer's design requirements along the entire lot frontage abutting East Hyman Avenue, along with two ANSI -conforming handicapped ramps at the Hyman and Spring intersection, and curb replacementforthe existing driveway cut on Hyman Avenue, at an estimated cost of (2) installation of appropriate parkway plantings, including trees, grass, and irrigation, in the parkway strip along the property frontage on both East Hyman Avenue, at an estimated cost of , In order to ensure construction and installation of the Subdivision Improvements (1) and (2) described immediately above, Hyman Avenue Holdings shall provide to the City either an irrevocable standby letter of credit from a financially responsible lender or a bond in the amount Of Said letter of credit or bond shall be provided to the City prior to the issuance of a grading or access permit with respect to the Project, shall be in a form reasonably acceptable o the City Attorney, and shall give the City the unconditional right, upon default hereof by Hyman venue Holdings, subject to the provisions of Article VI below, to draw funds as necessary and upon demand to partially or fully complete and/or pay for any of such improvements or pay any outstanding and delinquent bills for work done thereon by any party, with any excess letter of credit or bond mount to be applied first to additional administrative or legal costs associated a with any such default and the repair of any deterioration in Subdivision improvements already constructed before the unused remainder, if any, of such letter of credit or bond is released to Hyman Avenue Holdings. Notwithstanding the foregoing, delays or other problems resulting from acts of God or other events beyond the reasonable control of Hyman Avenue Holdings shall not constitute at default hereunder so long as a good faith effort is being made to remedy the problem and the problem is in fact resolved within a reasonable period for time following its occurrence. As portions of the Subdivision Improvements are completed, the City Engineer shall inspect them, and upon approval and written acceptance, he shall authorize a reduction in the outstanding amount of the letter of credit or bond equal to an agreed upon estimated cost for the completed portion of the Subdivision improvements; provided, however that ten percent (10%) of the estimated costs shall be withheld until all of the Subdivision Improvements are completed and approved by the City of Aspen Public Works Director. It is the express understanding of the parties that compliance with the procedures set forth in Article VI below pertaining to the procedure for default and amendment to this Subdivision Agreement these shall financ al a surances and eguarante s to be provided by g Hyman Avenue Holdings implementation required with respect to the enforcement and d s asset of forth above.. Article VI Non -Compliance and Request for Amendments or Extensions In the'event that the City determines that Hyman Avenue Holdings Is not acting in rr�mpliance with the terms of this Subdivision Agreement or the Final Plat, the City s I III VIVO III III f E�Ir�I I III �I �I� �IIE III �1 0628933 B Page:2"'//20 009: lb 0 P305 shall notify Hyman Avenue Holdings in writing specifying the alleged non-compliance and asking that Hyman Avenue Holdings remedy the alleged non-compliance within such reasonable time as the City may determine, but not less than 30 day;. If the City determines that Hyman Avenue Holdings has not complied. within such time, the City may issue and serve upon Hyman Avenue Holdings a written order specifying the alleged non-complianceand requiring nty (�) days Hyman the r Av pt of enue Holdings to remedy the same within thirty (30) days. Within such order, Hyman Avenue Holdings may file with the City Engineering Department either a notice advising the City that it is in compliance ora written request to determine any one or both of the following matters: (a) Whether the alleged non-compliance exists or did exist; or (b) Whether a variance, extension of time or amendment to the Final Plat orthis Subdivision Agreement should be granted with respect to any such non-compliance which is determined to exist. Upon the receipt of such request, the City shall promptly schedule a meeting of the parties to consider the matters set forth in the order of noncompliance. The meeting of the parties shall be convened and conducted pursuant to the procedures normally established by a City. If the City determines that a ronpliance exists which has not inclOding the imposition of daily fines unten il ed, it mil such may issue such orders as maybe app priate, non-compliance has been remedied, the withholding of permits and/or certificates of occupancy, as applicable; provided, however no order shall terminate any land use approval. The City may also grant such variances, extensions of time or amendments to the Final Plat orto this Subdivision Agreement as it maydeem appropriate underthe circumstances. The parties expressly acknowledge and agree that the City shall not unreasonably refuse to extend the time periods for pewhhance necess necessitatehereunder extension(s) n(s) result (from acts of God dings tors that the reasons for the delay(s) other events beyond the reasonable control of Hyman Avenue Holdings, despite good faith efforts on its part to perform in a timely manner. Article VII General Provisions 7. 1 Successors and Assigns. Tha provisions hereof shall be binding upon and inure to the benefit of Hyman Avenue Holdings and the City and their respective successors and assigns. 7.2 Governing Law• This Subdivision Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 7.3 inconsistent . If any of the provisions of this Subdivision Agreement or any paragraph, sentence, clause, phrase, word, or section or the application thereof in any circumstance is invalidated, such invalidity shall not affect the validity of the remainder of this Subdivision Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstance shall not be affected thereby. 7:.41ntegrationThis Subdivision Agreement and any exhibits attached hereto contains the entire understanding between the parties hereto with respect to the transactions {000360MDOCl 1} 7 528933 Il �� 111 l�fl �ll11111111111111I��I00 gg25D 0of e00 9:121 PN P306 contemplated hereunder. Hyman Avenue Holdings and its successors and assigns may on its own initiative petition the City Council for an amendment to the Final Plat orthis Subdivision Agreement or for an extension of one or more of the time periods required for the performance hereunder. The City Council shall noj unreasonably deny such petition for amendment or extension after considering all appropriate circumstances. Any such amendment or extension of time shall only become effective upon the execution by all,parties hereto that are affected by the proposed amendment, 7.5 Headings Numerical and title headings contained in this Subdivision Agreement are for convenience only, and shall not be deemed determinative of the substance contained herein. As used herein, where the context requires, the use of the singular shall include the plural and the use of any gender shall include all genders. 7.6 Acceptance and Recordation of Final Plat, Upon execution of this Subdivision Agreement by both parties hereto, the City agrees to approve and execute and the Final Plat and to accept the same for recordation in the Office of the Clerk and Recorder of Pitkin County, Colorado, upon payment of the recordation fees by Hyman Avenue Holdings. 7.7 Nofice. Notices to be given to the parties to this Subdivision Agreement shall be considered to be given if delivered by facsimile, if hand delivered, or N delivered to the parties by registered or certified mail at the addresses indicated below, or such other addresses as may be substituted upon written notice by the parties or their successors or assigns: The City: City of Aspen City Manager, Community Development Director 130 South Galena Street Aspen, Colorado 81611 Hyman Avenue Holdings: Hyman Avenue Holdings, LLC c/o Peter Fomeli 402 Midland Park Place Aspen, CO 81611 Facsimile: (970) 925-6767 With a copy to: . Curtis Sanders, Esq, Krabacher & Sanders, PC 201 North Mill Street Aspen, CO B1611 Facsimile: (970) 925-1181 (00036009.DOC1 1) 8 528933 IIIIII 1111lo111111111111111111111111I11.009/2512()05 09:121 JPWICc K V IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: CITY OF ASPEN DO, a Colorado municipal corporation By: Hal n K anderud, or Attest I Kathryn S. Koc , ity Clerk APPROVED AS TO FORM: L jotiaWorcegdr, CityAttomey Hyman Avenue Holdings: M e0036009.DOCI 1) Hyman Avenue Holdings, LLC, a Colorado limited liability company, as owner of Unit A, Hannah Dustin Condominiums, according to the First Amended Plat of the Hannah D f Condominiums, recorded on August 29, 20D6 in P ook 90 at Page eception No. 627927, Pitkin C C9lojado. Hyman Avenue Holdings, LLC, a Colorado limited liability company, as'owner. of Unit A, Hannah Dustin Condominiums, according to the First Amended Plat of the Hannah D ondominiums orded on August 29, 2006 in P a Iy radai.Pa�ception No. 627927, . Pitkin C o orad �1��I�I �IFIfII I �I g e g 5248933 of 0.00 B :121 JRI4ICE K VOs WJDILL PI IN P307 MM STATE OF COLORADO ) ss: ' COUNTY OF PITKIN ) le h The foregoing instrument was acknowledged before me this 1e day of DOB by Helen Klanderud as Mayor of the City of Aspen, Colorado, a municipal corporation. Oxa Witness my hand and official seal, �r?•gip a /?r My commission expires: , _ n n e STATE OFCOLORADO ) MyCDMU-toE UO2=9 ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me thisday of y Kathryn S. Koch, City Clerk of the City of Aspen, Colorado, a municipal corpor �. ,. BRgdO Q$.�OSAl3 .� Witness my hand and official seal, " a '• • . My commission expires: e �,°.•;: ,``G r°oc k4y Q0MM;s-'1n Gr+res 0=009 STATE OFCOLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this ICdayof, 2006 by Peter Fomeil, Managing Member of Hyman Avenue Holdings, LLC, a Colorado Itmded liability company. Witness my hand and official seal, My commission expires: Brandl-L, apson I Notary Public .My Commission Expires 0712512008 Notary Public L/ 601 E. Hopkins Aspen, CO 81611 �O�pRY PUe�i EEff1 II {{{{ t it WE 111 528933jjlj�i lo LLItI�ii 11.©09g25� 0.00 1� Nam• g pS�N •:O JRNjec K VOS OSU►I �DOt136D09.DOC/ 1} �OF COt-O� ° 0 E-xti,64 e AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION This AMENDMENT TO SUBDIVISION AG��tEEMENT FOR THE HANNAH DUSTIN SUBDIVISION (this "Amendmeat") is made ibis 3XH'N day of November, 2006 by and among the City of Aspen, Coioradoo s municipal coryoretion (the "CJty'D; Hyman Avenue Holdmgs, I I C a Colorado limited liability company ("HAH'j and T3a Snowmass Corporation, a Colorado corporation (° rselm RECITALS A. HAH and the City are parties to that certain Subdivision Agreement for the Hannah Dustin Subdivision recorded in the real estate records of pitkin County, Colorado on September 25, 2006 under Reception.No. 523933 (the "Subdivision AgreemcnC'). B. 1he SIA appliesto certaiu'real property in Pitkin CounHannah County. Colorado known as the Dustin Subdivision, according to the Plat recorded in Plat Book 81 at Page 44 as Reception No. 528934 (the "Subdivision'). C. Subsequent to the recordation of the Subdivision Agreement, HAH conveyed to TSC a portion of gally desenba the Subdivision led as Unit A, Hannah-Dustm Condominiums, according to the Plat thereof recorded October 2,1995 in Plat Book 17 of Page 78 as Reception No. 271969 and First Amended Plat of the Hannah Dustin. Condominiums recorded August299, 20006 i and Restated Plat Book 0 at Page 3 as Reception No. 527927, and as defined and dcscn"bed by the Condominium Declaration of Hannah.Dustm, a condom a Subdivision AuPlat, st 29, 2d September Reception No. 527925 and as shown on the HarmahoDu 8934 ("Unit "A`), 25, 2006 in Plat Book 81 at Page 44 as Recepo on D. The City, HAH and TSC desire to amend the Subdivision Ap-mment as set forth in this Amendment. AGREEMENT Now therefore, for good and vaivable considerations, thereceiptt and Svbdivis an Agreement hereby confessed and acknowledged, the City, HAH and TSC hereby am as follows: 1. There is hereby added to the Subdivision Agreement a new Article VU' captioned "Project Phasing/Certificates of Occupancy" as follows: Article VIII Project phasinPJCertifiFates of Occupancy 8.1 esidential d Commercbt ial Phases. The parties acknowledge that the Proj mayYet constructed in phases: The residentiaJ phase (the "Residential Phase I'.comosting of two (2) residential units, two (2) affordable housing units, and ten (10) parking spaces in an two parking garage (the "Garage^); and the commercial phase (the "Commercial Phase), consisting of 2,440 square feet of office space and one (1) affordable housing tort Tht tbe Fhzt°S dad Plat thereof ecord dcted ogust,29t B of the Hannah Dustin Condominiums according III oil 111111111111111I11111itH a�;�B ®50 a:s3 SRHIGE P310 ^ on ND. 627927 in the office of the Clerk and Recorder of Pitkin County (the 2t>!M, R�cpti half of the ro "Condominium Plat"), The Commercial Phase will be oonstraDted n the W ly um Plat ItpiD` r eIsY dbed as Unit A of the Hannah Dustin Condominiums . n the acknowledged that eacb phase contains elements (affordable housing units and parking) that are required to serve and mitigate impacts for the entire Project The City agrees that each of the Residential Phase and Commercial Phase may be undertaken and completed sepwaxcly and indcp Identlp of the other and that a Cutificate of Occupancy shall be issued for each phase independently of the other. Provided that r.0 coTutvdion for which a Certificate of Occupancy is being requested has been. completed i�� to the with relevant building permits to the extent thet it qualifies for a Cm llficate of O t and, CHI) the other City's building regulations, (l) no default exists under the terms of this, APfeeen �nnplete and that the phase of the Project has obtained a building permit, is at least fifty Pe City has rweivcd reasonable assuanoes from the developer of the incomplete phase sue haeveloof pee funds to eomplcte that phase, For purposes of this Agre nt P has or can obtain adrquatD (SD°!0) Domplcte when the 5amiag inspection approval has Project shad be deemed m be fifty pDaft of Occupancy will not be issued for any been attained. The parties also understand that a hhaseCefd1; pr vided tluougb or across areas of the other Phase of the Protect if the physical aneess to suD4 p P ongoing construction unfinished phase that are dangerous due to . g 2 Gargee Upon complctron of construction of the Crarage t. the extent necessary for the Garage to function as a pResid5ritial. Phase, arking garage (and prior to completion of the remainder oftil in the Garago such as mwltaulcal mcluding other elements of the Rcsideatinl Phase that m� been completed m accordance with relevant MOMS) and provided that n construction of the Craragto the City's building permits to the extent that.it qualifies for a Certificate of Occupancy pnt, a Certificate of building regulations, and (ii) no default exists n d�deorf off meResidential Phase). Upon Occupancy shall be issued fur the Garage (b owner of the Residential Phase shall be issuance of the Certificate of Occupancy for the, Garage, • entitled to condominiumize the parking spaces Sn the Garage. 2. HAH sS block blhesrcferencc m the secondlsrgnafu a block for ilAii to -'Unit A, in HAH's second sSgl corrected to make referpnoe ro "Unit B, Hannah Dustin Hannah Dustin Condominiums..:' is hereby CDndDrninUMS...:' . as amended by this Amendment: remains in full force and 3, The, Subdivision Agreement effect IN WnNESS R'f]EREOP, the parties have, hereunto set their hands as of the day and year first above written. City of Apt 6 0; ]orado municipal corporation 1000 Sy • Helen IUanderod, eyor 530875 11/09019:53 Attest: 0. S-e9 D O'ea YeMWILL F BY� S. Koe I Clerk a [Signatures Continue on FDIlowing Page] P311 - Y 01:p jTI APPrvved as to Fona: John ,City Attamey Hyman enu old' , LLC, a Colorado iimtted liability camPeny Peter Fo 1 as its Managing Member The Snowmass Corporation,# Colorado corporation •SLr STATE OF LJ`t 'o-' ) COUNTY OF ) The foregoing instrument was acknowledged before me tbisday of Helen Klandeaasd as Mayor, and byKathryn S. Koch as Clcrk, on behalf of the City of Witness my hand and official scal. My Commission expires: STATE OF .t,n,aclD ) �. } ss. COUNTY OF t V-Y\f The foregoing instrument was acknowledged before me this t� day of Fornel l as Managing Member of Hyman Avenue Holdings, LLC. . Witness my hand and official seal. My commiss i o n expires: 41A D No blic � STATE OF > 'y COUNTY OF My KUMMP kve CnSs ;: by `ac owl gad before me this L day of 2DD6, by of The SnDWMI35 Corporation. seal. - Notary Public 3 Fxh(b(j F RESOLUTION NO. 13 (Series of 2009) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, GRANTING A SECOND AMENDMENT TO THE SUBDIVSION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION, 300 S. SPRING STREET AND 707 E. HYMAN AVENUE, CITY OF ASPEN, COLORADO Parcel ID:273718227101 and 273718227102 WHEREAS, pursuant to the Subdivision Agreement for the Hannah Dustin Subdivision, successors and assigns of the agreement may "on its own initiative petition the City Council for an amendment to the final plat or .... subdivision agreement;" and, WHEREAS, the Applicant requests approval to a second amendment to the Subdivision Agreement for the Hannah Dustin Subdivision to allow for the issuance of Certificates of Occupancies for portions of the completed project; and, WHEREAS, Community Development Department reviewed the request and suggested changes to the draft agreement that were incorporated into the draft; and, WHEREAS, City Council has reviewed and considered the subdivision agreement amendment request and has reviewed and considered the recommendation of the Community Development Director; and, WHEREAS, the City Council finds that this Resolution allowing for approval of the proposed amendments furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN, COLORADO, THAT: Section 1• In accordance with the provisions of Article 7.4 of the Subdivision Agreement for the Hannah Dustin Subdivision, the City Council of the City of Aspen, Colorado, does hereby grant the Second Amendment to the Subdivision Agreement for the .Hannah Dustin Subdivision conditioned on amendments to the agreement being incorporated by the City attorney with regard to amending the timing of the release of the deposit, developing a final sunset date for feature of the deposit, addressing how any interest from the deposit is distributed, and not guaranteeing a credit for future mitigation requirements for the Commercial Phase. Resolution No. 13, Series of 2009 Page 2 Section 2• This Resolution 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• If any section, subsection, sentence, clause, phrase, or portion of this Resolution 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. APPROVED, February 23, 2009, at a public meeting before the City Council of the City of Aspen, Colorado.,,-) C Meland,Mayo/ o o ester, rty Attorney ATTEST: / Kathryn S. Ko , City Clerk Exhibit A Second Amendment to the Subdivision Agreement for the Hannah Dustin Subdivision SECOND AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION This Second Amendment to Subdivision Agreement for the Hannah Dustin Subdivision (the "Second Amendment") is made this AFk day of';;Dj3 2009, by and among the CITYOF ASPEN, a municipal corporation (the "City"), the SNOWMASS CORPORATION, a Colorado corporation ("Snowmass"), and HYMAN STREET BROWNSTONES, LLC, a Colorado limited liability company ("Brownstones"). RECITALS: A. The City entered into a Subdivision Agreement for the Hannah Dustin Subdivision with Hyman Avenue Holdings, LLC, the predecessor in interest to Snowmass and Brownstones, on September 25, 2006 (the "Subdivision Agreement"). B. The Subdivision Agreement was amended by a document entitled "Amendment to Subdivision for the Hannah Dustin Subdivision" on November 7, 2006 (the "First Amendment"). C. The City, Snowmass and Brownstones desire to further amend the Subdivision Agreement and the First Amendment as set forth in this Second Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: I. Waiver of Completion Requirement. Upon satisfaction of the requirements of Section 2, below, the provisions of Section 8.1(iii) of the First Amendment, which require the Commercial Phase to be 50% complete in order for the Residential Phase to obtain a Certificate of Occupancy shall be waived. 2. Deposit. As consideration for the waiver described in Section 1, above, Snowmass shall deposit the sum of $500,807.25 with the City, either in cash or in the form of an irrevocable letter of credit prior to the issuance of a Certificate of Occupancy for the Residential Phase. The deposit is intended to provide a reasonable financial assurance that Snowmass will undertake construction of the Commercial Phase and, in particular, the affordable housing unit which is required as a condition of Commercial Phase approval. To that end, the deposit shall be forfeited and may be retained and utilized by the City for affordable housing purposes if a building permit for the Commercial Phase has been approved but not issued by July 31, 2009, which is the date on which vested property rights are due to expire (the "Commencement Deadline"). If the vested property rights period is extended, the Commencement Deadline shall automatically be extended to the new date on which the vested property rights for the Commercial Phase are to expire. If a building permit for the Commercial Phase is issued by the Commencement Deadline, Snowmass may request and the City shall refund the deposit based upon the following schedule. Twenty-five percent (251/6) of the deposit shall be refunded after the framing inspection approval has been attained. The remainder of the deposit shall be refunded after issuance of a Certificate of.Occupancy for the Commercial Phase. If a Certificate of occupancy for the Commercial Phase has not been issued within twenty-four months after a building permit is obtained, the City shall have no obligation to refund the balance of the deposit then held by the City. Any interest accrued by the deposit of the sum of $500,807.25 with the City shall be retained by the City. 3. Completion of Residential Phase. The parties acknowledge and agree that the Residential Phase is, on the date hereof, more than 50% complete. 4. Assurance of Financing. In satisfaction of the requirements of Section 8.1(iii) of the First Amendment, Snowmass shall provide the City with a written confirmation of its construction loan from Bank of America, to be delivered to the City along with the Deposit. 5. Housing Mitigation Credit. If construction of the Commercial Phase has not begun prior to the Commencement Deadline referred to Section 2, above, and as a result the Deposit is forfeited, Snowmass may, nevertheless, be entitled to a credit, up to $500,807.25, to be applied against affordable housing mitigation requirements associated with development of the Commercial Phase , if any, which are in addition to the requirement for construction of a two -bedroom Category it housing unit within the Commercial Phase. The credit shall only be available, however, if such unit is actually constructed within the Commercial Phase and if, as a result of expired vested property rights, additional affordable housing mitigation is required; however, the City is under no obligation to issue any credit. CITY OF ASPEN, COLORADO, a Colorado mun' i cc rati By. �[-Z -Z00% Michael . Ireland, Ma or SNOWMA CORPORATION, a Colorado corporatio n w W. i Att ey-in-Fact r James W. Light, President HYMAN STREET BROWNSTONES, LLC, a Zrt li 'led I' wanag any B D. Bo den, 2 STATE OF COLORADO ) ss. COUNTY OF pi+kin ) The foregoing instrument was acknowledged before me this � day of ablA , 2009, by Michael C. Ireland, Mayor, and Kathryn S. Koch, City Clerk, of the I City of Asp Colorado, a Colorado municipal corporation. Witness my hand and official eall... — My commission expires: official STATE OF COLORADO ) ss. COUNTY OF _ ) MyCommWmE*"MW The foregoing instrument was acknowledged before me this ZL,�j day of 2009, by Andrew W. Light, as Attomey-in-Fact for James W. Light, as President o Snowmass Corporation, a Colorado corporation. `.a�LNONO,q�, Witness my hand and official seal. My commission expires:.SJZCAk Qy E1 p: p fq Publip r poatic STATE OF COLORADO ) ) ss. COUNTY 01`3"Au, _ ) The foregoing instrument was acknowledged before me this 7l : - day of 2009, by Robert D. Bowden, as Manager of Hyman Street Brownstones, LLC, a Colorado limited liability company. "W,,,;,,, Witness my hand and official seal. My commission expires: t)i5 t Public G,Tlj.M1Snowmc, C. Wn W,un�Sawd Anbidvm,,o Subtivuim All. a fwi ftm m un Su ,,..O Mf AL. p, bL pA NFpFtp^. 1p OF CO�0�P�`\` °9nim l u inl,�oo Y¢ Z,4- 6J EXHIBIT GA0 MEMORANDUM To: Mayor Ireland and Aspen City Council FROM: Jennifer Phelan, Deputy Planning Directod�;, RE: 300 S. Spring St., Fire Protection Issue DATE: June 8, 2009 Today, city council will be considering a request on behalf of the Snowmass Corporation for an extension of vested rights. As outlined in the staff memo to council, the property is approved for redevelopment as a mixed -use project. Approved development for the site includes: a new building containing two free-market residences and two affordable housing units as well as an addition to the existing commercial building containing new commercial and an affordable housing unit. This approved development has been divided into two components: the residential phase (new building) and the commercial phase (existing building with addition). The residential phase is complete and the applicant is requesting a longer timeline to complete the commercial phase. As a result of the potential delay of the development of the commercial phase, the Building Department is concerned with fire separation between the two buildings on the site. 300 S. Spring contains openings (doorways and windows) on the east side of the building that do not meet building code for permitted openings with the development of the residential phase. This fire separation issue was anticipated to be handled with the remodel and redevelopment of the commercial phase; however, with the potential delay of the commercial phase, the building department is requesting an interim measure to address fire separation requirements of the International Building Code. Following is a condition (condition 2) that should be included with Resolution No. 37 (Series of 2009) to address interim fire protection. Condition 2. The building, 300 Spring Street, is required to provide water curtain protection for the building's openings on the east side of the building as well as sprinkler protection for any room within the building that includes an exterior wall on the east side of the building. This measure provides interim fire protection between the subject building and the building known as 707 E. Hyman Avenue until a comprehensive fire protection system for the building can be installed. The initial installation's design, or city approved alternative fire suppression method, shall be completed by July 10, 2009, or the extension of vested rights granted within this resolution shall become null and void. The installation of the approved design shall be completed by October 9, 2009, or the extension of vested rights granted within this resolution shall become null and void. A NFPA 13 fire sprinkler system, or city approved alternative system, shall be installed and completed throughout the building by the expiration date of the vested rights in the event a building permit is not issued. If a building permit is issued, the system shall be installed before issuance of the Certificate of Occupancy.