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HomeMy WebLinkAboutordinance.council.024-08RECEPTION#: 566377, 01!2112010 at 09:46:00 AM, 1 OF 28, R $141.00 Doc Code ORDINANCE Janice K. Vos Caudill, Pitkin CounOty~C NANCE N0. 24 (SERIES OF 2008) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING WITH CONDITIONS, A SUBDIVISION AND CONDOMINIUMIZATION FOR 508 E. COOPER AVENUE, PORTIONS OF LOTS L, M, N, BLOCK 95, CITY AND TOWNSITE OF ASPEN, CO, PITKIN COUNTY, COLORADO PARCEL NO.2737-182-24-007 WHEREAS, the Community Development Department received an application from Cooper Street Co-Tenancy; represented by Haas Land Planning, LLC, requesting approval of three (3) Growth Management Reviews, Subdivision Review, and Special Review to construct amixed-use building consisting of 3,827 square feet of net leasable commercial space, and one free-market residential unit; and, WHEREAS, during a duly noticed public hearing on July 12, 2007, the Historic Preservation Commission approved Resolution No. 17, Series 2007, by a five to zero (5-0), approving Commercial Design Review for the property at 508 E. Cooper Ave, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO; and, WHEREAS, the subject property is zoned CC (Commercial Core); and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended approval with conditions, of the proposed subdivision and associated land use requests; and, WHEREAS, during a duly noticed public hearing on May 1, 2007, the Planning and Zoning Commission approved Resolution No. 6, Series of 2007, by a three to one (3-1) vote, approving three (3) Growth Management Reviews for the development of a mixed-use building that includes commercial space, and free market housing, approving a Special Review to vary the dimensional requirements of the trash/utility/recycle area, and recommending that City Council approve with conditions the proposed subdivision and condominiumization to construct amixed-use building consisting of one (1) free-market residential unit and 3,827 square feet of net leasable commercial space located on the property at 508 E. Coopcr Ave, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO; and, WHEREAS, on June 25`h, 2007 the Aspen City Council approved Ordinance No. 28, Series 2007, on First Reading by a four to zero (4-0) vote, approving with conditions the Subdivision and condominiumization of 508 E. Cooper Avenue, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO; and, WHEREAS, during a duly noticed public hearing on November 12, 2007, continued from August 13, 2007, August 27, 2007, September IQ 2007, and October 9, 2007, the Aspen City Council failed to adopt a proposed ordinance to approve the application, by a two to two (2_-2) vote. Following such vote, a motion to adopt Ordinance No. 28, Series 2007 which denied the application was passed by a three to one (3-1) vote; and, 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 1 of 9 WHEREAS, following the denial of the application, the applicants timely filed a complaint pursuant to C.R.C.P. 106, requesting that the Court review the adoption of Ordinance 28 (Series of 2007) alleging that the City exceeded its jurisdiction and abused its discretion in denying the request of the applicant to subdivide the subject property; and, WHEREAS, the City of Aspen has defended such lawsuit and has denied that the Council's denial of the application was an abuse of discretion or that the City Council exceeded its jurisdiction; and WHEREAS, as part of the litigation, the parties entered into settlement discussions regarding the complete resolution of the litigation and the development application; and WHEREAS, counsel for the parties have set forth the terms of the agreement to settle the litigation and all necessary development approvals herein; and WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Planning and Zoning Commission and Historic Preservation Commission with regard to the original development proposal, the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing held on September 22, 2008; and, WHEREAS, on August 25`h, 2008, the Aspen City Council approved Ordinance No. 24 Series 2008, on First Reading by a five to zero (5 - 0) vote, approving the settlement of the litigation and the approval with conditions the Subdivision and Condominiumization of 508 E. Cooper Avenue, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO, as set forth herein; and, WHEREAS, the City Council finds that the proposed subdivision and settlement agreement meet applicable development standards and that the approval of the proposed subdivision, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance 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: Section 1: Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the aspen City Council hereby approves a Subdivision and Condominiumization for the property at 508 E. Cooper Ave, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO to construct amixed- use building consisting of one (1) free-market residential unit, and 3,780 square feet of commercial space. The use mix and dimensional requirements shall comply with the CC zone district, as described in the staff memorandum and included in the chart below. Specific square footage requirements maybe amended provided compliance with the below stated requirements of the underlying CC zone district is maintained. Dimensional Council AQproved Dimensional Underlying Commercial (CC) Zone District Requirement Requirements Requirements 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(7G Edits) (2).doc Page 2 of 9 Dimensional Council Approved Dimensional Underlying Commercial (CC) Zflne District Regrciremcnt Regmrements 'Requirements Minimum Lot 2,842 sq. ft. No requirement Size Minimum Lot 37 Feet No requirement Width Minimum 0 Feet No requirement Front Yard Setback Minimum Side 0 Feet No requirement Yard Setback Minimum Rear 0 Feet; P&Z granted Special Review to No requirement except trash/utility service area Yard Setback vary the trash utility/recycle area shall be required abutting an alley, pursuant to dimensions to an alley frontage of nine Section 26.575.060 and a half (9.5) linear feet with a ten (10) foot vertical clearance, and seventeen and a half (17.5) feet in de th. Maximum Building Elevations along Cooper Ave: 42 feet for all areas of the property, and Height First floor: 14 Feet; Second floor: 24 Feet; 46 feet for areas setback 15 or more feet from Third floor: 34 Feet lot lines adjoining a Street right-of--way. Fourth floor: 44 Feet (setback greater than or equal to fifteen (15) feet from property line) Guardrails for Roof Deck: 47 Feet 6 Inches Mechanical Elevator overrun at 49 Feet 6 Inches. 26.575.020.B.1.d: Mechanical equipment shall Equipment Mechanical Equipment at 50 Feet. not exceed 5 feet above the maximum zone ~~"~l't district height (in CC, the requirement it 5 feet above 46 feet) Pedestrian Cash-in-Lieu fee of $50 per square foot Pursuant to Section 26.575.030, Pedestrian Amenity Space (284.2 s.£) _ $14,210 for this lot Ameni Floor Area Cumulative Free-Market Cumulative Maximum: Commercial: 1.5:1 Ratio (FAR) Maximum: Commercial FAR: 3:1 up to 2:1 (with 8,187 sq. ft. or 2,464sq. ft. or 1.2:1 affordable housing 2.88:1 Affordable increase) Commercial FAR: 0 sq. ft. (because located in basement) 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(7G Edits) (2).doc Page 3 of 9 Dimensional Council Approved Dimensional Underlying Commercial (CC) Zone District Requirement Requirements Requirements Lodging, Arts, Lodging, Arts, Cultural and Civic, Cultural and Civic, Public, Recreational, Public, Academic uses: N/A Recreational, Academic uses: 3:1 Affordable Housing: Affordable N/A Housing: No limitation Free-Market Free-Market Residential: 5,213 sq. Residential: 1:1 ft. or 1.83:1 Non-Unit Space: 510 sq. ft. All other non- unit space shall be calculated according to the Land Use Code, as amended form time to time. Maximum Free-Market Unit: 2,000 sq. ft. Residential 4,527 sq. ft. Note: The 2,000 sq. ft. maximum permitted was Unlt Size established by Ordinance 12, Series 2006. This application was submitted prior to [he passage of ~s4 fl.) Ordinance l2 and is, therefore, not subject to the 2,000 s t. maximum. Commercial Affordable Commercial (located in No requirement in zone district. Unit Size (sq. basement): 1,800 sq. ft. net leasable ft.) Free-Market Commercial [located on basement(storage), first floor, and second floor]: 1,980 s . ft. Scction 2: Plat and Agreement Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the Applicant shall record a subdivision agreement that meets the requirements of Land Use Code Section 26.480, Subdivision, within 180 days of this approval. The Subdivision Agreement shall not contain any terms that contradict or change the terms of the Conditional Settlement Agreement between the parties and the terms of this Ordinance. The Subdivision Agreement shall also include a commitment to satisfy all conditions of Planning and Zoning Commission Resolution Number 27, Series of 2006 as well as all conditions of this Ordinance. A final Condominium Plat may be approved and signed by the Community Ucvelopment Director upon substantial completion of construction and prior to issuance of a Certificate of Occupancy. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(7G Edits) (2).doc Page 4 of 9 Section 3: Buildin¢ Permit Application The Applicant may not submit a Building Permit Application until the requirements in Land Use Code Section 26.304.075, Building Permit, are fulfilled. The building permit application shall include the following: a. A copy of the final Ordinance, P&Z Resolution, and HPC Resolution as modified by the Conditional Settlement Agreement and this Ordinance. b. The conditions of approval printed on the cover page of the building permit set. c. A fugitive dust control plan to be reviewed and approved by the City Engineering Department. d. An excavation-stabilization plan, construction management plan (CMP), and drainage and soils report pursuant to the Building Department's requirements. The CMP shall include an identification of construction hauling routes, construction phasing, and a construction traffic and parking plan for review and approval by the City Engineer and Streets Department Superintendent. The CMP shall also identify that the adjacent sidewalks will be kept open and maintained throughout construction. Staging areas will be identified in the plan, and shall indicate that the alley shall not be closed during construction. e. Accessibility and ADA requirements shall meet adopted building code requirements. f. An approved Landscape Plan, as applicable. g. Any prior approval regarding use of the existing brick shall be modified so that applicant shall not be required to preserve the existing brick wall or use all the brick in the redevelopment of the property. h. In order to provide garage level access to the free market unit, applicant shall, subject to all applicable building codes, be entitled to create an entry through the adjacent parking garage unit to the East of the subject property, provided Applicant obtains an appropriate permanent easement through the wall, if an easement is necessary. Section 4. Building Permit Review, The referral process and evaluation of the building permit application shall be completed within a reasonable time from the time a complete application is submitted. After completion of the referral process the Community Development Director shall: (i) issue a certificate of development approval compliance or (ii) advise applicant of any deficiencies within a reasonable time. The Applicant shall be reasonably responsive to City building permit plan review comments and shall submit requested corrections in a timely manner. Actions taken by applicant to remedy deficiencies, if any, shall be reviewed by the Community Development Director and a response made to applicant within a reasonable time. At such time as applicant cures all deficiencies, if any there are any, the Community Development Director shall forthwith issue a certificate of development approval compliance. After the chief building official receives a certificate of development approval compliance, the building permit shall issue within a reasonable time. Section 5: Dimensional Requirements The building as presented in the plans contained within the application dated September 2006 and as modified and amended in the Conditional Settlement Agreement and plans submitted on August 22, 2008 ("Modified Plans"), complies with the existing dimensional requirements of the Commercial Core (CC) zone district. Compliance with these requirements as modified in the Conditional Settlement A ~~reement will be verified by the City of Aspen Zoning Officer at the time of building permit submittal. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLICB3\Settlement Ordinance(JG Edits) (2).doc Page 5 of 9 Section 6: Trash/Utility Service Area The trash containers shall be wildlife proof and meet the Certificate of Appropriateness regulations pertaining to size and security. The trash/utility area shall have an alley frontage of nine and a half (9.5) linear feet with a ten (10) foot vertical clearance, and seventeen and a half (17.5) feet in depth, as identified in the plans approved through Special Review by the Planning and Zoning Commission on May 1, 2007. Section 7: Sidewalks, Curb, and Gutter The sidewalks shall be upgraded to meet the City Engineer's standards and ADA requirements. Prior to issuance of a Building Permit, or any other permit to be issued for the property, including but not limited to a demolition permit, the applicant shall provide plans that meet the approval of the City Engineer. Such improvements shall be made prior to a Certificate of Occupancy on any of the units within the development. Section 8: Affordable Housing The affordable housing mitigation requirement shall be satisfied with a payment of cash-in-lieu for 12.6 square feet of affordable housing at the Category 4 level. The cash-in-lieu fee shall be $3,915.67. The cash-in-lieu shall be paid at the time of building permit and shall be earmarked for APCHA's use to "buy down" existing deed-restricted units or proposed deed-restricted units to lower categories. hi addition, a multi-family replacement fee of $305,795.22sha11 be paid by applicant upon the issuance of a building permit. Section 9: Off Street Parkine The Applicant shall provide two (2) off street parking spaces on the adjacent property to the east to be used as parking for 508 East Cooper. There shall be allowed a penetration through the wall of the building adjacent to the subject property to access the subject property as shown on the Modified Plans, provided Applicant obtains an appropriate permanent easement through the wall that measures 5'1" from the property line and 18"past the width on each side of the door. Scction 10: Water Department Requirements 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 Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Each of the units within the building shall have individual water meters. Section 11: Sanitation District Requirements a. Service is contingent upon compliance with the Aspen Consolidated Sanitation District's (ACSD) rules, regulations, and specifications, which are on file at the District office. ACSD will review the approved Drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. b. On-site utility plans require approval by ACSD. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 6 of 9 c. Oil and Grease interceptors (NOT traps) aze required for all food processing establishments; locations of food processing shall be identified prior to building permit; even though the commercial space will be tenant-finished, interceptors will be required at this time if food processing establishments aze anticipated for this project. d. Oil and Sand sepazators are required for parking garages and vehicle maintenance establishments. Driveway entrance drains must drain to drywells. Elevator shaft drains must flow through oil and sand interceptors. e. Old service lines must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements. Below grade development may require installation of a pumping system. One tap is allowed for each building. Shared service line agreements maybe required where more than one unit is served by a single service line. Permanent improvements aze prohibited in sewer easements or right of ways. £ Landscaping plans will require approval by ACSD where soft and hard landscaping may impact public ROW or easements to be dedicated to the district. g. All ACSD fees must be paid prior to the issuance of a building permit. h. The glycol heating and snow melt system (if any) must be designed to prohibit and dischazge of glycol to any portion of the public and private sanitary sewer system. Any glycol storage areas must have approved containment facilities. i. Soil Nails are not allowed in the public ROW above ASCD main sewer lines. Applicant's civil engineer will be required to submit existing and proposed flow calculations. Section 12: Exterior Lighting All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor Lighting. Section 13: Landscaaing a. Specific excavation techniques will be required for the excavation along the back of the property. Vertical excavation will be required and over-digging is prohibited in this zone. This note must be represented on the building permit set. Utility connection will need to be designed and shown on the plan in a manner that does not encroach into tree protection zones. b. Prior to issuance of any demolition or building permits, any and all tree removal will be approved by the Parks Department. Mitigation for removals shall be satisfied through planting of street trees adjacent to the site or through payment of cash in lieu. c. Root trenching will be required around all potentially affected trees with excavation next to and/or under the drip line. This can be accomplished by a contracted professional tree service company or trained member of the contractor's team. This is specific to the trees located on adjacent properties. d. The Applicant is required to make improvements to the City ROW through the installation of a new Cooper Avenue street tree, evenly spaced between the two existing trees located in front of the neighboring properties. Planting in the Public Right-Of--Way (ROW) will be subject to Landscaping 317028_1 508 E. Cooper Ave Subdivision C:~Documents and Settings\jimt~L,ocal Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 7 of 9 in the ROW requirements. Plans for the tree planting should be completed and conceptually approved prior to building permit submittal. 1. If the sidewalk is kept in tact and does not require replacement then the applicant will have to work with the Parks Department to saw cut a new tree well. 2. If the sidewalk is replaced in any manner the applicant will be required to install a structural tree trench within the tree planting zone. Trench materials, size and location will require approval of the Parks Department. The Applicant is required to install new irrigation to the new tree planting and if possible to the two existing trees depending on the extent of any new tree trench. Section 14: Park Development Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a park development impact fee prior to building permit issuance. The fee shall be calculated according to the fee schedule in Land Use Code Section 26.610.030, Fee Schedule, in place at the time of building permit. Section 15: Pedestrian Amenity Cash-in-Lieu Fee Pursuant to Land Use Code Section 26.575.030, Pedestrian Amenity, the Applicant shall pay acash-in- licu fee for pedestrian amenity in the amount equal to ten percent of the lot area prior to building permit issuance. The fee is assessed based on the following calculation: Lot area = 2,842 sq ft 10% of Lot Area = 284.2 sq ft Payment = $50 x 284.2 sq ft Pedestrian Amenity Cash-in-Lieu = $14,210.00 Section 16: School Lands Dedication Fee Pursuant to Land Use Code Section 26.630, School lands dedication, the Applicant shall pay afee-in- lieu of land dedication prior to building permit issuance. The City of Aspen Community Development Department shall calculate the amount due using the calculation methodology and fee schedule in affect at the time of building permit submittal. The Applicant shall provide the market value of the land including site improvements, but excluding the value of structures on the site. Section 17: All of the conditions and agreements set forth in the Conditional Settlement Agreement, attached hereto as Exhibit "A", are incorporated herein in full by this reference. Section 18: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein 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. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLICB3\Settlement Ordinance(JG Edits) (2).doc Page 8 of 9 Section 19• This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 20: If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 21. Covenants. Attached hereto as Exhibit "B" are the Covenants which aze hereby approved. Applicant shall cause the Covenants to be duly executed and recorded prior to the issuance of a building permit. Section 22. Basement Ceiling Heights. The minimum ceiling height for the 1,800 sq. ft. of basement deed restriction shall be twelve (12) feet, for purpose of potentially accommodating a brewery. Section 23. Public Hearing A public hearing on this Ordinance will be held on the 8`" day of September 2008 in the city Council Chambers, 130 South Galena, INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 25`s day of August, 2008. Michael C. Ir and, Mayor ATT ST: Kathryn S. K ity Jerk ,u( FINALLY, adopted, passed and approved this ~ day of . , 2008. chael C. Irela ~d, Mayor ATT ST: Kathryn S. ,City Clerk APPROVED AS TO FORM: o n P. or s er, C-ty Attorney 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 9 of 9 CONDITIONAL SETTLEMENT AGREEMENT This Conditional Settlement Agreement dated August _, 2008, is entered into by and among (1) the City of Aspen (the "City") and (2) JS Cooper Street LLC, a Colorado limited liability company, AP Meadows LLC, a Delaware limited liability company, Cooper Street Pier LLC, a Colorado limited liability company, RJH Cooper Street LLC, a Colorado limited liability company, RSB Cooper Street LLC, a Colorado limited liability company, RG Cooper Street LLC, a Colorado limited liability company, and NH Cooper Street LLC, a Colorado limited liability company (collectively the "Cooper Street Owners"). The parties to this Conditional Settlement Agreement shall be collectively referred to as the "Parties" or individually as a "Party." I. RECITALS 1. On November 13, 2007, the City adopted Ordinance No. 28 (Series of 2007), in which the City denied the request of the Cooper Street Owners to subdivide a proposed redeveloped building at 508 East Cooper Avenue into separate condominium interests. 2. On December 10, 2007, the Cooper Street Owners filed a C.R. C.P. 106(a)(4) Complaint in Pitkin County District Court (Case No. 07CV186) seeking judicial review of the adoption of Ordinance No. 28 (Series of 2007) alleging that the City exceeded its jurisdiction and abused its discretion in denying the request of the Cooper Street Owners to subdivide the proposed redeveloped building at 508 East Cooper Avenue into separate condominium interests (the "C.R.C.P. 106(a)(4) Litigation"). 3. In its Answer, the City denies that it abused its discretion or exceeded its jurisdiction in adopting Ordinance No. 28 (Series of 2007). 4. The Parties have determined to compromise and settle the C.R. C.P. 106(a)(4) Litigation in an amicable manner according to the terms described in this Conditional Settlement Agreement that provides the City both acash-in-lieu affordable-housing payment of $309,710.89 and a deed restriction reserving 1,800 square feet of the 310552-1 1 redeveloped building for use as affordable commercial space if the Conditional Settlement Agreement becomes a binding agreement. 5. Each Party has determined that this Conditional Settlement Agreement is fair to all Parties and that it is in each Party's mutual interest that it become a binding agreement. II. CONDITIONAL SETTLEMENT AGREEMENT Conditions Precedent 1. Conditions Precedent to the Enforceability of This Conditional Settlement Agreement. This Conditional Settlement Agreement shall become a binding settlement agreement only if each of the three conditions precedent contained in paragraphs a., b. and c. is satisfied. If each of the three conditions precedent is satisfied, this Conditional Settlement Agreement shall automatically become a binding settlement agreement for all purposes. If any one of the three conditions precedent is not satisfied, however, this Conditional Settlement Agreement shall be null and void for all purposes. a. Condition Precedent Number One. The City Council approves an ordinance approving the request by the Cooper Street Owners to subdivide the proposed redeveloped building at 508 East Cooper Avenue into separate condominiums in the form of ordinance attached hereto as Exhibit A following all required public notices and hearings. b. Condition Precedent Number Two. No person files an appeal, petition for referendum, petition for initiative or any other pleadings, petitions or filings appealing or otherwise challenging the adoption of the ordinance attached hereto as Exhibit A within 45 days after the adoption of the ordinance. c. Condition Precedent Number Three. The Cooper Street Owners either (1) obtain an acceptable easement from the adjoining landowner(s), if necessary, providing access from the proposed redeveloped building at 508 East Cooper Avenue through the adjacent 310552-1 2 wall into the underground parking garage in the adjoining building within 30 days of the execution of the Conditional Settlement Agreement or (2) waive in writing satisfaction of Condition Precedent Number Three within 30 days of the execution of this Conditional Settlement Agreement. Terms 1. If Condition Precedent Number One, Condition Precedent Number Two and Condition Precedent Number Three are satisfied, the Parties agree to take all necessary steps and to file all necessary pleadings in order to dismiss with prejudice the C.R. C.P. 106(a)(4) Litigation, each Party to pay its own costs and attorney fees. 2. If Condition Precedent Number One, Condition Precedent Number Two and Condition Precedent Number Three are satisfied, the Cooper Street Owners shall pay an affordable-housing-mitigation cash- in-lieu fee of $3,915.67 pursuant to Section 7 of the Ordinance. In addition, amulti-family replacement fee of $305,795.22 shall be paid upon the issuance of a building permit pursuant to Section 7 of the Ordinance. 3. If Condition Precedent Number One, Condition Precedent Number Two and Condition Precedent Number Three are satisfied, the Cooper Street Owners shall execute and record the "Declaration of Covenants" attached hereto as Exhibit 1 which, among other things, restricts the use of 1,800 square feet of the redeveloped building to the operation of a restaurant, on-site food service, bar or both or a brewery. The Declaration of Covenants also provides for a restriction of the amount of rent to be charged for the 1,800 square feet as affordable commercial space. 4. In the event of any dispute relating to this Conditional Settlement Agreement, including any dispute regarding the enforceability of the Conditional Settlement Agreement as a final binding agreement, the prevailing Party shall be entitled to recover its attorney fees and costs. 310552-1 3 5. This Conditional Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which, together, shall constitute one and the same Conditional Settlement Agreement. 6. The undersigned have carefully read the above and foregoing Conditional Settlement Agreement, know the contents thereof, and have signed the same on behalf of each of the Parties, after having first had the benefit of legal counsel. City of Aspen By ~¢i~~..~ Steve arwick, City Manager JS Cooper Street LLC By Joshua Saslove, Manager AP Meadows LLC B~-° ~®~- Andrew V. Hecht, Manager Cooper Street~LLC Andrew V. Hecht, Manager RJH Cooper Street By ~ `'vim Robert J Manager RSB Cooper Street LLC By Blank, Manager LLC NH Cooper S eet LLC By ~~~~/ ,,s~~-- Nikos Hec thth Manager 310552-1 4 5. This Conditional Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which, together, shall constitute one and the same Conditional Settlement Agreement. 6. The undersigned have carefully read the above and foregoing Conditional Settlement Agreement, know the contents thereof, and have signed the same on behalf of each of the Parties, after having first had the benefit of legal counsel. City of Aspen By Steve Barwick, City Manager JS Cooper Street LLC By Joshua Saslove, Manager AP Meadows LLC By Andrew V. Hecht, Manager Cooper Street Pier LLC By Andrew V. Hecht, Manager RJH Cooper Street LC By ' Robert J. Hurst, Manager BRSB C~~ ~tre LI,.,C ~ f y /~ti~11/ Robert S. Blank, anager - RG Cooper Street LLC By Ronald Garfield, Manager NH Cooper Street LLC By Nikos Hecht, Manager 310552-1 4 5. This Conditional Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which, together, shall constitute one and the same Conditional Settlement Agreement. 6. The undersigned have carefully read the above and foregoing Conditional Settlement Agreement, know the contents thereof, and have signed the same on behalf of each of the Parties, after having first had the benefit of legal counsel. City of Aspen By Steve Barwick, City Manager --~ JS CQOp~,,~Street LLC JoshSaslove, Manager AP Meadows LLC Rv Andrew V. Hecht, Manager Cooper Street Pier LLC Rv Andrew V. Hecht, Manager RJH Cooper Street LLC By Robert J. Hurst, Manager RSB Cooper Street LLC By Robert S. Blank, Manager RG Cooper Street LLC By Ronald Garfield, Manager NH Cooper Street LLC Rv Nikos Hecht, Manager 310552-1 4 RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: Andy Hecht, Esq. Ga~eld & Hecht, P.C. 601 East Hyman Avenue Aspen, Colorado 81611 DECLARATION OF COVENANTS WHEREAS, JS COOPER STREET LLC, a Colorado limited liability company, AP MEADOWS, LLC, a Delawaze limited liability company, COOPER STREET PIER, LLC, a Colorado limited liability company, RJH COOPER STREET LLC, a Colorado limited liability company, RSB COOPER STREET LLC, a Colorado limited liability company. RG COOPER STREET LLC, a Colorado limited liability company, and NH COOPER STREET LLC, a Colorado limited liability company, (collectively, "Declarant"), are the owners in fee simple of the following described real estate (the "Pro er ") situate in the County of Pitkin and State of Colorado, to wit: THE EASTERLY 18 INCHES OF THE SOUTHERLY 68 FEET OF LOT L, THE SOUTHERLY 70 FEET OF LOT M, ALL OF LOT N, EXCEPT THE EASTERLY 18.75 FEET, BLOCK 95, CITY AND TOWNSITE OF ASPEN TOGETHER WITH THE PARTY WALL RESERVATIONS AND RIGHTS AS SET FORTH IN DEED RECORDED AUGUST 22, 1969 IN BOOK 243 AT PAGE 279. WHEREAS, Declarant wishes to establish certain restrictions (these "Covenants") on the use and occupancy of approximately eighteen hundred (1,800) square feet to be located in the below grade space in the building (the "Buildin¢") intended to be constructed on the Property, as such space (the "Lower Level") is generally depicted on Exhibit "A" attached hereto and incorporated herein by this reference. NOW THEREFORE, Declarant does hereby publish and declare that the following terms, restrictions and limitations shall be deemed to run with the land comprising the Lower Level and be binding on each owner of the Lower Level, or any portion thereof, and shall be for the benefit of and enforceable by each owner of any other portion of the Building on the Property and the City of Aspen (the "City") and Declarant does declare that these Covenants aze made in furtherance of establishing and maintaining the character and value of real estate in the City. 1. Permitted Use. The Lower Level shall be restricted to the operation of a restaurant, on site food service, bar or a brewery. Other uses allowed in the CC Zone District as a matter of right shall be permitted only upon the agreement of the Declazant and the City. Other space on the same level as the Lower Level or space any place else in the Building ("Remainin¢ Buildin¢ Saace") shall not be subject to these Covenants and any and all lawful uses of such space shall be allowed in accordance with the permitted uses (or conditional uses where approved by the City) within the CC Zone District. In the event that at any time the Building is subjected to a condominium regime, these Covenants shall automatically be amended be so that these Covenants only affect the Lower Level. These Covenants that apply only to the ownership, operation and use of the Lower Level and shall not burden in the Remaining Building Space. Upon recordation of the condominium map, Declazant may file a supplement to these Covenants for the sole purpose of substituting the condominium unit description for the current Exhibit "A" description. 2. Rent. If at any time and from time to time following the recording of these Covenants in the real property records of Pitkin County, Declarant enters into a lease with a tenant for the Lower Level, or any part thereof, the rent for the first year after a Certificate of Occupancy is issued for the Lower Level (the "Commencement Date") shall be an amount not to exceed the lesser of Fifty Dollazs ($50.00) per squaze foot of leased space or 75% of the average rents paid by commercial tenants for similar spaces, plus the tenant's obligations, if any, to pay a share of the Common Area Maintenance Costs, as hereinafter defined (collectively the "Rent"). The Declarant shall have the obligation of providing evidence of the amount of rents paid by such commercial tenants. Common Area Maintenance Costs shall mean all costs and expenses (including, without limitation, insurance costs) attributable to the ownership operation, maintenance and repair of the Building, (or in the case of a condominium, the common elements) excluding however real estate. taxes. To the extent costs of the ownership, operation, maintenance and repair of the Building and/or insurance costs are included in assessments levied against the Lower Level by any unit or homeowners association to be formed, Rent shall include that portion of the assessments attributable to such costs. Common Area Maintenance shall be in an amount that is reasonable for commercial space of this size and location within the commercial core. Rent shall be adjusted each calendar yeaz after such first year by increasing the amount payable per square foot for the applicable year by a percentage equal to the lesser of (i) the percentage increase, if any, in the U.S. Consumer Price Index (the "CPI") over the CPI in effect at the Commencement Date or (ii) five percent (5%). However, at no time shall rent exceed 75% of the average rents paid by commercial tenants for similar spaces. 3. Lease Restrictions. The lease entered between Declarant and any prospective tenant shall include a limitation on the prices of food, excluding alcoholic beverages, that may be charged by the Tenant to its customers and the right to terminate the lease if the price limitation is violated. Such limitation shall require that the average price of food, excluding alcoholic beverages, that may be charged by the Tenant shall be reasonably compazable with the menu pricing of Bentley's Restaurant within the Wheeler Opera House. Reasonably comparable shall be deemed to mean within ten percent of the average price of food products sold by Bentley's, so long as Bentley's maintains its current, 2008, operational format. If Bentley's ceases to operate in its current format, then the pricing of the Tenant's menu, measured separately for lunch and dinner, shall be within the lower one-third of the average price of food, excluding alcoholic beverages, of all of the restaurants in the City of Aspen. This calculation shall include sit-down restaurants and exclude restaurants that would be deemed fast food restaurants. The Declarant shall be required to provide the Tenant and the City of Aspen with its calculations of the average price of food of all of the restaurants in Aspen, together with empirical data supporting such calculations, annually. The City of Aspen shall have the right to require that the Tenant comply with this restriction by providing notice to the Tenant of its violation. If the Tenant does not correct its pricing schedule within ten days of notice of violation, then the Declarant shall terminate the lease. In addition, any Lease to the Lower Level shall include a requirement that the business operate for forty-four weeks per year and that the business maintain business hours 317016_1 of at least between eleven o'clock a.m. to eleven o'clock p.m, six days per week. Other than the requirement to operate forty-four weeks pre year, the lease restrictions set forth in this paragraph 3, shall not apply to a tenant who has obtained a manufacturer's license from the State of Colorado to operate as a brewery. 4. Deliverv of Conv of Lease to Citk A copy of any and each lease for the Lower Level, or any part thereof, shall be provided to the City of Aspen, Attention Director of Planning or the Zoning Enforcement Officer within ten (10) business days after full execution thereof. 5. Entrance Plan. The Building shall include an entrance to the Lower Level on the west side of the Building. Such entrance shall include a stairwell and a lift that provides access to the Lower Level by persons with a physical disability, which stairwell and lift (the "Entrance Plan") shall cause the entrance to the Lower Level to be in compliance with the Americans with Disabilities Act of 1990, 42 USC §§ 12101 to 12213. The Entrance Plan shall be consistent in all material respects with the plan for the Building set forth on Exhibit A. 6. Noise. The use of the Lower Level shall at all times be restricted so that no amplified or unreasonably excessive noise is produced. Declarant's reasonable commercial discretion as to what constitutes "excessive noise" shall be binding on any tenant in the Lover Level. However, notwithstanding the above language, compliance with environmental health standards will be deemed acceptable. 7. Slgris• The lower level business shall be allowed to place a sign on the street facing facade of the main level. However, no sign, billboard, decoration, poster board or advertising structure of any kind shall be placed, erected, displayed or maintained anywhere on or within the Building, including the Lower Level, until plans and specifications therefor showing the nature, shape, dimensions, color, materials, and locations for signage have been submitted to and approved in writing by Declarant, which approval shall not be unreasonably withheld. All signs shall be in compliance with the design standards of the City of Aspen. 8. Occuuanc~ Declarant or any subsequent owner shall be permitted to leave the Lower Level vacant if, in its sole discretion, it deems any prospective tenant to be unsuitable. The Declarant agrees to utilize reasonable efforts to in good faith locate prospective tenants who are reasonably agreeable to the Declarant. "Reasonable efforts" shall be defined as including, but not limited to, circulating lease terms and information to local commercial real estate brokers and advertising in a newspaper of general circulation continuously during the period in which the property is vacant. If the space remains vacant for a period of six months or greater, the City shall have the right to name a tenant for consent of the Declarant, whose consent shall not be unreasonably withheld. The City of Aspen may obtain a proposed tenant through a standard Request for Proposal (RFP) process. Furthermore, Declarant (or any affiliate or Declarant) or any subsequent owner of the Lower Level shall be allowed to use and occupy the Lower Level, or any part thereof, for so long as such use complies with the applicable terms and provisions of these Covenants. 9. Enforcement. These Covenants are for the benefit of, and are enforceable solely by, the City of Aspen as to the provisions of Paragraphs 1, 2, 3, 4 and 8 and by any then owner of any 317016_1 portion of the Building. There are no other beneficiazies or persons intended to have standing to enforce these Covenants. As an example of the foregoing, if the Building consists of condominiums or any other form of sepazate ownership and if the restrictions on the level of noise from the Lower Level set forth in Paragraph 5 hereof aze violated, any owner of any space in the Building (or any association formed for the benefit of such owners) shall have the right to enforce the provisions of such noise restrictions against the owner of and/or tenant in the Lower Level. If court proceedings are instituted in connection with the rights of enforcement and remedies provided in these Covenants, the prevailing party shall be entitled to recover its costs and expenses in connection therewith, including reasonable attorney's fees. Failure by any party to enforce any provision of these Covenants shall not operate as a waiver of any such provision, a waiver of the right to enforce such provision thereafter, or a waiver of any other provision of these Covenants. 10. Amendment or Revocation. Except as allowed in pazagraph 1 above, these Covenants may be amended or revoked only by written instrument executed by all of the applicable benefitted parties (except the City of Aspen) and recorded in the office of the Clerk and Recorder of the County of Pitkin, State of Colorado. The consent of the City of Aspen shall be required only with respect to any material amendment, modification or revocation of the provisions of Paragraphs 1 - 8 of these Covenants. 11. Effect of Provisions of these Covenants. Each provision of these Covenants, and any agreement, promise, covenant and undertaking to comply with each provision of these Covenants: (i) shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any burdened portion of the Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument; (ii) shall, by virtue of acceptance of any right, title or interest in any portion of the burdened portion of the Property by an owner, be deemed accepted, ratified, adopted and declazed as a personal covenant of such owner and shall be binding on such owner and his heirs, personal representatives, successors and assigns; and (iii) shall be deemed a real covenant by Declarant, for itself, its administrators, successors and assigns, with respect to the Property and also an equitable servitude running in each case as a burden with and upon the title to each and every burdened portion of the Property for the benefit of the City of Aspen and the owner(s) from time to time of any other portion of the Property. In no event shall these Covenants be deemed to be for the benefit of or be enforceable by any third party. 12. Severability. Invalidity or unenforceability of any provision of these Covenants in whole or in part shall not affect the validity or enforceability of any other provision or any valid and enforceable part of a provision of these Covenants, which other or part of a provision shall remain in full force and effect. 13. Captions. The captions and headings in this instrument aze for convenience only and shall not be considered in construing any provisions of these Covenants. 14. Construction. When necessazy for proper construction, the masculine of any word used in these Covenants shall include the feminine or neuter gender, and the singular the plural, and vice versa. 317016_1 15. Governing Law. These Covenants aze made and executed under and aze governed by and shall be construed in accordance with the laws of the State of Colorado. IN WITNESS WHEREOF, Declarant has executed these Covenants as of the day of , 2008. JS COOPER STREET, LLC, a Colorado limited liability company By: Name: STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was aclrnowledged before me this 200_ by LLC. as WITNESS BY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: [SEAL] day of , of JS COOPER STREET, Notary Public 317016_1 O sF I~ ~~ ,6 ~ y ~,. 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