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HomeMy WebLinkAboutagenda.council.regular.20120312 - CITY COUNCIL AGENDA March 12, 2012 5:00 P.M. I. Call to Order II. Roll Call III. Scheduled Public Appearances Proclamation — Ramona Markalunas 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) Resolution #16, 2012 — Contract - Purchase Cardio Equipment — ARC b) Resolution #17, 2012 — Contract — Mowing Equipment Purchase c) Resolution #18, 2012 — Contract — Infrastructure Burlingame Phase II d) Resolution #19, 2012 — Contract — Colorado Water Conservation District e) Resolution #20, 2012 — Contract — Golf Cart Fleet Purchase f) Resolution #21, 2012 — IGA Adopting State Highway 82 Access Control g) Resolution #12, 2012 - Fluoride h) Minutes — February 27, 28, 2012 VII. First Reading of Ordinances VIII. Public Hearings a) Ordinance #6, 2012 — AspenModern Designation 514 E. Hyman b) Ordinance #7, 2012 — 217/219 S. Third Street PUD IX. Action Items a) Resolution #22, 2012 — Appeal of Slope Determination 217/219 S.Third b) Action on Referendum Petition X. Adjournment Next Regular Meeting March 26, 2012 COUNCIL'S ADOPTED GUIDELINES • Stick to top priorities • Involve others in community problem solving • Be thorough, deliberate and accountable for consequences when making decisions V MEMORANDUM TO: MAYOR & CITY COUNCIL FROM: TIM ANDERSON, RECREATION DIRECTOR CC: JEFF WOODS, MANAGER OF PARKS & RECREATION MEMO DATE: FEBRUARY 22, 2012 MEETING DATE: MARCH 12, 2012 RE: PURCHASE OF NEW CARDIO EQUIPMENT FOR ASPEN RECREATION CENTER REQUEST OF COUNCIL: Staff is requesting approval of the attached contract with Push *Pedal *Pull Inc. for the purchase of replacement cardio equipment in the Aspen Recreation Center for the amount of $60,931.00. This contract includes the purchase of new equipment as identified in attachment "A ", trade in value of the current equipment, and warranties on the purchase of the new equipment. PREVIOUS COUNCIL ACTION: In 2011 Council approved the 1 part of a 2 part purchase of replacement fitness equipment in the ARC. Funding for the replacement of fitness equipment was divided between 2011 AMP funding and 2012 AMP funding. Staff chose to replace the weight equipment first in 2011 with the cardio purchase to follow in 2012. BACKGROUND: When the ARC opened in April of 2003 fitness equipment did not exist and staff immediately heard from patrons regarding the lack of fitness rooms. Staff and the ARC Advisory Committee came to Council by the end of 2003 with a request to fund the purchase of fitness equipment within the ARC. When the equipment was installed in early 2004 pass sales nearly quadrupled in one month following the introduction of such equipment. February 2004 Pass Sales: $11,627 March 2004 Pass Sales: $43,768 For the same period of operation (April thru December 2003 vs April thru December 2004) the ARC saw an increase of over $170,000 in pass sales and similar increases in daily admissions which is attributed to the introduction of fitness areas to the ARC. DISCUSSION: In 2011 staff received responses from 8 different companies in regards to a Request For Proposals seeking information on weight and cardio equipment. After narrowing the list to 3 by checking references and making visits to other recreation facilities, staff then narrowed the list to 2 companies who were invited to place a piece of their equipment in the recreation center for a period of 7 to 10 days for patrons to test. We had each company place weight equipment and cardio equipment in the ARC and asked for feedback from the patrons as to which piece they preferred. The result was to stay with Paramount resistance equipment (purchased in 2011) and Precor Cardio Equipment which is listed in the attached contract. FINANCIALBUDGET IMPACTS: The Aspen Recreation Center added patrons to the facility due to the new equipment replacement of 2011. Keeping equipment current by replacing technology and vitality of the machines every 4 years has proven vital to the pass holder renewal process. ENVIRONMENTAL IMPACTS: There are no significant changes to the current impacts. The equipment is energy efficient and is powered by the motion of the person using the machine. The equipment will remain in a power saver mode while not in use. RECOMMENDED ACTION: Staff is recommending the approval of the attached contract for the purchase of new Cardio equipment to be placed in the ARC. A failure to do so would be cause for more frequent breakdowns and a downturn in revenue streams. ALTERNATIVES: Keep the existing equipment and continue to refurbish and provide preventative maintenance on a regular basis (quarterly). At this age of the equipment the costs become exponential and about $1,000 /machine per year or more. This cost over 4 years tends to equate to or exceed the purchase price of new equipment. PROPOSED MOTION: I, , motion to approved resolution # /6 a contract for the purchase of new Cardio Equipment for the Aspen Recreation Center. CITY MANAGER COMMENTS: Qs f'uivu.ri-44 Glruvc t t'j &l taaj U fr4o ,e „t4- l�l! /z �uur �-�. RESOLUTION NO. 1& Series of 2012 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THE CONTRACT FOR PURCHASE OF CARDIO/FITNESS EQUIPMENT FOR THE ASPEN RECREATION CENTER AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID PURCHASE ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there exists between the City of Aspen and Push *Pedal *Pull Inc.; a mutual interest in providing the Aspen Recreation Center with new cardio /fitness equipment; 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 contract for purchase of cardio /fitness equipment to be installed in the Aspen Recreation Center; and does hereby authorize the Mayor or City Manager to execute said contract on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the _12th _ day of March _, 2012. 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 H:'ARC Guest Services\Fitness Rooms \Resolution.doc rvy The Ohftlin n CITY OF ASPEN STANDARD FORM OF AGREEMENT -2009 SUPPLY PROCUREMENT City of Aspen Project No.: 2011 - 007 AGREEMENT made as of 27 day of February, in the year 2012. BETWEEN the City: Contract Amount: The City of Aspen c/o Tim Anderson, Recreation Director 130 South Galena Street Total: $60,931.00 Aspen, Colorado 81611 Phone: (970) 920 -5055 If this Agreement requires the City to pay And the Vendor: an amount of money in excess of $25,000.00 it shall not be deemed valid Push *Pedal *Pull until it has been approved by the City Council of the City of Aspen. c/o Pau- Frsssenite mQ I c_ Lard 3370 Peoria St., Suite #201 City Council Approval: Aurora, CO 80010 Phone: (303) 364 -3444-6 aJl -gOOC/ Date: February 27' 2012 Resolution No.: Summary Description of Items to be Purchased: Replacement Cardio Equipment to include items identified in the attached fee proposal. This includes trade in -value for the existing equipment. Exhibits appended and made a part of this Agreement: Exhibit A: List of supplies, equipment, or materials to be purchased. The City and Vendor agree as set forth below. 1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A appended hereto and by this reference incorporated herein as if fully set forth here for the sum set forth hereinabove. 2. Delivery. (FOB 0861 Maroon Creek Road, Aspen, Colorado 81611.) [Delivery Address] 3. Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. {�f2CoC 7 r a fit diebn:� 4. Warranties. Fara+�wunt warranty of4i€e'€ime frame, 1 years on- mmoving parts and -90- days- en- akelstery. I y r Iabe r 5. 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 and Conflicts of Interest. (A) 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. (B) 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. (C) 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. (D) 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 using 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 Approval. If this Agreement requires the City to pay an amount of money in excess of $10,000.00 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 terms 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 terms 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. [SIGNATURES ON FOLLOWING PAGE] FOR THE CITY OF ASPEN: ATTEST: By: City Manager City Clerk VENDOR: PUSH *PEDAL *PULL By: 0(thS0. 6 )/ CO erC Title .Jt ttet aii?1r 141421 *19cw 'I 1 11 lit DI•PUIr6 6869 01/18/2012 02/17 /2012 IM.wdupSpmmttIVnb �." €L. ,l Inl ivAilr- T , li .:. ; ^ .i IAIY.ldl0 °) °1 , t. -:i. ..1�.ia�li ia��� /� °� °7 .t i..... ,,..: Melissa Ward ASPEN REC CENTER ASPEN REC CENTER 13545 Milwaukee Court Billy Gosnell Thornton, CO 80241 ATTN: ACCOUNTS PAYABLE Tel: 303 - 241 -9004 0861 MAROON CREEK RD Fax: 303-484-8810 ASPEN, CO 81611 mward@pushpedalpull.com Tel: 970-522-4100 ' �r,> ?h7J15 RT:�Tif; .�,.. 7 l eWilf .3� ..r ±.a.1e/ 1 1 = :u PRECOR TRM885 -P80 TRM 885 TREADMILL -P80 4 $10,995.00 $7,178.68 $28,714.72 PRECOR EFX885 -P80 EFX 885 ELLIPTICAL - P80 3 $9,995.00 $6,114.68 $18,344.04 With adjustable ramp and upper arms PRECOR EFX883 -P80 EFX 883 ELLIPTICAL - P80 1 $8,995.00 $5,649.18 $5,649.18 With adjustable ramp only. PRECOR UBK885 -P80 UBK 885 UPRIGHT BIKE -P80 2 $6,295.00 $3,654.18 $7,308.36 PRECOR RBK885 -P80 RBK 885 RECUMBENT BIKE -P80 1 $6,495.00 $3,920.18 $3,920.18 CONCEPT2 D -PM4 MODELDw /PM4 1 $1,050.00 $1,000.00 $1,000.00 Schwinn IC Pro - Schwinn IC Pro Spinner 2 $1,149.00 $900.00. $1,800.00 Schwinn 0003 -8643 Double Link pedals 2 $99.00 $85.00 $170.00 Trade In Trade In Trade In -1 $6725.00 $6725.00 $- 8,725.00 All Treadmills and EFX are $1000 per unit Upright Bikes are $ 225 Recumbent Is $275 Rower Is $25 Subtotal $68,181.48 Freight $1,560.00 InatallfDelivery $1,200.00 Tax $0.00 Total $60,931.48 Push Pedal Pull will remove the two espresso bikes at no charge. Page 1 of 2 U N b0 C a) >> C -- a) a L a) C 0 N t 0 cu a--. L E bO - u N Ln Y a cu C C N C Q) -I— a (O � N i c +� C N E c (1) to a a; 0 a -° CO o a E of 4—• 2 'N ° o o cr � � o co cu 6 ra O J c to (1.) u N N -4-. ,,,3 O� m N ce co r n (3 N (0 O 0 O V` �/ I o O C � C a. .i." 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H W O a u F e - ° co v° O, ° v B o CP. m O r � .^ o' c p killill poi lli Al J IJI U - u ou v w LL c v rJ W d O\ - iD il C E� c A n c L w o m° u m o C o d C H W 66¢8 W a. _ 3 W C -T. 2 aa U aLL�1iaa�23 Y Vi b Memorandum To: Mayor and City Council From: Steve Aitken, Director of Golf Thru: Jeff Woods, Parks and Recreation Manager Thru: Don Taylor, Finance Director Thru: Rebecca Hodgson, Purchasing Director Date: February 25, 2012 RE: Golf Course Mowing Equipment and Work Cart Purchase Request of Council: Staff requests Council to approve the purchase of turf mowing equipment and work carts from C &M Golf and Grounds Equipment Company. Discussion: As requested in the 2012 budget approval process, the Golf Department is replacing several mowers and service vehicles in its fleet. Equipment scheduled for replacement includes: 3 Greens Mowers 2 Fairway Mowers 1 Rough Mower 2 Work Carts The equipment scheduled for replacement has served the golf operation well. All of the equipment being replaced is past due by industry standards with the amount of hours and years accumulated. Increased need for maintenance and repairs has made this equipment obsolete. Due to the amount of equipment needed it was not possible for the Golf Department to purchase this equipment all at once. The Finance department recommends that the funds to purchase the equipment be loaned from the Wheeler Opera House Fund. The Wheeler fund would be paid interest at a rate of 2% which is cheaper than a lease purchase agreement and better than what the city earns on Wheelers excess cash in the investment pool. Request For Proposals for the requested equipment was sent out in December and three proposals were received. 1. C & M Golf and Grounds (Jacobsen Mowers and Equipment) Bid Price: $232,518.82 2. L.L Johnson Distributing (Toro Mowers and Equipment) Bid Price: $225,338.00 3. Colorado Golf and Grounds (John Deere Mowers and Equipment) Bid Price: $187,398.00 Due to bundling the equipment together the 3 distributors were able to provide significant discounts compared to supplying individual pieces of equipment. Staff believes very strongly that only C &M Golf and Grounds (Jacobsen Equipment Distributer) can provide for all mowing and maintenance carts required at the Aspen Golf Course. The reasons for this are: • Jacobsen greens mowers deliver the highest quality of cut. These mowers have a patented grooming system which is critical to the maintenance of poa annua greens that are at the Aspen Golf Club. The quality of the greens at Aspen Golf Club is better than those of the neighboring private clubs in the valley. It is one of the main reasons why Aspen Golf Club maintains it's ranking as the number 1 Municipal Golf Course in the State of Colorado. • The current fleet of Green Mowers, Tee Mowers and Work Carts at Aspen Golf Club are Jacobsen. All of the parts are interchangeable allowing for smaller inventories of parts. Since all of the mowers are of the same type and manufacturer, staff training time is reduced. • • Innovations to the Jacobsen rough mower have made maintenance simpler and more effective. The quality of cut and potential to stripe areas creates more aesthetic appeal. • The lower center of gravity on the Jacobsen fairway mowers and rough mowers are safer for the operators. • The equipment packages with the other 2 bidders, offered equipment that had problems with efficiency, quality of cut, and amount of acreage cut per hour. Financial/ Budget Impacts: The Golf Department turf fleet budget for each of the five years is $49,600.00. With the selection of the C &M Golf and Grounds (Jacobsen Turf Equipment Distributer) the Golf Fund will have the necessary funds available. The old mowing equipment and work carts will be sold or auctioned off, as staff believes this will yield a higher value than trading in. The Finance department will include a loan from the Wheeler Opera House Fund in a separate Council action. The loan will be in the amount of $232,000 and will be amortized over 5 years at an interest rate of 2 %. Environmental Impacts: The new equipment will have increased fuel efficiency. The exhaust emission systems have also been improved. Recommended Action: Staff requests Council approve the lease to purchase contract with C &M Golf and Grounds for turf fleet and work carts. Alternatives: The other two proposals could be accepted. This decision would be less efficient, yield inferior quality of cut, increase man hours, be less safe, and would ultimately be more costly to the operation. City Manager Comments: • RESOLUTION # (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND C &M GOLF AND GROUNDS EQUIPMENT COMPANY AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for Golf turf equipment, between the City of Aspen and C &M Golf and Grounds Equipment Company, a true and accurate copy of which is attached hereto as Exhibit "A "; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for Golf turf equipment, between the City of Aspen and C &M Golf and Grounds Equipment Company, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the 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 12 day of March 2012. 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, March 12, 2012. Kathryn S. Koch, City Clerk The City oilmen CITY OF ASPEN STANDARD FORM OF AGREEMENT SUPPLY PROCUREMENT City of Aspen Project No.: 2011 -097. AGREEMENT made as of 16 day of March, in the year 2012. BETWEEN the City: Contract Amount: The City of Aspen c/o Golf Department 130 South Galena Street Total: $232,518.82 Aspen, Colorado 81611 Phone: (970) 920 -5055 If this Agreement requires the City to pay And the Vendor: an amount of money in excess of $25,000.00 it shall not be deemed valid C &M Golf and Grounds Equipment until it has been approved by the City c/o Bruce Smith Council of the City of Aspen. 5080 Paris St. City Council Approval: Denver CO, 80239 Phone: 373- 375 -4913 Date: Resolution No.: Summary Description of Items to be Purchased: Turf mowers: fairway and greens, utility hauler Exhibits appended and made a part of this Agreement: Exhibit A: List of supplies, equipment, or materials to be purchased. The City and Vendor agree as set forth below. 1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A appended hereto and by this reference incorporated herein as if fully set forth here for the sum set forth hereinabove. 2. Delivery. (FOB 39551 Highway 82, Aspen, Colorado 81611) [Delivery Address] 3. Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties. See Exhibit B. 5. 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 and Conflicts of Interest. (A) 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. (B) 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. (C) 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. (D) 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 using 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 Approval. 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 terms 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 terms 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. [SIGNATURES ON FOLLOWING PAGE] FOR THE CITY OF ASPEN: ATTEST: By: City Manager City Clerk VENDOR: C & M Golf and Grounds Equipment By: Title >. ~ 8 8 f ae @a § 3 B DN R § 4# # 2 . » 2 , . N at . B 1 2 9 2 $ /' \\ \ \ " \ ^`.. 69 2} | 0 c ti .8 ) o 2 II� oCi \ \ // •* 8 1 $ ) k \ 1 N N V) - E - V) in _ | § \ �| ka ma ! 8 f ; |t 10 01 . < - /# 0 - oi | f 2 !■| wo t _ .- -- _ . _ /�! • ( � ` N / ! \ (0 / ■ 1 ! ! � ! | . ®!�| | } ■ ! _ - 9 | x \ { { i ! c ' ∎ ) k 12 1 \ � !| | | § - — C § � \ / ° R � , .2 < $! |f { ! f ƒ J \ $ k� ! } k 1 | )f / \ ,_ o to a k 1 I � \i i 1 | 2 /2 _ c f � . ■ - - ! f | ! H z - f ] k | | / � }/ �{ ( I I : I | I .0 g | / ! ! 22 f { | 0 0 0 ƒ 8 — j 2 g E |k § ) §§ § / t } ea a 0 0 Exhibit B Supply Procurement Agreement JACOBS-/V' STATEMENT OF LIMITED WARRANTY a A Textron Company LIMITED WARRANTY WARRANTY EXCEPTIONS The Jacobsen Division of Textron Inc. ( "Jacobsen ") warrants that This Limited Warranty is not applicable to Product that: any whole good product or serialized accessory manufactured or sold by Jacobsen other than batteries, engines and tires ( "Product ") • has been subject to misuse, neglect, negligence, or accident; shall be free from defects in material and /or workmanship for the • has been operated or maintained in any way contrary to the time periods set forth below ( "Limited Warranty"). Any Product instructions specified in the Operator's Manual or Service found in the reasonable judgment of Jacobsen to be defective in Manual; material or workmanship shall be repaired or the defective • has not received required maintenance or repair; component replaced, in Jacobsen's sole discretion, by an • has been altered or modified in a manner not approved by authorized Jacobsen dealer or distributor without charge. This Jacobsen, (including the use of aftermarket /retrofit Limited Warranty extends to the original retail purchaser or lessee accessories that adversely affect the Product's operation, only and is not transferable to any subsequent purchasers or performance or durability) or that has been altered or lessees, or applicable to used equipment. modified so as to change its intended use; • is damaged as a result of ordinary wear and tear, or is the LIMITED WARRANTY PERIODS result of consumption through use (unless otherwise found to be defective), including, but not limited to, blades, bedknives, • Products (other than Aeration Products): the earlier of two (2) bearings, reels, tines, caster wheels, belts, brake and clutch years from date of delivery, or two thousand (2,000) hours of linings, spark plugs, hoses, oil, lubricants, or coolant; usage. • is damaged as a result of the use of non - Jacobsen approved • Aeration Products: the earlier of two (2) years from date of replacement parts that cause damage to other parts; delivery, or five hundred (500) hours of usage. • is damaged as a result of weather, exposure to the elements, or lack of reasonable storage practices that can affect the INDIVIDUAL COMPONENT WARRANTIES appearance and durability of exterior components, including but not limited to, seats, paint and plastics; and • is damaged as a result of exposure to unapproved or recycled Batteries, engines and tires sold as part of Jacobsen whole goods coolants, oils, lubricants, additives or other chemicals. are warranted separately by their manufacturers and are not subject to this Limited Warranty. You should carefully review the WARRANTY LIMITATIONS warranty materials provided with your Jacobsen equipment to determine the applicable warranty. Any warranty claims for batteries, engines or tires should be made to that manufacturer at OTHER THAN THIS LIMITED WARRANTY, THERE ARE NO OTHER the contact information provided with your equipment. WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTAB ILITY AND FITNESS FOR A PARTS WARRANTIES PARTICULAR PURPOSE. ALL WARRANTIES OTHER THAN THIS EXPRESS LIMITED WARRANTY ARE SPECIFICALLY DISCLAIMED. JACOBSEN'S OBLIGATION UNDER THIS LIMITED WARRANTY IS Any parts and non - serialized accessories provided to replace STRICTLY AND EXCLUSIVELY LIMITED TO THE REPAIR OR defective parts and non - serialized accessories under this Limited REPLACEMENT OF DEFECTIVE PARTS. JACOBSEN DOES NOT Warranty are themselves warranted for defects in material and ASSUME OR AUTHORIZE ANYONE (INCLUDING ITS AUTHORIZED workmanship for the longer of one hundred and eighty (180) days DEALERS OR DISTRIBTORS) TO ASSUME FOR IT ANY OTHER from the date of installation or the remaining warranty period for OBLIGATION. JACOBSEN SHALL HAVE NO LIABILITY FOR the Product. Parts that are sold separately are subject to their own INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT OR OTHER limited warranty. DAMAGES ARISING OUT OF OR RELATED TO THE USE OF JACOBSEN EQUIPMENT OR BREACH OF WARRANTY, INCLUDING, MAKING A WARRANTY CLAIM BUT NOT LIMITED TO, EXPENSE FOR GASOLINE, TRAILERING OR TOWING CHARGES, RENTAL OR PURCHASE OF REPLACEMENT To make a warranty claim, you must notify an authorized Jacobsen EQUIPMENT WHILE WARRANTY SERVICE 15 BEING PERFORMED, dealer or distributor as soon as a warrantable condition becomes TRAVEL, LODGING, LOSS OR DAMAGE TO PERSONAL PROPERTY, known to you, but not later than the end of the applicable LOSS OF REVENUE, LOSS OF USE OF PRODUCT, OR LOSS OF TIME warranty period. You must provide the dealer or distributor with OR INCONVENIENCE. JACOBS EN RESERVES THE RIGHT TO proof and date of purchase. Warranty repairs performed by other CHANGE OR IMPROVE THE DESIGN OF ANY PRODUCT WITHOUT than authorized Jacobsen dealer s or distributors will not be ASSUMING ANY OBLIGATION TO MODIFY ANY PRODUCT reimbursed and may void this Limited Warranty. Jacobsen makes PREVIOUSLY MANUFACTURED. no warranty for warranty service performed by other than its • authorized dealers and distributors. You should visit your authorized Jacobsen dealer or distributor periodically to ensure proper maintenance and care of your Jacobsen equipment. This Limited Warranty gives you specific legal rights and you may also have other rights which vary from state to state. Some states do not allow the exclusion of incidental damages or limitations on how long an implied warra my may last, so the above excl usions and limitations may not apply to you. Litho in U.S.A. 12 -2010 Part No. 4121330 - Rev A vim THE CITY OF ASPEN MEMORANDUM TO: Mayor and City Council FROM: Chris Everson, Affordable Housing Project Manager THRU: Barry Crook, Assistant City Manager and Scott Miller, Capital Asset Director _ DATE OF MEMO: March 5, 2012 MEETING DATE: March 12, 2011 RE: Burlingame Phase II Access/Infrastructure Construction Contract REQUEST OF COUNCIL: Based on the outcome of March 6, 2012 City Council work session, staff requests approval of the Burlingame Phase II access /infrastructure construction contract. PREVIOUS COUNCIL ACTION: Pending the outcome of the March 6, 2012 City Council work session on Burlingame Phase II presales, staff will either leave this contract on the March 12, 2012 consent agenda if Council decides to move forward with this effort in 2012, or staff will pull this item off the March 12, 2012 consent agenda if Council decides not to move forward with this effort in 2012. BACKGROUND: At the December 6, 2011 City Council work session, staff was directed by Council to: 1) Continue to pursue 60 presales applicant mortgage prequalifications 2) Prepare a "final GMP" contract for Burlingame Phase IIA infrastructure with Haselden Construction as General Contractor 3) In early 2012, Council to provide a final "go or no -go" decision before contracts are signed and infrastructure construction can begin (scheduled for March 6, 2012) DISCUSSION: The Burlingame Phase II access/infrastructure construction contract with Haselden Construction that is presented herein as "Exhibit A" to the existing AIA IPD contract that is already in place with Haselden Construction, which is described by the following documents: 1) AIA Document A295 General Conditions of the Contract for Integrated Project Delivery 2) AIA Document A195 Standard Form of Agreement Between Owner and Contractor for Integrated Project Delivery Together, the AIA A295, A195 and "Exhibit A" contract documents create a comprehensive IPD construction contract for the Guaranteed Maximum Price delivery in 2012 of earthwork, utilities, roadway and retaining facilities as described in the Burlingame Phase IIA access/infrastructure GMP proposal, plan set, specifications, drainage report, construction management plan and other descriptive documents which thoroughly describe the scope of work in detail. Page 1 of 3 Ric THE CITY Of ASPEN Although the contract is designed as a Guaranteed Maximum Price (GMP) contract, the possibility of unforeseen conditions does exist, thus the contract describes a change order process which must be followed in the event that work above and beyond the intended scope of work becomes necessary. Alternatively, there is also a provision in the contract that allows the City of Aspen and Haselden Construction to split any savings on a 50 % -50% basis so there is the potential that the total contract amount could be less than the GMP. The "Exhibit A" contract document was customized from its original AIA form by expert third party contract attorney Janet Lawler McDaniel of Benjamin, Bain, Howard and Cohen LLC and describes detailed procedures that must be followed for subcontractor bidding and gives the City of Aspen a high level of control over the way in which the subcontractor market is treated. Haselden Construction advertised locally, pre-qualified and collected bids from many local subcontractors. The City's owner's agent, Rider Levett Bucknall, reviewed the bid packages as and the bids received. Rider Levett Bucknall has also examined the inclusions, exclusions and itemized costs the in Haselden's GMP and have provided verification in the attached letter. The GMP requires notice to proceed (NTP) by April 2, 2012 and building permits by April 16, 2012. The building permit application has been submitted and is currently under review. Work is anticipated to begin on Monday, April 30, 2012, and the "Exhibit A" contract document states that substantial completion of the work will be completed by November 30, 2012 given the conditions are met. Staff has also budgeted for insurance, other construction and additional work that will be the City's responsibility as the developer. Commitment to proceed with the access/infrastructure construction in 2012 will require that the City perform these additional duties and will necessitate additional contract approvals from Council as we move forward. These are: • Owner controlled insurance policy (OCIP) • Sanitary sewer collection service agreement and tap fees by Aspen San District • Gas supply by SourceGas • Undergrounding overhead electrical lines by Holy Cross • Project management, construction administration, testing, inspection, geotech, etc. Page 2 of 3 r THE CITY OF ASPEN FINANCIAL/BUDGET IMPACTS: The council- approved construction budget for 2012 is $9,140,000. The access/infrastructure GMP from Haselden Construction is $6,422,193. Staff will also be requesting to carry- forward savings from the 2011 IPD design effort in the amount of 51,310,658 to complete that effort (which is ongoing) and to bolster contingencies in 2012. Thus Burlingame Phase II budgets and projected expenditures for 2012 are as follows: 2012 SOURCES 2011 C/F 2012 Budget Total Total Sources $1,310,658 59,140,000 $10,450,658 2012 USES 2011 C/F 2012 Budget Total HeseldenAccess /Infrastructure GMP $6,422,193 $6,422,193 Insurance and Other Const. 5917,100 $917,100 Building Permit Fee $200,000 5200,000 Sewer Tap Fee $600,000 $600,000 Testing, Inspection, Geotech, Survey 5270,000 5270,000 IPD Design / Project Management 5943,506 5943,506 Contingency 5367,152 5730,707 51,097,859 11% Total Uses 51,310,658 59,140,000 510,450,658 *inter-fund Transfer from CoA Utilities Dept. (Credit to Contingency) (5137,056) Net Contingency 51,234,915 12% • For efficiency, some on -site work formerly scheduled for execution by the City of Aspen Utilities Department related to the re -use water line, auxiliary water supply and electric express feeder has been added to Haselden Construction's scope of work in the access/infrastructure GMP contract. This expenditure was not anticipated in the 2012 budget request for Burlingame Phase II, but the project's contingency can temporarily absorb the expenditure until this can be repaid to the Housing Development Fund by the Utilities Department, which is shown in the table above as a credit to the project contingency. The budget and expense infonnation provided above fits within the Burlingame Phase II long range estimate that was communicated to City Council on December 6, 2011. RECOMMENDED ACTION: 1) Staff recommends approval of the AIA Document A195 "Exhibit A" Burlingame Phase IIA access /infrastructure construction contract with Haselden Construction CITY MANAGER COMMENTS: ��/J�_� le,r ,. ' f (.410-illfa r' o_' ..1 / r_ v'. - ` L_!/r'i�!�J.4 / , _ _ ?n. ATTACHMENTS: Exhibit A: AIA Document A195 "Exhibit A" — Burlingame Phase IIA access/infrastructure construction contract with Haselden Construction Exhibit B: GMP Verification Letter from Owner's Agent, Rider Levett Bucknall Page 3 of 3 RESOLUTION # K� (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND HASELDEN CONSTRUCTION LLC FOR BURLINGAME PHASE II ACCESS INFRASTRUCTURE CONSTRUCTION AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for, between the City of Aspen and Haselden Construction LLC, a true and accurate copy of which is attached hereto as Exhibit "A "; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for Burlingame Phase II access infrastructure construction, between the City of Aspen and Haselden Construction LLC a copy of which is annexed hereto and incorporated herein, and does hereby authorize the 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 12 day of March 2012. 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, March 12, 2012. Kathryn S. Koch, City Clerk _ . SAIA Document A195Th - 2008 Exhibit A Guaranteed Maximum Price Amendment This Exhibit is incorporated into the accompanying Agreement dated the 22nd day of March in the year 2009. for Red following PROJECT: ADDRWNS AND DELETIONS: The mbar of this document has B urlingame Ranch Phase II added IntarmSion needed for b B Burlingame Colorado n completion. The author may So have revised the tare d the original standard AIA orm. An Additions and ARTICLE A.1 Deletions § &1.1 PHASE IA GUARANTEED MAXIMUM PRICE —CML MFRASTRUCTURE hdamdton n well as revisions to the Pursuant to Section 4.2.2 of the Agreement, the Owner and Contractor hereby amend the steward form text is canards tram Agreement to establish a Guaranteed Maximum Price (Navin for Phase IIA — Civil the author and should be reviewed. A Infrastmcture. As agreed by the Owner and Contractor, the Guaranteed Maximum Price is verges tine In the left margin d this an amount that the Contract Sum shall not exceed. The Contract Sum consists of the document Indicates ware the author Contractor's Fee plus the Cost of the Work, as that tam is defined in Article A.3 of this has added necessary information Amendment and where the author has added to or delisted from the original MA teat. § A.1.1.1 The Contract Sian is guaranteed by the Contractor not to exceed Six Million, This down ent hes bnpariant legal Four Hundred Twenty -Two Thousand One Hundred Ninety -Three Dollars consequences. Consultation with an ($6,422,193.00), subject to additions and deductions by Change Order as provided in the homey is encouraged vas respect Contract Documents. to tts completion or modification. The amount by which the sum of the (1) actual Cost of the Work, plus (ii) the Contractor's TS document le not intended for Fee, is less than the Guaranteed Maximum Price ( "Savings ") shall be shared between the use In compenawe bidding. Owner and Contractor. The sharing ratio shall be fifty percent (50%) to the Owner and ALA Document A295" -2006, fifty percent (50%) to the Contactor. The Contractor's portion of the Savings shall be paid Gann condition d tiro Agreement at the time of the Final Payment, as provided for in the Agreement. fa Integrated Project Delivery, is adopted in this document by § A.1.1.1.2 Contractor's Fed: The Contractor's Fee for Work performed after the reference. Do not use with other establishment of the GMP will be 3% of the Cost of the Work, excluding Contractor's general =rations tunas this Contingency. If subsequent Phases of Work are awarded at a later time by amendment of document Is modified. the Agreement, the Contractor's Fee will remain at 3% for Work performed through the end of 2015, only with a Notice to Proceed issued in 2014. § A.1.1.1.3 The Contract Sum identified in Section A.1.1.1 above includes within it an amount for General Conditions which is subject to additions and deductions by Change Order as provided in the Contract Documents. General Conditions will be billed at actual costs. Contractor must not move Work from General Conditions to subcontract trades or self- performed work without a signed Change Order. § A.1.1.2 ITEMIZED STATEMENT OF THE GUARANTEED MAXIMUM PRICE Provided below is an itemized statement of the Guaranteed Maximum Price organized by trade categories, allowances, contingencies, General Conditions, the Contractor's Fee, and other items that comprise the Guaranteed Maximum Price. See Exhibit 1, attached. § A.1.1.3 The Guaranteed Maximum Price is based on the 95% Implementation 9 Documents identified below, with an adjustment to incorporate the 100% Implementation " Documents, which include all the Work required for the GMP with Alternates 1 through NA Docuewnt A155" — 2005 Webb A Copyright O 2008 by The American institute of Arc hecta. MI rights reserved. WARNING: This Alt Document N MIL tent b U3. Cotrytight taw and rtsnrlsn& Demist Unauthorised npmdueNon or dterbuaen of Alt Document or any portion of n, may 1 roue In seven civil and criminal pennies, end vial be prosecuted to the maximum eabnt possible under the low. This documsnl was produced by MA I software al 17:04:14 on 03102/2012 under Order No2095813965_1 which sapiros on 04111/2012, and Is not for resale. User Nobs: (1817079388) included in the GMP price. Upon further review of Alternates 1 through 11 the Owner may deduct one or more Alternates by Change Order at the price listed below under Alternates § A.1.1.3.1 The Contractor's GMP includes a 2% Contractor's Contingency for the Contractor's exclusive use to cover costs defined in this Section A.1.1.3 to cover costs to expedite the schedule for non - excusable delays, and other unanticipated costs which are properly considered reimbursable as a Cost of the Work but do not form the basis for a Change Order as a result of changes in the scope of the Work. No Fee is added to the Contractor's Contingency at the time the GMP is prepared. § A.1.1.3.2 The Contractor shall report and reconcile the Contractor's Contingency to the Owner on a monthly basis. Contractor's Contingency will be allocated to specific line items in the Estimate through the use of a Change Order signed by the Owner and Contractor, including a description of the items covered by the Contractor's Contingency. A Fee of 3% will be added to the Change Order on the contingency amount at the time the contingency is allocated to individual lime items. The allocation of the contingency will not increase the GMP, however the Fee on the contingency amount will increase the GMP. § A.1.1.3.3 The Owner shall not unreasonably withhold approval of a Change Order to utilize the Contractor's Contingency so long as (a) the contingency amount does not exceed the GMP, (b) the Contractor utilizes the Contractor's Contingency for items required for the Project that are otherwise recoverable as Costs of the Work under the Contract Documents, or (c) the Contractor's Contingency is used for items outlined in clauses (1) through (3) below: .1 Scope of the Work that is unclear, incomplete or conflicting m the Contract Documents but which is Work consistent with the Contract Documents and reasonably inferable as being necessary to produce the intended results. .2 Additional resources necessary to recover lost time for non- excused delays. If overtime is required to maintain the schedule, the Contractor shall obtain the Owner's prior written approval before moving forward with such overtime. .3 Delays caused by market, labor, material or transportation conditions, labor disputes, weather or other causes which are costs of the Work but do not justify an increase in the GMP. §A.1.13.4 The Contractor's Contingency is not available for use by the Contractor for mistakes that result from Self- Performed Work secured through competitive bidding, mistakes of subcontractors or vendors, subcontractor's warranty work, or manufacturer's warranty work. § &1.1.3.$ The Contractor's Contingency is not available for use by the Owner for allowance ovemms, changes in the Scope of Work, differing or changed site conditions, or design errors. § A.1.1.3.6 At Final Completion of the Project, any Contractor's Contingency remaining in the Final GMP will be returned 50% to the Owner and 50% to the Contractor. § A.1.1.4 Allowances and Alternates included in the Guaranteed Maximum Price, if any. See Exhibit 2, attached. (Table deleted) § A.1.1.5 Contractor's assumptions and clarifications will not be allowed to modify the terms of the Agreement Contractor's Assumptions and Clarifications regarding the Scope of Work, if any, on which the Guaranteed Maxnnum Price is based: See Exhibit 3, attached. § A.1.1.6 To the extent that the GMP Documents require further development by the Architect and Contractor, the Contractor has provided in the Guaranteed Maximum Price for such further development consistent with the GMP Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality ofmaterials, finishes or equipment, all of which, if required, shall be incorporated by Change Order. Inlf. MA Document *19S' — 2008 Exhibit A. Copyright 0 2008 by The American Institute of Architects. AN rights maned. WARNING: This AIA Document is protected severe clyllaand wlmh.al penalties, and will Trestles. prwseuted to Ou maximum extant w psari under the Is. Tits document was produced byAIA 2 result soflwars et 17:04:14 on 03102!2012 under Order No.2898813985_1 which expires on 04/1192012, and is not for resale. User Nobs: (1817079388) A.1.1.7 The Guaranteed Maximum Price is based upon the AIA Document A295 -2008 General Conditions of the Contract for Integrated Project Delivery, as modified, attached to the AIA A195 -2008 Agreement dated March 22, 2009. (Table deleted) 5 A.1.1.S The Guaranteed Maximum Price is based upon the following Spccifications: See Exhibit 5, attached. (Table deleted) A.1.1.9 The Guaranteed Maximum Price is based upon the following Implementation Documents: See Exhibit 5, attached. (Row deleted) ARTICLE A.2 I A.2.1 So long as the Notice to Proceed is received by April 2, 2012, and the required building permits are received by April 16, 2012, then the anticipated date of Substantial Completion for Phase IIA — 2012 Civil Infrastructure established by this Amendment is: November 30, 2012. Refer to Exhibit 6 Schedule. (Table deleted) (Paragraph deleted) ARTICLE A.3 A.3.1 COST OF THE WORK S A.3.1.1 The term Cost of the Work shall mean actual costs necessarily incurred by the Contractor in the proper performance of the Work. Such costs shall be at rates not higher than the standard paid at the place of the Project except with prior consent of the Owns. Owner and Contractor hereby agree that actual, agreed upon costs for Burdened Hourly Wage rates, equipment rates, insurance premiums and SubGuard are the stipulated, fixed rates set forth on Exhibit 4, and such rates are not subject to further audit or adjustment. The Cost of the Work shall include only the items set forth in this Section A.3.1. A.3.1.2 Where any cost is subject to the Owner's prior approval, the Contractor shall obtain this approval prior to incurring the cost. The parties shall endeavor to identify any such costs prig to executing this Agreement. A.3.1.3 LABOR COSTS A.3.1.3.1 Wages of Contractor's Own Forces or Own Personnel, which are defined as construction workers directly employed by the Contractor to perform the construction of the Work at the site or, with the Owna's prior approval, at off -site workshops. Overtime for non- exempt employees may be charged at 1.5 times the Burdened Hourly Rates identified in Exhibit 4. f A.3.1.3.2 Wages or salaries of the Contractor's supervisory and administrative persomel when stationed at the site with the Owner's prior approval, based on actual hours devoted to the Project. Salaried, exempt employees of Contractor will not be paid an overtime premium, and will not charge the PrMect for more than 40 hours in any week. Wages or salaries of officers of the company, Project Executives, Construction Executives, Senior Project Executives or above will not be reimbursed wider any circumstances. Contractor's approved supervisory and administrative personnel for Phase HA - 2012 Civil Infrastructure include a Superintendent, a Project Manager, and a Project Engines at the rates identified in Exhibit 4. These rates must not include allocation for subsistence, per diems, housing, ravel, vehicle allowances, gas, merit pay, incentive pay, profit sharing or bonuses. Person Included Status (hdl4lmalpart - dme) Rate ($0.00) Rate (unit of lima) Project Manager Part Time See Exhibit 4 Hour Project Superintendent Full Time See Exhibit 4 Hour Project Engineer Full Time See Exhibit 4 Hour f A3.1.3.3 Wages and salaries of the Contractor's supervisory or administrative personnel engaged at factories, workshops or on the road, in expediting the production a transportation of materials or equipment required for the MA Document A196° —2006 Exhibit A. Copyright O 2008 by The American Institute of Arcbltw4. N Agile meened. WARNING: This AIA Downrnt is Mit. protected by U1 Copyright law and International Tnatlse. Unauthorized reproduction or dieb6Wan 01O de Mt Document, or any portion of 14 may S mutt is Bevan *M the =Ow l and criminal penalties, and will be prosecuted to r maximum extent potable de the law. This document was produced by AIA software al 17:04:14 on 031072012 under Order No. 2898013985_1 wNdh expires on 04/112012, end is not 10' resell. Uar Notes: (1817079388) Work, but only for that portion of their time required for the Work and devoted to the Project. Salaried, exempt employees of Contractor will not be paid an overtire premium, and will not charge the Project for more than 40 hours in any week. § A.3.1.3.3.4 Contractor's project personnel stationed at the Contractor's principal office or offices other than the site office, will not be charged to this Project without the Owner's prior written approval. With the Owner's prior approval, such personnel will be paid based on actual hours devoted to the Project at the rates listed in the approved Burdened Hourly Rates schedule in Exhibit ith the Owner's prior approval, reasonable travel and temporary living expenses are allowed for such employees. Salaried, exempt employees of Contractor will not be paid an overtime premium, and will not charge the Proj for more than 40 hours in any week. Wages or salaries of officers of the company, Project Executives, Cons Executives, Senior Project Executives or above will not be reimbursed under any circumstances. (59P for § A.3.1.3.4 Costs paid or incurred by the Contractor ftaxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Sections A3.1.3.1 through A.3.1.3.3 are included in the Burdened Hourly Rates identified on Exhibit 1, attached hereto, and will not be paid in addition to the Burdened Hourly Rates. eib9i ni 4 A.3.1.3.5 Intentionally deleted. § A.3.1.4 SUBCONTRACT COSTS Payments made by the Contractor to any Subcontractors in accordance with the requirements of the subcontracts on the Project will be considered a Cost of the Work and the Contractor will be entitled to no more than a 3% fee on Subcontract costs. § A3.1.5 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION § A.3.1.5.1 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction. § A.3.1.5.2 Costs of materials described in the preceding Section A.3.1.5.1 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the Owner's property at the completion of the Work or, at the Owner's option, shall be sold by the Contractor. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work. § A.3.1.6 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACIUTIES AND RELATED ITEMS § A.3.1.6.1 Costs of transportation, storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are provided by the Contractor at the site and fully consumed in the performance of the Work. Costs of materials, supplies, temporary facilities, machinery, equipment and tools that are not fully consumed shall be based on the cost or value of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project site. Costs for items not fully consumed by the Contractor shall mean fair market value. § A.3.1.62 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are provided by the Contractor at the site and costs of transportation, installation, mina repairs, dismantling and removal. The total rental cost of any Contractor-owned item may not exceed the purchase price of any comparable item. Rates of Contractor -owned equipment and quantities of equipment shall be subject to the Owner's prior approval. § A.3.1.6.3 Costs of removal of debris from the site of the Work and its proper and legal disposal. § A.3.1.8.4 Costs of document reproductions, facsimile transmissions and long- distance telephone calls, postage and parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office. 4 A.3.1.6.5 Costs of materials and equipment suitably stored off the site at a mutually acceptable and insured location, subject to the Owner's prior approval. NA Document Mahn — 200* Ezhtll A. Copyright 0 2038 by rho American Institute 0f Architects. MI rights reserved. WARNING: This Alt Dacumsa Is loll. pod b U.S. Copyright pro and lntsm tlenal Trestles. Unauthorized mproduellon or distribution of this MA Document, as any portion of a, may 4 mull In seven civil and criminal penalties, and will be pm te eecuted to e maximum extant pomade undertM law. This document was produced byAIA t software at 17:04:14 on 03/0212012 undo order No.2898613985_1 wNch expires on 04/11/2012, and is not by resale. User Notes: (1817079306) 4 A.3.1.7 MISCELLANEOUS COSTS A.3.1.7.1 Premiums for that portion of insurance and bonds, at actual cost, required by the OMP Documents that can be directly attributed to thia Contract Estimates of the Guaranteed Maximum Price may be based on percentages, however payment to the Contractor will be based on actual cost. S A.3.1.7.2 Sales, use or similar taxes imposed by a governmental authority that are related to the Work and for which the Contractor is liable and which are not exempt under the City's Tax Exemption. 4 A.3.1.7.3 Fees and assessments for the building pemtit and for other permits, licenses and inspections for which the Contractor is required by the GMP Documents to pay. 4 &3.1.7.4 Fees of laboratories for tests required by the GMP Documents, except those related to defective or nonconforming Work for which reimbursement is excluded by Section 12.4.3 of AIA Document A295 -2008 or by other provisions of the GMP Documents, and which do not fall within the scope of Section A.3.1.8.3. 4 A.3.1.7.5 Royalties and license fees paid for the use of a particular design, process or product required by the GMP Documents; the cost of defending suits or claims for infringement of patent rights arising from such requirement of the GMP Documents; and payments made in accordance with legal judgments against the Contractor resulting from such suits or claims and payments of settlements made with the Owner's consent. However, such costs of legal defenses, judgments and settlements shall not be included in the calculation of the Contractor's Fee or subject to the Guaranteed Maximum Price. If such royalties, fees and costs are excluded by the last sentence of Section 9.17 of A295rrl_2008 or other provisions of the GMP Documents, then they shall not be included in the Cost of the Work. 5 A.3.1.7.6 Costs for electronic equipment, cell phones, computers and software, office &mimre and office equipment directly related to the Work with the Owner's prior approval. The total rental cost of any rental item, excluding the cost of insurance, repairs and maintenance, whether a Contractor-owned item or otherwise, may not exceed the purchase price of any comparable item. Contractor shag provide Owner with an equipment management plan which identifies the following: .1 All equipment to be used on the Project; and .2 Competitive market rental rates for the equipment, including whether the equipment can be ratted on an hourly, weekly or monthly basis; and .3 A recommendation regarding whether it is in the Owner's best interest to purchase the equipment outright or to rent the equipment; and .4 Which equipment may be provided by the Contractor, at rates not to exceed the competitive market rates. Items purchased for the Project as a direct cost charged to the Project belong to the Owner. 4 A.3.1.7.6.1 Equipment including, but not limited to, electronic equipment, machinery, cell phones, computers and software, office furniture, supplies and office equipment purchased and charged to the Project as a Cost of the Work shall become the property of the Owner. The Owner may require Contractor to turn these items over to the Owner at the end of the Project. Any lease/purthase rental arrangements must be disclosed to the Owner. If the Contractor purchases equipment under a lease /purchase arrangement whereby rental payments are charged to Owner as a Cost of the Work, an appropriate credit shall be given to the Owner for the fair market value of the equipment at the time it was last used on the Project. For Contractor-owned equipment, the Contractor shall maintain daily equipment usage reports. The Owner shall not be charged for equipment which is stored on the job site but not in regular use. The equipment use reports shall be used by the Contractor to determine the most economical billing rate (hourly, weekly, tnanthly) to the Owner. 3 A.3.1.7.7 Deposits lost for causes other than the Contractor's negligence or failure to fulfill a specific responsibility in the GMP Docwrmts. * A.3.1.7.8 mediation and arbitration costs, including attorneys' fees, other than those arising from disputes between the Owner and Contractor, and other than those related to claims filed by subcontractors or material suppliers for non- payment on the Project, reasonably incurred by the Contractor after the execution of this Agreement in the performance of the Work and with the Owner's prior approval, which shall not be unreasonably withheld. MA Document Ata6'l' —2005 Exhba A. CopyrIpht 0 2008 by The Mohan Institute of Architects. M dabs rammed. WARNING: This AlA Document le ink pntseted by U.S. CopyrbM law end Intemblonal Trebles. UnwMrtsed reptadudlon or distribution at this MA Document, or any portion of It, may 5 result In seven aM and airdnr penallss, end MN bs prosecuted to are minimum extent possible undrthe Iw. This document was produced by AN 1 software at 17:04:14 on 03/0212012 under Order No211015613965 which aspires an 01/11/2012, and is red for resale. User Notes: (181707936B) § A3.1.7.9 Subject to the Owner's prior approval, temporary living and subsistence expenses approved by Owner incurred for the Contractor's personnel identified in A.3.1.3.2 above and required for the Work on this Project. Meals will not considered temporary living expenses and will not be reimbursed. The Owner reserves the right to approve accommodations for Contractor's personnel in advance, and to find diem alternate accommodations in the event that the Owner does not approve of their proposed accommodations. § A.3.1.7.10 That portion of the reasonable expenses of the Contractor's supervisory or administrative personnel identified in A.3.1.3.2 above, incurred while traveling in discharge of duties connected with the performance of the Work on this Project, at the rates on Exhibit 1 which have been approved by the Owner in writing. Travel expenses of officers of the company, Project Executives, Construction Executives, Senior Project Executives or above will not be reimbursed under any circumstances. § A.3.1.7.11 General Conditions will be paid monthly, on the basis of actual costs incurred, but only when supported by evidence satisfactory to the Owner. § A3.1.8 OTHER COSTS AND EIMERGENCES § A.3.1.8.1 Other costs incurred in the performance of the Work if, and to the extent, approved in advance in writing by the Owner. § A.3.112 Costs incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section 9.24A of A295 -2008. § A.3.1.8.3 Costs of repairing or correcting damaged Work executed by the Contractor, Subcontractors or supplias, provided that such damaged Work was not caused by negligence, failure to conform to the Contract Documents, or failure to fulfill a specific responsibility of the Contracts and only to the extent that the cost of repair or correction is not recovered by the Contractor from insurance, sureties, Subcontractors, supplies, or others. 3 A.3.1.9 RELATED PARTY TRANSACTIONS § A.3.1A.1 For purposes of this Section A.3.1.9, the tam "related party" shall mean a parent, subsidiary, affiliate or other entity having common ownership or management with the Contractor; any entity in which any stockholder in, or management employee of the Contractor owns any intaest in excess of ten percent in the aggregate; a any person a entity which has the right to control the business or affairs of the Contractor. The tam "related party" includes any member of the immediate family of any person identified above. § A.3.1.92 If any of the costs to be reimbursed arise from a transaction between the Contractor and a related party, the Contractor shall notify the Owner of the specific nature of the contemplated transaction, including the identity of the related party and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If the Owner, after such notification, authorizes the proposed transaction, then the cost incurred shall be included as a cost to be reimbursed, and the Contractor shall procure the Work, equipment, goods or service from the related party, as a Subcontractor, according to the tams of Section A.3A. If the (Tuna fails to authorize the transaction, the Contractor shall procure the Work, equipment, goods or service from some person or entity other than a related party according to the terns of Section A.3.4. § &3.1.8.3 SsN- PeAarnted Work: The Contractor will be allowed to bid on self - performed Work on the Project undo the following conditions: 1. The Contractor may provide a bid on any portion of the Work (the "Self Performed Work ") that the Contractor requests to perform, subject to the terms and conditions set forth in this Section A.3.1.9.3. Contractor must disclose to the Owner the subcontractor bid tabulation results for all subcontracted Work, including Self Performed Work. Contractor shall prequalify all subcontractors for all subcontracted work including the Self Performed Work, and must disclose the prequalification results to the Owner. The prequalification process for subcontractors involves the Contractor's evaluation and detain nation that the subcontractors have the experience, financial strength, safety record and staffing sufficient to perform the work within the scheduled time. The prequahfication process for Self Performed Work involves the Owner's evaluation and determination that the Contractor has the appropriate experience, qualifications and AIA - 2008 Exhibit A. Copyright O 2008 by The American Institute of Architects. cts. M rights reserved. WARNING: This Ale DOMI is 1 " 1 " Dooms* protected by U.S. Copyright Law and YMmsaonal Tinges. Unauthorized reproduction err distribution of this AIA' Deraanen4 or any portion of N, may qua In seven civil and criminal penal Nn, and will be prosecuted to the madmun extent possbl under the law. This document was produced by AIA software at 1794:14 on 03/02/2012 under Order No.2898813985_1 which eml rem on 04111/2012. and Is not for resale User Notes: (1811079368) competence for the Bid Package. Contractor shall list in die bid tabulation results any firm it proposes to use as a sub - subcontractor. Contractor may not utilize any firm as a sub - subcontractor if such firm could have successfully prequalified to bid the Self Performed Work. If the Owner approves the award of Self Performed Work to the Contractor, then such Work shall be performed for the Contractor's bid amount on the basis of a Stipulated Lump Sum, and shall not be subject to further audit or adjustment. Owner agrees that Contractor's own forces, for Self Performed Work which complies with this Section A.3.1.9.3, shall be defined to include Contractor's own employees, material suppliers and sub - subcontractors involved in the Self Performed Work. 2. At least 30 days prior to soliciting bids from the subcontracting community, the Contractor shall submit its proposed Bid Packages to the Owns for review and approval including a detailed, line item list of the scope of work proposed by the Contractor to be included in each Bid Package, accompanied by a list of subcontractors from whom the Contractor intends to request bids. If Contractor intends to request approval from the Owner to submit a bid for Self Performed Work, then the Contractor must be listed on the proposed list of bidders. The Owner will review the Bid Packages and Bid Lists proposed by the Contractor within 14 days and notify the Contractor of any revisions required to be made to the Bid Packages or any proposed bidders to whom the Owner has an objection. The Contractor shall revise the Bid Packages and Bid Lists accordingly. 3. The Contractor must obtain the Owner's written consent in advance of submitting a bid to self - perform any Work on the Project. The Owner may request information and references from the Contractor to determine Contractor's experience, qualifications and competence to perform the scope of work. Bid tab review and award for trade packages involving Self Performed Work will be subject to Owner review and approval of award in conjunction with the Contractor. 4. The Contractor must not move Work included in the General Conditions to subcontractor Bid Packages or Self Performed Work. S. If approved in advance to submit a competitive bid, the Contractor must obtain a minimum of three odic competitive bids for the same scope of work. If there are less than four competitive bids received on the scope of work (Contractor plus 3 others), then the Owner will not approve the Contractor's self- performed bid and the Contractor must proceed to perform the Work under the Contract in accordance with A.3.1.93.7 below. 6. Contractor shall submit its competitive sealed bid to the Owner at least 24 hours in advance of the published bid opening date. 7. For all work perfumed by the Contractor on a non- competitive basis, defined as less than four competitive bids received on the scope of work, then the Contractor will be compensated on the basis of the Cost of the Work plus a 3% fee in its role as the General Contractor using the same overhead, general conditions and supervisory and administrative staff identified in the General Conditions for the Project as a whole. 8. For Self perfumed Work when items 1 through 7 above have been satisfied, the Contracts may utilize any fee deemed appropriate to form put of Contractor's competitively submitted bid for such Self Performed Work (the "Self - Perform Fee "). The Self Performed Work Fee is separate and distinct from the Contractor's Fee defined in Subparagraph A1.1.1.2. Contractor shall furnish the Owner with sufficient information regarding the scope and all inclusions/exclusions in the bid so Owner can confirm the scope is consistent with the Bid Packages approved in item 2 above, and to the other submitted bids. 9. Contractor's fee will be no more than 3% of the Cost of the Work, including but not limited to Self Perfomied Work, work performed by the Contractor's own forces, employees or personnel, materials purchased or AIA Document Mar" — 2008 Exhibit A. Copyright(' 2006 by The American institute of Ardxlects. All rights nesrnd. WAWedG: This AlA Document Is toll prWe1W by U.S. Copyright taw and international Trestles. Unauthorised reproduction or dlstdbunon &this Alt Documents or say portion or N, may 7 result In seven civil and criminal penalties. and will be plesesuted to the maximum extent preamble under are law. This document was produced by NA software at 17:0414 on 03/022012 under Order No2898813085_1 wNch metes an 04/1112012, and Is not Ice resale. User Notes: (1817079308) equipment rented in the role as General Contractor, General Conditions, and all Work performed by Subcontractors. § A.3.2COSTS NOT INCLUDED IN THE COST OF THE WORK § A.3.2.1 The Cost of the Work shall not include the items listed below: .1 Salaries and other compensation of the Contractor's personnel stationed at the Contractor's principal office or offices other than the site office, of officers of the company, Project Executives, Construction Executives, Senior Project Executives or above, except as specifically provided in Section A.3.1.3. or as may otherwise be provided; .2 Expenses of the Contractor's principal office and offices other than the site office; .3 Entertainment, business development meals, meals delivered to the job site, or similar expenses; .3 Overhead and general expenses, except as may be expressly included in Section A.3.1; .4 The Contractor's capital expenses, including interest on the Contractor's capital employed for the Work; .5 Except as provided in Section A.3.1.8.3 of this Agreement, costs to correct defective, non - conforming work, or work damaged due to the negligence or failure of the Contractor for self - performed work awarded on a competitive basis, Subcontractors and suppliers or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable to fulfill a specific responsibility of the Contract; .6 Any cost not specifically and expressly described in Section A.3.1; .7 Costs, other than costs included in Change Orders approved by the Owner, that would cause the Guaranteed Maximum Price to be exceeded; .8 Bonuses, profit sharing, incentive compensation and any other discretionary payments paid to anyone hired by the Contractor or paid to any Subcontractor or vendor, without the Owner's prior approval; and .9 Travel expenses of any kind, including aviation related expenses, of officers of the company, Project Executives, Construction Executives, Senior Project Executives or above. § A.3.3 DISCOUNTS, REBATES AND REFUNDS § A.3.3.1 Cash discounts obtained on payments made by the Contractor shall accrue to the Owner if (1) before making the payment, the Contractor included them in an Application for Payment and received payment from the Owner, or (2) the Owna has deposited funds with the Contractor with which to make payments; otherwise, cash discounts shall accrue to the Contractor. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they can be obtained. § A.3.3.2 Amounts that accrue to the Owner in accordance with the provisions of Section A.3.3.1 shall be credited to the Owner as a deduction from the Cost of the Work § A.3.4 SUBCONTRACTS AND OTHER AGREEMENTS § A.3.4.1 Those portions of the Work that the Contractor does not customarily perform wit the Contractor's own forces, defined as the Contractor's own personnel or employees, shall be performed under subcontracts or purchase agreements with the Contractor. There will be no distinction made for different subcontract or supplier tins other than for Self Performed Work defined in Section A.3.1.9.3. The Owner may designate specific persons from whom, or entities from which, the Contractor shall obtain bids. The Contractor shall obtain bids from Subcontractors and from supplies of materials or equipment fabricated especially for the Work and shall deliver such bids to the other Project Participants. The Project Participants shall then determine which bids will be accepted The Contractor shall not be required to contract with anyone to whom the Contractor has reasonable objection. § A.3.4.2 When a specific bidder (1) is recommended to the Owner by the Contractor; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid tat conforms to the requirements of the GMP Documents without reservations or exceptions, but the Owner requires that another bid be accepted, after the GMP has been established, then the Contractor may require that a Change Order be issued to adjust the Guaranteed Maximum Price by the difference between the bid of the person a entity recommended to the Owner by the Contractor and the amount of the subcontract or other agreement actually signed with the person or entity designated by the Owner. § A.3.4.3 Subcontracts, purchase orders or other agreements shall conform to the applicable payment provisions of this Agrcement, and shall not be awarded on the basis of cost plus a fee without a guaranteed maximum price or lump sum AIA Document A198" — 2008 Ealrblt A. Copyedit 02008 by Ths American Stitule of Architects. All rights roomed. WARNING: Tits AIA Document I. unit. probated by US. Copyright law and International Rutin. Unauthorized reproduction or distribution of this AIA Document. or any portion of It, may S result In severs *11 and criminal pendtles, and will be prosecuted to the me:,e lmn extent possible under the law. Thls document was produced byAlA ) software at 17:04:14 on 03102/2012 under Order No.2808813988_1 wNeh expires on 04/112012. end Is not for made. User Notes: (1817079388) price. If a Subcontract or purchase ceder is awarded on the basis of the cost -plus a fee with a guaranteed maximum price, the Contractor shall provide in the Subcontract or purchase order for the Owner to receive the same audit rights with regard to the Subcontractor or supplier as the Owner receives with regard to the Contractor in Section A.3.5, below. § A.3.5 ACCOUNIINC RECORDS The Contractor shall keep full and detailed records and accounts related to the cost of the Work and exercise such controls as may be necessary for proper financial management under this Contract and to substantiate all costs incurred. The accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's auditors shall, during regular business hours and on at least a monthly basis, upon reasonable notice, be afforded access to, and shall be permitted to audit and copy, the Contractor's records and accounts, including complete documentation supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Subcontractor's proposals, purchase orders, vouchers, memoranda and other data relating to this Contract. The Contracta shall preserve these records for a period of three years after final payment, or for such longer period as may be required by law. ARTICLE 4 MISCELLANOUS PROVISIONS § A4.1 The Owner's program fix the Project described in Section 1.2.1 of the AIA A295 -2008 has been revised, as follows: Burlingame. Ranch Phase II will be constructed in multiple Phases over period of several years. Construction of Civil Infrastructure is anticipated in 2012. Construction of Buildings 1 and 3 are anticipated in 2012. Construction of Buildings 2, 4, and 5 are anticipated in 2014. Construction of Buildings 6 and 7 are anticipated in 2015. Award by the Owner to the Contractor of any particular Phase will not be construed to be a guarantee of award of subsequent Phases. Owner reserves the right to terminate the Agreement for the Owner's convenience, as well as the right to competitively bid subsequent Phases. Contractor shall provide budgetary pricing for the Phases subsequent to the Civil Infrastructure Phase based on the 95% Implementation Documents drawings and specifications dated February 15, 2012. The budgetary pricing will commence after the GMP for the Civil Infrastructure Phase has ban approved by Owner, and be completed by June 1, 2012. Owner hereby agrees that effective hone 1, 2012, or at the date of submission by the Contractor of subsequent phase budgetary pricing, whichever occurs late, the Preconstru tion Saviors and Implementation Documnena Phase Services as defined in the Agreement shall be completed. The tams for performance for any additional praunstruction services after such date shall be mutually agreed upon between Owner and Contractor. § A4.2 Sections 7.1.5.1 and 7.2.4.1.1 in the A195 -2008 Agreement are deleted and replaced with the following provision: § 7.24.1.1 Notwithstanding the above, in the event the City Council for the City of Aspen does not approve the Guaranteed Maximum Price for Phase IIA, Civil Infrastructure, or any subsequent Phase of the Work, this Agreement will be terminated for the Owner's convenience and no subsequent Suspension or Tamination Expenses or fees will be due or will accrue from the Owner to the Contractor after such termination. Approval of the Guaranteed Maximum Price for Phase UA, or any subsequent Phase, by City Council creates no obligation on the part of the Owner to approve subsequent Amendments to the Agreement for subsequent Phases of the Work § A4.E Interest on amounts ultimately determined to be due to a contractor or the City shall be payable at the statutory rate applicable to judgments from the date the claim arose through the date of decision or judgment, whichever is later. Aspen Municipal Code Sec. 4.16.070. Interest. § A.4.4 Sections 11.1.10 and 11.3.1.3 of the AIA A295 -2008 are deleted and replaced with the following: 411.1.10 Deductible: The Contractor shall pay any amounts not covered because of a deductible under the OCIP general liability policy up to $10,000 per claim. § 11.3.1.3 If the property insurance requires deductibles, the Contractor shall pay costs not covered because of such deductibles up to $10,000 per claim. Ink AU Document Ataa"' - 200a WWI A. Copydpht0 21x18 by The American Institute of Archaises. All rights mead. WARNING: This me Document le protected by U.S. Copyright Law and bdsnsasnal Weeds. Unauthorized rspndudlen or distribution or Ns A1A Document, or any portion of ft, may g ma In aware all and criminal peulase, mid a be prosecuted to the mar mum salent possible undsr the kw. TTIs document we produced by AIA / software at 17:0414 on 03102/2012 under Order No.2898613988 t which expires on 04/112012, and Is not for male. Uw Nose: (1817079368) This Agreement entered into as of the day and year first written above. CITY OF ASPEN HASELDEN CONS ' UCTION, LL By: � - OWNER (Signature) 'T 6 :! , tune) Michael C. Ireland, Mayor Haselden, President 1 (Row deleted) ALA Document A195m —2008 Exhibit A CopydgM 02008 by The American Institute of Architects. All dgMs reserved. WARNING: This AIA Document Is snit protected by US. Copyright Law and IntsnretIonel Tisanes. Uneuthorhsd reproduction or distribution of this NA Document, or any portion of it, may 10 result In severe civil and criminal psnalNss, and will be prosecuted to tM maximum extent possible under the law. This document was produced byAIA software at 1741:14 on 03/022012 under Order No. 2898013908_1 which expires on 04/11/2012, and Is not for resale. User Nobs: (1817079388) xfOrr 1 '/tt • • HASELDEN — fiu^P `Otkctst ,, CONSTRUCTION r er.A a O. March 1, 2012 C s ki ea'' `'.1 J Chris Everson Affordable Housing Project Manager City of Aspen 130 South Galena Street Aspen, CO 81611 Regarding: Burlingame Phase II 2012 Access and Infrastructure Guaranteed Maximum Price Dear Chris, We are pleased to submit for your review 2012 Access and Infrastructure Guaranteed Maximum Price for Burlingame Ranch Phase II to provide all necessary labor, materials, and equipment to construct the project. Our Proposal is as follows: Site Cost $5,048,350 General Conditions $392,277 Contingencies $208,813 Insurance, Fees, Bond $238,930 Alternates 1 -11 - Accepted $533,823 TOTAL ESTIMATED CONSTRUCTION COST 56,422,193 (See attached summary sheet for additional information) SCHEDULE Our 2012 Access and Infrastructure GMP is based on 7 month duration with construction starting April 30, 2012, see attached milestone schedule. This GMP is based on Haselden Construction being issued a notice to proceed by April 2, 2012, if the NTP is not issued by this date we will need to reevaluate the GMP for cost and schedule impacts. DESIGN DOCUMENTS Our Proposal is based on documents prepared by Oz Architecture as follows: Burlingame Ranch Phase II — Site Access Infrastructure Implementation Documents Project Manual, dated February 1, 2012 Burlingame Ranch Phase II - 95% Implementation Documents Drawings, dated February 1, 2012 (Access and Infrastructure Package). Question set 1 as clarifications to the Documents GMP R1 Page of 27 March 1, 2012 Page 2 of 2 We believe that this proposal properly reflects the entire cost and scope of the project. If you have any questions regarding the data submitted or should require additional information, please do not hesitate to contact us. You can reach me at my desk at (303) 728 -3745. Sincerely, 1- IASELDEN CONSTRUCTION, LLC Christian Ekstrom Preconstruction Manager cc: IPD Team — COA, RLB, OZ GMPRt Page4of27 HASELDEN BURLINGAME RANCH AFFORDABLE HOUSING PHASE II , CONSTRUCTION Access and Infrastructure GMP March 1, 2012 Precon Team: Christian Ekstrom & David Marsh I ACCESS AND INFRASTRUCTURE GMP COST DESCRIPTION TOTALS 01A - PROJECT LOGISTICS $99,148 010 - SNOW REMOVAL $35,361 02B - EARTHWORK $2,422,178 02D - ASPHALT PAVING $87,115 02F - POROUS PAVING $70,006 02G - SITE CONCRETE $387,621 02H - SITE UTILITIES $1,344,965 02L - LANDSCAPING AND IRRIGATION $470,158 02M - FENCES AND GATES $50,034 07A - DAMPPROOFING AND JOINT SEALANTS $81,764 DIRECT COST TOTAL $5,048,350 GENERAL CONDITIONS $ 392,277 DIRECT COST W/ GC SUBTOTAL I $5,440,627 I INDIRECT COSTS: DESIGN & PROFESSIONAL SERVICES BY OWNER MATERIALS & SOILS TESTING BY OWNER TRAFFIC STUDY BY OWNER PERMITS & FEES BY OWNER LEED DOCUMENTATION NOT INCLUDED DEVELOPMENT FEES BY OWNER SALES TAXES AS APPLICABLE INDIRECT COST TOTAL I $ - I DIRECT & INDIRECT COST TOTAL I $ 5,440,627 I CONTINGENCIES: CONSTRUCTION CONTINGENCY 2.0% $ 108,813 95% TO 100% CD PERMIT SET COMMENTS /MODIFICATIONS ALLOWANCE $ 100,000 COST ESCALATION NOT INCLUDED CONTINGENCY COST TOTAL $ 208,813 COST OF CONSTRUCTION SUBTOTAL 1 $ 5,649,440 I CONSTRUCTION FEES: CM /GC PRE - CONSTRUCTION FEE Fixed IN OWNER BUDGET CM /GC CONSTRUCTION FEE 3.00% $ 169,483 CONSTRUCTION FEES COST TOTAL 1 $ 169,483 I INSURANCE & BOND COSTS: QUALITY CONTROL - 3RD PARTY (LA JOLLA PACIFIC) NOT INCLUDED GENERAL LIABILITY INSURANCE OR PROJECT INSURANCE OCIP BY OWNER DIFFERENCE IN COVERAGE INSURANCE 0.448% $ 26,069 BUILDER'S RISK OCIP BY OWNER PERFORMANCE & PAYMENT BOND (1 YEAR WARRANTY) 0.742% $ 43,378 INSURANCE & BOND COST TOTAL 1 $ 69,447 'ACCESS AND INFRASTRUCTURE GMP TOTAL COST $ 5,888,370 I Alternates 1 -11 - Accepted $ 533,823 OST W/ ALTS $ 6,422,14 GMP R1 Page 5 of 27 (EXHIBIT B RLB Rider Levett Bucknall • 1621 Eighteenth Street Suite 255 Denver, Colorado 80202 T. +1 720 904 1480 F, +1 720 904 1481 March 1, 2012 Mr Chris Everson email: chris.everson @ci.aspen.co.us Affordable Housing Project Manager City of Aspen 130 South Galena St Aspen, CO 81611 BURLINGAME RANCH PHASE 11 2012 ACCESS INFRASTRUCTURE PACKAGE — CONTRACT ADDENDUM AND HASELDEN GMP Dear Chris, The purpose of this letter is to summarize our recommendation regarding the Haselden 2012 Access Infrastructure package. CONTRACT ADDENDUM Rider Levett Bucknall (RLB), Janet Lawler- McDaniel from the legal firm Benjamin, Bain, Howard and Cohen (BBHC) and the City of Aspen have been very active over the past month compiling the A195 GMP Contract Addendum which will form the platform on which the 2012 Access Infrastructure construction phase will occur. RLB is privy to many construction contracts and the efforts by BBHC in the earlier phases of the project have provided a sound base contract (which was not altered during recent contract negotiations). We are satisfied that the A195 GMP addendum currently contemplated serves to adequately control the City of Aspen's risk. Three areas worked on significantly where we are satisfied have been adequately and fairly addressed are: • Aligning the City's and Haselden's goals and agreeing a shared savings clause to incentivize control of expenditure • Agreeing the protocols for General Contractor self - performed work to ensure a level playing field across the subcontract market and appropriate oversight by the City and RLB • Agreeing the labor and equipment rates were reasonable and understood We note that two external factors affect the GMP addendum, a/ a timely Notice to proceed to the General Contractor and b/ uplift of the Access - Infrastructure building permit which is currently under review by the CoA engineering and building departments. 95% IMPLEMENTATION DOCUMENTS 2012 ACCESS INFRASTRUCTURE GMP The GMP submitted is well compiled, reasonable and sufficient to complete the 2012 Access I nfrastructure Civils and Utility work. A number of minor clarifications and exclusions are being worked through by the design team but we believe these do not preclude the submitted GMP being signed_ Page 1 of 2 'EXHIBIT B March 01, 2012 RLB hider Levett Bucknall Chris Everson, Affordable Housing Project Manager BURLINGAME RANCH PHASE II 2012 ACCESS INFRASTRUCTURE PACKAGE — CONTRACT ADDENDUM AND HASELDEN GMP This GMP, as well as Contract addendum incorporates most of the adjustments and actions that we noted in our September 2011 review. We are comfortable with the General Conditions inclusions and value ($392,277; 7.76 %) and other allowances carried in the total. The largest allowance of $100,000 to incorporate anticipated drainage design changes appears reasonable from discussions with the design team and the recently issued drainage report. As such, we recommend the Haselden GMP is accepted to the following value: Base GMP for Access Infrastructure $5,888,370 Add Alternates 1,2,3,10 $27,815 Allowance for Electrical Vault supply, not currently in the GMP $40,000 Allowance for high voltage electrical undergrounding- Add Alternate 8 $33,797 Allowance for Sanitary Sewer line installation. Add Alternate 4 $305,905 Burlingame project GMP. $6,295,887 Additional work for City of Aspen Utilities for re -use line install, water $126,306 main upsizing, City Electric feeder. Add Alternates 5,6,7,9 Total GMP $6,422,193 CONCLUSION Overall, the Haselden GMP appears to be well compiled, reasonable and sufficient to complete the 2012 Civils and Utility work. Allowances of $275,840 are included in the Base GMP and are reasonable and appropriate for the project scope. Additional Add Alternate work, recently added to the project scope requires confirmation from subcontractors, but should be carried within the Total GMP value. We are satisfied the GMP incorporates the anticipated scope of the 2012 Access Infrastructure package and we recommend acceptance of the A195 GMP addendum and contract sum of $6,422,193 including all of the Add Alternates. We recommend that the GMP contract should be accepted at $5,888,370 plus additional add alternate allowances of $533,823 for a grand total GMP of $6,422,193. These will be confirmed once actual subcontract values and the 100% construction documents are finalized. We trust this is of assistance. Please contact us for any queries relating to this report. As always, we are happy to meet to discuss our observations. Sincerely, Rob Ta■Ior Associate Principal, BE, PSP Rider Levett Bucknall Ltd Page 2 of 2 vi MEMORANDUM TO: Mayor and City Council FROM: David Hornbacher, Director of Utilities and Enviro ���� ���tta/ ' itiatives Mike McDill, Deputy Utility Operations Directorr�i✓/1/ THRU: Jim True, City Attorney THRU: Steve Barwick, City Manager DATE OF MEMO: March 1, 2012 MEETING DATE: March 12, 2012 RE: Approval of Contract with Colorado River Water Conservation District to provide Augmentation Water REQUEST OF COUNCIL: Council is asked to approve the Water Supply Contract with the Colorado River Water Conservation District ( "River District "), in substantially the form provided with this memorandum. The Water Supply Contract is a necessary prerequisite to obtaining water court approval of the City's reclaimed water system, and augmentation of out of priority evaporation from certain City ponds on the golf course, and open space. PREVIOUS COUNCIL ACTION: In November, 2009, Council authorized in principal a water supply contract with the River District in order to provide an augmentation supply to offset out of priority depletions by the City's planned reclaimed water system, as well as out of priority pond evaporation from certain existing ponds. BACKGROUND: Council has authorized staff to proceed with the water court cases, Case Nos. 05CW300 and 06CW54, in order to provide a legal water supply to the planned reclaimed water system, and also to obtain water rights for certain existing ponds, and provide augmentation for out of priority pond evaporation. The reclaimed water system involves pumping treated wastewater effluent from the ACSD treatment plant to the Aspen Reuse Pond on the golf course. From the Aspen Reuse Pond, the water can be delivered to irrigate the Highway 82 median, and to provide a supplemental irrigation supply for the golf course, Burlingame Village open space, and, by contract, the Maroon Creek Club Golf Course. In addition, the reclaimed water can be provided as a supplemental snowmaking supply for Buttermilk ski area. Page 1 of 3 M In 2009, Council approved an amendment to the water court applications to allow the City to rely on a River District water supply contract to provide a source of augmentation water for the ponds and reclaimed water system so that they can continue to be operated when they would otherwise be out of • priority. In order to obtain water court decrees on the applications, the City must have an executed Water Supply Contract with the River District. Aspen's consultants, Grand River Consulting, determined that a minimum of 30 acre -feet per year are needed to augment out of priority pond evaporation and to provide reliable irrigation to the Highway 82 corridor. The pond evaporation needs to be augmented even if the reclaimed water project is delayed. DISCUSSION: The Water Supply Contract provides that the River District will provide 30.0 acre -feet per year of fully- consumable water from its Colorado River Supply that can be used to augment out of priority diversions from the reclaimed water system, and out of priority pond evaporation. Water purchased but unused in a year cannot be carried over to the next year. If 30 acre -feet prove to be insufficient, the reclaimed water system will be curtailed, but pond evaporation can continue to be augmented. The cost of the augmentation water is $295.35 per acre -foot for the upcoming Project Year, which runs from July 2012 - June 2013, for a total price of $8,860.50 for 30 acre -feet. In addition, the City must remit a one -time payment of $400.00 to cover the River District's legal expenses incurred in participating in the City's water court Case No. 06CW54, pursuant to the District's Water Marketing Policy. The annual price of $8,860.50 may be increased annually, but the increase may not exceed the Consumer Price Index plus the New Growth Index. In addition, special assessments may be imposed in the event the River District incurs extraordinary maintenance obligations or incurs assessments itself form third -party suppliers. This is a 40 -year contract that can be renewed for an additional term of 35 years. FINANCIAL /BUDGET IMPACTS: The financial /budget impact for the current calendar year (2012) is $9,260.50 (the 2012 -13 contract price of $8,860.50 plus $400.00 for legal expenses). The $400.00 must be remitted to the District along with the executed contract. The District will invoice the City for the $8,860.50 annual payment. A similar annual payment, plus any escalation or special assessments, must be paid each year during the term of this Water Supply Agreement and any extension. ENVIRONMENTAL IMPACTS: The Water Supply Contract itself does not create new environmental impacts. The Reclaimed Water Project is intended to be environmentally beneficial, as it will allow treated wastewater effluent which would otherwise be released to the Roaring Fork River to be applied to land instead. Land application allows reuse of the water, and provides further cleaning. In addition, when the Reclaimed Water Project is used as a supplemental irrigation supply for the golf course, diversions from Castle Creek can be reduced or adjusted to provide additional stream flow protection to Castle Creek. Finally, use of the augmentation supplies provided under this contract will allow a number of City ponds (on the golf course, Marolt open space, Bugsy Barnard Park, and the Maroon Creek wetlands) to continue to be filled. Although the ponds have been kept full in the past without a water Page 2 of 3 court approved plan, staff anticipates that calls may be placed in the future that will require augmentation. RECOMMENDED ACTION: Staff recommends that City Council approve Resolution No. t,�(S eries of 2012), authorizing execution of the Water Supply Contract with the Colorado er Water Conservation District in the form provided with this memorandum, and performance of the Water Supply Agreement. CITY MANAGER COMMENTS: . „3, w' Page 3 of 3 RESOLUTION NO. 19 Series of 2012 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING EXECUTION AND PERFORMANCE OF THE WATER SUPPLY CONTRACT (CW 11006) BETWEEN THE CITY AND THE COLORADO RIVER WATER CONSERVATION DISTRICT WHEREAS, the City has pending water court applications in Case Nos. 05CW300 and 06CW54 (Water Court, Water Division No. 5) for the Aspen reclaimed water system, for certain water rights for existing ponds, and for a plan for augmentation to augment out of priority pond evaporation and diversions from the Aspen reclaimed water project; and WHEREAS, the plan for augmentation contemplates that certain augmentation supplies be provided pursuant to a Water Supply Contract with the Colorado River Water Conservation District ( "River District "); and WHEREAS, the River District has agreed to provide 30 acre -feet of fully- consumable water from its Colorado River water supply, pursuant to the Water Supply Contract CW 11006, which will be used to augment out of priority depletions as provided in the plan for augmentation; and WHEREAS, the Water Supply Contract must be executed by Aspen and the River District in order to complete the plan for augmentation and obtain a final water court decree; and WHEREAS, City staff and consultants have reviewed the Water Supply Contract and have recommended that the City execute the Water Supply Contract substantially in the form of Contract CW11006, which has been provided to the City Council; and WHEREAS, City Council has had the opportunity to obtain such advice and information as it deems appropriate and necessary regarding the proposed Water Supply Contract, THEREFORE, BE IT RESOLVED, by the City Council of the City of Aspen, that execution and performance by the City of a Water Supply Contract between the City and the River District, substantially in the form of Contract CW 11006, is hereby approved. The Mayor, and City Clerk are hereby authorized and directed to execute the Water Supply Contract and any related documents necessary or desirable to effectuate the transactions provided for in the Water Supply Contract. Dated: APPROVED by the City Council of the City of Aspen on the day of 2012. Mayor Attest: City Clerk CW11006 WATER SUPPLY CONTRACT This Contract is made between the COLORADO RIVER WATER CONSERVATION DISTRICT (herein the "River District "), a political subdivision of the State of Colorado acting by and through its Colorado River Water Projects Enterprise, and CITY OF ASPEN, COLORADO (herein "Contractor ") effective as of the date of the River District's execution indicated below. RECITALS A. The River District is authorized to contract to deliver water for beneficial use from River District water projects pursuant to provisions of C.R.S. § 37 -46 -101, et seq. (herein "River District Organic Act "). B. The River District is the owner and operator of the Wolford Mountain Reservoir Project located on the Muddy Creek drainage near Kremmling, Colorado, having obtained necessary decrees from the District Court in and for Colorado Water Division No. 5 (herein "Water Court") and permits from governmental agencies, and the River District is entitled to deliveries of water from Ruedi Reservoir under its Contracts with the U.S. Bureau of Reclamation. C. The River District's Board of Directors has adopted a Water Marketing Policy, as revised by the Board from time to time, to provide for the use of water available from the River District's sources of supply pursuant to contracts, and that Water Marketing Policy is to be implemented through the River District's Water Projects Enterprise. D. Contractor has a need for wholesale water supply, demonstrated in its submittal to the River District pursuant to the Water Marketing Policy's contracting process, in the amount of 30.0 acre feet annually for municipal/industrial purposes, which beneficial uses will be accomplished by Contractor generally in the vicinity of Pitkin County, Colorado by surface water diversions from or within the Roaring Fork River drainage, which is a tributary to the Colorado River. E. Contractor is aware of the "Hydrology Assumptions" which are part of the Water Marketing Policy and is satisfied, based on its review and investigations, that Contractor legally and physically can make use for its intended purposes of the Contracted Water, which are the subject of this Contract and that such use will comply with the Water Marketing Policy. AGREEMENT The foregoing Recitals are incorporated into this agreement between the River District and Contractor. DEFINITIONS In this Contract certain terms will have definitions as stated below: WATER SUPPLY CONTRACT CW11006 Page 2 • The "River District" means the Colorado River Water Conservation District created and existing pursuant to the River District Organic Act defined in Recital A and acting by and through its Colorado River Water Projects Enterprise which is currently described and memorialized in the Resolution of the Colorado River Water Conservation District's Board of Directors dated April 20, 2005. • The "Project" means the River District's "Colorado River Supply" from: (1) Wolford Mountain Reservoir, for which storage water right decrees were obtained by the River District in Cases No. 87CW283, 95CW281 and 98CW237 in the District Court for Colorado Water Division No. 5, and for which additional storage water right decrees may be obtained in the future by the River District in other cases; (2) the River District's contractual right to water deliveries from Ruedi Reservoir; and (3) other supplies that the River District may acquire suitable for use in its Water Marketing Program. • "Agricultural" means the use of water for commercial production of agricultural crops and livestock and other uses consistent with any right decreed for irrigation purposes, which uses are made on a parcel of land of at least ten acres. • "Municipal and Industrial" means the use of water by individuals, cities, towns, public or quasi - public districts, private corporations, homeowners associations, or other entities for domestic, municipal, and miscellaneous related purposes as those terms are traditionally and commonly construed, including the use of water for purposes of producing or processing a non - agricultural product or service for sale, including without limitation, such uses as manufacturing, mining, milling, land reclamation, golf course irrigation, snowmaking, and non - hydroelectric power generation; and including the use of water for environmental mitigation purposes associated with such uses; but excepting the agricultural use of water defined herein. • "Contracted Water" means the water which is the subject of this Contract which is to be released and delivered by the River District and used by Contractor. The Contracted Water is 30.0 acre feet of Colorado River Supply above the Roaring Fork Confluence available during each Project Year during the term of this Contract, subject to the provisions hereof, for Contractor's use without right of carryover of any amount not used in any Project Year. • "Project Year" means a period of time from July 1 through and including the subsequent June 30. • "Water Marketing Policy" means the River District's policy statement as revised and readopted as of the execution date of this Contract and as the same may be amended in the future. WATER SUPPLY CONTRACT CW11006 Page 3 • "Project Hydrology Assumptions" or "Hydrology Assumptions" means the document attached as Appendix "A" to the Water Marketing Policy adopted on October 17, 2006. 1. River District Water Delivery Obligations and Responsibilities. a. Delivery. The River District will deliver the Contracted Water at the outlet works of the Contracted Water's sources of supply into the receiving natural streams in quantities provided herein. Unless otherwise agreed to by the River District's General Manager based upon written request of Contractor, the River District will make releases or request that releases be made for Contractor, based upon Contractor's written schedule of anticipated demand, adjusted as necessary by the . ongoing status of river administration vis - - vis the priority status of Contractor's diversions, provided that the releases can be made within the operational limitations of the River District's project facilities as determined by the River District in its sole discretion. Contractor shall be solely responsible after delivery for the legal and physical delivery and use of the Contracted Water. b. Delivery Contingencies. The River District's delivery of Contracted Water shall be subject to Contractor's payments pursuant to paragraph 3 below, and the provisions for curtailment of deliveries in paragraph 5 below. c. Water Measurements. The River District shall measure at the outlet works of the Contracted Water's sources of supply all Contracted Water and shall notify the Division Engineer of Colorado Water Division No. 5 of the date, time and amount of Contracted Water released pursuant to this Contract. Copies of such records shall be provided to Contractor upon request. d. Water Quality. The River District shall have no obligation to Contractor or any other person regarding and makes no warranties or representations to Contractor concerning the quality of Contracted Water delivered pursuant to this Contract by releases of raw water to natural streams. e. Maintenance of Facilities. The River District, to the extent that it has ownership and maintenance control, shall use its best efforts to maintain in good working condition the water storage and release facilities of the Contracted Water. f. Withholding of Delivery. The River District may withhold deliveries of Contracted Water in the event of Contractor's nonpayment for Contracted Water or any other breach of this Contract by Contractor. Such remedy shall not be the River District's exclusive remedy in the event of any such breach. g. Delivery from Primary or Alternate Sources. The River District will deliver the Contracted Water from the sources of Colorado River Supply above the Roaring WATER SUPPLY CONTRACT CW11006 Page 4 Fork Confluence described herein, which will meet the Contractor's need to satisfy calls by senior water rights or the Contractor's physical need for any direct delivery of Contracted Water to Contractor's diversions. Subject to meeting those objectives, the River District reserves the right to provide all or any of the Contracted Water to Contractor from alternate reservoirs for Contractor's use, provided that the alternate sources are suitable to physically satisfy calls by senior water rights or Contractor's need for direct delivery. 2. Contractor's Water Use Obligations and Responsibilities. a. Scheduling of Use. Contractor has provided the River District a preliminary written schedule of its anticipated monthly demands for the Contracted Water, during the upcoming Project Year (July 2012- June 2013). The schedule provided by Contractor in its application for this Contract shall serve as the schedule to be used until it is modified in a written notice given by Contractor to the River District, or as necessary in response to river administration of the Contractor's diversions. The schedule shall identify the volume of any Contracted Water anticipated by Contractor not to be needed by it during any particular Project Year. Contractor shall update said schedule periodically during the Project Year as conditions require and give the River District written notice of all such revisions. b. Carriage Losses. Contractor shall bear carriage losses in such amount as is determined by the Division Engineer for Colorado Water Division No. 5, from the point of delivery of Contracted Water to Contractor's point(s) of use and/or exchange or augmentation. c. Use Per Contract and Law. Contractor's use of Contracted Water shall in all instances be in accordance with the terms of this Contract, the permits and decrees of the Project, the Water Marketing Policy, as it may change from time to time, and in accordance with applicable law and all decrees related to the Contracted Water. Contractor is not authorized to apply for or secure any change in the water rights for or associated with any of the sources of supply of the Contracted Water. d. Legal Approvals. Contractor shall at its sole expense adjudicate a plan or plans for augmentation or exchange and/or secure administrative approvals of any temporary substitute supply plans which are needed for Contractor to use its Contracted Water. Any such plans shall identify Wolford Mountain Reservoir and Ruedi Reservoir as the sources of supply. Contractor already has filed such an application in District Court, Water Division No. 5, Case No. 2006CW54. If necessary, Contractor shall amend the application to identify both of the River District's sources of supply. If Contractor intends to make any additional application(s) for any augmentation or exchange plan(s) or substitute supply WATER SUPPLY CONTRACT CW11006 Page 5 plan(s) needed for Contractor to use its Contracted Water, Contractor shall submit the proposed application(s) to the River District within a reasonable time before Contractor proposes to file such application(s). The River District shall grant written approval of such applications before they are submitted or filed, and the River District's approval shall not be unreasonably withheld. The River District may in its discretion become a co- applicant in the prosecution of any such applications for the purpose of protecting its water rights and related policies. Contractor shall cause to be included in any final decree of the Water Court a provision conditioning Contractor's use of the Contracted Water on the existence of a River District contract. e. Limitation on Disposition. i. Contractor shall not sublet, sell, donate, loan, assign or otherwise dispose of any of its rights to this Contract or to Contracted Water without prior written notice to, and the written approval of the River District and the payment of a transfer fee at the prevailing rate set forth in the Water Marketing Policy. The River District's approval of such disposition shall be granted in all instances in which the Contractor is transferring the water system which supplies the Contracted Water, or a permanent transfer of the Contract is to be made to a successor in interest of Contractor by reason of the transfer of the title or other legal right to use the property served by the Contracted Water, or where the transfer is made to an entity such as a homeowners' association or special district created to serve the property originally represented to the River District to be served with the Contracted Water. ii. The assignment of a Contract is subject to the Water Marketing Policy as revised as of the effective date of the assignment. In accordance with this subparagraph (ii), any assignee must pay for the Contracted Water at the then- current price determined by the River District Board of Directors. f. Contractor's Water Rates. Contractor may charge its water customers who are supplied with Contracted Water such rates and charges as are permitted by Colorado law. g. Nondiscrimination. Contractor shall not discriminate in the availability of or charges for any water service or water supply made available pursuant to or based upon the Contracted Water on account of race, color, religion, or national origin or any other criteria prohibited under state or federal law. h. Accounting of Use. Contractor shall maintain an accounting of its use of all water used or supplied by Contractor on form(s) acceptable to the River District specifically for the purpose of enabling the River District to prove the use of River District Project water rights and to administer and operate the Project and WATER SUPPLY CONTRACT CW11006 Page 6 water right decrees and/or administrative approvals related to Contractor's use of Contracted Water. Contractor shall submit its accounting forms and records to the River District promptly upon request and shall assist the River District as it may reasonably request in presenting and/or verifying such evidence of use in court or before administrative agencies by testimony of Contractor or its authorized and informed officers or agents. Section 404 of the Clean Water Act (33 U.S.C. 1344) regulates the discharge of dredged or fill material into the waters of the United States. Contractor shall consult with the Army Corps of Engineers if construction of facilities necessary to use the Contracted Water requires Section 404 compliance, which may include obtaining a permit. Further consultation and approval by the United States Fish and Wildlife Service may be required to ensure compliance with the Endangered Species Act (16 U.S.C. 1531, et seq.) if Contractor proposes physical alterations to the designated critical habitat of the Colorado River endangered fish species. As of March 1, 2007, designated critical habitat exists from the Garfield County 320 Road Bridge Crossing of the Colorado River in Rifle downstream to the Colorado State line. 3. Contractor's Payments. a. In addition to the application fee already paid by Contractor, in order for the River District's delivery obligation to become effective, Contractor shall pay to the River District within thirty (30) days of receipt of the River District's billing invoice the total sum of $8,860.50, being $295.35 for each acre foot of 30.0 acre feet of Contracted Water for the upcoming Project Year (July 2012 -June 2013). Thereafter, the River District shall provide Contractor an annual invoice for the Contracted Water, and Contractor shall pay the invoice within thirty (30) days of receipt. The price for each type of water will be reviewed and set annually by the River District's Enterprise Board of Directors (which decision normally will be made prior to March 1 each year). Any annual increase in the contract price shall not exceed the then - current published Consumer Price Index (CPI) plus New Growth Index (NGI). b. Contractor also shall pay any special assessment levied by the River District on Contractor to recoup all or a portion of costs attributable to extraordinary maintenance incurred by the River District or assessed upon the River District by its third party water suppliers. 4. Contract Term. a. Except in the event of an early termination or partial termination as provided for in paragraph 6 below and subject to the other terms and conditions of this • WATER SUPPLY CONTRACT CW11006 Page 7 Contract, the term of this Contract shall be for a period of up to forty (40) years from the date of the execution of this Contract (through June 30, 2051). b. At the end of the 40 -year term of this Contract (June 30, 2051), the Contractor shall have the right to renew this Contract for the same Contracted Water amount for a secondary term of thirty -five (35) years, upon such terms and conditions as the River District is offering at that time, provided that the River District is offering up the full amount of Contracted Water for lease. In the event that the River District, on a non - discriminatory basis, decides not to offer up the full amount of the Contracted Water for lease, Contractor shall have the right to renew for a secondary term of thirty-five (35) years such lesser portion of the Contracted Water as may be offered by the River District. If Contractor desires to so renew this Contract, it shall provide the River District written notice of its intention to do so at least ninety (90) days prior to the expiration of the initial term of this Contract. Thereafter, and prior to the expiration of the initial term, the River District and Contractor shall execute a supplemental agreement of renewal in a form mutually acceptable to the River District and Contractor. If such notice of intention to renew is not provided and such supplemental agreement is not executed, no renewal term shall commence. 5. Water Shortage. In the event that the River District is unable, because of either legal or physical reasons (including, but not limited to, hydrologic shortages and operational restrictions), to deliver any or all of the full amount of water contracted from the Project, including the Contracted Water, the River District reserves the right to apportion the Project's available water among its several contractors, including Contractor, in the manner provided in paragraph 6 of the Water Marketing Policy. 6. Contract Termination. a. Termination by River District. i. The River District may terminate this Contract for any violation or breach of the terms of this Contract by Contractor, including Contractor's failure to pay timely any sum or amount due under this Contract within thirty (30) days after receiving written notice from the River District of such breach. ii. The River District also may terminate this Contract if, in its discretion, any judicial or administrative proceedings initiated by Contractor as contemplated in subparagraph 2.d above, threaten the River District' s authority to contract for delivery of Project Water or the River District's water rights, permits, or other interests associated with the Project. iii. The River District may terminate this Contract if its legal ability to deliver Contracted Water is materially impaired or is eliminated because of the termination or adverse modification of permits, decrees or other WATER SUPPLY CONTRACT CW11006 Page 8 authorizations which are needed to deliver the Contracted Water. b. Termination by Contractor. i. Contractor may terminate this Contract in its entirety for any reason by giving the River District at least thirty (30) days advance notice prior to the due date of Contractor's next annual payment. ii. Every fifth year after the year in which this Contract is executed, Contractor may partially terminate this Contract as to the amount of Contracted Water by giving the River District at least thirty (30) days advance notice prior to the due date of Contractor's next annual payment. Partial termination by Contractor shall not exceed more than fifty percent (50 %) of the amount of Contracted Water which is then under contract. iii. Within thirty (30) days of final approval of the Water Court application contemplated by subparagraph 2.d. above, Contractor may by written notice to the River District partially terminate this Contract as to the amount of Contracted Water which is not needed under that approval. c. Notice of Termination to Affected Officials. The River District will notify the Division Engineer and any other appropriate governmental officials of any full or partial contract termination except for any partial termination under subparagraph 6.b.(iii). 7. Force Majeure. The River District shall not be responsible for any losses or damages incurred as a result of the River District's inability to perform pursuant to this Agreement due to the following causes if beyond the River District's control and when occurring through no direct or indirect fault of the River District, including without limitation: acts of God; natural disasters; actions or failure to act by governmental authorities; unavailability of supplies or equipment critical to the River District's ability to perform; major equipment or facility breakdown; and changes in Colorado or federal law, including, without limitation, changes in any permit requirements. 8. Miscellaneous /Standard Provisions. a. Notices. i. All notices required or appropriate under or pursuant to this Contract shall be given in writing mailed or delivered to the parties at the following addresses: WATER SUPPLY CONTRACT CW11006 Page 9 River District: Colorado River Water Conservation District Attention: General Manager / Secretary 201 Centennial Street, Suite 200 P. O. Box 1120 Glenwood Springs, Colorado 81602 Phone: (970) 945 -8522 Fax: (970) 945-8799 Contractor: with copy to: David Hornbacher, Utilities Director Kerry Sundeen, Consulting Hydrologist City of Aspen Grand River Consulting Corporation 130 S. Galena Street 718 Cooper Avenue Aspen, CO 81611 Glenwood Springs, CO 81601 Phone: (970) 920 -5110 Phone: (970) 945 -2237 Fax:, (970) 920-5117 Fax: (970) 945-2977 David.hombacherAci.aspen.co.us ksundeenna,grandriver.us and copy to: Andrea L. Benson, Esq. Alperstein & Covell, P.C. 1600 Broadway, Suite 2350 Denver, CO 80202 -4921 Phone: (303) 894 -8191 Fax: (303) 861-0420 albna,alpersteincovell.com ii. Either party may, by written notice given in accordance with this provision, change the address to which notices to it shall be mailed or delivered. b. Amendments. No amendment, modification, or novation of this contract or its provisions and implementation shall be effective unless documented in writing which is approved and executed by both parties with the same formality as they have approved and executed this Contract. c. This Contract is subject to the River District's Water Marketing Policy, as it may be revised from time to time by the River District's Board. WATER SUPPLY CONTRACT CW11006 Page 10 COLORADO RIVER WATER CONSERVATION DISTRICT acting by and through its Colorado River Water Projects Enterprise DATE: By: R. Eric Kuhn, General Manager /Secretary ATTEST: Dan Birch, Deputy General Manager /Asst. Sec. VERIFICATION STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) The foregoing Water Supply Contract was subscribed and sworn to before me by R. Eric Kuhn as General Manager /Secretary and Dan Birch, Deputy General Manager /Assistant Secretary of the Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise this day of , 2011. Witness my hand and official seal. My Commission Expires: Notary Public WATER SUPPLY CONTRACT CW11006 Page 11 CITY OF ASPEN, COLORADO By: (Name) (Title) VERIFICATION STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) The foregoing Water Supply Contract was subscribed and sworn to before me by as this day of , 2011. Witness my hand and official seal. My Commission Expires: Notary Public • 'it Memorandum To: Mayor and City Council From: Steve Aitken, Director of Golf Thru: Jeff Woods, Parks and Recreation Manager Thru: Steve Barwick, City Manager Thru: Don Taylor, Finance Director Thru: Rebecca Hodgson, Purchasing Manager Date: February 25, 2012 RE: Golf Cart Fleet Purchase Agreement Request of Council: Staff requests Council to approve the purchase agreement with C &M equipment for a new fleet of 60 electric golf carts. Discussion: As approved in the budget process for 2012, the Golf Department is replacing its fleet of 60 electric golf carts. The existing fleet of golf carts is 7 years old and is no longer reliable. The new fleet of carts is necessary to deliver the quality and reliability required for pass holders and guests to the # 1 Ranked Municiple Golf Course in the State of Colorado. The new fleet of carts will be acquired thru a 5 year lease agreement with the Wheeler Opera House Fund. Utilizing a lease agreement, allows for a positive cash balance in the Golf Fund. Request For Proposals were sent out in December and three proposals were received. Requirements for the new fleet of golf carts were: • Electric Operating (as opposed to gas). • Sun Canopies • Wind Shields • Yardage Book Holders • 2 Sand/Seed Bottles per cart • Club and Ball Washers on each cart • Forest Green Color with Tan seats and Canopies Three proposals were received. Only two proposals were able to deliver all the golf carts for the start of the 2012 golf season. The price shown is net of $48,000 trade in of the existing cart fleet. The financial proposals for both companies that were able to meet the criteria for Request for Proposals are as follows: C &M Golf Grounds Equipment 60 Cart E -Z -Go Fleet Bid Price: $191,700.00 Colorado Golf and Turf 60 Cart Club Car Fleet Bid Price: $221,569.00 Staff believes that both companies' golf carts would do an excellent job. Staffs decision to select E -Z Go for its fleet of golf carts are as follows: • Lower Price • Reliability • Staffs knowledge of the EZ Go Golf Cart • Substantial additional features have been added without cost (rain club covers for all golf carts, battery water fill system and station). • Styling and Design Financial/ Budget Impacts: The Golf Fund Long Range Plan has allotted $ 35,600 for five years to provide for payment of the carts. The finance department recommends that the money for the acquisition of the golf carts be borrowed from the Wheeler Opera house fund and be repaid over 5 years at an interest rate of 2 %. The Wheeler payments will be approximately $40,300 per year so the Golf operating budget will be adjusted to cover this amount. Environmental Impacts: The golf cart fleet will be electric which has less of an impact on the environment. Improvements to efficiency in recent years have increased the length of time the golf cart runs before it is in need of charging. Recommended Action: Staff requests Council approve the purchase agreement with C & M Golf and Grounds for a new fleet of 60 Golf Carts. Alternatives: The other golf cart proposal could provide golf carts for the Aspen Golf Club. This decision however, would cost more. City Manager Comments: RESOLUTION # ° 217 (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND C &M GOLF AND GROUNDS EQUIPMENT COMPANY AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for Golf carts, between the City of Aspen and C &M Golf and Grounds Equipment Company, a true and accurate copy of which is attached hereto as Exhibit "A "; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for Golf carts, between the City of Aspen and C &M Golf and Grounds Equipment Company, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the 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 12 day of March 2012. 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, March 12, 2012. Kathryn S. Koch, City Clerk The City of Aspen CITY OF ASPEN STANDARD FORM OF AGREEMENT SUPPLY PROCUREMENT City of Aspen Project No.: 2011 -096. AGREEMENT made as of l2"' day of March, in the year 2012. BETWEEN the City: Contract Amount: The City of Aspen c/o Golf 130 South Galena Street Total: $191,700.00 Aspen, Colorado 81611 Phone: (970) 920 -5055 If this Agreement requires the City to pay And the Vendor: an amount of money in excess of $25,000.00 it shall not be deemed valid C &M Golf and Grounds Equipment until it has been approved by the City Council of the City of Aspen. c/o John Trenck 5080 Paris St. City Council Approval: Denver CO, 80239 Phone: 373 - 375 -4913 Date: Resolution No.: Summary Description of Items to be Purchased: Sixty (60) TXT Fleet Dolt Carts Exhibits appended and made a part of this Agreement: Exhibit A: List of supplies, equipment, or materials to be purchased. The City and Vendor agree as set forth below. 1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A appended hereto and by this reference incorporated herein as if fully set forth here for the sum set forth hereinabove. 2. Delivery. (FOB 39551 Highway 82, Aspen, Colorado 81611.) [Delivery Address] 3. Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties. (See Exhibit B for detailed warranty information). 5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon t he 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. T his 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. N o 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 and Conflicts of Interest. (A) Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon a n 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. (B) 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. (C) 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. (D) 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 using 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 Approval. 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. N o 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. T his 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 C ity 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 terms 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. T he 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 terms 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. [SIGNATURES ON FOLLOWING PAGE] FOR THE CITY OF ASPEN: ATTEST: By: City Manager City Clerk VENDOR: By: Title , EXHIBIT A SUPPLY PROCUREMENT AGREEMENT Sixty (60) E -Z -GO TXT 2012 Golf Carts • TXT Electric 48 Volt DC — Charger with each Car • Forrest Green Color • Tan Sun Canopy / Tan Seat • Bag Cover • Windshield Fold Down • Scorecard holders • Steering Column Mounted Bracket for yardage Book • Two Plaque Holders per Car • Two Sand Bottles per Car • Club / Ball Washer • Wheel Covers • Battery Fill System • Handheld diagnostic Unit • , Numbering decals • Two (2) tow bars • Monthly service calls by C &M technician • Two (2) on -call service technicians in Denver area • Semi - Annual service audit • Annual Technician Training • 20% discount on service parts • 48 month warranty • E -Z -Go fleet / Jacobsen discount program • 35% discount on Jacobsen and Cushman products • 36 month warranty on Jacobsen products Qty Model Year Net Cost/Cart Net Cost of Carts 60 TXT Fleet 2012 $3,995.00 $239,700.00 Less trade -in Qty Model Year Manufacturer Trade -in Value 60 TXT -PDS 2004 E -Z -Go $48,000.00 Trade -ins must be in fleet running condition with working chargers. Total Amount for New Carts after Trade -in $191,700.00 The City will pay an additional fee of $7.00 per cart, to put the Aspen Golf logo on the front of the carts. Net 30 days after delivery. Exhibit B Supply Procurement Agreement MODEL YEAR 2012 Limited Warranty Terms and Conditions - RXV and TXT Fleet Vehicles The E -Z -GO Division of Textron Inc. ( "E- Z -GO ") provides that any new Model Year 2012 E -Z -GO RXV Fleet and TXT Fleet gasoline or electric vehicle (the "Vehicles ") and /or battery charger purchased from E -Z -GO, an E -Z -GO affiliate, or an authorized E -Z -GO dealer or distributor, or leased from a leasing company approved by E- Z-GO, shall be free from defects in material or workmanship under normal use and service (the "Limited Warranty"). This Limited Warranty with respect only to parts and labor is extended to the Original Retail Purchaser or the Original Retail Lessee ( "Purchaser ") for defects reported to E -Z -GO no later than the following warranty periods for the Vehicle parts and components set forth below (the "Warranty Period "): Part or Component Warranty Period FRAME LIFETIME SUSPENSION - Steering Gearbox, steering column, shocks and leaf springs 4 years MAJOR ELECTRONICS — Electric motor, solid state speed controller and battery charger 4 years DEEP CYCLE BATTERY — TXT ELECTRIC MODELS: • Standard Battery Earlier of 4 years or 20,000 amp hours* • Standard Battery with optional Hydrolink water fill system Earlier of 4 years or 21,500 amp hours* • Upgraded Battery with Upgraded Charger Earlier of 4 years or 25,000 amp hours* DEEP CYCLE BATTERY — RXV ELECTRIC MODELS: Earlier of 4 years or 25,000 amp hours* PEDAL GROUP - Pedal assemblies, brake assemblies, brake cables and motor brake 4 years SEATS - Seat bottom, seat back and hip restraints 4 years CANOPY SYSTEM - Canopy and canopy struts 4 years POWERTRAIN — Gasoline engine, gasoline and electric axle, starter generator, air intake and exhaust 3 years system BODY GROUP — Front and rear cowls, side panels and instrument panel 3 years OTHER ELECTRICAL COMPONENTS — Solenoid, limit switches, voltage regulator, F &R switch, charger cord 3 years and charger receptacle ALL REMAINING COMPONENTS - All options and accessories supplied by E -Z -GO, and all components not 2 years specified elsewhere * Added electrical components not part of original Vehicle drive system equipment that consume equal to or more than .4 amps shall reduce the amp hour battery warranty by fifteen percent (15 %). Added electrical components not part of original Vehicle drive system equipment that consume less than .4 amps shall reduce the amp hour battery warranty by ten percent (10 %). See reverse for other battery warranty limitations, conditions and exceptions. The Warranty Period for all parts and components of the Vehicle other than Deep Cycle Batteries shall commence on the date of delivery to the Purchaser's location or the date on which the Vehicle is placed in Purchaser- requested storage. The Warranty Period for Deep Cycle Batteries shall commence on the earliest of the date: (a) of Vehicle delivery to the Purchaser's location, (b) on which the Vehicle is placed in Purchaser- requested storage or (c) that is one (1) year from the date of sale or lease of the Vehicle by E -Z -GO to an authorized E -Z -GO dealer or distributor. Parts repaired or replaced under this Limited Warranty are warranted for the remainder of the length of the part or component Warranty Period. This Limited Warranty applies only to the Purchaser and not to any subsequent purchaser or lessee without the prior written approval of the E -Z -GO Customer Care / Warranty Department. EXCLUSIONS: Specifically EXCLUDED from this Limited Warranty are: • routine maintenance items, normal wear and tear, cosmetic deterioration or electrical components damaged as a result of fluctuations in electric current; • damage to or deterioration of a Vehicle, part or battery charger resulting from inadequate maintenance, neglect, abuse, accident or collision; • damage resulting from installation or use of parts or accessories not approved by E -Z -GO, including but not limited to subsequent failures of the Vehicle, other parts or the battery charger due to the installation and /or use of parts and accessories not approved by E -Z -GO; • warranty repairs made by other than an E -Z -GO branch or an authorized and qualified E -Z -GO dealer, distributor or designee. Warranty repairs by other than an E -Z -GO branch or an authorized and qualified E -Z -GO dealer, distributor or designee shall void the Limited Warranty; and • damage or loss resulting from acts of nature, vandalism, theft, war or other events over which E -Z -GO has no control. THIS LIMITED WARRANTY MAY BE VOIDED OR LIMITED AT THE SOLE DISCRETION OF E -Z -GO IF THE VEHICLE AND /OR BATTERY CHARGER: • shows indications that routine maintenance was not performed per the Owner's Manual, including but not limited to rotation of fleet, proper tire inflation, lack of charging, inadequate battery watering, use of contaminated water, loose battery hold downs, corroded battery cables and loose battery terminals; • lacks an adequate number of operating battery chargers, uses unapproved battery chargers or uses extension cords with battery chargers; • is fueled with unleaded gasoline containing more than 10% ethanol, E85 ethanol fuel or other non - recommended fuels, contaminated gasoline or other non - recommended lubricants; • shows indications that the speed governor was adjusted or modified to permit the Vehicle to operate beyond E -Z -GO specifications; • shows indications it has been altered or modified in any way from E -Z -GO specifications, including but not limited to alterations to the speed braking system, electrical system, passenger capacity or seating; • has non - Company approved electrical accessories or electrical energy consuming devices installed on a gasoline powered Vehicle without installation of a heavy duty 12V battery; or • is equipped with non - standard tires not approved by Company. USE OF NON - APPROVED E -Z -GO PARTS AND ACCESSORIES: THIS LIMITED WARRANTY IS VOID WITH RESPECT TO ANY PROPERTY DAMAGE OR ADDITIONAL ENERGY CONSUMPTION ARISING FROM OR RELATED TO PARTS OR ACCESSORIES NOT MANUFACTURED OR AUTHORIZED BY E -Z -GO, OR WHICH WERE NOT FOR FURTHER INFORMATION, CALL 1- 800- 774 -3946, GO TO WWW.EZGO.COM, OR WRITE TO E -Z -GO DIVISION OF TEXTRON INC., ATTENTION: E -Z -GO CUSTOMER CARE / WARRANTY DEPARTMENT, 1451 MARVIN GRIFFIN ROAD, AUGUSTA, GEORGIA 30906 USA. E -Z -GO P/N 623505 MODEL YEAR 2012 INSTALLED BY E -Z -GO, ITS DEALERS OR DISTRIBUTORS, INCLUDING BUT NOT LIMITED TO GPS SYSTEMS, COOLING AND HEATING SYSTEMS, COMMUNICATION SYSTEMS, INFORMATION SYSTEMS, OR OTHER FORMS OF ENERGY CONSUMING DEVICES WIRED DIRECTLY OR INDIRECTLY TO THE VEHICLE BATTERIES. REMEDY: Purchaser's sole and exclusive remedy under this Limited Warranty in the event of a defect in material or workmanship in the Vehicle, any part or component, or battery charger during the applicable Warranty Period is that E -Z -GO wit, at its sole option, repair or replace any defective parts. If E -Z -GO elects to repair or replace a defective part, E -Z -GO may at its discretion provide a factory reconditioned part or new component from an alternate supplier. All replaced parts become the sole property of E -Z -GO. This exclusive remedy will not be deemed to have failed of its essential purpose so long as E -Z -GO has made reasonable efforts to repair or replace the defective parts. DISCLAIMER: THIS LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED FOR THE VEHICLES AND BATTERY CHARGER AND IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL SUCH OTHER WARRANTIES BEING EXPLICITLY DISCLAIMED. LIABILITY LIMITATIONS: IN NO CASE SHALL E -Z -GO BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DEATH, PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM OR RELATED TO ANY ALLEGED FAILURE IN A VEHICLE OR BATTERY CHARGER, OR ANY DAMAGE OR LOSS TO THE PURCHASER OR ANY THIRD PARTY FOR LOST TIME, INCONVENIENCE OR ANY ECONOMIC LOSS, WHETHER OR NOT E -Z -GO WAS APPRISED OF THE FORSEEABILITY OF SUCH DAMAGES OR LOSSES. THE RIGHT OF PURCHASER TO RECOVER DAMAGES WITHIN THE LIMITATIONS SET FORTH IN THIS SECTION IS PURCHASER'S EXCLUSIVE ALTERNATIVE REMEDY IF THE LIMITED REMEDY OF REPAIR OR REPLACEMENT OF THE VEHICLE FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THIS ALTERNATIVE REMEDY WILL BE ENFORCEABLE EVEN IF THE LIMITED REMEDY OF REPAIR OR REPLACEMENT FAILS OF ITS ESSENTIAL PURPOSE. ANY LEGAL CLAIM OR ACTION ARISING THAT ALLEGES BREACH OF WARRANTY MUST BE BROUGHT WITHIN THREE (3) MONTHS FROM THE DATE THE WARRANTY CLAIM ARISES. WARNING: ANY MODIFICATION OR CHANGE TO THE VEHICLE OR BATTERY CHARGER WHICH ALTERS THE WEIGHT DISTRIBUTION OR STABILITY OF THE VEHICLE, INCREASES THE VEHICLE'S SPEED, OR ALTERS THE OUTPUT OF THE BATTERY CHARGER BEYOND FACTORY SPECIFICATIONS, CAN RESULT IN PROPERTY DAMAGE, PERSONAL INJURY OR DEATH. DO NOT MAKE ANY SUCH MODIFICATIONS OR CHANGES. SUCH MODIFICATIONS OR CHANGES WILL VOID THE LIMITED WARRANTY. E -Z -GO DISCLAIMS RESPONSIBILITY FOR ANY SUCH MODIFICATIONS, CHANGES OR ALTERATIONS WHICH WOULD ADVERSELY IMPACT THE SAFE OPERATION OF THE VEHICLE OR BATTERY CHARGER. DEEP CYCLE BATTERY WARRANTY LIMITATIONS, CONDITIONS AND EXCEPTIONS: • The amp hour Warranty Period for electric Vehicle batteries is as recorded by the Vehicle's controller. • To be eligible for this limited battery warranty, the warranty must be activated within forty -five (45) days of delivery of the Vehicle at the following web site - htta: / /ezgo.smartmanual.biz. Failure to do so will void the battery warranty. A Purchaser who is unable to log onto the web site should call or write the E -Z -GO Customer Care /Warranty Department using the contact information below or Purchaser's local dealer or distributor within forty -five (45) days of delivery of the Vehicle. • Claims for battery warranty replacement require specific testing, as specified by the E -Z -GO Customer Care / Warranty Department. E -Z -GO, or an authorized E -Z -GO dealer or distributor, should be contacted to obtain a copy of the required tests, which must be performed and corrected for temperature, based upon BC! (Battery Council International) recommendations. • NON - FACTORY INSTALLED PARTS OR ACCESSORIES INSTALLED DIRECTLY TO LESS THAN THE COMPLETE VEHICLE BATTERY PACK WILL VOID THE WARRANTY FOR THE ENTIRE BATTERY PACK. • ALL NON - FACTORY INSTALLED ACCESSORIES REQUIRE THE INSTALLATION AND USE OF AN E -Z -GO APPROVED DC TO DC CONVERTER THAT USES ENERGY FROM ALL BATTERIES. • Electric Vehicle storage facilities must provide the following: • ample electrical power to charge all Vehicles and allow the charger to shut off automatically; • battery chargers must each have an independent dedicated 15 amp circuit; • each battery charger must be connected to its circuit with at minimum a NEMA 15 -5R three -pin receptacle; • five (5) air exchanges per hour in the charging facility; • if the facility utilizes an electrical energy management system, the timer must be set to have available twelve (12) hours of electricity for all TXT Vehicles and fourteen (14) hours of electricity for all RXV Vehicles; and • one (1) functional charger for each Vehicle in the fleet with a proper electrical supply as specified above. OTHER E - Z - GO RIGHTS: • E -Z -GO may perform semi - annual vehicle inspections (directly or through assigned E -Z -GO representatives) through the term of any fleet lease. • E -Z -GO may improve, modify or change the design of any E -Z -GO vehicle, part or battery charger without being responsible to modify previously manufactured vehicles, parts or battery chargers. • E -Z -GO may audit and inspect the Purchaser's facility, maintenance records and its Vehicles by E -Z -GO representatives prior to approving a warranty claim and may contract with a third party to evaluate the Purchaser's storage facilities, fuel storage tanks and /or batteries. AUTHORITY: No E -Z -GO employee, dealer, distributor or representative, or any other person, has any authority to bind E -Z -GO beyond the terms of this Limited Warranty without the express written approval of the E -Z -GO Customer Care / Warranty Department. FALSE OR MISLEADING INFORMATION: THE WARRANTY FOR ALL VEHICLES IN A FLEET SHALL BE VOIDED IF DATA SUBMITTED FOR AN INDIVIDUAL VEHICLE WARRANTY CLAIM CONTAINS FALSE OR MISLEADING INFORMATION. EMISSIONS CONTROL WARRANTY: The Vehicle may also be subject to an emissions control warranty, as required by the U.S. Environmental Protection Agency and California Air Resources Board, which is provided separately with the Vehicle. FOR FURTHER INFORMATION, CALL 1- 800 - 774 -3946, GO TO WWW.EZGO.COM, OR WRITE TO E -Z -GO DIVISION OF TEXTRON INC., ATTENTION: E -Z -GO CUSTOMER CARE / WARRANTY DEPARTMENT, 1451 MARVIN GRIFFIN ROAD, AUGUSTA, GEORGIA 30906 USA. E -Z -GO PIN 623505 ;OM GOLF S GROUNDS EQUIPMENT mom A Textron Company 3/5/2012 Rebecca Hodgson Purchasing Officer City of Aspen 130 S. Galena Street Aspen, CO 81611 Dear Rebecca, We are pleased to provide you the enclosed proposal for your golf car needs. We are confident that after you have had an opportunity to review this proposal, you will agree that E -Z -GO will be your premiere partner for all of your vehicle needs. Cash Proposal between City of Aspen and C &M E -Z -GO proposes the following lease options: Qty Model Year Term Net Cost /Car Net Cost of Carts 60 TXT Fleet 2012 Cash $3,995.00 $239,700.00 Trade In of (60) 2004 TXT PDS cars $48,000.00 Total Amount $191,700.00 Payment details: • Option - Net 30 days after delivery Financing quote plus any applicable taxes • Delivery - 04/4/2012 • Payment - 05/4/2012 Included Accessories* Forrest Green Body Color Tan Sun Tops Tan Seats Bag Cover Windshield Fold Down Scorecard Holders Steering Column Mounted Bracket for Yardage Book Two Plaque Holders per Car Two Sand Bottles per Car Club / Ball Washer Battery Fill System Handheld Diagnostic Unit Wheel Covers Proposal includes monthly service calls from one of C &M's Denver based technicians All Golf Cars delivered fully set -up and charged. *Any change to the accessory list must be obtained in writing at least 45 days prior to production date. Trade Information* Manufacturer Model Year Qty Accessories E -Z -Go TXT- PDS 2004 60 Sunroofs, Windshields, Steering Total trade value $48,000.00 *,4// Trades must be in Fleet running condition. Cars that are not running, have missing equipment or excessive damage will be adjusted accordingly. All electric cars must have working chargers. Thank you for your consideration, John Trenck III E -Z -GO Fleet Golf Car Account Manager C &M Golf and Grounds Equipment PGA Golf Professional JT @bettermowers.com 303 - 587 -7958 It is our pleasure at C &M to serve the City of Aspen and the Aspen Golf Club its staff and its members ....• • ..... pr...., : , n . . . 4.• .. ..., ....._ . ____ , _. . F . i m i I U — a) c m u f • CL N E ° 22 F-- O C N p O U m o 0 ? > W v 0 • J U X O Co O W I C. D m > C C •. • H (1) . @ 5 U v N N a L w O L > . - O O v N C 4) > N U U c0 X o L 1— _. N N C O ' _ ,' O O O W O Q 'r_ CO a 5 co 'v Q . 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V Q m ` o o Q ? ° I- . � E a 8 O 1.1 a E - o U o. - 0 a rn w W u. fx I d O a. c g c c J I .. o _c a m g % W r C Q> co it 3 W CO Y d O f- H 5 4. o 1 0 O IV 1 I I- W • 2 MEMORANDUM TO: Mayor and City Council FROM: G.R. Fielding, Pitkin County Engineer THRU: John Krueger, Director of Transportation DATE OF MEMO: March 5, 2012 DATE OF MEETING: March 12, 2012 RE: A Resolution Approving an Intergovernmental Agreement (IGA) between the City Of Aspen, Pitkin County, and the State Of Colorado Department Of Transportation Adopting the State Highway 82 Access Control Plan REQUEST OF COUNCIL: Staff is requesting Council approval of a resolution approving an Intergovernmental Agreement (IGA) between the City of Aspen, Pitkin County and the state of Colorado Department of Transportation adopting the State Highway 82 Access Control Plan. PREVIOUS COUNCIL ACTION: No previous Council action was taken. The Council did review the State Highway 82 Access Control Plan (SH 82 ACP) at a work session on November 8, 2011. Staff is bringing the ACP forward for approval as directed at that work session after approval by the Pitkin County Commissioners at their regular meeting on February 22, 2012. BACKGROUND: This Resolution allows the City of Aspen to enter into the IGA with the Colorado Department of Transportation and Pitkin County regarding the SH 82 ACP. The State Highway 82 Access Control Plan identifies location and types of access points along the SH 82 corridor between Smith Hill Road and the Maroon Creek Bridge. This plan has been in development since 2005 with a restudy area being identified in 2008. Through numerous iterations, work sessions and public comment sessions; Staff has identified a layout for the intersections from the Service Center Road to BMC area. This layout is now incorporated into the whole SH 82 ACP. Since the last Work Session in November, Staff and Consultants have garnered approval from the Pitkin County Board of County Commissioners and from the Colorado Department of Transportation (CDOT) Staff for the SH 82 ACP. Final comments from all entities have been taken and incorporated. Staff has support from all agencies involved to move forward with the SH 82 ACP at this time. DISCUSSION: The attached table represents the 25 intersections in the total study area. The changes contained in the table will happen over time, as development, redevelopment, or traffic conditions dictate. CDOT is the traditional overseer of access to the state highway system. This plan is an agreement between CDOT, the County, and the City to redevelop the highway accesses as dictated in this plan or as amended through the process outlined in the agreement. This plan serves as the tool to bring transportation needs equal to development along this corridor. Approval Process: This is the second step in the approval process. The first was the approval from the Pitkin County BOCC. The IGA represents an agreement between the City of Aspen, Pitkin County, and the Colorado Department of Transportation to only allow the scope 4nd location of accesses as dictated by the SH 82 ACP unless an alternative is sufficiently studied and vetted through the 3 agencies. After the adoption by the BOCC, this resolution and IGA will be submitted to the Aspen City Council for approval. After approval by the City of Aspen, the IGA will be forwarded to the State of Colorado Transportation Commission, which will complete the approval process. FINANCIAL/BUDGETARY IMPACT: Adoption of this plan does not impact the City Budget or commit the City to any future funding for projects. ENVIRONMENTAL IMPACTS: There are no real,environmental impacts associated with the SH 82 ACP as it is a planning document for future development. RECOMMENDED ACTION: Approve the Resolution and IGA that adopts the SH 82 Access Control Plan. ALTERNATIVES: If Council does not approve the resolution and IGA, Council should state its reasons so that staff could go back to the BOCC and CDOT to discuss the changes and next steps for approval. PROPOSED MOTION: I move to approve Resolution # �.4 , series 2012, for the approval of the IGA between the City of Aspen, Pitkin County, and the Colorado Department of Transportation adopting the State Highway 82 Access Control Plan. CITY MANAGER 2 COMMENTS: �tr?e G k4vs � Trvw! r�-� -� 4 • ATTACHMENTS: Resolution Intergovernmental Agreement Table of Accesses Map of Accesses A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING AN INTERGOVERNMENTAL AGREEMENT (IGA) WITH PITKIN COUNTY AND THE STATE OF COLORADO DEPARTMENT OF TRANSPORTATION ADOPTING THE STATE HIGHWAY 82 ACCESS CONTROL PLAN Resolution No. a1 Series of 2012 Recitals WHEREAS, The State Highway 82 corridor is an important transportation resource for the communities of the Roaring Fork Valley. WHEREAS, The County, City of Aspen (City), and the Colorado Department of Transportation identified a need to develop an Access Control Plan (ACP) for the corridor between Smith Way and Maroon Creek Bridge in 2005. WHEREAS, The agencies contracted an engineering consulting firm to conduct a study and develop a comprehensive roadway access control plan to manage existing and future access points. The goal of the plan is to provide appropriate access to the highway while maintaining the safety and efficiency of the facility. WHEREAS, An IGA was not signed from the original Access Management Plan completed in 2005. In 2008, the County identified a need to update the ACP between Service Center Road and Owl Creek. The update area will be incorporated into the previous document to create one final ACP from Smith Way to Maroon Creek Bridge. WHEREAS, The purpose of the ACP is to provide for greater safety for the traveling public, more efficient highway operations, and to bring the corridor into compliance with the assigned access category in the State Access Code. WHEREAS, Having a formalized ACP will allow for the control of future demands for access along SH 82. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUCIL OF THE CITY OF ASPEN, COLORADO: That it hereby approves an Intergovernmental Agreement with Pitkin County and the State of Colorado Department of Transportation adopting the State Highway Access Control Plan dated January 2012 with attachments hereto. Dated: , 2012 Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that 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 , 2012. Kathryn S. Koch, City Clerk INTERGOVERNMENTAL AGREEMENT AMONG THE CITY OF ASPEN, PITKIN COUNTY, AND THE STATE OF COLORADO DEPARTMENT OF TRANSPORTATION THIS AGREEMENT is entered into effective as of the day of 2012, by and among the City of Aspen and Pitkin County (hereafter referred to collectively as the "City and County "), and the State of Colorado, Department of Transportation (hereafter referred to as the "Department "), all of said parties being referred to collectively herein as the "Agencies ". WITNESSETH: WHEREAS, the Agencies are authorized by the provisions of Article XIV, Section 18(2)(a), Colorado Constitution, and Sections 29 -1 -201, et. seq., C.R.S., to enter into contracts with each other for the performance of functions which they are authorized by law to perform on their own; and WHEREAS, each Agency is authorized by Section 43- 2- 147(1)(a), C.R.S., to regulate access to public highways within its jurisdiction; and WHEREAS, the coordinated regulation of vehicular access to public highways is necessary to maintain the efficient and smooth flow of traffic, to reduce the potential for traffic accidents, to protect the functional level and optimize the traffic capacity, to provide an efficient spacing of traffic signals, and to protect the public health, safety and welfare; and WHEREAS, the Agencies desire to provide for the coordinated regulation of vehicular access for the section of State Highway 82 between Smith Way (MP 34.454) and the Maroon Creek Bridge (MP 39.202) (hereafter referred to as the "Segment "), which is within the jurisdiction of the agencies; and WHEREAS, the Agencies are authorized pursuant to Section 2.12 of the 2002 State Highway Access Code, 2 C.C.R. 601 -1 (the "Access Code ") to achieve such objective by written agreement among themselves adopting and implementing a comprehensive and mutually acceptable highway access control plan for the Segment for the purposes above recited; and WHEREAS, the development of this Access Control Plan adheres to the requirements of the Access Code, Section 2.12; and NOW THEREFORE, for and in consideration of the mutual promises and undertakings herein contained, the agencies agree as follows: 1. This Agreement shall constitute an approved Access Control Plan for the Segment, within the meaning of Section 2.12 of the Access Code. 2. The agencies shall regulate access to the Segment in compliance with the Highway Access Law, Section 43 -2 -147, C.R.S. (the "Access Law "), the Access Code, and this Agreement including Exhibit A ( "Appendix A. SH 82 Access Control Plan ") — which exhibit by this reference is hereby incorporated into this document as though fully set forth herein. Vehicular access to the Segment shall be permitted only when such access is in compliance with the Access Law, the Access Code and this Agreement — including Exhibit A. 3. Accesses which were in existence in compliance with the Access Law prior to the effective date of this Agreement may continue in existence until such time as a change in the access is required by the Access Law, the Access Code or this Agreement or in the course of highway construction. When closure, modification, or relocation of access is required, the Agency(ies) having jurisdiction shall utilize appropriate legal process to affect such action. 4. Actions taken by any Agency with regard to transportation planning and traffic operations within the areas described in Exhibit A to this Agreement shall be in conformity with this Agreement. As per Code Section 2.12 (a), design waivers may be approved if agreed upon by the Agencies. 5. Parcels of real property created after the effective date of this Agreement that adjoin the Segment shall not be provided with direct access to the Segment unless the location, use and design thereof conform to the provisions of this Agreement. 6. This Agreement is based upon and is intended to be consistent with the Access Law and the Access Code as now or hereafter constituted. An amendment to either the Access Law or the Access Code which becomes effective after the effective date of this Agreement and which conflicts irreconcilably with an express provision of this Agreement may be grounds for revision of this Agreement. 7. This Agreement does not create any current financial obligation for any Agency. Any future financial obligation of any Agency shall be subject to the execution of an appropriate encumbrance document, where required. Agencies involved in or affected by any particular or site - specific undertaking provided for herein will cooperate with each other to agree upon a fair and equitable allocation of the costs associated therewith, but, notwithstanding any provision of this Agreement, no Agency shall be required to expend its public funds for such undertaking without the express prior approval of its governing body or director. All financial obligations of the Agencies hereunder shall be contingent upon sufficient funds therefore being appropriated, budgeted, and otherwise made available. 8. Should any one or more sections or provisions of this Agreement be judicially determined to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remaining provisions of this Agreement, the intention being that the various provisions hereof are severable. 9. This Agreement constitutes the entire understanding and agreement between the Parties regarding the subject matter hereof and supersedes and controls all prior written and oral agreements and representations of the Agencies concerning regulating vehicular access to the segment. No additional or different oral representation, promises or agreement shall be binding on any Agency. This agreement may be amended or terminated only in writing executed by the Agencies with express authorization from their respective governing bodies or legally designated officials. To the extent the Access Control Plan, attached as Exhibit A to this Agreement, is modified by a change, closure, relocation, consolidation or addition of an access, the Agencies may amend the attached Exhibit A so long as the amendment to the Access Control Plan is executed in writing and amended in accord with the Access Law and Access Code. The Access Control Plan Amendment Process has been included in Exhibit B. 10. By signing this Agreement, the Agencies acknowledge and represent to one another that all procedures necessary to validly contract and execute this Agreement have been performed, and that the persons signing for each Agency have been duly authorized by such Agency to do so. 11.. The parties agree and understand that both parties are relying on and do not waive, by any provisions of this Agreement, the monetary limitations or terms or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24 -10 -101, et seq., as from time to time amended or otherwise available to the parties or any of their officers, agents, or employees. 12. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 13. Any notice required or permitted under this Agreement shall be in writing and shall be hand - delivered or sent by registered or certified regular mail, postage pre- paid to the addresses of the parties as follows. Each party by notice sent under this paragraph may change the address to which future notices should be sent. To Pitkin County: 76 Service Center Road Aspen, CO 81611 With a Copy to: Pitkin County Attorney's Office 530 Main Street, Suite 302 Aspen, CO 81611 To City of Aspen: C/O Transportation Department 130 South Galena St Aspen, CO 81611 To Colorado Department of Transportation: C/O Region 3 222 South 6 St Grand Jct., CO 81501 14. The rights and obligations of the parties under this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. 15. This Agreement shall be construed according to the laws of the State of Colorado, and venue for any action shall be in the District Court in and for Pitkin County, Colorado. Each party to this Agreement shall have standing to bring an action to enforce the terms of this Agreement in District Court, including an action for specific performance and injunctive relief. In the event of litigation concerning this Agreement, the Parties agree that the substantially prevailing party shall be entitled to reasonable attorney fees and costs. 16. The City and Department agree to hold the County harmless, indemnify and defend the County for all damages to themselves and third parties and to all real and personal property occasioned during the performance of this Agreement. IN WITNESS WHEREOF, the Agencies have executed this Agreement effective as of the day and year first above written. City of Aspen, Colorado ATTEST: Mayor, City of Aspen City Clerk APPROVED AS TO FORM: City Attorney Pitkin County, Colorado ATTEST: Commissioner, Pitkin County County Clerk APPROVED AS TO FORM: County Attorney State of Colorado Department of Transportation ATTEST: Chief Engineer Chief Clerk CONCUR: Regional Transportation Director EXHIBIT B: STATE HIGHWAY 82 ACCESS CONTROL PLAN AMENDMENT PROCESS 1. Any request for amendment of the Access Control Plan must be submitted to and agreed upon by the affected jurisdictions; the Colorado Department of Transportation staff and/or the County /City of the Intergovernmental Agreement depending on the property location. The amendment request shall include: • Description of changes requested of the Access Control Plan • Justification for Amendment • Traffic Impact Study or analysis, depending upon the magnitude of the change requested. Either party to the Access Control Plan can request this supporting documentation. 2. 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"1' > = r '.4.....-1 ' • q t • ti Y .. k ., .Y . �+ F v isa ..�. �, r .`' fit - � _. S A � w rWt . l G c ' 71. � I / S , i E , / S N I . -e < iRa , , ,.,..-... , . .,.: .. , - „ , ,,, • 4:::.:5: ot: Ir $ '' '":. j I' E ,... %t • • , : PI k _�' yr f t _ gao ,3 O a ) 1 # ^{ ` !p< III X taJ 7 / ii yo t e - " .:. ' . : /{ T 'fie .+ i � / .„_ ' . - 0 . — -.-- ,,,,,, ,., < s, ...,r,.. • ,..i_ 7.___ , : ... ,,..-40,, ,, --- ,,, , .. _1=-=, g • 1 N . f O y ,t5 3 i F F n / _ jr / .. 6 f1 u� o n fA d ti e o 3 i g D m m < o °° J .f t o E a °� Cr m % � o c U 8 F• 4 { C 6 MEMORANDUM TO: Mayor and City Council FROM: CJ Oliver, Environmental Health Director DATE OF MEMO: March 5, 2012 MEETING DATE: March 12, 2012 RE: Drinking Water Fluoridation REQUEST OF COUNCIL: Staff requests Council approve a resolution to lower the amount of Fluoride provided in the City of Aspen drinking water supply to the EPA/Health and Human Services proposed level which is currently of 0.7 ppm. The issue this memo focuses on is not whether fluoride is "good or bad" (it has both benefits and risks) but whether or not the City of Aspen should add Fluoride as a public health protection measure. PREVIOUS COUNCIL ACTION: Councils have discussed fluoridation at past work sessions and decided not to change fluoridation procedures. An advisory vote was held on fluoride in the 1980's with the result favoring continuing to fluoridate. When the new lowered water fluoridation recommended guidelines were released in January 2011, council directed staff to return with as much scientific information as possible. That information is available in the work session memo from September 2011. ( http: / /www.aspenpitkin.com/Portals /0 /docs /City /envhealth/eh fluoride 9.2011 worksession m emo.pdf ) BACKGROUND: In January of 2011, the EPA and US Department of Health and Human Services (HHS) proposed a recommendation that water districts lower the amount of fluoride they add to drinking water to the lowest amount expected to reduce the number of cavities (0.7 ppm). Their release stated that, "This updated recommendation is based on recent EPA and HHS scientific assessments to balance the benefits of preventing tooth decay while limiting any unwanted health effects." This information was presented to Council, which directed staff to bring back options at a work session. At the work session Council asked staff to prepare a resolution to bring forward which would lower the amount of Fluoride the City adds to the water supply down to the new EPA/HHS recommended level (currently 0.7 ppm). DISCUSSION: This topic is an excellent example of an issue with significant tradeoffs and competing benefits and risks. The debate on the science of this issue is one without a definitive Page 1 of 5 answer but there are certainly scientific and peer reviewed conclusions that can be draw from the vast amount of information available. Science • It is crucial to rely on peer- reviewed studies, and to distinguish between studies whose methods have been evaluated by independent experts, and initial studies whose design cannot draw a scientific conclusion. • Fluoride reduces the risk of dental cavities. This is considered to be a significant public health benefit. • The National Research Council has reviewed the wealth of studies, evaluated which ones meet scientific standards, and listed the conclusions that can be drawn from those studies. Their charge was to evaluate whether the current maximum allowed level of fluoride naturally in water was strict enough, or whether high- fluoride water systems needed to do more to remove their fluoride. (They were asking whether natural levels of 4 ppm were too high, or whether the maximum should be lowered to 2 ppm. While they were not asked whether even lower levels still posed a risk, the scientific thinking is that if 10 x- rays a year increase your risk of cancer, five x -rays a year increases your risk, but by a lesser amount. So the risks, and benefits, they found, at 2 or 4 ppm would be expected to exist, but be smaller, at 0.7 ppm.) • Too much fluoride increases the risk of dental fluorosis and bone fractures. The NRC report stated that, "the majority of the committee concluded that the MCLG is not likely to be protective against bone fractures." (The MCLG is the 4 ppm that has been allowed in naturally high- fluoride water.) In more detail, the report noted, o "Bone Fractures o All members of the committee agreed that there is scientific evidence that under certain conditions fluoride can weaken bone and increase the risk of fractures... o The majority of the committee concluded that the MCLG is not likely to be protective against bone fractures... o Few studies have assessed fracture risk in populations exposed to fluoride at 2 mg/L in drinking water. The best available study was from Finland, which provided data that suggested an increased rate of hip fracture in populations exposed to fluoride at >1.5 mg/L. o Thus, the committee finds that the available epidemiologic data for assessing bone fracture risk in relation to fluoride exposure around 2 mg/L are inadequate for drawing firm conclusions about the risk or safety of exposures at that concentration. o More research is needed on bone concentrations of fluoride in people with altered renal function, as well as other potentially sensitive populations (e.g., the elderly, postmenopausal women, people with altered acid balance), to better understand the risks of musculoskeletal effects in these Page 2 of 5 populations." • Ambiguous studies have raised the possibility, which is not confirmed or proven, that excess fluoride may increase the risk of rare bone cancers in some subpopulations. This is a perfect example of the difficulty of being able to draw firm conclusions, even from good peer- reviewed scientific studies. • Many claims of adverse effects from fluoride ranging from lowered IQ to cancers. A scientific hypothesis may be found to be valid in future studies but there is no support for these effects based on existing science. • Aspen's water has natural fluoride in levels that vary by season and by water source (well, surface, etc.) with the average level varying from .18 to .35 ppm. • Intake of fluoride has increased significantly in the decades since fluoridation was begun, from dietary changes, toothpastes, and dental treatments. Knowing how much fluoride people get from their diets is very challenging and it varies tremendously among people. • An unknown number of consumers of Aspen's water may not be able to afford adequate dental care and the amount of fluoride ingested in foods can vary widely. Endorsements by other groups: The Colorado Department of Public Health and Environment strongly supports adding fluoride to water, as does the Aspen to Parachute Dental Initiative. CDPHE's policy statement is, "Fluoridation of public water supplies is a safe, economical, and effective measure to prevent dental caries. Family physicians should know the fluoride content of local drinking water supplies, educate patients to prevent excessive fluoride intake, and be knowledgeable about the health risks and benefits associated with fluoride. Dietary fluoride supplements should be considered for children from ages 6 months through 16 years when drinking water levels are suboptimal. CDPHE strongly urges Aspen to continue adding fluoride to its water. Optimal fluoridation is also included in the Oral health section of the agency's 10 winnable battles list. The Centers for Disease Control states, "For 65 years, community water fluoridation has been a safe and healthy way to effectively prevent tooth decay. CDC has recognized water fluoridation as one of 10 great public health achievements of the 20th century." What other communities are doing: Here is a summary of what other water treatment systems in Colorado do, from the Centers for Disease Control registry of fluoridation status of all water systems. • 515 Colorado systems are listed in this database as "non- fluoridated ". This group is heavily weighted toward small systems, although it also includes large systems such as Page 3 of 5 Thornton, Westminster, and Colorado Springs. This includes 23 systems in Pitkin County, 45 in Garfield County, and 21 in Eagle County. • 196 systems in Colorado are listed as "fluoridated" but by using the natural fluoride in their water. This includes towns like Woodland Park, La Junta, Salida, and Englewood and 3 water systems in Garfield County. • 50 water systems use natural fluoride but adjust levels to meet the standard. This includes such towns as Greeley, Breckenridge and Pueblo, two water systems in Pitkin County (Aspen and Snowmass), one in Garfield County and three in Eagle County. • 120 systems blend water from different sources with varying amounts of fluoride. The state health department's records provide different numbers, indicating that 73 systems adjust their fluoride levels (instead of the 50 listed by CDC) and notes that 11 of those systems have already adjusted their levels down to the new proposed EPA/HHS recommended guideline level of 0.7 ppm. The city of Fairbanks Alaska convened a task force to research water Fluoridation and decided to discontinue their program based on their of conclusions risk/benefit studies. The groundwater that Fairbanks uses has natural concentrations of Fluoride around 0.3 ppm, close to the upper end of the range for Aspen's natural background Fluoride levels. Their rationale and recommendations can be seen here. ( http: / /www.aspenpitkin.com/Portals /0 /dots /City /envhealth /eh fluoride fairbanks alaska report .pdf ) In Europe, most countries do not add fluoride to their water, although many use fluoridated salt as an alternative that allows consumers to choose whether to increase or limit their fluoride intake, or to give extra fluoride to children without adding it to adults' diets. See September 2011 work session memo for additional info on European practices. (pg. 21) FINANCIAL/BUDGET IMPACTS: This issue is not driven by cost considerations. It costs the city a small amount of money to add fluoride to the water, including purchasing the material and staff time, training, and safety materials required for its addition. The current cost of the fluoridation program to the Water Department is approximately $13,000. Cost of a reverse osmosis filtration system to remove Fluoride from one faucet is $150 -$500 depending on quality and capacity, replacement filters are needed every 6 months at a cost of around $50. ENVIRONMENTAL IMPACTS: This is a public health, rather than an environmental issue. Page 4 of 5 RECOMMENDED ACTION: Staff recommends that Council lower the amount of Fluoride in the municipal drinking water supply to the EPA/HHS recommended level of 0.7 parts per million. Staff feels this level provides the best protection of public health while taking into account concerns about over fluoridation. ALTERNATIVES: Council could choose to discontinue the fluoridation program for the drinking water supply if they feel the levels currently recommended by the EPA and HHS do not adequately address the risks associated with ingesting excess Fluoride. The natural background levels of Fluoride in the drinking water supply range from .18 to .35 ppm providing some level of protection for oral health. PROPOSED MOTION: I move to approve Resolution number a/Series of 2012. CITY MANAGER COMMENTS: ATTACHMENTS: Attachments: A — Resolutiong.Series 2012, Reduction of Fluoride Levels in drinking water Page 5 of 5 RESOLUTION NO. __ Series of 2012 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, DIRECTING THAT THE LEVEL OF SUPPLEMENTAL FLUORIDE ADDED TO ASPEN'S DRINKING WATER BE REDUCED TO THE LEVELS RECOMMENDED BY THE ENVIRONMENTAL PROTECTION AGENCY AND THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES WHEREAS, by an advisory vote of the citizens of the City of Aspen on May 2, 1989, the City was authorized to "continue to fluoridate its' public water supply distributed through the City water system "; and WHEREAS, the amount of fluoride added to the water supply has been based upon recommendations of the U.S. Department of Health and Human Services (HHS) and the U.S. Environmental Protection Agency (EPA); and WHEREAS, the EPA and HHS have recently reduced the recommended level of fluoridation of drinking water; and WHEREAS, The Colorado Department of Public Health and Environment includes optimal water fluoridation as part of its list of 10 Winnable Battles with large -scale impact on health and the environment, and with known, effective strategies to address them; and WHEREAS, the City Council believes that it is in the best interest of the citizens of the City of Aspen to follow guidelines set by the two national organizations and that the continued addition of fluoride into the City's drinking water is in the interest of the health, safety and welfare of the citizens of Aspen. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby directs the Water Department to reduce the level of supplemental fluoride added to Aspen's drinking water to such levels as are presently recommended by the EPA and HHS, and to modify such levels as the recommendation of the EPA and HHS or successor, equivalent national entities, may be amended from time to time. Dated: , 2012. 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 , 2012. Kathryn S. Koch, City Clerk MEMORANDUM \lit TO: Mayor and Aspen City Council FROM: Amy Guthrie, Historic Preservation Officer THRU: Chris Bendon, Community Development Directo RE: 514 East Hyman Avenue Historic Landmark Designation and AspenModern negotiation for benefits, Second Reading of Ordinance #6, Series of 2012 DATE: March 12, 2012 SUMMARY: 514 E. Hyman Avenue is a non- landmarked building located in the Commercial Core Historic District. Though staff has always considered the building a valuable example of the work of local architect Robin Molny, it was not included on previous lists of potential historic resources because the original brick facade has been obscured since the mid -90s by a stone veneer that was installed in an effort to update the building. The property owner is interested in restoring to the original design and benefiting from the historic preservation incentives that Aspen has adopted. HPC reviewed the project on January 25 and granted Conceptual approval. They recommended that Council pursue a successful landmark negotiation for this property, which is considered a "best" example of the Modernist style in Aspen. Except for the recent stone veneer, the building has not been greatly altered since construction. Subject property before 1990s remodel APPLICANT: Mason and Morse, Inc., represented by Haas Land Planning and CCY Architects. PARCEL ID: 2737 - 182 -13 -002. ADDRESS: 514 E. Hyman Avenue, Lot N, Block 94, City and Townsite of Aspen. ZONING: CC, Commercial Core. Historic District Overlay. 514 East Hyman Avenue AspenModem Negotiation — Second Reading of Ordinance #6, Series of 2012 HISTORIC DESIGNATION §26.415. 030. C AspenModern 1. Criteria. To be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures as an example of AspenModern, an individual building, site, structure or object or a collection of buildings, sites, structures or objects must have a demonstrated quality of significance. The quality of significance of properties shall be evaluated according to criteria described below. When designating a historic district, the majority of the contributing resources in the district must meet at least two of the criteria a -d, and criterion e described below: a. The property is related to an event, pattern, or trend that has made a contribution to local, state, regional or national history that is deemed important, and the specific event, pattern or trend is identified and documented in an adopted context paper; b. The property is related to people who have made a contribution to local, state, regional or national history that is deemed important, and the specific people are identified and documented in an adopted context paper; c. The property represents.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 and the specific physical design, designer, or philosophy is documented in an adopted context paper; d. The property possesses such singular significance to the City, as documented by the opinions of persons educated or experienced in the fields of history, architecture, landscape architecture, archaeology or a related field, that the property's potential demolition or major alteration would substantially diminish the character and sense of place in the city as perceived by members of the community, and e. The property or district possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association, given its age. The City Council shall adopt and make available to the public score sheets and other devices which shall be used by the Council and Historic Preservation Commission to apply this criterion. Staff Response: The subject building was constructed in 1971, designed by Frank Lloyd Wright trained architect Robin Molny, who passed away in 1997. During its early development as a ski area, Aspen attracted a variety of highly trained architects whose Modernist buildings help to define the character of downtown today. There is a concentration of Modernist buildings particularly along three blocks of East Hyman Avenue, including the subject building, the Benton Studio, commercial structures by Fritz Benedict and Ellie Brickham, the Crandall Building, and the Aspen Athletic Club. Robin Molny trained at Taliesen under Frank Lloyd Wright for five years and in the 1950s was selected by Wright to supervise the Greenberg Residence in Dousman, Wisconsin. 514 East Hyman Avenue AspenModern Negotiation — Second Reading of Ordinance 146, Series of 2012 Subsequently, Molny moved to Aspen, worked for Fritz Benedict, and opened his own architecture firm. The Hearthstone House (started in 1963) by Molny is already landmark designated. Additional significant work by him includes the downtown pedestrian malls (1973) and the Aspen Athletic Club (720 East Hyman, 1976). The HPC awarded Molny two Welton Anderson Preservation Honor Awards; in 1995 for the pedestrian malls and again in 1997 for significant architectural contributions to Aspen. Robin Molny is profiled in the City's Modernism historic context paper. Molny's original drawings are available to guide the proposed restoration of the facade. Even with the current condition of the building, staff has scored the property 16 points using our integrity scoring system, which falls into the category of "best ". The proposed restoration would increase the integrity score to a perfect 20 points. Though the veneer that was applied to the building greatly confused its architectural character, very little else was changed. Staff finds that designation criteria A, C, and E are met. Staff strongly feels that the preservation of this building is important to Aspen's post war legacy. A1/4,PENVIou1:1tN Ntx §26.415.025.C.1.c. The Community Development Director shall confer with the City Council regarding the proposed land use application or building permit, the nature of the property, and the staff and Historic Preservation Commission's assessment of its historic significance and the effects of the application or building permit. The property owner shall be provided notice of this meeting. 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 designation of the property. 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 may, at its sole discretion, approve any land use entitlement or fee waiver permitted by the Municipal Code and may award any approval that is assigned to another Board or Commission, including variations. Council shall consider the appropriateness of benefits in light of whether the property is identified as a "good, better, or best" example of Aspen's 20 century history and shall also seek to be equitable in the benefits awarded through the negotiation process. The monetary value of benefits being requested shall be defined, to the extent possible. Council shall seek compatibility with the neighborhood surrounding the subject property. When benefits are awarded as part of the negotiation, 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 land use application or building permit that initiated the negotiation to be withdrawn by the property owner if 514 East Hyman Avenue AspenModern Negotiation — Second Reading of Ordinance #6, Series of 2012 said application or permit would have negatively affected the historic significance of the property. Once a property identified on the AspenModern Map is designated to the Aspen Inventory of Historic Landmark Sites and Structures, additional negotiation under this section is not allowed. Staff Response: In exchange for designation and a restoration of this building the applicant requests the following special benefits: 1. Removal and rendering null and void the 1980 Basement Restriction Agreement in favor of underlying zoning compliance; 2. An allowable Free - Market Residential FAR of 0.88:1 (as compared to the 0.5:1 allowed by right); and 3. Five years of vested property rights. As explained in the application, in 1980 the Chief Building Official placed a restriction on some basement space, prohibiting it from being occupied. The purpose of this restriction is somewhat unclear in the permit file, but a letter signed by the Building Official and the property owner indicates that the agreement was related to floor area limitations of the time. Under today's code, the basement is completely excluded from floor area. The basement space has not been identified as out of compliance with the IBC, and any deficiencies would be fully corrected by the proposed remodel. The applicant would like this document nullified. HPC recommended that Council remove this restriction. Because 514 E. Hyman is only a 3,000 square foot lot, FAR for a free market unit is limited to 1,500 square feet. The total floor area of the proposed unit will be approximately 2,640 square feet, which is 1,140 square feet over the maximum. 640 square feet of that is non -unit, common space that is not counted in net livable square footage therefore the application meets the maximum net livable unit size of 2,000 square feet. HPC recommended that the free market unit size be reduced, but did not specify an amount. Staff recommends that the FAR request be approved. The project receives exemption from affordable housing for the free market unit, as do all landmarks. The most important negotiation issue according to the applicant is the FAR. Staff sees great value in the voluntary designation, and notes the significant expense and effort that may be involved in removing the existing stone veneer and restoring this important piece of Aspen architecture. Although the cap on residential square footage is to be increased, the project is still within the overall allowable Floor Area Ratio for the site. The final negotiation request is for extended vested rights. All projects receive an automatic three years of vested rights, or protection from changes to Land Use regulation. The applicant initially asked for up to 10 years to allow for the start date of the project to be more flexible. This has since been reduced to a five year proposal. HPC did not support a 10 year time period, but did not specify a lesser amount. 514 East Hyman Avenue AspenModern Negotiation — Second Reading of Ordinance #6, Series of 2012 The negotiated benefits are policy matters for Council to decide. The Land Use Code states that, as a further measure of the value of negotiation, Staff and HPC should evaluate whether the proposal meets the Purpose and Intent Statements of the Historic Preservation program, which are: §26.415.010. Purpose and intent. The purpose of this Chapter is to promote the public health, safety and welfare through the protection, enhancement and preservation of those properties, areas and sites, which represent the distinctive elements of Aspen's cultural, educational, social, economic, political and architectural history. Under the authority provided by the Home Rule Charter of the City and Section 29- 20- 104(c), C.R.S., to regulate land use and preserve areas of historical, architectural, archaeological, engineering and cultural importance, this Chapter sets forth the procedures to: A. Recognize, protect and promote the retention and continued utility of the historic buildings and districts in the City; B. Promote awareness and appreciation of Aspen's unique heritage; C. Ensure the preservation of Aspen's character as an historic mining town, early ski resort and cultural center; D. Retain the historic, architectural and cultural resource attractions that support tourism and the economic welfare of the community; and E. Encourage sustainable reuse of historic structures. F. Encourage voluntary efforts to increase public information, interaction or access to historic building interiors. The City does not intend by the historic preservation program to preserve every old building, but instead to draw a reasonable balance between private property rights and the public interest in preserving the City's cultural, historic, and architectural heritage. This should be accomplished by ensuring that demolition of buildings and structures important to that heritage are carefully weighed with other alternatives. Alterations to historically significant buildings and new construction in historic areas shall respect the character of each such setting, not by imitating surrounding structures, but by being compatible with them as defined in historic preservation guidelines: Staff and HPC believe that this proposal meets statements A -D from the Purpose and Intent of the Historic Preservation program. The property is in the downtown historic district: Aspen's first district and one of the earliest in the State of Colorado. The historic district is the image of the town to many residents and visitors and provides a unique identity to the resort. About 50% of the structures in Aspen's downtown core are Victorian era. Buildings like the subject property are among the relatively few remaining places that clearly represent the town's character in the 1960s and 70s, when 514 East Hyman Avenue AspenModem Negotiation — Second Reading of Ordinance #6, Series of 2012 explosive development pressure caused many citizens to actively defend and attempt to preserve Aspen's small town character and individualism. Staff respects the applicant's efforts to identify the minimum preservation benefits that will support this specific preservation and development effort. The negotiation process creates the opportunity for the City to incentivize a level of high quality restoration and preservation that might not otherwise be possible. RECOMMENDATION: Staff recommends that Council support this request for voluntary Landmark Designation and negotiated benefits. PROPOSED MOTION: "I move to adopt Ordinance #6, Series of 2012." CITY MANAGER COMMENTS: Attachments: Ordinance #6, Series of 2012 Exhibit A: Integrity Score Sheet Exhibit B: HPC Resolution Exhibit C: Application Exhibit 13: Modernism Context Paper (distributed previously. Please visit www.aspenpitkin.com to review.) 514 East Hyman Avenue AspenModem Negotiation — Second Reading of Ordinance #6, Series of 2012 ORDINANCE #6 (Series of 2012) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING HISTORIC LANDMARK DESIGNATION AND BENEFITS THROUGH THE ASPENMODERN PROGRAM FOR THE PROPERTIES LOCATED AT -514 E. HYMAN AVENUE, LOT N, BLOCK 94, CITY AND TOWNSITE OF ASPEN, COLORADO PARCEL ID NUMBER: 2737 - 182 -13 -002 WHEREAS, the applicant, Mason and Morse, Inc., represented by Haas Land Planning and CCY Architects, submitted an application on November 29, 2011, pursuant to Section 26.415.025(C), AspenModern Properties, of the Aspen Municipal Code, to voluntarily participate in the AspenModern ninety -day negotiation period for the properties located at 514 E. Hyman Avenue, Lot N, Block 94, City and Townsite of Aspen; and WHEREAS, pursuant to §26.415.025.C(1), the ninety -day AspenModern negotiation commenced on November 29, 2011; and WHEREAS, §26.415.025.C(1)(b) states that, during the negotiation period, "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 property. The property owner shall be provided notice of this meeting;" and WHEREAS, the property owners' representative met with the Historic Preservation Commission (the HPC) on January 25, 2012; and WHEREAS, at their regular meeting on January 25, 2012, the HPC considered the application; found that 514 E. Hyman Avenue is a "best" example of the Modern style in Aspen evaluated the designation and proposed development; and, found that the policy objectives for the historic preservation program stated at §26.415.010, Purpose and Intent are met, and recommended City Council ( "Council ") approval of Historic Landmark Designation; and WHEREAS, §26.415.025.C(1)(d), states that, during the negotiation period, "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 designation of the property"; and WHEREAS, §26.415.025.C(1)d establishes that "as part of the mutually acceptable agreement, the City Council may, at its sole discretion, approve any land use entitlement or fee waiver permitted by the Municipal Code and may award any approval that is assigned to another Board or Commission, including variations; "and 514 E. Hyman Avenue Ordinance #6, Series of 2012 Page 1 of 4 WHEREAS, in addition to Historic Landmark Designation and benefits available to all Landmarked properties subject to the Aspen Municipal Code, the applicant has identified preservation incentives that are requested as part of the AspenModern negotiation process. Those incentives include: 1. Removal and rendering null and void the 1980 Basement Restriction Agreement in favor of underlying zoning compliance; 2. An allowable Free - Market Residential FAR of 0.88:1 (as compared to the 0.5:1 allowed by right); and 3. Ten (10) years of vested property rights. WHEREAS, the Community Development Department performed an analysis of the application for Landmark Designation and found that the review standards are met. The staff report analyzed the proposed preservation incentives and monetary value of the benefits where possible; and WHEREAS, the City Council finds that the 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 RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AS FOLLOWS: Section 1: Historic Landmark Designation Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City Council hereby approves Historic Designation for 514 E. Hyman Avenue, Lot N, Block 94, City and Townsite of Aspen subject to the conditions described herein. Upon the effective date of this ordinance, the City Clerk shall record with the real estate records of the Clerk and Recorder of the County, a certified copy of this ordinance. The location of the historic landmark property designated by this ordinance shall be indicated on the official maps of the City that are maintained by the Community Development Department. Section 2: Aspen Modern Negotiation Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City Council hereby approves removal and rendering null and void the 1980 Basement Restriction Agreement in favor of underlying zoning compliance, and an allowable Free - Market Residential FAR of 0.88:1 (as compared to the 0.5:1 allowed by right). Section 3: Vested Rights The development approvals granted herein shall constitute a site - specific development plan and a vested property right attaching to and running with the Subject Property and shall confer upon the 514 E. Hyman Avenue Ordinance #6, Series of 2012 Page 2 of 4 Applicant the right to undertake and complete the site specific development plan and use of said property under the terms and conditions of the site specific development plan including any approved amendments thereto. The vesting period of these vested property rights shall be for five (5) years which shall not begin to run until the date of the publications required to be made as set forth below. 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 § 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 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 Chapter 26.308, Vested Property Rights. Pursuant to § 26.304.070(A), Development Orders, 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 five (5) 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: 514 E. Hyman Avenue, Lot N, Block 94, City and Townsite of Aspen. Nothing in this approval shall exempt the Development Order from subsequent reviews and approvals required by this Ordinance of the general rules, regulations and ordinances or the City of Aspen provided that such reviews and approvals are not inconsistent with this Ordinance. The vested rights granted hereby shall be subject to all rights of referendum and judicial review. The period of time permitted by law to exercise the right of referendum to refer to the electorate this Section of this Ordinance granting vested rights; or, to seek judicial review of the grant of vested rights shall not begin to run until the date of publication of the notice of final development approval as set forth above. The rights of referendum described herein shall be no greater than those set forth in the Colorado Constitution and the Aspen Home Rule Charter. 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 the Historic Preservation 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. 514 E. Hyman Avenue Ordinance #6, Series of 2012 Page 3 of 4 Section 5: 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 6: 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. The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. Section 7: A public hearing on this ordinance shall be held on the 12 day of March, 2012, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, Colorado, a minimum of fifteen days prior to which hearing 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 provided by law, by the City Council of the City of Aspen on the 13 day of February, 2012. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk FINALLY, adopted, passed and approved this day of , 2012. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk APPROVED AS TO FORM: Jim True, City Attorney 514 E. Hyman Avenue Ordinance #6, Series of 2012 Page 4 of 4 �_ 'k` A Q) © © © i as -1— W C N Q co _ L P co a OD V! N 0) °1 N O O y -- U as _ C � � ST - 0 N O (1) . � Q L t O U } + (� o o Y L N O a - . `- O s- X N cn y _ O m ° c m E m o m m (p , 7 O> CO C N O >. o c a) - a C E O O O ( 92 +7 -o N - 9 0 2, o( m o 0 o O N O C N� N to ° 0 m Q o T i s _ U CO C O T _C C co c L 6 N >+'- (B N u , 0 C m c m C (n N o O m C CO 0) 7 C O w p O 7 O 0 / 1 L E C - o - O V E E O 4- O° O N C + L > + C ? C .} m () o ° -, m o 33 an d E ' D O f O E O co a C Q O C cn Q O O S c N - o V c6 8 = > en N C 0 0 N y) +- L O L N O U) i 0 V ED c° o c o o 0 7 c cn O- 7 0 L E L C (0 CL c Q -0 N a n o ( co C Q�,_ L >� N +. — O -,- O +� w � c E m' a) — 5 .'f.; 8 < V a E W co Q o i•=. a i a O o - x 2 c o a) V 1- n N m 80 6l a) a) rca3 D cici I: cc CO L CD 0 To a N E 0 C O -O c a) "€ -1-+ - O C 4- c - m m ,=„ C m E E O � � � te /� O- a) m O a) U @ VJ C O a) C C O _ m N L T r , O N O E O C O a) L O � O 5 p O > I D N 4 N O C O O E to 6) 4-1 O L C (o 6) C O co C m O O > C , ) -. a) O m S W O (7, „, 6 - a) () E V >+ o @ m m m C C U @ 1 1 2 c 2 o N - m N t o i I L L jy O m • a) 0) C N O N 0 U) t N -0 ' � O O@ a) � f ... 2 O) (2 N a) a O E O o O- c w N CO Q C o a E o m '- o- l � E - ° @ 0 E N C 0 m o N m m m T (nm I aa) < 5 o 2 a) _ ._ w - D CO N - m o E Q r O N m m v (n (n - 6 - ) (0 0 N- W C L CD X -4—J L O U '" CO X U C o °' _ a)� Q 0 co r A INTEGRITY SCORING If a statement is true, circle the number of points associated with that true statement. LOCATION OF BUILDING ON THE LOT: _ The building is in its original location. 2 points The building has been shifted on the original parcel, but maintains its original 1 point alignment and /or proximity to the street. SETTING: The property is located within the geographical area surrounded by Castle 1 point Creek, the Roaring Fork River and Aspen Mountain. The property is outside of the geographical area surround by Castle Creek, the 1/2 point Raoring Fork River and Aspen Mountain. DESIGN: The form of the building (footprint, roof and wall planes) are unaltered from 3 points the original design. a.) The form of the building has been altered but less than 25% of the original walls have been removed, OR b.) The alterations to the form all occur at the rear of the subject building, OR 2 points c.) The form of the building has been altered but the addition is less than 50% of the size of the original building, OR d.) There is a roof top addition that is Tess than 50% of the footprint of the roof. MATERIALS Exterior materials The original exterior materials of the building are still in place, with the 2 points exception of normal maintenance and repairs. 50% of the exterior materials have been replaced, but the replacements 1 point match the original condition. Windows and doors The original windows and doors of the building are still in place, with the points exception of normal maintenance and repairs. 50% of the original windows and doors have been replaced, but the 1 point replacements match the original condition. Best: 15 up to 20 points Integrity Score (this page) maximum of 10 points: 0 Better: 12 up to 15 points Character Defining Features Score (first page) maxi - % Good: 10 up to 12 points mum of 10 points: Not Eligible:0 up to 10 points HISTORIC ASSESSMENT SCORE: 1 LI Cat A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION RECOMMENDING THE ASPEN CITY COUNCIL APPROVE HISTORIC LANDMARK DESIGNATION OF THE PROPERTY LOCATED AT 514 E. HYMAN AVENUE, LOT N, BLOCK 94, CITY AND TOWNSITE OF ASPEN, COLORADO THROUGH THE ASPENMODERN PROGRAM, AND APPROVING CONCEPTUAL MAJOR DEVELOPMENT AND COMMERCIAL DESIGN STANDARDS REVIEW RESOLUTION # 3, SERIES OF 2012 PARCEL ID: 2737 - 182 -13 -002 WHEREAS, the applicant, Mason and Morse, Inc., represented by Haas Land Planning and CCY Architects, submitted a letter dated November 29, 2011 requesting that the property located at 514 E. Hyman Avenue, Lot N, Block 94, City and Townsite of Aspen be considered for voluntary historic designation in exchange for specific benefits through the AspenModem negotiation; and WHEREAS, the 90 day AspenModem negotiation commenced on November 29, 2011; and WHEREAS, the property is located within the designated boundaries of the Commercial Core Historic District as described in City Council Ordinance number 49, Series of 1974; and WHEREAS, the applicant also requested HPC Major Development (Conceptual) and Commercial Design Review (Conceptual) approval; 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 Conceptual Commercial Design 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 Commercial, Lodging, and Historic District Objectives and Guidelines per Section 26.412.040 of the Municipal Code. 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 RECEPTION/t: 586585, 02/09/2012 at 10:06:12 AM, 1 OF 3, R 521.00 Doc Code RESOLUTION 514 E. Hyman Avenue - AspenModem Janice K. Vos Caudill, Pitkin County, CO HPC Resolution #3, Series of 2012 WHEREAS, Amy Guthrie, in her staff report to HPC dated January 25, 2012, performed an analysis of the application based on the standards, found that the review standards had been met, determined that the property meets the criteria for designation and the integrity score qualifies as the "best" category of historic resources, and recommended approval of the project with conditions; and WHEREAS, at their regular meeting on January 25, 2012, the Historic Preservation Commission considered the application during a duly noticed public hearing, the staff memo and recommendation, and public comments, and found the building to be consistent with the designation criteria by a vote of 4 to 1. NOW, THEREFORE, BE IT RESOLVED: That HPC hereby finds that the property located at 514 E. Hyman Avenue, Lot N, Block 94, City and Townsite of Aspen, meets the designation criteria of Land Use Code Section 26.415.030.C.1 and Land Use Code Section 26.415.010 Purpose and Intent, and recommends Aspen City Council negotiate for landmark designation. HPC finds that 514 E. Hyman Avenue is a "best" example of the Modern architecture. HPC hereby grants HPC Major Development (Conceptual) and Commercial Design Review (Conceptual) approval. These recommendations and approvals are granted with the following conditions: 1. A height variation to 40' is granted for the new addition. 2. The applicant shall provide additional explanation of how proper trash/utility /service area is accommodated. 3. HPC supports the negotiation request for removal of a previously established restriction on the use of basement space in the building. 4. HPC does not support the negotiation request for 10 years of vested rights. 5. HPC recommends the FAR of the residential unit be reduced from the amount requested through negotiation. 6. A development application for a Final Development Plan shall be submitted within one (1) year of the date of approval of a Conceptual Development Plan. Failure to file such an application within this time period shall render null and void the approval of the Conceptual Development Plan. The Historic Preservation Commission may, at its sole discretion and for good cause shown, grant a one -time extension of the expiration date for a Conceptual Development Plan approval for up to six (6) months provided a written request for extension is received no less than thirty (30) days prior to the expiration date. APPROVED BY THE COMMISSION at its regular meeting on the 25th day of January, 2012. / /�/ Ann Mullins, Chair 514 E. Hyman Avenue — AspenModem HPC Resolution #3, Series of 2012 Approved as to Form: im True, Special Counsel ATTEST: /_ i% . Kathy Stri ' and, Chief Deputy Clerk 514 E. Hyman Avenue — AspenModern HPC Resolution #3, Series of 2012 ril HAAS LAND PLANNING, LLC a ° Cfa 201 N. MILL STREET, SUITE 108 - ASPEN, CO 81611 - (970) 9257819 - i N m MHAAS @SOPRIS.NET 0 m T Z 0 To: Historic Preservation Thru. Amy Guthrie Date: November 29, 201TT Commission (HPC) & City Council Subject: MasonMorse Building Designation Negotiation under AspenModern 514 East Hyman Avenue Section I: Introduction The MasonMorse Building at 514 East Hyman Avenue was formerly known as the Gargoyle Building. Although unfortunately obscured today, the original Robin Molny architecture of this 1971 building is actually very much intact and capable of being restored. This application proposes restoration of Molny's original design along with assurances as to its preservation through AspenModern Landmark Designation in association with certain land use entitlements. AspenModern is a program adopted by the City of Aspen to address, through negotiation of incentives for designation, the negative impacts that the loss of landmark eligible buildings would have on the health, peace, safety, and general well being of the residents and visitors of Aspen, and the diminishment of Aspen's unique architectural character, livability, and attractiveness as a destination. The applicant, Mason and Morse, Inc., intends to complete the restoration and remodel of their building along with the addition of a third floor free- market residence set fifteen (15) feet back from the historic facade. The applicant is interested in having the building added to the Inventory of Historic Landmark Sites and Structures provided that the submitted plans for the restoration, remodel and addition are concurrently approved. Therefore, this application seeks Landmark Designation with HPC Conceptual Commercial Design Review and Major Development approvals. Upon completion of these entitlements, it is hereby requested that the CDD grant all necessary administrative Growth Management approvals pursuant to Code Section 26.470.060(4), Minor Enlargement of an Historic Landmark for Commercial, Lodge or Mixed -Use Development. This application is submitted pursuant to the following sections of the Aspen Land Use Code (the Code): 26.304, Common Development Review Procedures, including 26.304.060(B)(1), Combined Reviews; 26.415.025(C), AspenModern Properties; 26.415.030(C), Designation of Historic Properties - AspenModern; 26.415.070(D), Certificate of Appropriateness for Major Development; MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 11 26.470.060(4), Minor Enlargement of an Historic Landmark; and 26.710.140, Commercial Core Zone District (CC). The application is divided into five sections. Section I provides a brief introduction to the application, while Section II describes the existing conditions of the project site and environs. Section III outlines the applicant's proposed development, and Section IV addresses the proposed development's compliance with the applicable review criteria of the Code. A short summary is provided in Section V. For the reviewer's convenience, all pertinent supporting documents relating to the project are provided in the various exhibits to the application, as follows: • Exhibit 1: Land Use Application and Dimensional Requirements Forms; • Exhibit 2: Pre - Application Conference Summary prepared by Amy Guthrie; • Exhibit 3: Proof of the Applicants' Ownership; • Exhibit 4: Authorization for Haas Land Planning, LLC (HLP) and Cottle Carr Yaw Architects (CCY) to represent the applicant; • Exhibit 5: August 29, 1980, Agreement and Associated Basement Level Plans; • Exhibit 6: An executed application fee agreement; and, • Exhibit 7: Mailing addresses of record for all property owners located within three- hundred feet of the subject property. In addition, a full set of architectural plans prepared by CCY accompany this application and include: • A Cover Sheet, an Improvement Survey, a Site Plan, and the Plaza Plan and Plaza Illustrative Plan; • Lower, Main, Mezzanine and Upper Level Floor Plans, and the Roof Plan; • Existing Conditions South Elevations; • Photo of Historic Molny South Elevation and Original Molny South Elevation Drawing; • Comparative Existing and Proposed South Elevation Drawings in Hyman Avenue Context; • South Elevation Studies: Existing, Original and Proposed; • West Elevation Drawings: Proposed and Molny Drawings; • North Elevation Studies: Proposed and Molny Drawings; • Section Drawing Studies: Proposed and Molny Drawings; and • Existing and Proposed Renderings in Context. While the applicant has attempted to address all relevant provisions of the Code, and to provide sufficient information to enable a thorough evaluation of the application, questions may arise which require further information and /or clarification. Upon request, the applicant's representative will provide such additional information as may be required in the course of the review. MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 2 Section II: The Project Site (Existing Conditions) The building at 514 East Hyman Avenue was built in 1971 and was designed by Robin Molny, an architect whose work is considered to be representative of the Modernist Movement of 20th century architecture in Aspen. It is a 2- story, commercial building on a 3,000 square foot lot, situated on East Hyman Avenue between Galena and Hunter Streets. The subject property is legally described as Lot N, Block 94, City and Townsite of Aspen, its Parcel Identification Number is 2737 - 182 -13 -002, and it is owned by Mason and Morse, Inc. (the applicant). The Vicinity Map below shows the property's general location relative to the surrounding area. 1 €r ..,E ,t efik.,,, a �� t• - � / / � (( t - � � 9 a .� end y r rnt ll gr ,47 3 t n E r te - E ( / y ( 1. ( % � A - - I f f 1 4 f j'7 ` tee 1 `'E�N.'.p. - I s \ % ' u 3 ' 0 ,INpquest 5 a qSu wva..R 1... Well MlvTEq Vicinity Map — 514 East Hyman Ave The building was remodeled in 1990. The remodel obscured Molny's original design and changed the front facade of the building but left the underlying structure and materials largely intact. For instance, the original brick is still in place beneath the current sandstone facade. The building maintains its original setback from the front property line on Hyman Avenue, but an awkward entry plaza with planter boxes has been installed immediately adjacent to the public amenity space associated with the Elks Building next door. The existing structure is a single -use commercial building occupied only by the MasonMorse real estate offices. The building has a basement level, a ground floor, and a mezzanine/ second floor. The ground floor and the mezzanine level MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 3 are occupied by the real estate offices and support areas only, with circulations areas as needed. As the plans accompanying Exhibit 5 of this application indicate, the basement level occupies the entire 3,000 square foot lot but its north end and southeast corner are limited to storage uses per an August 29, 1980 Agreement (see Exhibit 5) which specified that, "To adhere to the floor area ratio as required by the City of Aspen building code and as a consideration of the remodel of the premises, Mason & Morse, Inc., and its President hereby agree not to occupy for any or all purposes the voided areas lying to the North of and South of the Conference Room as shown on the plans filed in the Building Inspectors Office." The plans alluded to do not appear to remain on file with the Building Inspector's Office but the two plans accompanying Exhibit 5 are the most relevant plans available from said file. Although the cited and provided Agreement is written as being between Mason and Morse, Inc., and the City of Aspen, the Agreement is not executed by the City nor is it a document of record with the Pitkin County Clerk and Recorder. Moreover, the terms of the Agreement have been rendered moot by the City's adoption of amended dimensional standards for the Commercial Core (CC) Zone District, specifically those addressing allowable Floor Area. Not only does the existing building fit within the allowable cumulative (2.75:1) and commercial (2:1) Floor Area limits for the current CC zoning, but the current Code exempts 100% of the existing basement space in the MasonMorse Building from Floor Area calculations and measurements. Therefore, whether used for storage or otherwise, the "voided areas" have no affect on the building's ability to adhere to current floor area ratio restrictions. With regard to the exterior, the existing building is setback from the street behind an awkward and somewhat dysfunctional outdoor plaza area containing several planter boxes that leak. The layout of the plaza precludes ADA compliance due to stairs skewed at angles counter to the street and sidewalks and a lack of ramps. The current plaza is not consistent with the original Molny design. The alterations to the building from its original design are largely cosmetic but include an added sandstone veneer, an added decorative post below the second floor deck (not structural /supportive), removal of original awnings and the addition of awnings in different locations, and changes to the facade roofline mainly in the form of an added parapet and pediment. From ground to the top of the pediment form, the building measures thirty-eight (38) feet in height on its front facade. MasonMorse AspenModern Application (PID 2737- 182 -13 -002) Page 41 Section III: The Proposal In exchange for Landmark Designation and the restoration and preservation of this Robin Molny designed building in Aspen's Commercial Core, the applicant is seeking the very modest benefits listed below. However, if Landmark Designation would preclude approval of the proposed addition, then the applicant prefers to not so restore and designate the property/structure. The proposal is fully depicted on the accompanying CCY Plan Set It envisions maintaining the overall appearance of the existing building, restoring the front facade to its original appearance, renovating the entry plaza, and adding a set- back third floor addition to the building for a free - market residence. The addition will have very little visual impact as it will be set back fifteen (15) feet from the front facade, restoring the building's historic appearance from Hyman Avenue. The new construction will have a more contemporary loft style that is clearly a product of its own time, while maintaining consistency with the historic portion of the building through the inclusion of complimentary solid to void patterning and window forms. While a third floor will be added, its fifteen foot setback coupled with removal of the existing parapet and pediment will result in a front facade with approximately 4' -91/2" less height than exists today. There were certain changes made to the front facade of the building when it was renovated in the 1990s. The alterations to the building from its original design are largely cosmetic but include an added sandstone veneer, an added decorative post below the second floor deck (not structural /supportive), removal of original awnings and the addition of awnings in different locations, and changes to the facade roofline mainly in the form of an added parapet and pediment. All of these non - historic elements will be removed as part of the restoration effort. As mentioned above, the entry plaza will also be renovated to compliment the adjacent Elks plaza and provide for ADA compliance. As part of the remodel, the applicant will remove all planter boxes incorporated into the existing entry plaza design as these leak and were not part of the original Molny design. The current alignment of planter boxes and staircases run contrary to the direction of the adjacent sidewalks and associated pedestrian movements, resulting in awkward and uninviting spaces. The plaza layout will be redesigned to be much simpler, and will include ADA accessibility provisions. This remodeled public- private space will function well while providing an inviting dwell space that enhances the overall pedestrian experience. All of the above - described changes are illustrated on the accompanying plan set The Perspective Renderings, as compared with the Existing Conditions Renderings, provide the most telling illustrations. Also of note is Sheet A4.2.2, which shows the MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 51 existing massing shadowed over the proposed massing. The integrity of the original design will be fully restored and, once designated, will maintain a scale that both compliments and enhances the surrounding context. Along with the fifteen foot front setback (from the street - facing facade), the third floor addition is inset from the original side walls of the building. As the plans, elevations and renderings illustrate, the proposed third floor walls are set inside the face of the walls of the ground and second floors, resulting in a clear demarcation between the old and the new, subordinate form. An elevator is required to serve the remodeled building and this, in turn, requires a five foot elevator overrun at the roof. To accommodate this requirement in the most sensitive possible way, the resulting form has been positioned near the center of the building, more than twelve (12) feet from the west facade, over nine (9) feet from the east facade, and nearly forty-three (43) feet back from the building's front facade (see Roof Plan, Sheet A3.5). While the elevation drawings necessarily depict these improvements in unflattering one - dimension, the reality is more accurately reflected by its complete lack of visibility in the rendered perspective drawings (Sheets A6.1 and A6.2). The third floor addition has been designed to complement the Molny architecture through consistency of shadow lines, solid to void ratios, and fenestration patterns. To enhance these means of achieving consistency while injecting a clear but compatible differentiation, vertical siding will be used on the new elements at the third floor as well as on the west (at the parking /service area between the subject property and the Elks Building) and north (facing the alley) facades. New windows will be added approximately two- thirds of the way back on the second floor of the west elevation to enable penetration of natural light into the office spaces. These windows will be non - operable and of structural, fire -rated glass due to their location on the property line. Rather than three separate punched openings, a feature Molny likely never would have incorporated on this building, the new windows are to be set in a band of vertical siding to give the effect of a consistent solid to void pattern that compliments not only the third floor addition but also the dominant design features of the historic front facade. This design detail is repeated at the alley- facing facade, where the currently blank and lifeless CMU wall will receive enhanced interest as well as significantly improved functionality (i.e., entrance will be covered /inset and its level will be made to match the grade of the alley). Section 26.415.025(C) of the Code explains that sites associated with Aspen's 20th century history, such as the 514 East Hyman Avenue site of the MasonMorse Building, are called AspenModern properties. Although this property is not specifically identified on the AspenModem Map, subsection 5 of the above -cited Code Section states that owners of properties not included on the Aspen Modern MasonMorse AspenModern Application (PID 2737- 182 -13 -002) Page 6 Map may apply to the Community Development Director to be added to the map by submitting a written request. The Community Development Director then determines if the property is eligible, based on the designation criteria. Given that the Community Development Department (see Pre - Application Conference Summary, Exhibit 2) has encouraged this application and the HPC has done the same (in work session), the restoration of the Molny design and the addition of this property to the AspenModern program, should be deemed not only eligible but appropriate. Pursuant to Code Section 26.415.025(C)(1), the submittal of this application initiates a negotiation period of up to ninety days, which may be extended an additional thirty days upon resolution adopted by City Council, or longer if mutually acceptable to both the Council and the applicant. The City Council or the applicant may choose to terminate the negotiations at any time. The goal of the negotiation period is to reach a mutually acceptable agreement for the landmark designation of the property. As part of the mutually acceptable agreement, the City Council may, at its sole discretion, approve any land use entitlements or fee waiver permitted by the Municipal Code and may award any approval that is normally assigned to another Board or Commission, including variations. Council's charge includes seeking compatibility with the neighborhood surrounding the subject property and weighing the benefits in light of whether the property is identified by the HPC as a "good, better, or best" example of Aspen's 20th century history. During the HPC work session that was held regarding this property, the applicant was asked to make certain changes to the proposal including increasing the setback of the third -floor addition, including more 1970s architectural dialogue on the addition, and keeping the addition simple and compatible with the historic elements of the original building. The HPC also made it clear that the redesign of the plaza area was very important and should be tied in with the adjacent Elks Plaza in order to create a better public amenity space. All of the comments made by the members of the HPC have been taken into consideration and have been accommodated in what is now proposed. In exchange for the voluntary historic preservation of the MasonMorse Building, the modest benefits sought by the applicant include only the following: 1. Removal and rendering null and void the 1980 Basement Restriction Agreement in favor of simple zoning compliance; 2. An allowable Free - Market Residential FAR of 0.88:1 (as opposed to the 0.5:1 allowed by right); and 3. Ten (10) years of vested property rights. MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 71 As explained above, in the Existing Conditions section of this application, the Basement Restriction Agreement is already antiquated and of no real meaning under current codes. The elimination of the "Agreement," which is neither mutually executed nor of record, amounts to more of a "cleaning up" item than a true incentive for preservation since its effect is arguable not only because it is not a document /restriction of record but also because none of the building's basement area impacts floor are ratio limits to begin with. The proposal does not entail significant variances from the CC zoning. While additional free - market residential floor area is requested, the cumulative floor area of the proposal is less than 70% of that allowed under the CC zone district limitations (approximately 5,770sf where 8,250sf are allowed). Similarly, while the CC zone district allows a maximum free market dwelling unit size of 2,000 net livable square feet, the proposed unit contains only 1,917 square feet of net livable area; the remaining free market residential floor area is contained in walls and non -unit space (i.e., percentages of common areas such as circulation ways and ingress /egress stairs). The increased free - market residential FAR requested in this application is the primary catalyst for the restoration of this Robin Molny building. Without approval of this incentive request, the restoration work will not be feasible. Also consistent with the zoning requirements, the above -grade commercial floor area significantly exceeds the net livable residential square footage without even accounting for the nearly 3,000 square feet of subgrade commercial space. The public amenity space will remain the same in area albeit in a substantially more appealing and functional form /design. The front facade's two -story building height will be decreased and fall below the twenty -eight foot zoning limit for this area, while the third floor building height of forty feet falls below the forty-two foot limit allowed through Commercial Design Review. The need for an extended period of vested property rights associated with the site specific development plan approved pursuant to this application is largely an unfortunate effect of today's market conditions. While the applicant would be immediately and permanently committed to landmark designation and the restoration plans included herewith, outside market and finance realities may affect the applicant's ability to timely use the approvals and incentives granted in association with these commitments. Furthermore, other voluntary designation projects that have come before the HPC and City Council have been granted extended vested rights. Furthermore, other voluntary designation projects that have come before the HPC and City Council have been granted extended vested rights. It is felt that the incentive of an extended opportunity to rely on and use such approvals is a minor consideration in exchange for the immediate and MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 8 permanent benefits to be realized by the City through the AspenModern Landmark designation of the subject property, a designation that will never expire. Overall, the applicant is asking for very little in the way of incentives while providing many community benefits as a result of the exceptionally sensitive restoration effort, including but not necessarily limited to returning the building to its original design by removing non - historic features and materials, permanently landmark designating and preserving the Molny structure, making the building ADA compliant, and accommodating the changes to the third -floor addition and the plaza as requested during the HPC work session. Once landmark designated, the mass and scale of the building will be established in a manner that both compliments and enhances the surrounding context. The restored building and renovated plaza will enhance the pedestrian experience and the streetscape as a whole for future generations of Aspenites and visitors alike. Section IV: Review Requirements In light of the foregoing, this application is submitted pursuant to the following sections of the Aspen Land Use Code (the Code): 26.304, Common Development Review Procedures, including 26.304.060(B)(1), Combined Reviews; 26.310.040, Standards for Review - Rezoning; 26.415.025(C), AspenModern Properties; 26.415.030(C), Designation of Historic Properties - AspenModern; 26.415.070(D), Certificate of Appropriateness for Major Development; and 26.710.140, Commercial Core (CC) Zone District. The applicable provisions are addressed below. A. Designation of AspenModern Properties The designation of AspenModern properties to the Aspen Inventory of Historic Landmark Sites and Structures (the Inventory) is governed by Section 26.415.030(C) of the Code. In order to be eligible for designation, an individual building, site, structure, or object, or a collection of buildings, sites, structures, or objects must have a demonstrated quality of significance. Furthermore, to be worthy of preservation incentives and to evaluate the equitability of such incentives, an AspenModern property must be rated on a "good, better or best" scale with regard to its contribution to and significance in Aspen's 20th century history. Section 26.415.030(C)(1) of the Code states that, The quality of significance of properties shall be evaluated according to the criteria below: a. The property is related to an event, pattern or trend that has made a contribution to local, state, regional, or national history that is deemed MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 9 important, and the specific event, pattern or trend is identified and documented in an adopted context paper; b. The property is related to people who have made a contribution to local, state, regional or national history that is deemed important, and the specific people are identified and documented in an adopted context paper; c. The property represents 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, craftsmen, or design philosophy that is deemed important and the specific physical design, designed, or philosophy is documented in an adopted context paper; d. The property possesses such singular significance to the City, as documented by the opinions or persons educated or experienced in the fields of history, architecture, landscape architecture, archaeology or a related field, that the property's potential demolition or major alteration would substantially diminish the character and sense of place in the city as perceived by members of the community; and e. The property or district possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association, given its age. The City Council shall adopt and make available to the public score sheets and other devices which shall be used by the Council and Historic Preservation Commission to apply this criteria. The City of Aspen's historic preservation program includes official context papers about the Post WWII architectural styles that have influenced the City, including Modernism. The context paper describes Modernism as a style of architecture that began in the 20th century as a result of a clear philosophical shift in design practices and attitudes, and incredible changes in building technology. The following information on Robin Molny was found in the City's adopted context paper. Robin Molny (1928 -1997) apprenticed at Taliesin for some five years, from 1949 to c. 1954, before moving to in the mid- 1950s. While passing through Aspen on trips back and forth between Wisconsin and Arizona, he met Benedict, who later called and offered him work in Aspen. Molny worked for him for a year and half, then became a registered architect, and started his own practice. Born in Cleveland, Ohio, Molny attended the Carnegie Institute of Technology in Pittsburgh before Taliesin. His Taliesin years were pivotal, coinciding with the postwar resurgence of Wright 's architectural practice and planning for the construction of the Guggenheim Museum. In September 1953, Molny was one of three apprentices who traveled to New York City in the Fellowship station wagon to help to set up "Sixty Years of Living Architecture," an exhibition of Wright's architectural drawings and models. The exhibit had traveled to many cities worldwide and was going up in a temporary pavilion on the site of the new museum —sort of Wright's shot across the bow to signal New Yorkers that he was on the scene. Wright MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 10 typically put an experienced apprentice in charge of constructing the Fellowship - designed Usonian houses, greatly in demand; and Molny supervised the Maurice Greenberg residence in Dousman, Wisconsin, and was working with another Taliesin apprentice in Park Ridge, Illinois, when he left for Aspen. Despite Wright's appreciation for Molny, he and Mrs. Wright did not get along, and he left Taliesin with some hard feelings. In Aspen, Molny designed several notable buildings, including the Hearthstone House (1961, enlarged 1963, 134 E. Hyman Avenue) and the Aspen Athletic Club 0976, 720 E. Hyman Avenue, with Art Yuenger). He designed area residences, including the W. Ford Schumann House, an Architectural Record house of 1975 —a geometrically complex composition of stucco - battered walls that stepped up the side of the mountain. Wright told Molny, "If you understand the principles of my architecture, then your buildings need not look like mine." Molny's best known contribution to Aspen's "townscape" is the transformation of Cooper and Hyman Avenues into a pedestrian mall (1976) on which he collaborated with veteran Taliesin fellow Curtis Besinger. Clearly, Robin Molny made important contributions to local history and the Aspen Modernist Architectural Movement, as identified by and evidenced in the City's official context paper and the fact that one of his buildings, the Hearthstone House, was landmarked in 2007. Another building designed by Molny, the Aspen Athletic Club, applied for landmark designation in 2009 but the review process was never completed. With Molny's history of involvement in Aspen's pedestrian malls, it is befitting that his 514 East Hyman Avenue building and the legacy of its street front pedestrian plaza should be restored and preserved. Furthermore, the subject building maintains a physical design that embodies the distinctive characteristics of the Wrightian design philosophy. The City's Historic Preservation Program utilizes Integrity Assessments in order to score a property's ability to convey its historic significance. A total of 100 points is the most a Modernist property can score between the categories of location, design, setting, materials, and workmanship. A score of 75 points is considerate adequate for Landmark designation. The building at 514 East Hyman Avenue has not yet been officially scored but a review of the criteria reveals that the proposed restoration plans will make it worthy of a perfect score of 100 points for the following reasons: • The structure is in its original location (5 points out of 5); • The original plan form, based on authenticating documentation (the original sketches and floor plans) is still intact (10 points out of 10); • The original flat roof is unaltered (10 points out of 10); MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 11 • The original scale and proportions of the building are intact (4 points out of 5 due to the parapet /pediment addition, but will be restored to 5 out of 5 points); • The original pattern of glazing and exterior materials is intact (or will be upon restoration) (10 points out of 10); • The character defining features remain (10 points out of 10); • The physical surroundings are largely unchanged from the date of construction (5 points out of 5); • There have been minor alterations to the original exterior wall materials and glazing made in a manner that conforms to the design guidelines and these alterations will be brought back to their original combination upon restoration (15 points out of 15); • All or most of the original door and window units are intact (10 points of out 10); • The building is void of decoration and clearly follows Modernist tenets. All exterior surfaces are CMU blocks or glazing (will be 15 points out of 15); and • The neutral or monochromatic color scheme and finishes that define the stylistic category of Modernism is intact (5 points out of 5). The subject building's integrity assessment achieves a score of greater than 75 points today, but the proposed restoration plans will bring this integrity score back to a perfect 100 points. The building was constructed more than thirty (30) years ago. The building also embodies the aesthetic achievements of Robin Molny, an internationally respected architect who contributed to Modern Era Aspen architecture. As such this structure satisfies the standards for landmark designation. This property is more than worthy of being designated a Historic Landmark as an example of an AspenModern property with regard to its contribution to and significance in Aspen's 20th century history. B. Conceptual Approval of a Major Development by the HPC All applications for Conceptual and Final approval of a Major Development project must receive a determination of consistency with the City of Aspen Historic Preservation Design Guidelines (the "HP Guidelines') to be approved. If the voluntary Landmark Designation proposed herein is approved, the proposed remodel and restoration must, in turn, receive Major Development approval. Since this property is seeking Landmark status, Conceptual approval of the proposed design requires a finding of consistency with Chapters 1 -10 of the HP Guidelines, as well as the guidelines for property in the Commercial Core Historic District found in Chapter 13 and the General Design Guidelines of Chapter 14. MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 12 More specifically, Chapters 1 through 10 of the HP Guidelines refer to renovations of and additions to Historic Structures. Chapters 11 and 12 are not applicable since they provide guidelines for new buildings and additions on residential landmark properties and design in the Main Street Historic District, respectively. The proposed development complies with the guidelines for Commercial Core properties found in Chapter 13. The project has been designed to be generally consistent with the guidelines of Chapter 14, but specific consistency with these requirements will be demonstrated as part of the HPC's Final review. The HP Guidelines state that not every guideline will apply to each project and that some balancing of the guidelines must occur on a case -by -case basis. Accordingly, the HPC must find only that a sufficient number of the relevant guidelines have been adequately met in order to approve the proposal. Conceptual Review focuses on height, scale, massing, and proportions of a proposal. The guidelines addressing treatment and preservation of materials, lighting, fenestration and the like will be more specifically addressed during Final HPC Review. Chapter One of the HP Guidelines relates to streetscapes and lot features and is largely inapplicable to this proposed development. That is, Sections 1.1 through 1.8 concern fences and retaining walls and Sections 1.10 through 1.14 relate to private yards. None of these sections are applicable as no fences, retaining walls or private yards exist or are proposed on this property. Likewise, Sections 1.16 and 1.17 are not applicable as no historically significant landscape designs or irrigation ditches exist on the property. The only applicable guidelines from Chapter One (1.9 Walkways and 1.15 Site Lighting) are addressed below. Walkways 1.9 Maintain the established progression of public-to-private spaces when considering a rehabilitation project. • This includes a sequence of experiences, beginning with the "public" sidewalk, proceeding along a "semi-public" walkway, to a "semi private" porch or entry feature and ending in the "private" spaces beyond. • Provide a walkway running perpendicular from the street to the front entry. Meandering walkways are discouraged, except where it is needed to avoid a tree. • Use paving materials that are similar to those used historically for the building style. Concrete, wood or sandstone may be appropriate for certain building styles. The established progression of public to private space will be vastly improved in a manner consistent with Molny's legacy. Several of the inappropriately oriented and leaky planter boxes that were added to the property during the last renovation will be removed. The current alignment of planter boxes and staircases run contrary to the direction of the adjacent sidewalks and associated MasonMorse AspenModem Application (PID 2737- 182 -13 -002) Page 131 pedestrian movements, resulting in awkward and uninviting spaces that bear little to no relation or connectivity with the adjacent Elks Building plaza space. The MasonMorse building's plaza layout will be redesigned to be much simpler, and will include ADA accessibility provisions. This remodeled public- private space will function well while providing an inviting dwell space that ties in with the Elks Building plaza and enhances the overall pedestrian experience. Site Lighting 1.15 Minimize the visual impacts of site lighting. • Site lighting should be shielded to avoid glare onto adjacent properties. Focus lighting on walks and entries, rather than up into trees and onto facade planes. This standard is understood by the applicant and will be addressed at Final HPC Review. The relevant guidelines from Chapters 2 through 10, as well as those from Chapters 13 and 14, are outlined below in italicized text and each is followed by a response demonstrating compliance and /or consistency therewith, as applicable. 2.1 Preserve original building materials. 2.2 Protect wood features from deterioration. 2.3 Plan repainting carefully. 2.4 Brick or stone that was not painted historically should not be painted 2.5 Repair deteriorated primary building materials by patching, piecing -in, consolidating or otherwise reinforcing the material. 2.6 Maintain masonry walls in good condition. 2.7 Match the original material in composition, scale and finish when replacing materials on primary surfaces. 2.8 Do not use synthetic materials as replacements for primary building materials. 2.9 Covering original building materials with new materials is inappropriate. • Regardless of their character, new materials obscure the original, historically significant material. For example, vinyl siding, aluminum siding and new stucco are inappropriate on historic buildings. Other imitation materials that are designed to look like wood or masonry siding, but that are fabricated from other materials, are also inappropriate. • If a property already has a non - historic building material covering the original, it is not appropriate to add another layer of new material, which would further obscure the original. • Any material that covers historic materials will also trap moisture between the two layers. This may cause accelerated deterioration to the historic material which will go unnoticed. 2.10 Consider removing later covering materials that have not achieved historic significance. • Once the non - historic siding is removed, repair the original, underlying material. MasonMorse AspenModern Application (PID 2737- 182 -13 -002) Page 14 Original building materials will be restored and preserved. The original materials that were obscured by the renovation in the 1990s will be restored to their original appearance, including the brick work that has been obscured by the sandstone veneer. As appropriate, these standards will be more fully addressed at Final HPC Review. 3.1 Preserve the functional and decorative features of a historic window. 3.2 Preserve the position, number and arrangement of historic windows in a building wall. 3.3 Preserve the historic ratio of window openings to solid wall on a facade. 3.4 Match a replacement window to the original in its design. 3.5 In a replacement window, use materials that appear similar to the original 3.6 Preserve the size and proportion of a historic window opening. 3.7 Match, as closely as possible, the profile of the sash and its components to that of the original window. 3.8 Use a storm window to enhance energy conservation rather than to replace a historic window. Although this standard will be more specifically addressed at the time of Final HPC Review, all existing windows will be retained to the extent practicable. 4.1 Preserve historically significant doors. 4.2 Maintain the original size of a door and its opening. 4.3 When a historic door is damaged, repair it and maintain its general historic appearance. 4.4 If a new screen door is used, it should be in character with the primary door. 4.5 When replacing a door, use a design that has an appearance similar to the original door or a door associated with the style of the house. 4.6 If energy conservation and heat loss are concerns, consider using a storm door instead of replacing a historic entry door. Although this standard will be more specifically addressed at the time of Final HPC Review, it is the applicant's intention to preserve all historically significant doors. The proposed new door is oriented perpendicular to the street and front facade to obscure its appearance and minimize its visual impact while maintaining the prominence of the street- facing, primary front entrance. Treatment of Porches 5.1 Preserve an original porch. 5.2 Avoid removing or covering historic materials and details on a porch. 5.3 Avoid enclosing a historic front porch. 5.4 The use of a porch on a residential building in a single-family context is strongly encouraged. Porch Replacement MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 151 5.5 If porch replacement is necessary, reconstruct it to match the original in form and detail. There are no porches associated with this property. Treatment of Architectural Features 6.1 Preserve significant architectural features. 6.2 When disassembly of a historic element is necessary for its restoration, use methods that minimize damage to the original material. 6.3 Remove only the portion of the detail that is deteriorated and must be replaced. 6.4 Repair or replacement of missing or deteriorated features should be based on original designs. 6.5 Do not guess at "historic" designs for replacement parts. 6.6 Replacement of missing elements may be included in repair activities. The applicant intends to preserve all of the significant architectural features of this building and will return any previously obscured features to their original form. No significant architectural features of the building will be obscured by the proposed development. Treatment of Roofs 7.1 Preserve the original form of a roof • Do not alter the angle of a historic roof. Instead, maintain the perceived line and orientation of the roof as seen from the street. • Retain and repair roof detailing. The original flat form of the roof has been obscured by the addition of a parapet and pediment form. These inappropriate additions will be removed and the roofline will be restored to its original flat and lower- height form. The setback third floor addition, which will not obscure the original building, will also have a low- profile, flat roof. With the third floor addition's walls inset from the wall faces of the historic structure, the original roofline will not only be restored but will remain prevalent on all sides. Also, see the response provided for Guideline 7.6, below. 7.2 Preserve the original eave depth. • The shadows created by traditional overhangs contribute to one perception of the building's historic scale and therefore, these overhangs should be preserved. The original eave depths will be preserved. Removal of the faux support post from the front facade will enhance the historic restoration of eave depths. MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 16 7.3 Minimize the visual impacts of skylights and other rooftop devices. • Flat skylights that are flush with the roof plane may be considered only in an obscure location on a historic structure. Locating a skylight or a solar panel on a front roof plane is not allowed. • A skylight or solar panel should not interrupt the plane of a historic roof. It should be positioned below the ridgeline. With regard to this Guideline as well as Guidelines 7.1 and 7.2 (above), an elevator is required to serve the remodeled building and this, in turn, requires a five foot elevator overrun at the roof. To accommodate this requirement in the most sensitive possible way, the resulting form has been positioned near the center of the building, more than twelve (12) feet from the west facade, over nine (9) feet from the east facade, and nearly forty-three (43) feet back from the building's front facade (see Roof Plan, Sheet A3.5). The proposed third floor skylights are similarly situated in as sensitive a manner as practicable. While the elevation drawings necessarily depict these improvements in unflattering one - dimension, the reality is more accurately reflected by its complete lack of visibility in the rendered perspective drawings (Sheets A6.1 and A6.2). 7.4 A new chimney should be the same scale as those used historically. 7.5 Preserve original chimneys, even if they are made non-functional. The existing building does not have a chimney and no new chimneys are proposed. 7.6 When planning a rooftop addition, preserve the overall appearance of the original roof • An addition should not interrupt the original ridgeline. • See also: Chapter 10, Guidelines for Building Additions. Although a third floor addition is proposed, it is set 15 feet back from the restored front facade of the building. Therefore, the original roofline will remain (after it is restored) and a portion of the roof will become a deck for the third - floor residential unit. The overall appearance and lines of the original roof will be enhanced and preserved. Both the original roof and the proposed third floor roof are flat. Along with the fifteen foot front setback (from the street - facing facade), the third floor addition is inset from the original side walls of the building. As the plans, elevations and renderings illustrate, the proposed third floor walls are set inside the face of the walls of the ground and second floors, resulting in a clear demarcation between the old and the new, subordinate form. MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 171 7.7A new dormer should remain subordinate to the historic roof in scale and character. • A new dormer should fit within the existing wall plane. It should be lower than the ridgeline and set in from the eave. It should also be in proportion with the building. • The mass and scale of a dormer addition must be subordinate to the scale of the historic building. There are no dormers on the existing building and none are proposed. 7.8 Preserve original roof materials. • Avoid removing historic roofing material that is in good condition. When replacement is necessary, use a material that is similar to the original in both style as well as physical qualities and use a color that is similar to that seen historically. • Specialty materials such as tile, slate or concrete should be replaced with a matching material. The existing roofing material is not visible from the public ways and is not historically significant. 7.9 New or replacement roof materials should convey a scale, color and texture similar to those used traditionally. • Replacement materials should be similar to those used historically on comparably styled buildings. • If a substitute is used, such as composition shingle, the roof material should be earth tone and have a matte, non - reflective finish. • Flashing should be in scale with the roof material. • If copper flashing is to be used, it should be treated to establish a matte, non - reflective finish. 7.10 If it is to be used, a metal roof should be applied and detailed in a manner that is compatible and does not detract from the historic appearance of the building. • A metal roof material should have an earth tone and have a matte, non - reflective finish. • A metal roof with a lead -like patina also is an acceptable alternative. • Seams should be of a low profile. • A roof assembly with a high profile seam or thick edge is inappropriate. The roof material for the addition will have a matte, non - reflective finish and be, clearly, a product of its own time. The new low- profile, flat roof will not be visible from any publicly accessible vantage points. 7.11 Avoid using conjectural features on a roof • Adding ornamental cresting, for example, where there is no evidence that it existed creates a false impression of the building's original appearance, and is inappropriate. There will be no conjectural features on or added to the roof. 1 MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 18 Chapter 8 of the HP Guidelines is inapplicable as it addresses preservation of historically significant secondary structures, and no such structures exist on the subject property. Chapter 9 is also inapplicable since it discusses building relocation and new foundations; this building is not being relocated and the original foundation is being preserved. Chapter 10 is addressed below. 10.1 Preserve an older addition that has achieved historic significance in its own right. • Such an addition is usually similar in character to the original building in terms of materials, finishes and design. 10.2 A more recent addition that is not historically significant may be removed There have been no additions that have achieved historic significance. The more recent, inappropriate additions will be removed to allow for a sensitive restoration. 10.3 Design a new addition such that one's ability to interpret the historic character of the primary building is maintained • A new addition that creates an appearance inconsistent with the historic character of the primary building is inappropriate. • An addition that seeks to imply an earlier period than that of the primary building also is inappropriate. • An addition that seeks to imply an inaccurate variation of the primary building's historic style should be avoided. • An addition that covers historically significant features is inappropriate. The third floor addition to this building, which is set more than 15 feet back from the front of the building has been designed to complement the historic character of the building, but is clearly a product of its own time. Also, please see "The Proposal" section of this application, above, for greater detail. As previously mentioned, no historically significant features will be covered up by this addition. 10.4 Design a new addition to be recognized as a product of its own time. • An addition should be made distinguishable from the historic building, while also remaining visually compatible with these earlier features. • A change in setbacks of the addition from the historic building, a subtle change in material or a differentiation between historic, and more current styles are all techniques that may be considered to help define a change from old to new construction. The proposed addition is clearly distinguishable from the historic building, but is visually compatible with the earlier design. The proposed addition uses different materials than those found on the historic portion of the building and setbacks that provide a clear demarcation between the old and the new. The MasonMorse AspenModem Application (PID 2737- 182 -13 -002) Page 191 addition's modern loft -style design will complement, yet be subordinate to the historic building. The addition will be clearly recognizable as a product of its own time. Also, please see "The Proposal" section of this application, above, for greater detail. 10.5 When planning an addition to a building in a historic district, preserve historic alignments that may exist on the street. • Some roof lines and porch eaves on historic buildings in the area may align at approximately the same height. An addition should not be placed in a location where these relationships would be altered or obscured. The proposed addition has no effect on the building's historic alignments relative to the street. Historic rooflines and eaves will be restored and, therefore, enhanced. The remodeled public- private entry plaza will also enhance the building's alignment with the street while greatly enhancing the pedestrian experience. 10.6 Design an addition to be compatible in size and scale with the main building. • An addition that is lower than or similar to the height of the primary building is preferred. 10.7 If it is necessary to design an addition that is taller than a historic building, set it back substantially from significant facades and use a "connector" to link it to the historic building. • A 1 -story connector is preferred. • The connector should be a minimum of 10 feet long between the addition and the primary building. • The connector also should be proportional to the primary building. The proposed addition is compatible with the resource in size and scale as it is smaller, subservient, and set back from the significant facades. 10.8 Place an addition at the rear of a building or set it back from the front to minimize the visual impact on the historic structure and to allow the original proportions and character to remain prominent. • Locating an addition at the front of a structure is inappropriate. • Additional floor area may also be located under the building in a basement which will not alter the exterior mass of a building. • Set back an addition from primary facades in order to allow the original proportions and character to remain prominent. A minimum setback of 10 feet on primary structures is recommended. As previously mentioned, the proposed addition is set fifteen (15) feet back from the front facade, significantly reducing any visual impact and allowing the original proportions and character to be delivered back to prominence. MasonMorse AspenModem Application (PID 2737- 182 -13 -002) Page 20 10.9 Roof forms should be similar to those of the historic building. • Typically, gable, hip and shed roofs are appropriate. • Flat roofs are generally inappropriate for additions on residential structures with sloped roofs. The existing building has a flat roof. The proposed addition will maintain this roofline as it features a similar flat roof that is setback fifteen feet (15') from the front facade. 10.10 Design an addition to a historic structure such that it will not destroy or obscure historically important architectural features. • For example, loss or alteration of architectural details, cornices and eavelines should be avoided. No architectural details will be lost, altered or obscured by the proposed addition to this building. 10.11 On a new addition, use exterior materials that are compatible with the historic materials of the primary building. • The new materials should be either similar or subordinate to the original materials. The addition's exterior materials will be compatible with the historic materials, and will be discussed further during Final HPC Review. 10.12 When constructing a rooftop addition, keep the mass and scale subordinate to that of a historic building. • An addition should not overhang the lower floors of a historic building in the front or on the side. • Dormers should be subordinate to the overall roof mass and should be in scale with historic ones on similar historic structures. • Dormers should be located below the primary structure's ridgeline, usually by at least one foot. The proposed rooftop addition is subordinate in mass and scale to the historic building and is setback fifteen feet from the front of the building along with insets on the other three sides to allow for a clear demarcation at the roofline between the old and the new. The addition will not overhang lower floors on any side, and no dormers are proposed. 10.13 Set a rooftop addition back from the front of the building. • This will help preserve the original profile of the historically significant building as seen from the street. MasonMorse AspenModern Application (PID 2737- 182 -13 -002) Page 211 As mentioned above, the addition will be setback from the front facade by fifteen (15) feet and inset on all other sides. The original profile of the building as seen from the street will be preserved. 10.14 The roof form and slope of a new addition should be in character with the historic building. • If the roof of the historic building is symmetrically proportioned, the roof of the addition should be similar. • Eave lines on the addition should be similar to those of the historic building or structure. The proposed addition envisions a flat roofline similar to the existing roofline. See also responses to several similar guidelines above. Since the proposed development is located in the Commercial Core, its design must comply with Chapter 13 of the City of Aspen Historic Preservation Guidelines. In the words of the Guidelines, Traditionally the hub of Aspen and the center of commercial and cultural activity, the Commercial Core should remain so. Designs for new construction should reinforce the retail - oriented function of the street and enhance its pedestrian character. While new construction should be compatible with the historic character of the district, designs should not copy early styles but instead should seek creative new solutions that convey the community's continuing interest in exploring innovations. At the same time, the fundamental principles of traditional design must be respected. Outlined below is each of the Chapter 13 guidelines in italicized print, followed by a description of the proposal's compliance and /or consistency therewith, as applicable. 13.1 Respect the established town grid in all projects. • Maintain the alignment of streets and alleys whenever feasible. The proposed development will continue to follow the alignment of the streets and alleys by being sited parallel to the lot lines. The existing, non - historic entry plaza is oriented counter to the flow of pedestrian and vehicular traffic, but the remodel of this area will reestablish consistency with the town grid. 13.2 Orient a new building parallel to its lot lines, similar to that of traditional building orientations. • The front of a primary structure shall be oriented to the street MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 22 This is not a new building, only a restoration and addition. As such, the front of the building will continue to be oriented to the street. 13.3 Orient a primary entrance toward the street. • Buildings should have a clearly defined primary entrance. For most commercial buildings, this should be a recessed entry way. • Do not orient a primary entrance to an interior court. • Providing secondary public entrances to commercial spaces is also encouraged on larger buildings. The building will continue to have a clearly defined and recessed primary entrance that is oriented toward the street. A secondary entrance serving the residential unit is proposed in a location perpendicular to the street and the front facade in order to obscure its appearance and minimize its visual impact while maintaining the prominence of the street - facing, primary front entrance. There are no interior courts proposed, and all entrances are on the existing entry plaza level, providing for pedestrian friendliness and accessibility for people with physical disabilities. Alleys 13.4 Develop alley facades to create visual interest. • Use varied building setbacks and changes in materials to create interest and reduce perceived scale. • Balconies, court yards and decks are also encouraged. • Providing secondary public entrances is strongly encouraged along alleys. These should be covered or protected and clearly intended for public use, but subordinate in detail to the primary street -side entrance. The existing alley facade is a considerable downgrade in architectural treatment, materials and detailing from the front facade. The alley facade is a blank, painted CMU wall with no visual interest, no windows, and an entrance that sits five risers above grade. Clearly, the alley side of the building was not "designed" but was a purely utilitarian element. The alley side remodel has been designed to complement the Molny architecture through a contemporary interpretation aimed at consistency of solid to void ratios and fenestration patterns. Vertical siding will be used on the new elements of the north (facing the alley) facade in order to enhance these means of achieving consistency while injecting a clear but compatible differentiation. New windows will be added to enable penetration of natural light into the interior spaces. Vertical siding around and over (ghosted windows set behind perforated siding) the new windows will be added in a manner reminiscent of the "window bank" form established on the primary /front facade. That is, rather than three separate punched openings, a feature Molny likely never would have incorporated in this MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 23 building, the new windows are to be set in a band of vertical siding to give the effect of a consistent solid to void pattern that compliments not only the third floor addition but also the dominant design features of the historic front facade. 13.5 Retain the character of the alley as a part of the original town grid • Maintain an alley as an open space. • Alleys also may be used as pedestrian ways. The proposed building maintains the alley as an open space that can be used as a pedestrian way. The currently blank and lifeless CMU wall facing the alley will receive enhanced interest as well as significantly improved functionality (i.e., entrance will be covered /inset and its level will be made to match the grade of the alley). Building Setbacks 13.8 Maintain the alignment of facades at the sidewalk's edge. • Place as much of the facade of the building at the property line as possible. • Locating an entire building front behind the established storefront line is inappropriate. • Where a portion of a building must be set back from the sidewalk, use landscape elements to define the sidewalk edge. The footprint of the building will remain the same as it has historically. Therefore, the front facade of the building will not be at the property line, just as has always been the case. Instead, the remodeled entrance plaza will be realigned to orient toward and be consistent with the sidewalk's edge while tying in with the immediately adjacent Elks Building plaza. Mass and Scale 13.9 Maintain the average perceived scale of two -story buildings at the sidewalk. • The design of a 3 -story building should in some way acknowledge the 2 -story character of the downtown. • Floor -to floor heights should appear to be similar to those seen historically. In particular, the windows in new construction should appear similar in height to those seen traditionally. Traditionally, most commercial storefronts were 2 stories in height, with some significant buildings being three stories tall. Each block contained a mix of these heights, but an overall sense of unity in scale was established. The two -story character of Molny's original design will be reestablished as part of the restoration effort. As the illustration on Sheet A4.2.2 of the accompanying CCY Plans shows, the non - historic pediment and parapet wall additions on the building result in an inappropriately perceived, grand two -scale building at the sidewalk. The removal of these features and restoration of the original roofline MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 24 will take nearly five feet off the building height and even more in perceived scale at the front facade. The proposed third floor addition will have very little visual impact at the sidewalk as it will be set back fifteen (15) feet from the front facade, restoring the building's historic appearance from Hyman Avenue. Along with the fifteen foot front setback (from the street - facing facade), the third floor addition is inset from the original side walls of the building, resulting in a clear demarcation between the old and the new, subordinate form. An elevator is required to serve the remodeled building and this, in turn, requires a five foot elevator overrun at the roof. To accommodate this requirement in the most sensitive possible way, the resulting form has been positioned near the center of the building, more than twelve (12) feet from the west facade, over nine (9) feet from the east facade, and nearly forty-three (43) feet back from the building's front facade (see Roof Plan, Sheet A3.5). While the elevation drawings necessarily depict these improvements in unflattering one - dimension, the reality is more accurately reflected by its complete lack of visibility in the rendered perspective drawings (Sheets A6.1 and A6.2). The third floor addition has been designed to complement the Molny architecture through consistency of shadow lines, solid to void ratios, and fenestration patterns. To enhance these means of achieving consistency while injecting a clear but compatible differentiation, vertical siding will be used on the new elements at the third floor. The design is sympathetic to the historic Elks Building, and said building will not be even slightly overwhelmed by this development. Even with the proposed addition, this building is lower than the Elks Building and its stair tower annex, providing an appropriate stepping down in scale from the corner. 13.10 True three -story buildings will be considered on a case -by -case basis. • In general, a proposed three -story building must demonstrate that it has no negative impact on smaller, historic structures nearby. • The height and proportions of all facade components must appear to be in scale with nearby historic buildings. There are no smaller, historic structures nearby. The height and proportions of all facade components are in scale with nearby historic buildings including the Elks Building. Please also refer to the response provided for the previous guideline. 13.11 Consider dividing larger buildings into "modules" that are similar in width to buildings seen historically. • Where buildings are planned to exceed one lot width, use a change in design features to suggest the traditional building widths. Changes in facade material, window MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 25 design, facade height or decorative details are examples of techniques that may be considered. These variations should be expressed throughout the depth of the structure such that the composition appears to be a collection of smaller buildings. The proposed building is being developed on a single, traditional 3,000 square foot lot. Building Form 13.12 Rectangular forms should be dominant on Commercial Core facades. • Rectangular forms should be vertically oriented. • The facade should appear as predominantly flat, with any decorative elements and projecting or setback "articulations" appearing to be subordinate to the dominant form. The existing building is rectangular in form and is vertically oriented. The facade is predominantly flat. The setback addition also complements, but remains subordinate to the dominant rectangular form. 13.13 Use flat roof lines as the dominant roof form. • A flat roof or one that gently slopes to the rear of a site, should be the dominant roof form. • Parapets on side facades should step down towards the rear of the building. • False fronts and parapets with horizontal emphasis also may be considered. The building's roof line and the proposed addition's roof line are both flat. A clear demarcation between the historic flat roofline and the flat roofline of the addition will result from the setbacks of the addition's walls from existing building faces. 13.14 Along a rear facade, using building forms that step down in scale toward the alley is encouraged. • Consider using additive forms, such as sheds, stairs and decks to reduce the perceived scale. These forms should however, remain subordinate to the primary structure. • Use projecting roofs at the ground floor over entrances, decks and for separate utility structures in order to establish a human scale that invites pedestrian activity. The existing building fronts directly on the alley with a blank CMU wall with no windows. While only two stories, this lifeless wall looms large due to its complete lack of architectural interest, detailing or other mechanisms that might decrease its perceived scale. The alley side remodel, while three stories in height, has been designed to complement the Molny architecture through a contemporary interpretation aimed at consistency of solid to void ratios and fenestration patterns. Vertical siding will MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 26j be used on the new elements of the north (facing the alley) facade to enhance these means of achieving consistency while being a clear product of its own time. New windows will be added to enable penetration of natural light into the interior spaces. Vertical siding around and over (ghosted windows set behind perforated siding) the new windows will be added in a manner reminiscent of the "window bank" form established on the primary/front facade. That is, rather than three separate punched openings, a feature Molny likely never would have incorporated on this building, the new windows are to be set in a band of vertical siding to give the effect of a consistent solid to void pattern that compliments not only the third floor addition but also the dominant design features of the historic front facade. The remodeled alley facade will also incorporate a single -stall garage as well as a recessed entrance, both even with the alley grade whereas the existing alley entrance resides five risers above grade. By achieving entrances at grade, it will feel as though the existing two -story mass has been lowered by several feet. This and the architectural features described above will serve to lower the perceived mass and scale of the building along the alley. Storefront Character 13.15 Contemporary interpretations of traditional building styles are encouraged. • A contemporary design that draws upon the fundamental similarities among historic buildings without copying them is preferred. This will allow them to be seen as products of their own time and yet be compatible with their historic neighbors. • The literal imitation of older historic styles is discouraged. • In essence, infill should be a balance of new and old in design. The original Molny design could be characterized as a contemporary interpretation of traditional building styles. The proposal seeks to restore the successful interpretation created by Molny for preservation as part of the Aspen landscape. All proposed additions and remodeling of Molny's design draw upon his fundamental motifs without copying them. Consequently, both Molny's design and the proposed new elements will be clearly read as products of their own time and yet be compatible with the historic neighbors. 13.16 Develop the ground floor level of all projects to encourage pedestrian activity. • Consider using storefronts to provide pedestrian interest along the street. Storefronts should maintain the historic scale and key elements such as large display windows and transoms. • Large storefront display windows, located at the street level, where goods or services are visible from the street, are particularly encouraged. • The primary building entrance should be at street level. "Garden level" entrances are inappropriate. MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 271 The building provides pedestrian interest and highly encourages pedestrian activity with the redevelopment of the plaza area. The primary building entrance is at street level. Please also refer to responses to similar standards, above. 13.17 Maintain the distinction between the street level and the upper floors. • The first floor of the primary facade should be predominantly transparent glass. • Upper floors should be perceived as being more opaque than the street level. Upper story windows should have a vertical emphasis. • Highly reflective or darkly tinted glass is inappropriate. • Express the traditional distinction in floor heights between street levels and upper levels through detailing, materials and fenestration. The presence of a belt course is an important feature in this relationship. The proposed development will restore the building to its original design. The distinction between the street level and the upper floors will be maintained. Repetition of Facade Elements 13.18 Maintain the repetition of similar shapes and details along the block. • Upper story windows should have a vertical emphasis. In general, they should be twice as tall as they are wide. • Headers and sills of windows on new buildings should maintain the traditional placement relative to cornices and belt courses. All upper story windows on the existing structure will not change, thus maintaining a vertical emphasis. The windows of the third floor addition are vertically oriented and compatible with those of the two existing levels. 13.19 Maintain the pattern created by recessed entry ways that are repeated along a block. • Set the door back from the front facade approximately 4 feet. This is an adequate amount to establish a distinct threshold for pedestrians. • Where entries are recessed, the building line at the sidewalk edge should be maintained by the upper floor(s). • Use transoms over doorways to maintain the full vertical height of the storefront. The footprint of the building will remain the same as it has historically. Therefore, the front facade of the building will not be at the property line, just as has always been the case. Instead, the remodeled entrance plaza will be realigned to orient toward and be consistent with the sidewalk's edge while tying in with the immediately adjacent Elks Building plaza. The building will continue to have a clearly defined and recessed primary entrance that is oriented toward the street. A secondary entrance serving the residential unit is proposed in a location perpendicular to the street and the front MasonMorse AspenModem Application (PID 2737- 182 -13 -002) Page 281 facade in order to obscure its appearance and minimize its visual impact while maintaining the prominence of the street - facing, primary front entrance. There are no interior courts proposed, and all entrances are on the existing entry plaza level, providing for pedestrian friendliness and accessibility for people with physical disabilities. Detail Alignment 13.20 The general alignment of horizontal features on building fronts should be maintained • Typical elements that align include window moldings, tops of display windows, cornices, copings and parapets at the tops of buildings. • When large buildings are designed to appear as several buildings, there should be some slight variation in alignments between the facade elements. The proposed development will return this building to its original design, including restoration of the flat roofline at its original height. 13.21 Special features that highlight buildings on corner lots may be considered • Develop both street elevations to provide visual interest to pedestrians. • Corner entrances, bay windows and towers are examples of elements that may be considered to emphasize corner locations. • Storefront windows, display cases and other elements that provide visual interest to facades along side streets are also appropriate. This building is not on a corner lot. 14.1 These standards should not prevent or inhibit compliance with accessibility laws. • All new construction should comply completely with the Americans with Disabilities Act (ADA). Owners of historic properties should comply to the fullest extent possible, while also preserving the integrity of the character - defining features of their buildings. Special provisions for historic buildings exist in the law that allow some alternatives in meeting the ADA standards. 14.2 Generally, a solution that is independent from the historic building and does not alter its historic characteristics is encouraged. The existing building does not comply with ADA requirements. The applicant is proposing to redesign the plaza entry for compliance with ADA requirements. The internal layout of the remodel has also been designed for consistency with ADA requirements. 14.3 Keep color schemes simple. 14.4 Coordinating the entire building in one color scheme is usually more successful than working with a variety of palettes. 14.5 Develop a color scheme for the entire building front that coordinates all the facade elements. MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 29 Although the HPC does not review the choice of color, there are guidelines that are provided to encourage similar paint schemes. These guidelines are understood and will be more fully addressed at the time of Final HPC review. That said, the applicant will be restoring the original brick as the predominant color of the building, and the original, blue Molny awnings will also be restored. 14.6 Exterior lights should be simple in character and similar in color and intensity to that used traditionally. 14.7 Minimize the visual impacts of site and architectural lighting. 14.8 Minimize the visual impact of light spill from a building. The lighting standards are understood by the applicant and will be further addressed at the time of Final HPC Review. It is anticipated that exterior lighting will remain largely unchanged from current conditions, although some low and downcast plaza lighting may be necessary. 14.9 Use the gentlest means possible to clean the surface of materials and features. 14.10 Repair deteriorated primary building materials by patching, piecing -in, consolidating or otherwise reinforcing the material. 14.11 Plan repainting carefully. 14.12 Provide a weather protective finish to wood surfaces. 14.13 Leave natural masonry colors unpainted where feasible. These standards will be followed by the applicant. In fact, as part of the proposed development, the applicant will be restoring this building to its original design, and will be removing all non - historic elements that may have been added to this building during prior renovations. Some work and attention will be necessary for the successful removal of the sandstone veneer and restoration of the original brick; this effort will be coordinated with the HPC staff and monitor. 14.14 Minimize the visual impacts of service areas as seen from the street • When it is feasible, screen service areas from view, especially those associated with commercial and multifamily developments. • This includes locations for trash containers and loading docks. • Service areas should be accessed off of the alley, if one exists. The service area will continue to be located off of the alley, thereby minimizing any visual impacts from the street. It is expected that the current trash service agreement with the Elks Building will be re- worked and extended to allow users of the remodeled building to continue sharing trash services. MasonMorse AspenModern Application (PID 2737- 182 -13 -002) Page 30 14.15 Minimize the visual impacts of mechanical equipment as seen from the public way. • Mechanical equipment may only be installed on an alley facade, and only if it does not create a negative visual impact. • Mechanical equipment or vents on a roof must be grouped together to minimize their visual impact. Where rooftop units are visible, provide screening with materials that are compatible with those of the building itself. • Screen ground - mounted units with fences, stone walls or hedges. • A window air conditioning unit may only be installed on an alley facade, and only if it does not create a negative visual impact. • Use low profile mechanical units on rooftops so they will not be visible from the street or alley. Also minimize the visual impacts of utility connections and service boxes. Use smaller satellite dishes and mount them low to the ground and away from front yards, significant building facades or highly visible roof planes. • Paint telecommunications and mechanical equipment in muted colors that will minimize their appearance by blending with their backgrounds. Visibility of mechanical equipment is being minimized from the public ways such that little to no negative visual impact is anticipated. As the Roof Plan at Sheet A3.5 and the Section Drawing at Sheet A5.1 of the CCY Plan Set illustrate, mechanical equipment will be screened behind the elevator overrun and centered on the rear third of the rooftop. This location will render visibility of these features negligible to non - existent from the surrounding public ways. 14.16 Locate standpipes, meters and other service equipment such that they will not damage historic facade materials. • Cutting channels into historic facade materials damages the historic building fabric and is inappropriate. Do not locate equipment on the front facade. • If a channel must be cut, either locate it on a secondary facade, or place it low on the wall. No service equipment will be located on the front facade and none will damage any historic facade materials. The existing standpipe projecting from one of the entry plaza planter box walls will need to be relocated. 14.17 Design a new driveway in a manner that minimizes its visual impact. 14.18 Garages should not dominate the street scene. 14.19 Use a paving material that will distinguish the driveway from the street 14.20 Off - street driveways should be removed, if feasible. 14.21 For existing driveways that cannot be removed, provide tracks to a parking area rather than paving an entire driveway. 14.22 Driveways leading to parking areas should be located to the side or rear of a primary structure. 14.23 Parking areas should not be visually obtrusive. MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 31 14.24 Large parking areas, especially those for commercial and multifamily uses, should not be visually obtrusive. As part of the renovation, a one -car garage will be constructed on the alley side of the building. Access to the garage will be via the alley. Signs 14.25 Locate signs to be subordinate to the building design. 14.26 Sign materials should be similar to those used historically. 14.27 Use signs to relate to other buildings on the street and to emphasize architectural features. 14.28 Pictographic symbols are encouraged on signs. 14.29 Illuminate a sign such that it complements the overall composition of the site. These guidelines are understood by the applicant and will be further addressed at the time of Final HPC Review. All signs will be located so as to be subordinate to the building design. C. Conceptual Commercial Design Review Approval by the HPC The Commercial, Lodging and Historic District Design Objectives and Guidelines (the "Commercial Guidelines ") set forth design review criteria, standards and guidelines that are to be used in making determinations of appropriateness. The Commercial Guidelines are organized to address the different design contexts that exist in the City. These distinct settings, or contexts, are defined as "Character Areas," within which variations exist among the physical features that define each area. The proposed development is located in the "Commercial Core" character area. Per the Commercial Guidelines, all development projects should achieve the following design objectives: • Promote an interconnected circulation system that invites pedestrian use, including a continuous street and alley system and a respect for the natural topography; • Promote a system of public places that support activities, including public amenity spaces, compatible landscaping and paving, and unobtrusive off-street parking; and • Assure that buildings fit together to create a vibrant street edge that reinforces a sense of appropriate scale. As part of the remodel, the applicant will remove all planter boxes incorporated into the existing entry plaza design as these leak and were not part of the original Molny design. The current alignment of planter boxes and staircases run contrary to the direction of the adjacent sidewalks and associated pedestrian MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 32 movements, resulting in awkward and uninviting spaces. The plaza layout will be redesigned to be much simpler, and will include ADA accessibility provisions. This remodeled public- private space will function well while providing an inviting dwell space that ties in with the Elks Building plaza area and enhances the overall pedestrian experience. The existing character of the Commercial Core is explained as follows: The heart of Aspen centers around the Commercial Core Historic District. It is the first area that developed in the early mining days of the town and its character reflects this rich mining heritage, which is the image that many carry with them of this historic Colorado mountain town. Each historic building contributes to the integrity of the district and preservation of all of these resources is, therefore, crucial. This is especially important as new development continues. The purpose of the Commercial Core (CC) zone district is stated in Section 26.710.140(A) of the Code as follows: "to allow the use of land for retail, service commercial, recreation, and institutional purposes within mixed -use buildings to support and enhance the business and service character in the historical central business core of the City." The proposal will retain the existing commercial use while adding a residential unit, resulting in a mixed -use structure that will be restored and landmark designated to enhance the character of the historical central business core of the City. The key design objectives in the Commercial Core are as follows: 1. Maintain a retail orientation. Traditionally the hub of Aspen and the center of commercial and cultural activity, the Commercial Core should remain so. Designs for new construction should reinforce the retail - oriented function of the street and enhance the pedestrian character. 2. Promote creative, contemporary design that respects the historic context. While new construction should be compatible with the historic character of the district, designs should not copy early styles but instead should seek creative new solutions that convey the community's continuing interest in exploring innovations. At the same time, the fundamental principles of traditional design must be respected. This means that each project should strike a balance in the design variables that are presented in the following pages. 3. Maintain the traditional scale of building. The Commercial Core of the City is likely to experience continuing market pressure for hotel, commercial and residential development and the parallel needs of affordable commercial and residential accommodation. It is important that future MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 331 growth acknowledges, complements and enhances the existing scale and character of the area. 4. Reflect the variety in building heights seen traditionally. New development should stay within the range of building heights, and be designed to reflect the variation in height across original lot widths. The scale of form of a new building should be designed to safeguard the setting of a historic building, whether single story or the large `iconic' three plus stories. 5. Accommodate outdoor public spaces where they respect the historic context. The street vitality associated with the center of the city should be retained and enhanced through a combination of the form and design of the walkable street network and associated areas of public gathering space at street level and above. The design of any public space within the core should be a central consideration in the design and configuration of the building, to ensure that it contributes to a positive experience in the street scene, whether or not used for street dining. 6. Promote variety in the street level experience. Architectural form should recognize existing scale and diversity and build upon established design traditions, creativity and innovation in a manner which strengthens the architectural richness and identity of the city core. The contextual contribution of building and storefront design will depend on detailed consideration of the street facade and associated landscaping and paving. 7. Preserve the integrity of historic resources within the district. The original form, character, materials and details of historic resources should be maintained. This applies to individual structures of landmark quality as well as more modest "contributing" structures. The proposed renovation of 514 East Hyman Avenue will maintain the existing setback from the front property line. When viewed from Hyman Avenue, the proposed addition will have a negligible visual impact as compared with the existing condition. The addition is consistent with the stated goal of having varied building heights in the Commercial Area; the upper floor addition will add less than two feet above the height of the existing facade pediment wall but it will be set some fifteen feet further back from the street than is the pediment wall. The restored and remodeled building will be adequately shorter than the adjacent buildings (including the "iconic" Elks Building), and remain sensitive to its context. Please also refer to the responses provided above in association with all similar HPC Design Guidelines. Outlined below is each of the Commercial Core's Conceptual Review Design Guidelines in italicized print, followed by a description of the proposal's compliance and /or consistency therewith, as applicable. MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 34 Street Grid 6.1 Maintain the established town grid in all projects. • The network of streets and alleys should be retained as public circulation space and for maximum public access. • Streets and alleys should not be enclosed or closed to public access, and should remain open to the sky. The footprint of this building will remain the same. This development will only restore the original building and add a third -floor that is set fifteen feet back from the front facade. Internal Walkways 6.2 Public walkways and through courts, when appropriate, should be designed to create access to additional commercial space and frontage, within the walkway and/or to the rear of the site. • See also: Public Amenity Space design guidelines. This standard has no real applicability on the subject 3,000 square foot lot occupied by a single building. Alleys 6.3 Develop an alley facade to create visual interest. • Use varied building setbacks and changes in materials to create interest and reduce perceived scale. • Balconies, court yards and decks are also appropriate. • Providing secondary public entrances is strongly encouraged along alleys. These should be clearly intended for public use, but subordinate in detail to the primary street -side entrance. The existing building fronts directly on the alley with a blank CMU wall with no windows. This lifeless wall looms large due to its complete lack of architectural interest, detailing or other mechanisms that might decrease its perceived scale. The alley side remodel has been designed to complement the Molny architecture through a contemporary interpretation aimed at consistency of solid to void ratios and fenestration patterns. Vertical siding will be used on the new elements of the north (facing the alley) facade to enhance these means of achieving consistency while being a clear product of its own time. New windows will be added to enable penetration of natural light into the interior spaces. Vertical siding around and over (ghosted windows set behind perforated siding) the new windows will be added in a manner reminiscent of the "window bank" form established on the primary/front facade. That is, rather than three separate punched openings, a feature Molny likely never would have incorporated in this building, the new windows are to be set in a band of vertical siding to give the effect of a consistent MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 351 solid to void pattern that compliments not only the third floor addition but also the dominant design features of the historic front facade. The remodeled alley facade will also incorporate a single -stall garage as well as a recessed entrance, both even with the alley grade whereas the existing alley entrance resides five risers above grade. By achieving entrances at grade, it will feel as though the existing two -story mass has been lowered by several feet. This and the architectural features described above will serve to lower the perceived mass and scale of the building along the alley while delivering visual interest where none has existed to date. Parking 6.4 Structured parking should be placed within a 'wrap' of commercial and/or residential uses. • The exposure of auto entry areas should be minimized. 6.5 Structured parking access should not have a negative impact on the character of the street. The access shall be: • Located on an alley or secondary street if necessary. • Designed with the same attention to detail and materials as the primary building facade. • Integrated into the building design. The only parking space associated with this development will be the one -car garage located on the alley side of the property. Public Amenity Space 6.6 A street facing amenity space shall meet all of the following requirements: • Abut the public sidewalk • Be level with the sidewalk • Be open to the sky • Be directly accessible to the public • Be paved or otherwise landscaped 6.7 A street facing public amenity space shall remain subordinate to the line of building fronts in the Commercial Core. • Any public amenity space positioned at the street edge shall respect the character of the streetscape and ensure that street corners are well defined, with buildings placed at the sidewalk edge. • Sunken spaces, which are associated with some past developments, adversely affect the street character. Where feasible, these should be replaced with sidewalk level improvements. 6.8 Street facing amenity space shall contain features to promote and enhance its use. These may include one or more of the following: • Street furniture • Public art • Historical /interpretive marker MasonMorse AspenModern Application (PID 2737- 182 -13 -002) Page 36 The detailed design of Public Amenity Space, with regard to guidelines 6.8, will be a matter for approval at the Final Review Stage, although it may be discussed at the Conceptual Stage. As part of the remodel, the applicant will remove all planter boxes incorporated into the existing entry plaza design as these leak and were not part of the original Molny design. The current alignment of planter boxes and staircases run contrary to the direction of the adjacent sidewalks and associated pedestrian movements, resulting in awkward and uninviting spaces. Further, the existing entry plaza does not relate to or tie in well with the immediately adjacent Elks Building plaza. The MasonMorse plaza layout will be redesigned to be much simpler, and will include ADA accessibility provisions. This remodeled public - private space will remain the same size as today but it will function well while providing an inviting dwell space that enhances the overall pedestrian experience. The resulting public amenity space will abut and be level with the sidewalk. It will be directly accessible to the public and contain benches /seating areas inviting usage and dwell time. The plaza amenity space will be open to the sky and its paving pattern will reinforce connectivity to the Elks Plaza. Strategically located planter boxes will frame seating areas and screen the ADA ramp but allow full visibility of the restored historic resource. Guidelines 6.9 through 6.17 discuss mid - block, alley -side, second - level, and front -yard amenity spaces and are not applicable to the proposed development. Building Setbacks 6.18 Maintain the alignment of facades at the sidewalk's edge. • Place as much of the facade of the building at the property line as possible. • Locating an entire building front behind the established storefront line is inappropriate. • A minimum of 70% of the front facade shall be at the property line. 6.19 A building may be set back from its side lot lines in accordance with design guidelines identified in Street & Circulation Pattern and Public Amenity Space guidelines. The proposed development will restore this building to its original form and add a third floor addition. There is no opportunity to locate the front facade of this building at the property line while still maintaining its historic integrity. Current facade alignments will be maintained. Building Orientation 6.20 Orient a new building to be parallel to its lot lines, similar to that of traditional building orientations. MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 37 • The front of a primary structure shall be oriented to the street. 6.21 Orient a primary entrance toward the street. • Buildings should have a clearly defined primary entrance. For most commercial buildings, this should be a recessed entry way. • Do not orient a primary entrance to an interior court. • Providing secondary public entrances to commercial spaces is also encouraged on larger buildings. The building will continue to be parallel to the lot lines and the primary entrance will continue to be oriented toward the street. Building Form 6.22 Rectangular forms should be dominant on Commercial Core facades. • Rectangular forms should be vertically oriented. • The facade should appear as predominantly flat, with any decorative elements and projecting or setback "articulations" appearing to be subordinate to the dominant form. As mentioned throughout this application, the proposed development will maintain and restore the original appearance of this building. The building was and will again be characterized by dominant rectangular forms that are vertically oriented. 6.23 Use flat roof lines as the dominant roof form. • A flat roof or one that gently slopes to the rear of a site, should be the dominant roof form. • Parapets on side facades should step down towards the rear of the building. • False fronts and parapets with horizontal emphasis also may be considered. The historic, flat roof line will be restored with removal of the parapet and pediment walls added in the 1990s. The result will be a front facade with nearly five feet less height. The proposed addition has a flat roof as well and this is set some fifteen feet back from the front, historic facade. 6.24 Along a rear facade, using building forms that step down in scale toward the alley is encouraged • Consider using additive forms, such as sheds, stairs and decks to reduce the perceived scale. These forms should however, remain subordinate to the primary structure. • Use projecting roofs at the ground floor over entrances, decks and for separate utility structures in order to establish a human scale that invites pedestrian activity. The existing building fronts directly on the alley with a blank CMU wall with no windows. While only two stories, this lifeless wall looms large due to its MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 38 complete lack of architectural interest, detailing or other mechanisms that might decrease its perceived scale. The alley side remodel, while three stories in height, has been designed to complement the Molny architecture through a contemporary interpretation aimed at consistency of solid to void ratios and fenestration patterns. Vertical siding will be used on the new elements of the north (facing the alley) facade to enhance these means of achieving consistency while being a clear product of its own time. New windows will be added to enable penetration of natural light into the interior spaces. Vertical siding around and over (ghosted windows set behind perforated siding) the new windows will be added in a manner reminiscent of the "window bank" form established on the primary /front facade. That is, rather than three separate punched openings, a feature Molny likely never would have incorporated on this building, the new windows are to be set in a band of vertical siding to give the effect of a consistent solid to void pattern that compliments not only the third floor addition but also the dominant design features of the historic front facade. The remodeled alley facade will also incorporate a single -stall garage as well as a recessed entrance, both even with the alley grade whereas the existing alley entrance resides five risers above grade. By achieving entrances at grade, it will feel as though the existing two -story mass has been lowered by several feet This and the architectural features described above will serve to lower the perceived mass and scale of the building along the alley. Building Height, Mass & Scale 6.25 Maintain the average perceived scale of two -story buildings at the sidewalk • Establish a two -story height at the sidewalk edge, or provide a horizontal design element at this level. A change in materials, or a molding at this level are examples. The two -story character of Molny's original design will be reestablished as part of the restoration effort. As the illustration on Sheet A4.2.2 of the accompanying CCY Plans shows, the non - historic pediment and parapet wall additions on the building result in an inappropriately perceived, grand two -scale building at the sidewalk. The removal of these features and restoration of the original roofline will take nearly five feet off the building height and even more in perceived mass and scale at the front facade. The proposed third floor addition will have very little visual impact at the sidewalk as it will be set back fifteen (15) feet from the front facade, restoring the building's historic appearance from Hyman Avenue. Along with the fifteen foot front setback (from the street - facing facade), the third floor addition is inset from the original side walls of the building, resulting in a clear demarcation between the old and the new, subordinate form. An elevator is required to serve the remodeled MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 39 building and this, in turn, requires a five foot elevator overrun at the roof. To accommodate this requirement in the most sensitive possible way, the resulting form has been positioned near the center of the building, more than twelve (12) feet from the west facade, over nine (9) feet from the east facade, and nearly forty-three (43) feet back from the building's front facade (see Roof Plan, Sheet A3.5). While the elevation drawings necessarily depict these improvements in unflattering one - dimension, the reality is more accurately reflected by its complete lack of visibility in the rendered perspective drawings (Sheets A6.1 and A6.2). The third floor addition has been designed to complement the Molny architecture through consistency of shadow lines, solid to void ratios, and fenestration patterns. To enhance these means of achieving consistency while injecting a clear but compatible differentiation, vertical siding will be used on the new elements at the third floor. The design is sympathetic to the historic Elks Building, and said building will not be even slightly overwhelmed by this development. Even with the proposed addition, this building is substantially lower than the Elks Building and its stair tower annex, providing an appropriate stepping down in scale from the corner. 6.26 Building facade height shall be varied from the facade height of adjacent buildings of the same number of stories. • If an adjacent structure is three stories and 38 ft. tall, new infill may be three stories, but must vary in facade height by a minimum of 2 ft. The adjacent Elks Building is three stories and substantially greater than 40 feet tall. In fact, its stair tower annex, the portion of the structure closest to the subject site, is substantially greater than 40 feet tall. The existing parapet and pediment walls on the MasonMorse Building rise to approximately the same height as these features on the adjacent building to the west. Once these unoriginal additions are removed from the MasonMorse Building, its flat front facade roofline will be 4' -91/2° lower than is the case today. Although a third floor addition is proposed for the restored and remodeled MasonMorse Building, the addition will be set 15 feet back from the front facade and have very little visual impact from the sidewalk. Measuring 40 feet to the top of the third floor's flat roof, more than 2 feet of roofline variation will result between the subject structure and the buildings on the two flanking lots. Please refer to Sheets A4.2, A4.2.1, A4.2.2, A.61 and A6.2 of the accompanying plan set for graphic illustrations of the proposed building height in the context of surrounding development. MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 40 6.27 A new building or addition should reflect the range and variation in building height of the Commercial Core. • Refer to the zone district regulations to determine the maximum height limit on the subject property. • A minimum 9 ft. floor to ceiling height is to be maintained on second stories and higher. • Additional height, as permitted in the zone district, may be added for one or more of the following reasons: - In order to achieve at least a two foot variation in height with an adjacent building. - The primary function of the building is civic. (i. e. the building is a Museum, Civic Building, Performance Hall, Fire Station, etc.) - Some portion of the property is affected by a height restriction due to its proximity to a historic resource, or location within a View Plane, therefore relief in another area may be appropriate. - To benefit the livability of Affordable Housing units. - To make a demonstrable (to be verified by the Building Department) contribution to the building's overall energy efficiency, for instance by providing improved daylighting. The maximum height in the Commercial Core for three -story elements is 38 feet, but may be increase to 42 feet through Commercial Design Review. The applicant is seeking to have the height limit established at 40 feet for this property. Allowing this building's height to be increase to 40 feet will provide a significant (i.e., at least 2 foot) variation from both of the adjacent buildings. Please also refer to the response provided above for the previous standard (6.26). 6.28 Height variation should be achieved using one or more of the following: • Vary the building height for the full depth of the site in accordance with traditional lot width. • Set back the upper floor to vary the building facade profile(s) and the roof forms across the width and the depth of the building. • Vary the facade (or parapet) heights at the front. • Step down the rear of the building towards the alley, in conjunction with other design standards and guidelines. The third floor addition is set fifteen feet back from the front facade of the building's restored flat roofline. Also, the addition is set inside the side walls of the historic building, providing a clear demarcation between the original roofline and the new addition. Guidelines 6.29 and 6.30 are concerned with lots that are more than one traditional lot width and, as such, are not applicable to this property. MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 41 6.31 A new building should step down in scale to respect the height, form and scale of a historic building within its immediate setting. The proposed third -floor addition to this building will step down in scale from the Elks Building and respects the height, form and scale of that historic building. Guidelines 6.32 and 6.33 address new buildings that are adjacent to one or two story historic buildings. These guidelines are not applicable to this application as the adjacent historic building is a full three -plus story structure. 6.34 The setting of iconic historic structures should be preserved and enhanced when feasible. • On sites comprising more than two traditional lot widths, the third floor of the adjacent lot width should be set back a minimum of 15 ft from the front facade. • Step a building down in height adjacent to an iconic structure. • Locate amenity space adjacent to an iconic structure. Since the adjacent Elks Building is considered an iconic structure, the proposed third -floor addition has been designed with that building in mind. As such, the addition is set 15 feet back from its front facade, which is substantially setback from the sidewalk edge to begin with. The public amenity space for this development is adjacent to and will provide connectivity with the Ellcs public amenity space, thereby enhancing both spaces. D. Growth Management Approval Pursuant to Section 26.470.060 of the Code, the Community Development Director (CDD) has the ability to approve, approve with conditions, or deny certain Growth Management applications. Subsection (4) thereof allows for the approval of a minor enlargement of a Historic Landmark for commercial, lodge or mixed -use development as long as certain criteria are met. The criteria for approval are as follows: a. If the development increases either floor area or net leasable space /lodge units, but not both, then no employee mitigation shall be required. b. If the development increases both floor area and net leasable space /lodge units, up to four (4) employees generated by the additional commercial /lodge shall not require the provision of affordable housing. An expansion generating more than four (4) employees shall not qualify for this administrative approval and shall be reviewed pursuant to Paragraph 26.470.070.1. 1MasonMorse AspenModern Application (PID 2737 - 182 -13 -002) Page 42 c. No more than one (1) free- market residence is created. This shall be cumulative and shall include administrative GMQS approvals granted prior to the adoption of Ordinance No. 14, Series of 2007. Since the proposed development will increase FAR by approximately 1,355 square feet but will decrease the net leasable area, pursuant to substandard "a" above, no employee mitigation is required. Furthermore, only one free - market residence will be created by the proposed development. The free - market residence would otherwise generate a mitigation requirement for far less than four employees anyway and, therefore, substandard "b" above would also result in a zero employee mitigation requirement. Therefore, this proposal satisfies the criteria for approval as a minor enlargement of a Historic Landmark and should be approved by the CDD concurrent with its designation. Section V: Summary It is the applicant's desire to see the building at 514 East Hyman Avenue restored and preserved via historic landmark designation under the AspenModern program. As incentives and in exchange for this restoration and perpetual preservation effort, the applicant seeks exceptionally modest benefits that are enumerated in the Code as appropriate for designated landmarks. As stated in Code Section 26.415.110, Benefits to encourage good historic preservation practices by owners of historic properties are an important aspect of Aspen's historic preservation program. Historic resources are a valuable community asset and their continued protection is the basic premise supporting the creation of an innovative package of preservation tools that are unlike any other in the country. AspenModern was adopted to address, through negotiation of incentives for designation, the negative impacts that the loss of landmark eligible buildings would have on the health, peace, safety, and general well being of the residents and visitors of Aspen, and the diminishment of Aspen's unique architectural character, livability, and attractiveness as a destination. The applicant is offering assurances for the restoration and perpetual preservation of the building at 514 East Hyman Avenue in association with certain land use entitlements. The proposal outlined herein is fully worthy of City and community support. Furthermore, and in light of recent land use decisions in the nearby vicinity of this property, it is important for the City to support the landmark designation of this building and its continued contribution to the defining character, mass and scale of the Commercial Core Historic District. MasonMorse AspenModem Application (PID 2737 - 182 -13 -002) Page 43 It is felt that the requested incentives are not only modest but fully appropriate and warranted in an equitable exchange for providing the substantial community benefits described hereinabove and a valuable community asset by landmark designating a building whose integrity assessment will achieve a perfect score and embodies the aesthetic achievements of Robin Molny, an internationally known architect who contributed significantly to Modem Era Aspen architecture. It is hoped that the requested approvals will be granted and the property will be added to the Aspen Inventory of Historic Landmark Sites and Structures. Exhibits: Exhibit 1: Land Use Application and Dimensional Requirements Forms; Exhibit 2: Pre - Application Conference Summary prepared by Amy Guthrie; Exhibit 3: Proof of the Applicants' Ownership; Exhibit 4: Authorization for Haas Land Planning, LLC (HLP) and Cottle Carr Yaw Architects (CCY) to represent the applicant; Exhibit 5: August 29, 1980, Agreement and Associated Basement Level Plans; Exhibit 6: An executed application fee agreement; and, Exhibit 7: Mailing addresses of record for all property owners located within three- hundred feet of the subject property. Attachments: • Architectural plans prepared by Cottle Carr Yaw Architects 1 MasonMorse AspenModem Application (PID 2737- 182 -13 -002) Page 44 EXHIBIT ATTACHMENT 2 - Historic Preservation Land Use Application PROJECT: Name: Hawn � i la 0 . Location: 51 T E I t /rr1GYl / II C� AS7 e i i (t+ N , Block RLi (Indicate street address, lot & block number or metes and bounds description of property) Parcel ID # (REQUIRED) 2 -1 37- I g 2_ I3 — 002 APPLICANT: Name: MGS()n and mO rce, .�-{'lie Co p Address: 5I. E. �I\ Are /.seen, C 0 1611 Phone #: q25- '700 Fax#: ns o2 E -mail: REPRESENTATIVE: y � �; Name: -I Land Pio 0111 Lt. C Address: `1.01 N. Mill 5+. Ste '01 Aspen CO ' 1(0I 1 Phone #: �j2r>-"] 9 Fax #x 9 115 - 7 3 Q 5 E- mail: illhaaS@Soprl TYPE OF APPLICATION: (please check all that apply): g Historic Designation ❑ Relocation (temporary, on ❑ Certificate of No Negative Effect ❑ or off -site) ❑ Certificate of Appropriateness ❑ Demolition (total ❑ - Minor Historic Development demolition) r -Major Historic Development ❑ Historic Landmark Lot Split - Conceptual Historic Development ❑ -Final Historic Development - Substantial Amendment EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) IOM , 'l'A it V icl nt '!ii Il , Ste '51.11'a±t'a ' t PROPOSAL: (description of proposed buildings, uses, modifications, etc.) Landmark Des; gnah' otn, P.erovafion wnc1- (hlrr- FI onr /kith i fi' o4 (see Qep I canon 'Le >a) Aspen Historic Preservation Land Use Application Requirements, Updated: May 29, 2007 General Information Please check the appropriate boxes below and submit this page along with your application. This information will help us review your plans and, if necessary, coordinate with other agencies that may be involved. YES NO f ❑ Does the work you are planning include exterior work; including additions, demolitions, new construction, remodeling, rehabilitation or restoration? X ❑ Does the work you are planning include interior work; including remodeling, rehabilitation, or restoration? ❑ ❑ Do you plan other future changes or improvements that could be reviewed at this time? ❑ ❑ In addition to City of Aspen approval for a Certificate of Appropriateness or No Negative Effect and a building permit, are you seeking to meet the Secretary of the Interior's Standards for Rehabilitation or restoration of a National Register of Historic Places property in order to qualify for state or federal tax credits? ❑ ❑ If yes, are you seeking federal rehabilitation investment tax credits in conjunction with this project? (Only income producing properties listed on the National Register are eligible. Owner- occupied residential properties are not.) ❑ ❑ If yes, are you seeking the Colorado State Income Tax Credit for Historical Preservation? Please check all City of Aspen Historic Preservation Benefits which you plan to use: ❑ Rehabilitation Loan Fund ❑ Conservation Easement Program ❑ Dimensional Variances ❑ Increased Density ❑ Historic Landmark Lot Split ❑ Waiver of Park Dedication Fees ❑ Conditional Uses ❑ Exemption from Growth Management Quota System ❑ Tax Credits Aspen Historic Preservation Land Use Application Requirements, Updated: May 29, 2007 ATTACHMENT 3 - Dimensional Requirements Form (Iteem #10 on , tth A e submittal requirements key. Not necessary for all projects.) Project: MQASnnMO Sul I y of Applicant rn (1v Y11 f)rce 1 T yl r Project '` n /� /� Location: ski 6 14,46-0,1 14,46-0,1 A/ ^ ' Amen Zone n J District: I�YY1 Q rc 1 I 0 Lot Size: pa sq uare -4 fi Lot Area: 390 S4UO►e .' f r– (For the purposes of calculating Floor Area, Lot Area may be reduced for areas within the high water mark, easements, and steep slopes. Please refer to the definition of Lot Area in the Municipal Code.) / p(� Commercial net leasable: Existing: 6,5 5g Proposed.•"' Y, , L JO d Number of residential units: Existing: 0 Proposed: / Number of bedrooms: Existing: 0 Proposed: Z. Proposed % of demolition: DIMENSIONS: (write n/a where no re p requirement exists in the zone district) Floor Area: Existing: 7 Allowable:S Proposed_,, 77 Height 2Q, I Principal Bldg.: Existing: JO Allowable: 1 a Proposed: I6 Accessory Bldg.: Existing: NIA Allowable./'/// Proposed :NIA On -Site parking: Existing: 0 Required: O Proposed: 1 % Site coverage: Existing: Required: Proposed: sa % Open Space: Existing: Required: Proposed.• Front Setback: Existing: Required: A/41 Proposed: u Rear Setback: Existing: fa1Cllal&Required: /4yA Proposed: O Combined Front/Rear: Indicate N. S. E. W Existing: Required: t Proposed: i Side Setback: Existing: 0 Required: Al Proposed: Q Al Side Setback: Existing: CV Required: N/A Proposed: CY Combined Sides: Existing: 0 Required: A/A Proposed: 0 Distance between Existing: fV, Required: fiA Proposed: AVn buildings: Existing non - conformities or encroachments and note if encroachment licenses have been issued: ALLEY ,STAIRS EnlrkdfcHM J — NO LIceJSC Variations requested (identify the exact variances needed): FREE-MARierr ices/Deg-it FLcot mai VIA +r, )Vri r0 st 14 66015100 Aspen Historic Preservation Land Use Application Requirements, Updated: May 29, 2007 EXH IT CITY OF ASPEN PRE - APPLICATION CONFERENCE SUMMARY PLANNER: Amy Guthrie, 970.429.2758 DATE: 7.29.11 PROJECT: 514 E. Hyman Avenue, Lot N, Block 94 REPRESENTATIVE: Mitch Haas, Haas Land Planning OWNER: Mason and Morse, Inc. DESCRIPTION: 514 E. Hyman is a mixed use building, constructed in 1971. The owners are interested in reconfiguring interior space and adding a free market residential unit on the roof. The property is located in the Commercial Core Historic District. Two types of review are triggered by the proposal; design review and Growth Management. The building is not currently designated a historic landmark, and the applicant could apply for the scope of work without designation. The Historic Preservation Commission would conduct the design review according to the Commercial, Lodging and Historic District Design Objectives and Guidelines. Growth Management allocation for the new free market unit would be considered a Major Planning and Zoning Commission review, and applications are restricted to Aug. 15 or Feb. 1r submittal dates. HPC conceptual design approval must be secured before filing for GMQS review, therefore the earliest competition phase the property owner could reasonably make is February 15, 2012. Affordable housing mitigation would be required equal to 30% of the net livable area of the free market unit. This could be addressed by an on -site unit, off -site unit, affordable housing credits or cash -in -lieu payment of approximately $200,000 (assuming the new residential unit would be 2,000 square feet in size.) An alternative review option would be presented if the owner chose to voluntarily designate the property historic through the AspenModern program. 514 E. Hyman was designed by an architect who is recognized in the City of Aspen's research paper "Aspen's twentieth- century architecture: Modernism 1945 - 1975," which notes Robin Molny Robin Molny (1928 -1997) apprenticed at Taliesin for some five years, from 1949 to c. 1954, before moving to Aspen in the mid- 1950s. While passing through Aspen on trips back and forth between Wisconsin and Arizona, he met Benedict, who later called and offered him work in Aspen. Molny worked for him for a year and half, then became a registered architect, and started his own practice. Born in Cleveland, Ohio, Molny attended the Carnegie Institute of Technology in Pittsburgh before Taliesin. His Taliesin years were pivotal, coinciding with the postwar resurgence of Wright's architectural practice and planning for the construction of the Guggenheim Museum. In September 1953, Molny was one of three apprentices who traveled to New York City in the Fellowship station wagon to help to set up "Sixty Years of Living Architecture," an exhibition of Wright's architectural drawings and models. The exhibit had traveled to many cities worldwide and was going up in a temporary pavilion on the site of the new museum —sort of Wright's shot across the bow to signal New Yorkers that he was on the scene. Wright typically put an experienced apprentice in charge of constructing the Fellowship - designed Usonian houses, greatly in demand; and Molny supervised the Maurice Greenberg residence in Dousman, Wisconsin, and was working with another Taliesin apprentice in Park Ridge, Illinois, when he left for Aspen. Despite Wright's appreciation for Molny, he and Mrs. Wright did not get along, and he left Taliesin with some hard feelings. In Aspen, Molny designed several notable buildings, including the Hearthstone House (1961, enlarged 1963, 134 E. Hyman Avenue) and the Aspen Athletic Club (1976, 720 E. Hyman Avenue, with Art Yuenger). He designed area residences, including the W. Ford Schumann House, an Architectural Record house of 1975 —a geometrically complex composition of stucco - battered walls that stepped up the side of the mountain. Wright told Molny, "If you understand the principles of my architecture, then your buildings need not look like mine." Molny's best known contribution to Aspen's "townscape" is the transformation of Cooper and Hyman Avenues into a pedestrian mall (1976) on which he collaborated with veteran Taliesin fellow Curtis Besinger. AspenModern offers the opportunity to access existing historic preservation incentives and negotiate other incentives to be awarded by HPC or City Council. The property is already subject to design review. Designation would require a restoration of the front facade of the building to its original appearance, seen here: HPC's approach to the placement and character of the rooftop addition would likely be the same whether the property was landmarked or not. Guaranteed incentives for designation would include administrative Growth Management approval for the new residential unit (no competition, no deadline, no GMQS review board, no affordable housing mitigation.) The Park Development Impact Fee and Transportation Demand Management Fees would be waived. If the interior remodel were to generate any new net leasable space, historic landmarks are exempt from providing affordable housing mitigation for up to the first four employees generated, which is a substantial cost savings. FAR restrictions, residential unit size caps, sign allotment, and numerous other development regulations could be discussed in the negotiation process. The proposed project may require bringing the building into conformance with accessibility and other code requirements. Relevant Land Use Code Section(s): 26.304 Common Development Review Procedures 26.415 Historic Preservation, Major Development, AspenModern 26.470.060.4 Administrative Growth Management, Minor Enlargement of an Historic Landmark for Commercial, Lodge or Mixed Use Development 26.470.080.2 Major Planning and Zoning Commission Applications, New Free - Market Residential Units within a Multi - Family or Mixed -Use Project (ONLY IF THE PROPERTY IS NOT DESIGNATED A LANDMARK) 26.515 Off- street parking 26.575.020 Calculations and Measurements 26.610 Impact fees 26.620 School Land Dedication 26.710.140 CC Zone District Review by: Staff for completeness, HPC, Council (or P &Z if the property isn't designated) Public Hearing: Yes, at HPC and Council (or P &Z if the property isn't designated) Referral Agencies: None. Planning Fees: $1,890 for 6 billable hours (additional or less billable hours are at $315 per hour) REVISED 11/16/11 Referral Agency Fees: $0. Total Deposit: $1,890. ❑ Proof of ownership with payment. ❑ Signed fee agreement. ❑ Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. ❑ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ❑ Total deposit for review of the application. ❑ 10 Copies of the complete application packet and maps. ❑ An 8 1/2" by 11" vicinity map locating the parcel within the City of Aspen. ❑ Site improvement survey including topography and vegetation showing the current status, including all easements and vacated rights of way, of the parcel certified by a registered land surveyor, licensed in the state of Colorado. (This requirement, or any part thereof, may be waived by the Community Development Department if the project is determined not to warrant a survey document.) ❑ A written description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. List of adjacent property owners within 300' for public hearing ❑ Copies of prior approvals. ❑ Applicants are advised that building plans will be required to meet the International Building Code as adopted by the City of Aspen, the Federal Fair Housing Act, and CRS 9.5.112. Please make sure that your application submittal addresses these building - related and accessibility regulations. You may contact the Building Department at 920 -5090 for additional information. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. PROFORMA TITLE REPORT SCHEDULE A 1. Effective Date: November 16, 2011 at 8:00 AM Case No. PCT23332P 2. Policy or Policies to be issued: Proposed lnsured: PROFORMA 3. Title to the FEE SIMPLE estate or interest in the land described or referred to in this Commitment is at the effective date hereof vested in: MASON & MORSE INC., A COLORADO CORPORATION 4. The land referred to in this Commitment is situated in the County of PITKIN State of COLORADO and is described as follows: LOT N, BLOCK 94, CITY AND TOWNSITE OF ASPEN PITKIN COUNTY TITLE, INC. 601 E. HOPKINS, ASPEN, CO. 81611 970 - 925 -1766 Phone /970- 925 -6527 Fax 877- 217 -3158 Toll Free AUTHORIZED AGENT Countersigned: SCHEDULE B - SECTION 1 REQUIREMENTS THIS REPORT IS FURNISHED FOR INFORMATIONAL PURPOSES ONLY, IT IS NOT A CONTRACT TO ISSUE TITLE INSURANCE AND SHALL NOT BE CONSTRUED AS SUCH. IN THE EVENT A PROPOSED INSURED IS NAMED THE COMPANY HEREBY RESERVES THE RIGHT TO MAKE ADDITIONAL REQUIREMENTS AND /OR EXCEPTIONS AS DEEMED NECESSARY. THE RECIPIENT OF THIS INFORMATIONAL REPORT HEREBY AGREES THAT THE COMPANY HAS ISSUED THIS REPORT BY THEIR REQUEST AND ALTHOUGH WE BELIEVE ALL INFORMATION CONTAINED HEREIN IS ACCURATE AND CORRECT, THE COMPANY SHALL NOT BE CHARGED WITH ANY FINANCIAL LIABILITY SHOULD THAT PROVE TO BE INCORRECT AND THE COMPANY IS NOT OBLIGATED TO ISSUE ANY POLICIES OF TITLE INSURANCE SCHEDULE B SECTION 2 EXCEPTIONS The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes due and payable; and any tax, special assessment, charge or lien imposed for water or sewer service or for any other special taxing district. 7. Reservations and exceptions as set forth in the Deed from the City of Aspen recorded in Book 59 at Page 66 providing as follows: 'That no title shall be hereby acquired to any mine of gold, silver, cinnabar or copper or to any valid mining claim or possession held under existing laws ". 8. Deed of Trust from : MASON & MORSE INC., A COLORADO CORPORATION To the Public Trustee of the County of PITKIN For the use of : ALPINE BANK Original Amount : $1,000,000.00 Dated : June 3, 2003 Recorded : June 8, 2003 Reception No. : 483706 Modification Agreement changing various terms of the Deed of Trust above was recorded December 20, 2004 as Reception No. 505275. Modification Agreement changing various terms of the Deed of Trust above was recorded December 10, 2009 as Reception No. 565215. Modification Agreement changing various terms of the Deed of Trust above was recorded December 30, 2010 as Reception No. 576361. 9. Deed of Trust from : MASON & MORSE INC., A COLORADO CORPORATION To the Public Trustee of the County of PITKIN For the use of : ALPINE BANK Original Amount : $2,300,000.00 Dated : July 8, 2005 Recorded : July 14, 2008 Reception No. : 512398 (Continued) SCHEDULE B SECTION 2 EXCEPTIONS - (Continued) 10. Deed of Trust from: MASON & MORSE INC., A COLORADO CORPORATION To the Public Trustee of the County of PITKIN For the use of : ALPINE BANK Original Amount : $1,000,000.00 Dated : July 18, 2007 Recorded : July 23, 2007 Reception No. : 540176 11. Deed of Trust from: MASON & MORSE INC., A COLORADO CORPORATION To the Public Trustee of the County of PITKIN For the use of : ALPINE BANK Original Amount : $600,000.00 Dated : June 29, 2009 Recorded : June 29, 2009 Reception No. : 560357 Modification Agreement changing various terms of the Deed of Trust above was recorded December 10, 2009 as Reception No. 565214. Modification Agreement changing various terms of the Deed of Trust above was recorded January 4, 2011 as Reception No. 576533. 12. Deed of Trust from: MASON & MORSE INC., A COLORADO CORPORATION To the Public Trustee of the County of PITKIN For the use of : ANNE BURROWS Original Amount : $1,307,896.59 Dated : December 31, 2009 Recorded : January 6, 2010 Reception No. : 565925 Er t BIT City of Aspen Community Development Dept. 130 S. Galena Street Aspen, CO 81611 RE: 514 East Hyman Avenue (PID# 2737 - 182 -13 -002) Historic Landmark Designation, AspenModern Negotiation, Conceptual Reviews To whom it may concern: As owner of the above referenced property, I hereby authorize Haas Land Planning, LLC (HLP) and Cottle Carr Yaw (CCY)Architects to act as my designated and authorized representatives for the preparation, submittal and processing of an application requesting Historic Landmark Designation, AspenModern Negotiation, HPC Conceptual Major Development Review and Conceptual Commercial Design Review, as well as any subsequent applications or incidental approvals associated therewith. HLP and CCY are also authorized to represent us in meetings with City staff, the Housing Board, the Historic Preservation Commission, the Planning and Zoning Commission, and the Aspen City Council. Should you have any need to contact us during the course of your review, please do so through Haas Land Planning, LLC, whose address and telephone number are included with the application. Yours ul et: Ara Maki! & ofd ' y by Bob Starodoj 514 Easy Hyman Avenue Aspen, CO 81611 (970) 925 -7000 IT log r� A G R E E M E N T .1 This Agreement made this 25th day of August, 1980 by and between Mason & Morse, Inc., a Colorado Corporation, its President and the City of Aspen shall come into full force and effect upon the receipt of a final Certificate of Occupancy issued by the City of Aspen Building Inspector for the building known as the Mason & Morse, Inc. building at 415 East Hyman Avenue, Aspen Colorado. This Agreement shall not be altered or changed without the consent of the City of Aspen, its respective governing bodies and Mason & Morse, Inc. To adhere to the floor area ration -as required by the City of Aspen building code and as a consideration of the remodel of the premises, Mason & Morse, Inc., and its President hereby agree not to occupy for any or all purposes the voided areas lying to the North of and South of the Conference Room as shown on the plans filed in the Building Inspectors Office. It is further agreed that Mason & Morse, Inc. will cause to be constructed a cinder block wall parcelling off these areas. Access doors to mechanical areas will be secured by customary locks and dead bolts for maintenance and repair only and as necessary. Any violation of the above shall be cause forrevocation of the license permitting Mason & Morse, Inc. to conduct business in the City of Aspen. DATED: 2-'7 .-Se • AGREED BY: MASON & MORSE, INC.. EDWARD W. MORSE / PRESIDENT /;J w M / a 4 i a _ w F- t 0 { o , ZQ JS6 • o zt k. t ; ilU 5! iI _ ` 7 � is w • 1 �.4 qir D 1 " n I s 6 jy o V 1 g 1 �l i� n u to g ` r.3 . a: u NIA n: `� g rt r 4. 1 .. -- -� t --mad IN s 7t E , re 1 , d Sll r � Ek. �l ° � hw vc m J 1 7 9 4 .41 M 4 . I d1- i ii El � o N 8 AI? 1? ∎ ; / � � v _ � � -_ _ - - - EC G - ? V ��� 0 If i 1 2 ' 1 Tf �g x W 1.4ii? W 9 3 t1 ti a_ -11; . i Z iMonnut J 4 f. t a. 2 ' .r-= tt ' gm E , - �L O 10 r rsv 61 ft g 41' • wi a , M 0 : lL Y rat -- I — a2 e . a - p - R. Ea _ I • I Milt CON11\1U51TY DEVELOPMENT DEPARTMENT La .1 Agreement to Pay Application Fees An agreement between the City of Aspen ( "City ") and Phone ��vIti � Property M 41 y' e No.: 9 7000 Owner ( "P): INASOri and Ir,Orse., 1.1'IC. Email: Address of Billing Property: �� �'/Yll Ad dress: SQ►ne (subject of As p I CA S fi � � (send bills here) - application) I understand that the City has adopted, via Ordinance No. , Series of 2011, review fees for Land Use applications and the payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non - refundable. $ iU!a flat fee for $ flat fee for $ flat fee for $ flat fee for For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review, and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not retumed to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for non - payment. 1 agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render an application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $ 1 PRA fL° 1-l. deposit for 51X16 hours of Community Development Department staff time. Additional time above the deposit amount will be billed at $315 per hour. $ N/A deposit for hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $265 per hour. City of Aspen: Pro. �� nerr. ryryryry�� • Chris Bendon I • Sir I ) r u Community Development Director Name: 0 -8 AROQO J1 r.•� -- r' ` AC• City Use: Title: Fees Due: $ Received: $ Aovember. 2011 City of Aspen , 130 S Galena St. 1970) 920 -5090 EXPO rr EXHIBIT 7 Mailing addresses of record for all property owners located within 300 feet of the subject property will be provided under separate cover within 60 days of the first scheduled public hearing date and/or with the affidavit of pubic notice. MEMORANDUM ‘(I 11 b TO: Mayor Ireland and City Council FROM: Chris Bendon, Community Development Director I RE: 217/219 South Third Street — Lot Split, Planned Unit Development and Rezoning from R -15 to R -15 -PUD 2 " Reading of Ordinance No. 7, Series 2012 DATE: March 12, 2012 • /// . i i / • / � • / / // / / , / , NOTE: This property is subject to a lawsuit between / / ! / the Applicant and the City of Aspen. The lawsuit / 1 / _ ! regards the ownership of the "Upper Lot." Both the = City and the Applicant claim ownership of this land. " The Land Use Code allows an applicant to pursue a r tip:. ,< a''' land use application by producing proof of ownership in r:� .a _ ..„,./ . ' the form of a title commitment. The applicant in this '.'' ` � case has produced a title commitment asserting its � +�) v _ `��. � l • •. ownership of the "Upper Lot." The City has agreed not / - - : // to object to the pursuit of the application despite its / •• claim of ownership of the disputed property. If the Y 1•1: application is ultimately approved, the litigation would •�;, ; ; 1 be deemed moot. The City's legal staff can provide p �. ` `,• .`,�� further clarity as necessary. �� • • APPLICANT /OWNER: i.r1 5°•vi t YLP West, LLC. Suzanne Foster, representative. LOCATION: 217/219 South Third Street. current conditions CURRENT ZONING & USE: The "Lower Lot" is zoned R -15 and contains a duplex. - The lower lot is approximately 9,942 square feet. The -. w „ "Upper Lot" is zoned Park and is unimproved. The -` - i upper parcel is approximately 3,496 square feet, bisected " by the Midland Trail. f _ . . PROPOSED LAND USE: - 1 : The Applicant is requesting Lot Split approval to divide - - _ .. __ =\ the lower parcel into two single - family home sites; _ _ _ _ "�'' Planned Unit Development approval to establish ±: "' =r allowable floor area and setbacks for the two home sites; and rezoning approval to rezone the property to add a PUD overlay (R -15 -PUD). The application proposes to dedicate the upper lot as open space. Page 1 of 9 STAFF RECOMMENDATION: Staff recommends approval of the project, subject to the conditions of approval in the draft Ordinance. Staff believes the proposal allows development compatible with the neighborhood and preservation of an important open space link. Staff's recommendation differs slightly from the applicant's request. Items to review during the meeting are: • Ordinance page 4, dimensions table — Floor Area • Ordinance page 4, dimensions table — Deck allowance. • Ordinance page 5 & 6, Section 5 — Open Space Transfer • Ordinance Page 6, Section 7 — Affordable Housing Requirement The applicant's requests are highlighted within the Ordinance. A decision on each of these four points will need to be made during the hearing. FIRST READING QUESTIONS: Councilman Johnson had a question regarding site slopes. The issue has to do with a prior discussion on the property about the presence of steep slopes along the Midland Railway corridor. That issue has been resolved. he slopes have been determined to be man-made and a surveyor's estimation of pre - develo t grade has been accepted by the City as the basis for development rights. �� 6+.1 Councilman Torre had a question regarding the R -15 zoning of this block and the R -6 zoning of adjacent areas. This neighborhood was downzoned a few times in the 1970s as part of town - wide growth management efforts. Zoning previously allowed for additional uses including multi - family and lodging. The neighborhood is now dotted with non - conforming uses that were developed prior to these zoning changes and most of the properties do not meet minimum lot size requirements. The area south of Hopkins and west of South Third Street was zoned R -15, while areas closer to downtown and Main Street were zoned R -6, a slightly denser zoning. Over time, the City's approach to density within the original Townsite has changed in favor of allowing more density. Several affordable housing projects and a lodging project have been approved in this neighborhood. Recently, the properties to the west of this subject property were rezoned from R -15 to R -6 to accommodate a development application seeking the rezoning. This left this block as the only R -15 property surrounded by R -6. The applicant previously sought rezoning of this property to R -6. The application would have permitted two houses, similar to the current request. The R -6 request was not supported by the Planning and Zoning Commission. The applicant did not pursue the request through to City Council and withdrew the application. Councilman Torre also had a question regarding the City's position on the pending lawsuit. Planning staff defers to the City Attorney on this matter. Page 2 of 9 orb PLANNING COMMISSION RECOMMENDATION: The Planning and Zoning Commission recommended denial of this project by a 6 -1 vote. There was some uneasiness surrounding the ownership of the upper lot and a desire by a few members of the commission to resolve this dispute prior to addressing the land use application. Planning and legal staff clarified that the application was a valid application and that the land use application was a potential way for the City .•1,421.3 .� . i ' " ' and the applicant to resolve the ownership t=- fit' • ' - . ,.;, __ • t dispute. A few members also intimated �" r ..if . j : ... support f the applicant's previous rezoning -. 1 '0+ ' t . -= II - application (to R -6) which was �`` recommended for denial by the Commission :, . } r „ b, and subsequently withdrawn. The ►: •t Y .. ' . , �,� ' , '�` • Commission appeared ready to continue the j �` • , ” '' ir application to allow ownership of the upper �� - ; ►, 1 lot to be resolved. At this point, the applicant requested the Commission act on * - 9 ,�,� /I •'" �"R , the application and the Commission t" ,„ ; T ' • , ' i ti provided their denial recommendation to ; ` ' _ � " ``� if --- , City Council. Minutes of the P &Z hearing �y;,' , f will be provided in the second reading packet. Neighborhood LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant is requesting the following land use recommendation of approval from the Planning and Zoning Commission: • Amendment to the Zone District Map - An application for Amendment to the Zone District Map, pursuant to Land Use Code Section 26.310.020, requires the Planning and Zoning Commission, at a public hearing, to recommend to City Council if the application meets the standards for an amendment to the Zone District Map. The City Council is the final decision - making body. • Combined Conceptual/Final Planned Unit Development - An application for combined Conceptual and Final Planned Unit Development pursuant to Land Use Code Chapter 26.445, requires the Planning and Zoning Commission, at a public hearing, to recommend to City Council if the application meets the standards for Final Development Plan. The City Council is the final decision - making body. • Lot Split - An application for Lot Split Subdivision requires City Council, at a public hearing, to determine if the application meets the standards of Section 26.480.030.2. The City Council is the final decision - making body. (The P &Z is not required to provide a recommendation on this action.) PROJECT SUMMARY: The Applicant, Suzanne Foster representing YLP West , LLC, has requested approval to divide the lower lot into two new lots. Each Lot would be approximately 4,971 square feet and contain a single - family residence. The upper lot would be preserved as open space. Lot Split approval is Page 3 of 9 requested to accomplish the subdivision. The application requests PUD approval to recognize the smaller- than- required lot sizes and to establish zoning dimensions. The application requests rezoning approval to place a PUD overlay on the property. Properties of less than 27,000 square feet may proceed through the PUD review process if the Community Development Director determines the project may have the ability to further the goals of the Aspen Area Community Plan and that the PUD process best serves the interests of the community. The Director has made this determination. Specifically, the application and PUD process presents the ability to preserve a significant open space and trail connection, an AACP goal and in the interest of the community. Below is a detailed summary of the application and staff's response and recommendation on each point: Division of Lower Lot in two home sites: Staff supports this request. The property is currently developed with a duplex and it can be redeveloped with two units. The physical separation of the structures is preferred as it helps reduce the massing of the project and is more in keeping with the modest home sizes in the neighborhood. Also see zoning dimensions, below. Preservation of Upper Lot: Staff supports this request. The parcel is not an appropriate place for development. The lot is affected by mine waste and does not have easy access to sustain development. The Midland Trail bisects the property and this trail is heavily used by the public. There is a dispute concerning the upper lot. Notwithstanding the ongoing legal arguments regarding ownership, staff considers this parcel an important open space and public recreation trail link. Floor Area: Staff supports some increase to the Floor Area of the lower lot. The lower lot currently has an allowable Floor Area of 4,145 square feet — 2,072.5 s.f. for each new lot if divided equally. The application requests the two new lots on the lower property be allowed a Floor Area of 2,951 square feet each. This is based on the size of the new lots according to the R -15 zoning. As rationale, the application suggests the upper lot could be developed with a single - family home of approximately 2,538 square feet of Floor Area and that this development is being vacated with the open space dedication. Even with maximum slope- reduction taken into account, a house of 1,903 square feet of Floor Area could potential, be developed on the upper lot. Note: Given the dispute regarding ownership of the upper lot, there is likely a similar argument to be made regarding the Park zoning of the upper lot. If the applicant prevails in the lawsuit, there is a potential the upper lot could be developed according to the R -15 Zone District and contain a single - family residence of up to 2,538 square feet of Floor Area. Staff is concerned about the amount of Floor Area being proposed for the new lots. The Floor Area schedule for the R -15 zone is based on lots of 15,000 square feet or more. While a house of 2,951 square feet of Floor Area does not sound excessive, staff believes this could be out of scale with the proposed lot sizes of 4,971 square feet. If these were larger lots, staff would be less concerned. Page 4 of 9 A development across the street from this property • (pictured) provides useful guidance. Two 3,000 s.f. lots >; - each contain a single - family residence of 2,400 square feet of Floor Area Even though these houses are located in the R -6 Zone District, staff believes they are 1 , ' ' ■,,, compatible with the neighborhood, which contains a variety of zoning designations. These lots are slightly - - _ _ smaller than proposed lots and contain slightly less Floor _ - Area. Staff suggests a 2,707 square foot Floor Area limitation for the new lots. Staff arrived at this number as follows — the existing lower lot could contain a duplex of 4,145 s.f. The upper lot could potentially contain a house of 2,538 s.f. if the applicant prevails in the lawsuit. Or, it could contain no development if the City prevails. Dividing the potential 2,538 s.f. of the upper lot by half and adding it to the Floor Area of the lower lot provides a total of 5,414 square feet. Allocating this equally to the two new lots would result in an allowable Floor Area of 2,707 for each new lot. Assuming the upper lot is permanently preserved, staff considers this a reasonable outcome that will result in development compatible with the neighborhood. Deck Floor Area: The application requests additional deck allowance be provided for these two new lots as a way to mitigate the "loss" of floor area by dedicating the open space. Staff does not support this request. Decks in excess of the standard allowance could result in an aesthetic oddity. Plus staff believes the 2,707 square foot Floor Area recommendation adequately recognizes the open space preservation. Setbacks: The application requests 10 -foot setbacks on all sides of the property, including the 3 Street frontage which would otherwise be 25 feet. Given the small sizes of the lots and the neighborhood context, staff believes the 10 -foot setbacks are preferable. This would align the new house on Lot 1 with the setback of the existing house to the north (the log cabin). Staff believes the two houses across the street (pictured above) are good examples of appropriate development for this neighborhood — and each of these houses have a 5 -foot setback. Man-Made Slopes: The application requests the City accept a pre - development grade as the basis of development rights. The City has already accepted the pre - development grade for this property and staff believes it is acceptable for the PUD to continue to recognize this condition. Covenant on the Open Space: The application requests an easement on the open space parcel in order to maintain the landscape. The Parks Department does not support this request and planning staff agrees — the City's Parks and Open Space are well equipped to manage this landscape in an appropriate manner. Furthermore, the application is unclear on the method of preserving the open space. Staff does not support anything less than the City receiving an unconditional quit claim deed of this upper parcel for open space and recreational purposes. Staff suggests an open space Page 5 of 9 easement be granted to a third party land conservation organization. The application requests this and the City has done this in the past to alleviate concerns that the City could develop the open space for other purposes in the future. Staff suggests the upper parcel continue to be zoned Park. Affordable Housing Waiver: The application requests a waiver of the City's affordable housing requirements is recognition of the open space dedication. The Aspen/Pitkin County Housing Authority does not support this request and neither does planning staff. Staff believes the open space dedication is adequately recognized through the Floor Area allowance. And, the open space benefit to the public does not balance the affordable housing deficit represented by the waiver. Secondary Mass Residential Design Standard: The application requests waiver of the "secondary mass" standard of the City's residential Design Standards. Staff supports this request. These two lots are somewhat constrained and the bifurcation of the mass on the lower parcel achieves a reasonable level of separation between structures. Referring to the example of the two houses across the street (picture above), these parcel can be developed without the secondary mass and remain compatible with the neighborhood. OTHER ISSUES: The City's referral agencies provided comments on this application and staff has included their recommendations in the proposed resolution. Below, staff has highlighted a few issues. Alleyway: The alleyway is currently compromised with an encroaching structure associated with the parcel to the north. In order to provide safe access, the City engineer is requiring 16 feet of unobstructed clear -- driving area, plus a 1 -foot buffer for the historic — i P structure. Staff has also included a condition that the applicant install a protective bollard next to the accessory structure to minimize damage to the structure from vehicles. Sequence of Development: These lots are somewhat constrained and construction _ staging areas will be minimal. The City Engineer (who manages the City's construction management program) suggests Lot 2 be developed first using Lot 1 as the staging area. There is a potential that the existing structure would remain and modified to conform on Lot 1. In this circumstance, Lot 1 could not be used as a staging area. The applicant and the City Engineer will be reviewing construction staging options and this sequencing requirement may be deleted prior to second reading. NEIGHBORHOOD CHARACTER: The subject property is within a neighborhood with a variety of uses and densities. To the north, across the alley, are three properties that are also zoned R -15 and contain single family residences. All four of these lots, although designated R -15, do not meet the minimum required Page 6 of 9 lot size of 15,000 sq. ft., instead ranging from 7,500 sq. ft. to 12,000 sq. ft. Additional lots that are zoned R -15 and are adjacent to Hyman Avenue and behind the Ice Garden also do not meet the minimum required lot size and are non - conforming. S I i • ri E . 1 �} 1 t j r, a Nearby Scott Building St. Moritz Lodge 37 1 7Z { - View looking west on Hopkins View looking east on Hopkins Across Third Street the properties are zoned R -6, containing a number of residences and the St. Moritz Lodge. In general the lots are smaller lots ranging from 3,000 to 7,500 sq. ft. However, there are a number of larger lots in the area that contain multi - family residential, a non- conforming use in the R -6 zone district. The neighborhood character includes single - family residences, duplexes, mixed -use properties, civic uses, lodging, and multi - family residences. Page 7 of 9 ' I'. WW f - s;r 1. ;` f z . $to1' 4r "` f � , j ` P , , 1 - iff t : , „ `-- .: ; , ,1 e' 0. 4 e ! I ~ I 1 1 - 1.7.; ----.....„ tvildi .'4,41.,,, 8 ,, - !-,_,1-- . ,,tl ..'*, -.7.f --- -- , , t ' 1 0 1 ,0144 4 , 47) *Is - /' Mixed Use ,r .r - -- `: 7 0 _ a ri.. , ' .5+a Est t s k, eI 14 l e A r ", c 1= "`� � E � oa till, A re a •0 j � /- lam''`" ': ,'r t,. b *• f t .' ^ r • I. ` `' fie., ' 4 -.Tti�� /� F ii i -lu 4 ,T , .. -, " k.„ . � , -i ce , p _ 7 r ,' y Public . J Y . 7' ,4tr`''1 \ Public \ 1 e-ly 4. 'A � L..,i 1 s .. ,- , ` r y i r ite,„ ' . + ma y s 4 -,, ''k . ,F 7 .. . — �y . !' ,e J,' y ,. r i r fl Y t f . 1 - 1 J ti ' ",\. to ,� .._ -,„ Existing Zone Districts The purpose statement of the R -15 zone district states that the zone district typically includes "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." With regard to the R -6 zone, the purpose statement notes that lands in the R -6 zone are "generally limited to the original Aspen Townsite, contain relatively dense settlements of predominately detached and duplex residences, and are within walking distance of the center of the City." A parcel of land south of the Boomerang Lodge property was rezoned from R -15 to R -6 in 2006 as it was determined that the character of the neighborhood allowed for denser, smaller houses. Staff believes the neighborhood contains a variety of uses, lot sizes, and building sizes. The proposed parcel sizes are compatible with those already in the neighborhood. The proposed use as single - family homes is consistent with uses already established in the neighborhood. The proposed house sizes will be within the range of house sizes already existing. The proposed setbacks align with adjacent development and are in keeping with existing setbacks in the neighborhood. Staff believes the proposed development is compatible with existing neighborhood character. Page 8 of 9 RECOMMENDATION: Staff recommends approval with the conditions of approval recommended by staff in the proposed Ordinance. CITY MANAGER COMMENTS: • PROPOSED MOTION: "I move to approve Ordinance no. 7, Series 2012." ATTACHMENTS: EXHIBIT A — Review criteria and Staff Findings EXHIBIT B — DRC Summary EXHIBIT C - Application EXHIBIT D — Public Comment EXHIBIT E — P &Z Minutes \024 -- — f,b Co Wict — \ueL1®t"",( Page 9 of 9 ORDINANCE NO. 7 (SERIES OF 2012) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING THE LOT SPLIT, REZONING, AND PLANNED UNIT DEVELOPMENT APPLICATION FOR 219 SOUTH THIRD STREET, CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO. Parcel ID: 2735 - 124 -65 -005 WHEREAS, the Community Development Department received an application for the property located at 217 and 219 South 3 Street from Suzanne Foster representing YLP West, LLC, owner, for the following land use review approvals: • Final Planned Unit Development, pursuant to Land Use Code Chapter 26.445. • Lot Split Subdivision, pursuant to Land Use Code Chapter 26.480.030. • Amendment to the Zone District Map, pursuant to Land Use Code Chapter 26.310. ; and, WHEREAS, the subject Property is commonly known as 217 and 219 South 3` Street and is legally described as: Lots 0, P, Q, R, and S, Block 39, City and Townsite of Aspen, excepting therefrom that portion of Lots 0, 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'iMidland Railway right of way and the 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. WHEREAS, The application regards two properties: The "upper lot" is approximately 3,496 square feet, currently unimproved and bisected by the Midland Trail. The "lower lot" is approximately 9,942 square feet and improved with two residences in a duplex configuration. The applicant is requesting approval to split the lower lot into two development sites, each to contain a single - family residence and to restrict the upper lot to open space. The application requests Lot Split approval, Planned Unit Development approval, and rezoning approval to rezone the property from R -15 to R- 15 -PUD. WHEREAS, pursuant to Section 26.445.020, the Community Development Director determined that the application has the ability to further goals of the Aspen Area Community Plan and the provisions of Planned Unit Development best serve the interests of the community; and, WHEREAS, pursuant to Section 26.445.030.B.2, the Community Development Director determined that the project could be reviewed as a consolidated conceptual and final review finding that the full 4-step review would be redundant; and, WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire Protection District, Parks Department, Aspen/Pitkin County Housing Authority, and City Utilities as a result of the Development Review Committee meeting; and, Ordinance No. 7, Series 2012. Page 1 of 11 WHEREAS, pursuant to Chapter 26.445 of the Land Use Code, Final PUD approval may be granted by the City Council at a duly noticed public hearing after considering recommendations by the Planning and Zoning Commission, the Community Development Director, and relevant referral agencies; and, WHEREAS, pursuant to Chapter 26.480 of the Land Use Code, Lot Split Subdivision approval may be granted by the City Council at a duly noticed public hearing after considering recommendations by the Community Development Director, and relevant referral agencies; and, WHEREAS, pursuant to Chapter 26.310 of the Land Use Code, an amendment to the Official Zone District Map (Rezoning) may be granted by the City Council at a duly noticed public hearing after considering recommendations by the Planning and Zoning Commission, the Community Development Director, and relevant referral agencies; and, WHEREAS, during a meeting on January 10, 2012, the Planning and Zoning Commission opened a duly noticed public hearing, considered the Application, received presentation from the Applicant, considered the comments and recommendations of the Community Development Director, considered comments and suggestions offered by members of the public, considered questions and responses by staff or the Applicant, considered comments and discussion by Commission members, and recommended, by a six to one (6 -1) vote, City Council deny the application; and, WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, opened a duly noticed public hearing, considered the Application, received presentation from the Applicant, considered the comments and recommendations of the Community Development Director, considered comments and recommendations from other members of City staff and referral agencies, considered comments and recommendations of the City of Aspen Planning and Zoning Commission, considered comments and suggestions offered by members of the public, considered question responses by staff and the Applicant, considered comments and discussion by fellow Council members; and, WHEREAS, the Aspen City Council finds that the development proposal meets or exceeds all applicable development standards of all applicable land use reviews, as identified herein, with conditions, and that the approval is consistent with the goals and elements of the 2000 Aspen Area Community Plan; and, WHEREAS, the Aspen 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, as follows: The Foster Subdivision/PUD application is hereby granted Lot Split approval, Planned Unit Development approval, and Rezoning approval to create a three lot subdivision with one lot dedicated as open space and the remaining two lots to contain a single - family residence each, subject to conditions of approval listed herein. Section 1: Foster Subdivision/PUD Plat & Final PUD Plans Within 180 days following the date of final approval by the City Council, the record owners of the underlying lands shall prepare and submit a Lot Split Subdivision Plat and Final PUD Plans Ordinance No. 7, Series 2012. Page 2 of 11 • for the Foster Subdivision/PUD to be reviewed to ensure each item and condition of approval is documented to the satisfaction of the Community Development Director, the City Engineer, and the City Attorney prior to final signatures by the Mayor and recordation. 1.1 The Lot Split Subdivision Plat shall divide the land into the following parcels, as generally depicted on the map attached as Exhibit A. Foster Subdivision/PUD Lot 1: Single - Family Home Foster Subdivision/PUD Lot 2: Single - Family Home Foster Subdivision/PUD Lot 3: Open Space Parcel The plat shall include a note stating that no further subdivision may be granted for these lots nor shall more than two primary residences be built without receipt of applicable approvals pursuant to the City's Subdivision and Growth Management requirements. 1.2 The Subdivision Plat shall grant certain perpetual easements as follows: a. A perpetual public recreation, pedestrian access, and maintenance easement through the center portion of Lot 3 proximate to the existing trail alignment for the benefit of the general public. The easement shall be of a width and alignment acceptable to the City of Aspen Parks Department. The easement shall permit the City of Aspen, or its designee, to install, maintain, and operate a public trail and educational improvements. b. A perpetual open space easement across all portions of Lot 3 granted to the Aspen Valley Land Trust, or similar land trust, for the benefit of the general public and subject to the trail easement described above. c. A perpetual alleyway easement on Lot 1 sufficient to provide a minimum 16 -foot width of the alley free and clear of obstruction, including a 1 -foot buffer on the south side of the existing accessory structure which is partially located in the alleyway north of the subject property (17 feet total from the south face of the accessory building). 1.3 A Final PUD Development Plan set that includes: a. An illustrative site plan showing the layout of the three lots as generally depicted in Exhibit A. The plan shall illustrate setbacks (not building envelopes) on Lots 1 and 2. b. A Utility Plan including profiles and sections acceptable to the City Engineer and the City of Aspen Utilities Department. Individual service lines will need to be provided for each house. Service will need to be from the 6" water line on the east side of South 3 Street, not the larger capacity transmission line. Service routing is preferred through the alleyway. The applicant should be aware of new water service development standards going into effect in early 2012. c. A Drainage Plan and report acceptable to the City Engineer that complies with the City's Urban Runoff Management Plan. The plan and report shall include a mudflow analysis. The drainage plan shall include curbing along South 3` Street. Certain details specific to actual development of each lot may be postponed until building permit submission, at the discretion of the City Engineer. Ordinance No. 7, Series 2012. Page 3 of 11 d. An Interpolated Natural Grade Plan. e. The illustrative site plan shall include the following approved dimensional standards: 4,971 square feet, as depicted 4,971 square feet, as depicted Minimum Lot Size on recorded plat on recorded plat Allowable Density Single - Family Home Single - Family Home 2,707 square feet 2,707 square feet Maximum Floor Area The Applicant requests a The Applicant requests a Floor Area of 2,951 sf. Floor Area of 2,951 sf 10 feet. Measured from east 10 feet. Measured from north Minimum Front Yard Setback lot line fronting 3 street lot line fronting alleyway 10 feet. Measured from north 10 feet. Measured from east Minimum Side Yard Setback and south lot lines, and west lot lines, respectively. respectively. 10 feet. Measured from west 10 feel. Measured from south Minimum Rear Yard Setback lot line. lot line. Per R -15 Zone District, as Per R -15 Zone District, as All other Dimensional may be amended from time to may be amended from time to Allowances /Limitations time. time. Notes: • The development of Lots 1 and 2 shall be allowed and limited by the above dimensions as calculated and measured pursuant to the Land Use Code in effect upon submission of a building permit and as may change from time to time. The Applicant is requesting the above note be amended as follows: The development of Lots 1 and 2 shall be allowed and limited by the above dimensions as calculated and measured pursuant to the Land Use Code in effect upon submission of a building permit and as may change from time to time. The allowable deck area for improvements to Lots 1 and 2 shall be that which is permitted in the Land Use Code, plus an additional 390 square feet of deck space per lot. • Allowances and limitations for improvements within setback areas shall be pursuant to the Land Use Code, as may change from time to time. • Allowances and limitations for permitted uses, conditional uses, accessory uses, and accessory structures shall be pursuant to the Land Use Code and the R -15 Zone District, as may change from time to time. Ordinance No. 7, Series 2012. Page 4of1l Section 2: Existing Duplex Building The existing duplex building need not be demolished prior to recordation of the lot split subdivision plat. The building may continue, subject to the limitations of Section 26.312.030 — non-conforming structures, as applicable. The existing duplex structure shall either be demolished or brought into conformance with this approval prior to or in conjunction with development of the first lot of the subdivision to be developed. All new construction shall be in conformance with the dimensional requirements of this ordinance. Section 3: Development Agreement Contemporaneously with the recording of the Lot Split Subdivision Plat, the record owners of the lands within the Foster Subdivision/PUD shall prepare, execute and record a Development Agreement meeting the requirements of Section 26.445.070.0 to be reviewed to ensure each item and condition of approval is documented to the satisfaction of the Community Development Director, the City Engineer, and the City Attorney prior to final signatures by the Mayor and recordation. The Development Agreement shall set forth a description of the proposed improvements and obligations of the parties, including the following: a. The residential floor area of the existing duplex structure to be applied as a reconstruction credit. The credit shall be allocated to each Lot in the development agreement. Credit allocation does not need to be evenly divided. b. The installation and/or relocation of all utilities depicted and described in the Utility Plan of the Final PUD Plans. The utilities shall be installed once, with service lines stubbed to the new Lots. c. The installation of all drainage facilities depicted and described on the Drainage Plan of the Final PUD Plans. d. A sidewalk improvement agreement for the South 3` Street frontage. e. The installation of a protective bollard (as approved by the engineering dept) adjacent to the southwest corner of the historic structure currently located in the alleyway north of Lot 1. The bollard shall be installed prior to development of either Lot. Section 4: Rezoning Contemporaneously with and effective upon the recording of the Lot Split Subdivision Plat and Development Agreement, the Lots within this Subdivision, as described above and reflected in the Subdivision Plat, shall be zoned as follows: Lot 1: Moderate - Density Residential, Planned Unit Development (R -15 -PUD) Lot 2: Moderate - Density Residential, Planned Unit Development (R -15 -PUD) Lot 3: Park (P) Section 5: Lot 3 Open Space Transfer Contemporaneously with and effective upon the recording of the Subdivision Plat and Development Agreement, Lot 3 shall be transferred to the City of Aspen for open space and recreational trail purposes. The applicant shall provide the City with an unconditional quit claim deed or other transfer document acceptable to the City Attorney which does not limit the City's ability to use and maintain the property for open space and recreational trail purposes. Ordinance No. 7, Series 2012. Page 5 of 11 The Applicant Requests Section 5 be amended to read as follows: Contemporaneously with and effective upon the recording of the Subdivision Plat and Development Agreement, Lot 3 shall be transferred to the City of Aspen for open space and recreational trail purposes. The applicant shall provide the City with a quit claim deed or other transfer document acceptable to the City Attorney which reserves the right of the applicant, and assigns, to install and maintain the landscape north of the pedestrian trail surface. Section 6: Residential Design Standards Lot 1 shall be subject to the City's Residential Design Standards in effect upon development. The "secondary mass" standard shall not apply to Lot 1. The 3` Street frontage shall be considered the front for design standards purposes. Vehicular access shall be from the alleyway and the carport or garage shall be subject to the provisions for parcels accessed from an alleyway. Additional exceptions from the design standards may be approved pursuant to Chapter 26.410, as may be amended from time to time. A building permit to modify the existing duplex structure to conform to the zoning limitations of this ordinance shall be exempt from the City's Residential Design Standards. Lot 2 shall be subject to the City's Residential Design Standards in effect upon development. The "secondary mass" standard shall not apply to Lot 2. The alleyway frontage shall be considered the front for design standards purposes. Vehicular access shall be from the alleyway and the carport or garage shall be subject to the provisions for parcels accessed from an alleyway. Additional exceptions from the design standards may be approved pursuant to Chapter 26.410, as may be amended from time to time. Section 7: Affordable Housing Requirement Lots 1 and 2 of the Foster Subdivision shall be required to provide affordable housing mitigation according to the Land Use Code in effect upon submission of a building permit for each Lot. Credits towards the housing mitigation requirement, as may be permitted according to the code in effect upon development of each Lot, shall be as defined and assigned to each Lot in the Development Agreement. The Applicant Requests Section 7 be amended as follows: Lots 1 and 2 of the Foster Subdivision shall not be required to provide affordable housing mitigation in recognition of the Lot 3 open space dedication. Section 8: Construction Management Plan The building permit application shall include a construction management plan meeting the City's requirements in effect upon submission of a building permit. Do to the lack of available City ROW fronting Lot 2 and the limited alley access, the City of Aspen will not lease or provide access to adjacent public land for the construction of Lot 1 or 2. Provision must be made for either internal or off -site staging, stockpiling, and ancillary structures prior to approval of any building permits for Lot 1 or 2. Additionally, the City of Aspen will not permit occupancy of the alley for the construction of Lot 1 or 2. Limited use of the South 3rd Street right of way for construction of Lot 1 or 2 may be permitted as approved by the City Engineer and Parks Department provided that it does not affect traffic patterns or any trees. Ordinance No. 7, Series 2012. Page 6 of 11 Section 9: Building Permit Submission Requirements In addition to the standard submission requirements for a building permit, the Applicant shall submit the following: a. A signed copy of the final Development Order, City Council Ordinance, and the Development Agreement. b. A letter from the primary contractor stating that the final Development Order, City Council Ordinance, and the Development Agreement have been read and understood. c. A building permit application to either demolish or bring the existing structure on Lot 1 into conformance with the zoning limitations of this ordinance shall be submitted prior to or concurrent with the building permit application for the first Lot in the subdivision to be developed. d. A Construction Mitigation Plan according to the requirements in effect at the time of building permit submission and Section 8 of this ordinance. e. An Excavation and Stabilization plan. f. A Soils Report (testing for toxicity). Certain disposal and/or on -site coverage methods consistent with EPA regulations may be required. g. A tree removal plan and a tree protection plan. An approved tree permit will be required before any tree is removed or impacted under the drip line of the tree. Mitigation for removals must be on -site or paid via cash -in -lieu or per City Code 13.20. Parks will approve a final landscape plan during the review of the tree removal permit based on the landscape estimates. h. Detail civil plans for the installation and/or relocation of all utilities depicted and described in the Utility Plan of the Final PUD Plans. i. Detail civil plans for the installation of all drainage facilities depicted and described on the Drainage Plan of the Final PUD Plans. Section 10: Building Permit Issuance Requirements In addition to the standard requirements for issuance of a building permit, the following conditions must be met prior to issuance of a building permit: a. Prior to issuance of a Demolition permit for the existing structure, the applicant shall obtain approval of the construction mitigation plan and shall file an "Agreement to Terminate Sewer Service Line" with the Sanitation District. The CMP shall be renewed prior to issuance of an Access/Infrastructure permit for either Lot. b. Prior to issuance of an Access/Infrastructure permit, the applicant shall obtain a tree removal permit and shall install any required tree protection fencing. c. Prior to issuance of an Access/Infrastructure permit, the applicant shall Sanitation District fees. ACSD can develop an estimate for this project once detailed plans have been made available to the district. d. Prior to issuance of an Excavation/Foundation permit on either Lot, the applicant shall install a protective bollard (as approved by the City Engineer) adjacent to the southwest corner of the historic structure currently located in the alleyway north of Lot 1. Ordinance No. 7, Series 2012. Page 7 of 11 e. The Applicant shall pay all impact fees and school lands dedication fees applicable and per the fee schedule in place at the time of building permit submission, payable upon issuance of the full building permit for the respective Lot. f. The new structures shall comply with applicable adopted fire codes including policies regarding fire suppression systems (sprinklers). g. Payment of ACSD connection fees. Section 11: Final Inspection Requirements In addition to the standard requirements for final inspection and issuance of a Certificate of Occupancy on either Lot, the following conditions must be met: a. The existing duplex structure, generally located on Lot 1, shall be either demolished or brought into conformance with the zoning limitations of this ordinance, as inspected and approved by the Zoning Officer. Section 12: Sanitation District Requirements Service is contingent upon compliance with the District's 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. On -site utility plans require approval by ACSD. Below grade development may require installation of a pumping system. One tap is allowed for each building. Permanent improvements are 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. Any glycol heating and snow melt system must be designed to prohibit a discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. Soil Nails are not allowed in the public ROW above ASCD main sewer lines and within 3 feet vertically below an ACSD main sewer line. Section 13: Landscape in Right - of - Way All landscaping and plantings within the City ROW must be approved by the City Parks Department and the Engineering Department, pursuant to Chapter 21.20 of the Municipal Code. Section 14: Representations Preserved 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 Community Development Department, the Planning and Zoning Commission, or the Aspen 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 other specific conditions. Ordinance No. 7, Series 2012. Page 8 of 11 Section 15: 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 submit all plats and agreements required to be recorded, as specified herein, within one year 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: Foster Subdivision/Planned Unit Development located on property commonly known as 217/219 South Third Street, City of Aspen, Pitkin County Colorado, as more fully described in City of Aspen City Council Ordinance No. 7, Series 2012. 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 16: 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 17: 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. Ordinance No. 7, Series 2012. Page 9 of 11 Section 18: That the City Clerk is directed, upon the adoption of this Ordinance, to record a copy of this Ordinance in the office of the Pitkin County Clerk and Recorder. Section 19: A public hearing on the Ordinance shall be held on the 12 clay of March, 2012, at 5:00 in the City Council Chambers, City hall, 130 South Galena Street, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. Section 20: This ordinance shall become effective thirty (30) days following final adoption. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 13 day of February, 2011. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor FINALLY, adopted, passed and approved this day of , 2012. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Approved as to form: James R. True, City Attorney Exhibit A — Proposed Subdivision Map Ordinance No. 7, Series 2012. Page 10 of 11 Exhibit A Proposed Lot Split Subdivision Map i - i a N 1 - ,j g IT T 9 ma lux ..w 1 I o j \ ,__—_.. T a _ I t i l ! fling ip I rl9 P lit o 6 3 till i[F 9 Al1 Ss 3 B r---y t i l l aF �o €i' j ! d i'tto 5 8 i i i i ii i Jo. I s IA lii2. S I ri li li il,g = .> i l i }l s L ti W.O Grp t i s "al"n.""" WA I t ..oroeeee,.9.cDenton j I •,rw�r. euewwmw� .erriermm mr.rz nowm uamu .>ror uw n9mymo ALLEY IWO( 39 wmxtb r . !I Z ;" i — 9 Ordinance No. 7, Series 2012. Page 11 of 11 EXHIBIT A 219 SOUTH 311D STREET REVIEW CRITERIA & FINDINGS REVIEW CRITERIA Lot Split pg. 2 PUD pg. 4 Amendment to the Zone District Map (Rezoning) pg. 15 Exhibit A — Review Criteria and Staff Findings Page 1/16 STAFF FINDINGS: LOT SPLIT Lot split. The split of a lot for the purpose of creating one (1) additional development parcel 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. STAFF FINDING: DOES IT COMPLY? YES The property is within the Original Townsite but is not part of a City or County subdivision. Staff finds this criterion met. 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 Chapter 26.470. STAFF FINDING: DOES IT COMPLY? YES, CONDITIONALLY The property is currently comprised of two lots — the upper lot and the lower lot. These lots are not contiguous with an intervening parcel of land. The lot split will divide the lower lot into two parcels. These new lots are proposed to be smaller and contain setbacks less than required in the R -15 Zone District. However, the lots will be conforming with zoning upon adoption of the Planned Unit Development plan which is proposed to recognize the smaller property sizes and establish the setback requirements. The PUD plan adoption is proposed simultaneous with the lot split approval. Conditioned on adoption of PUD plan, staff finds this criterion met. The proposal includes a request for the City to waive the affordable housing requirements. City staff and staff of the Housing Authority do not support this waiver. The proposed ordinance includes this requirement to provide housing mitigation. With this condition, staff fmds this criterion met. 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 Chapter 26.470. STAFF FINDING: DOES IT COMPLY? YES. The property is not the subject of a lot split. Staff finds this criterion met. 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 Exhibit A — Review Criteria and Staff Findings Page 2/16 without receipt of applicable approvals pursuant to this Chapter and growth management allocation pursuant to Chapter 26.470. STAFF FINDING: DOES IT COMPLY? YES, CONDITIONALLY The proposed ordinance includes a requirement to submit and record a subdivision plat including this no- further- subdivision requirement. With this proposed condition, staff finds this criterion met. 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. STAFF FINDING: DOES IT COMPLY? YES, CONDITIONALLY The proposed ordinance includes a requirement to submit and record a subdivision plat within this timeframe. With this proposed condition, staff finds this criterion met. f. In the case where an existing building occupies a site which is eligible for a lot split, the building need not be demolished prior to application for a lot split. STAFF FINDING: DOES IT COMPLY? YES The property does contain an existing building. The building was not and did not need to be demolished prior to this application. Staff finds this criterion met. g. Maximum potential residential 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. STAFF FINDING: DOES IT COMPLY? YES The two lots being created by the lot split are proposed to contain one single - family home each for a total of two homes. Staff finds this criterion met. Exhibit A — Review Criteria and Staff Findings Page 3/16 STAFF FINDINGS: PUD A development application for PUD shall comply with the following standards and requirements (staff findings follow each requirement): A. General requirements. 1. The proposed development shall be consistent with the Aspen Area Community Plan. STAFF FINDING: DOES IT COMPLY? YES Staff Finding Staff finds the proposal is consistent with the Aspen Area Community Plan. Outlined below is the project's consistency with applicable individual policies and goals listed in the 2000 AACP. Managing Growth The community goals listed in the AACP include: • "Contain development with the creation of the Aspen Community Growth Boundary..." The proposed development is within the Aspen Community Growth Boundary. Staff finds the project meets this goal of the AACP. Transportation The community goals listed in the AACP include: • "Maintain and improve the appeal of bicycling and walking...by adding sidewalk connections, replacing sidewalks, and requiring sidewalks as part of development approvals, where appropriate..." The Midland Trail bisects the upper parcel. Preservation of this trail connection is important as it is a heavily used recreation amenity. Staff finds the proposal meets this goal of the AACP. • "Reduce the adverse impacts of automobiles on the Aspen area." The proposal included dedication of the upper parcel as open space. This allows maintenance of the trail and the potential that some may use this connection for commuting. Staff finds the proposal meets this goal of the AACP. • "New development should take place only in areas that are, or can be served by transit, and only in compact, mixed -use patterns that are conducive to walking and bicycling" The proposed development is served by existing transit (one half -block away) and is composed of compact mixed -uses conducive to walking and bicycling. The site is ideal for utilizing existing transit and encouraging walking/bicycling. Staff finds the proposal meets this goal of the AACP. Housing The community goals listed in the AACP include: • "Encourage development to occur within the Aspen Community Growth Boundary and emphasize 'good city forms." The project is within the Aspen Growth Boundary and within the Aspen infrll area. The development also promotes "good city form" by focusing development within areas already served with infrastructure. Staff finds Exhibit A — Review Criteria and Staff Findings Page 4/16 the proposal meets this goal of the AACP. Parks, Open Space, & the Environment • "Buildings should be clustered and the property should be planned to allow for the preservation of the most important open space and natural features." The proposal preserves an important open space and trail connection — the Midland Trail — by clustering development on the lower parcel. Staff finds the proposal meets this policy of the AACP. • "Look for opportunities to ensure the some portion of land on large development projects is designed to retain significant areas of open space and trail connections." The proposal is designed to retain an important trail connection and the upper parcel as open space. Staff finds the proposal meets this policy of the AACP. • ... housing should be clustered to and the property should be planned to allow the preservation of the most important open space features." Staff believes the application is clustering the development and preserving an important open space feature. Staff finds the proposal meets this policy of the AACP. • "Improve public access to parks and recreation facilities." Preservation of the upper parcel as open space and securing public access to the Midland Trail achieves this goal of the Aspen Area Community Plan. 2. The proposed development shall be consistent with the character of existing land uses in the surrounding area. STAFF FINDING: DOES IT COMPLY? YES The existing character of the surrounding area is a mix of single - family, multi - family, lodging, commercial, full -time free - market housing, full -time affordable housing, part- time free - market housing, and recreational facilities. The lots sizes and structures vary from simple one story historic residential structures, to large modern new homes, to multi -story apartment and lodging structures. Structures and lot sizes in the immediate vicinity are both smaller and larger than proposed in the application for this property. Most of the R -15 zones parcels in this neighborhood are less than 15,000 square feet in size. The proposal for two moderately sized homes on parcels slightly less than 5,000 square feet provides a similar mix of uses, lot sizes, and home sizes consistent and compatible with the existing uses and development in the neighborhood. The proposed development allowance enable new development to be a size and character similar to other new development in the neighborhood. Staff believes the proposed uses and character of proposed development are consistent and compatible with the character of existing land uses and development in the surrounding area. 3. The proposed development shall not adversely affect the future development of the surrounding area. Exhibit A — Review Criteria and Staff Findings Page 5/16 STAFF FINDING: DOES IT COMPLY? YES Staff believes that this development will not adversely affect the ability for surrounding properties to develop in the future. In fact, the project will upgrade wet and dry utilities for the development. The Project is will be required to improve the storm water mediation that presently is unchecked. The proposed improvements to this property will not hamper or adversely affect future development possibilities of surrounding properties. Staff believes this proposal meets this criterion. 4. The proposed development has either been granted GMQS allotments, is exempt from GMQS, or GMQS allotments are available to accommodate the proposed development and will be considered prior to, or in combination with, final PUD development plan review. STAFF FINDING: DOES IT COMPLY? YES, CONDITIONALLY The property currently contains two residences and is proposed to contain two residences. The lot split of a property allows the newly created parcels a development right, subject to the standard mitigation requirements of the Land Use Code. Assuming the new development provides this mitigation, staff finds this criterion met. B. Establishment of Dimensional Requirements: The PUD development plans shall establish the dimensional requirements for all properties within the PUD. The dimensional requirements of the underlying zone district shall be used as a guide in determining the appropriate dimensions for the PUD. During review of the proposed dimensional requirements, compatibility with surrounding land sues and existing development patterns shall be emphasized. The proposed dimensional requirements shall comply with the following: 1. The proposed dimensional requirements for the subject property are appropriate and compatible with the following influences on the property: a) The character of, and compatibility with, existing and expected future land uses in the surrounding area. b) Natural or man-made hazards. c) Existing natural characteristics of the property and surrounding area such as steep slopes, waterways, shade, and significant vegetation and landforms. d) Existing and proposed man-made characteristics of the property and the surrounding area such as noise, traffic, transit, pedestrian circulation, parking, and historical resources. STAFF FINDING: DOES IT COMPLY? YES Generally, Staff finds that the proposed dimensional standards are appropriate for the site for the above characteristics, as follows: a.) See discussion from 1.A. above. b.) The project's proposes to avoid development on the upper lot. The upper lot Exhibit A — Review Criteria and Staff Findings Page 6/16 contains steep slopes and vehicular access would require significant grading. The lower lot is flat, accessible, and appropriate for development. c.) The proposed building site has already been impacted by existing or prior development. d.) Any development on this property would likely increase the above impacts; however, Staff believes these impacts would be slightly less than if the property, including the upper lot, were developed to the maximum potential. 2. The proposed dimensional requirements permit a scale, massing, and quantity of open space and site coverage appropriate and favorable to the character of the proposed PUD and of the surrounding area. STAFF FINDING: DOES IT COMPLY? YES The scale and massing of the proposed development is compatible with that of the neighborhood. The two new homes will be similarly -sized or smaller than recently developed homes in the neighborhood. The lots sizes, amount of open space, and character of the development will be similar to recent development that has occurred in the neighborhood. Staff finds this criterion met. 3. The appropriate number of off - street parking spaces shall be established based on the following considerations: a) The probable number of cars used by those using the proposed development including any non - residential land uses. b) The varying time periods of use, whenever joint use of common parking is proposed. c) The availability of public transit and other transportation facilities, including those for pedestrian access and/or the commitment to utilize automobile disincentive techniques in the proposed development. d) The proximity of the proposed development to the commercial core and general activity centers in the city. STAFF FINDING: DOES IT COMPLY? YES. The development will be required to provide parking according to the standards of the Land Use Code and no waiver or reduction has been requested. Staff finds the proposal meets this review criterion. 4. The maximum allowable density within a PUD may be reduced if there exists insufficient infrastructure capabilities. Specifically, the maximum density of a PUD may be reduced if: a) There is not sufficient water pressure, drainage capabilities, or other utilities to service the proposed development. Exhibit A — Review Criteria and Staff Findings Page 7/16 b) There are not adequate roads to ensure fire protection, snow removal, and road maintenance to the proposed development. STAFF FINDING: DOES IT COMPLY? YES Adequate public facilities either already exist or will be upgraded at the owner's sole expense. The City Engineer is requiring a 16 -foot clear path for the alleyway and staff has included this as a condition of the final plat. Staff believes that no density reductions are necessary. 5. The maximum allowable density within a PUD may be reduced if there exists natural hazards or critical natural site features. Specifically, the maximum density of a PUD may be reduced if: a) The land is not suitable for the proposed development because of ground instability or the possibility of mud flow, rock falls or avalanche dangers. b) The effects of the proposed development are detrimental to the natural watershed, due to runoff, drainage, soil erosion, and consequent water pollution. c) The proposed development will have a pernicious effect on air quality in the surrounding area and the City. d) The design and location of any proposed structure, road, driveway, or trail in the proposed development is not compatible with the terrain or causes harmful disturbance to critical natural features of the site. STAFF FINDING: DOES IT COMPLY? YES. Staff believes the site is suitable for development. The upper lot is not appropriate for development and the application intends to preserve this area as open space. The intended density is the same as exists today — two units. Staff believes that the proposal satisfies this criterion. 6. The maximum allowable density within a PUD may be increased if there exists a significant community goal to be achieved through such increase and the development pattern is compatible with its surrounding development patterns and with the site's physical constraints. Specifically, the maximum density of a PUD may be increased if: a) The increase in density serves one or more goals of the community as expressed in the Aspen Area Community Plan (AACP) or a specific area plan to which the property is subject. b) The site's physical capabilities can accommodate additional density and there exists no negative physical characteristics of the site, as identified in subparagraphs 4 and 5, above, those areas can be avoided, or those characteristics mitigated. Exhibit A — Review Criteria and Staff Findings Page 8/16 c) The increase in maximum density results in a development pattern compatible with, and complimentary to, the surrounding existing and expected development pattern, land uses, and characteristics. STAFF FINDING: DOES IT COMPLY? YES The proposal is for two houses where two unit currently exists. No increase in the amount of density is proposed. Staff finds this criterion met. C. Site Design. The purpose of this standard is to ensure the PUD enhances public spaces, is complimentary to the site's natural and man-made features and the adjacent public spaces, and ensures the public's health and safety. The proposed development shall comply with the following: 1. Existing natural or man-made features of the site which are unique, provide visual interest or a specific reference to the past, or contribute to the identity of the town are preserved or enhanced in an appropriate manner. STAFF FINDING: DOES IT COMPLY? YES The site is located near the base of Shadow Mountain, but is not proposing to impact the mountainside in any way. The permanent preservation of the upper lot will enhance the open space and trail infrastructure of the city. Staff finds this criterion met. 2. Structures have been clustered to appropriately preserve significant open spaces and vistas. STAFF FINDING: DOES IT COMPLY? YES The structures on the site have been clustered on the lower lot and the upper lot is planned to be preserved. Staff finds this criterion met. 3. Structures are appropriately oriented to public streets, contribute to the urban or rural context where appropriate, and provide visual interest and engagement of vehicular and pedestrian movement. STAFF FINDING: DOES IT COMPLY? YES The residential design standards will require structures be oriented to public streets and the application is not seeking a waiver of this requirement. Staff finds this criterion met. 4. Buildings and access ways are appropriately arranged to allow emergency and service vehicle access. STAFF FINDING: DOES IT COMPLY? YES, CONDITIONALLY The City Engineer has reviewed the plans and has requested a 16 -foot clear path for the alleyway. Considering the shed/cabin located partially in the alleyway, this clear -path requirement will likely require an easement on Lot 1. Staff has included this as a condition of approval. With the condition of approval, staff finds this criterion met. Exhibit A — Review Criteria and Staff Findings Page 9/16 5. Adequate pedestrian and handicapped access is provided STAFF FINDING: DOES IT COMPLY? YES. The Building Department will require the new improvements to comply with applicable building codes. Staff finds this criterion met. 6. Site drainage is accommodated for the proposed development in a practical and reasonable manner and shall not negatively impact surrounding properties. STAFF FINDING: DOES IT COMPLY? YES. The City Engineer will require the new improvements to comply with the City's Urban Runoff management Plan. Staff finds this criterion met. 7. For non - residential land uses, spaces between buildings are appropriately designed to accommodate any programmatic functions associated with the use. STAFF FINDING: DOES IT COMPLY? YES The plan is for two single - family homes with setbacks between the structures. No special programmatic functions are proposed and staff does not believe any special provisions are necessary. Staff finds this criterion met. D. Landscape Plan. The purpose of this standard is to ensure compatibility of the proposed landscape with the visual character of the city, with surrounding parcels, and with existing and proposed features of the subject property. The proposed development shall comply with the following: 1. The landscape plan exhibits a well designated treatment of exterior spaces, preserves existing significant vegetation, and provides an ample quantity and variety of ornamental plant species suitable for the Aspen area climate. 2. Significant existing natural and man-made site features, which provide uniqueness and interest in the landscape, are preserved or enhanced in an appropriate manner. 3. The proposed method of protecting existing vegetation and other landscape features is appropriate. STAFF FINDING: DOES IT COMPLY? YES The landscape improvements to the properties will be required to comply with city standards. These include tree removal permits and limitations on landscape within the right -of -way. Staff finds this criterion met. E. Architectural Character. It is the purpose of this standard to encourage architectural interest, variety, character, and visual identity in the proposed development and within the City while promoting efficient use of resources. Architectural character is based upon the suitability of a Exhibit A — Review Criteria and Staff Findings Page 10/16 building for its purposes, legibility of the building's use, the building's proposed massing, proportion, scale, orientation to public spaces and other buildings, use of materials, and other attributes which may significantly represent the character of the proposed development. There shall be approved as part of the final development plan an architectural character plan, which adequately depicts the character of the proposed development. The proposed architecture of the development shall: 1. Be compatible with or enhance the visual character of the City, appropriately relate to existing and proposed architecture of the property, represent a character suitable for, and indicative of, the intended use, and respect the scale and massing of nearby historical and cultural resources. 2. Incorporate, to the extent practical, natural heating and cooling by taking advantage of the property's solar access, shade, and vegetation and by use of non- or less- intensive mechanical systems. 3. Accommodate the storage and shedding of snow, ice, and water in a safe and appropriate manner that does not require significant maintenance. STAFF FINDING: DOES IT COMPLY? YES The new improvements will be required to comply with the City's residential design standards, just like any other property in this neighborhood. Staff is recommending the "secondary mass" standard not apply given the lots sizes and the character of the neighborhood. Staff finds this criterion met. F. Lighting. The purpose of this standard is to ensure the exterior of the development will be lighted in an appropriate manner considering both public safety and general aesthetic concems. The following standards shall be accomplished: 1. All lighting is proposed so as to prevent direct glare or hazardous interference of any kind to adjoining streets or lands. Lighting of site features, structures, and access ways is proposed in an appropriate manner. 2. All exterior lighting shall be in compliance with the Outdoor Lighting Standards unless otherwise approved and noted in the final PUD documents. Up- lighting of site features, buildings, landscape elements, and lighting to call inordinate attention to the property is prohibited for residential development. STAFF FINDING: DOES IT COMPLY? YES. The project will be required to meet the City's outdoor lighting standards and the application is not seeking a waiver. Staff finds this criterion met. G. Common Park, Open Space, or Recreation Area. If the proposed development includes a common park, open space, or recreation area for the mutual benefit of all development in the proposed PUD, the following criteria shall be met: Exhibit A — Review Criteria and Staff Findings Page 11/16 1. The proposed amount, location, and design of the common park, open space, or recreation area enhances the character of the proposed development, considering existing and proposed structures and natural landscape features of the property, provides visual relief to the property's built form, and is available to the mutual benefit of the various land uses and property users of the PUD. 2. A proportionate, undivided interest in all common park and recreation areas is deeded in perpetuity (not for a number of years) to each lot or dwelling unit owner within the PUD or ownership is proposed in a similar manner. 3. There is proposed an adequate assurance through a legal instrument for the permanent care and maintenance of open spaces, recreation areas, and shared facilities together with a deed restriction against future residential, commercial, or industrial development. STAFF FINDING: DOES IT COMPLY? YES, WITH A CONDITION The development is proposing dedication of the upper lot as open space. Staff is recommending this be deeded to the City with an easement to a reputable land trust. With a condition of approval, staff believes this criterion is met. H. Utilities and Public facilities. The purpose of this standard is to ensure the development does not impose an undue burden on the City's infrastructure capabilities and that the public does not incur an unjustified financial burden. The proposed utilities and public facilities associated with the development shall comply with the following: 1. Adequate public infrastructure facilities exist to accommodate the development. 2. Adverse impacts on public infrastructure by the development will be mitigated by the necessary improvements at the sole cost of the developer. 3. Oversized utilities, public facilities, or site improvements are provided appropriately and where the developer is reimbursed proportionately for the additional improvement. STAFF FINDING: DOES IT COMPLY? YES. Public infrastructure exists in the area. Staff finds this criterion met. I. Access and Circulation. The purpose of this standard is to ensure the development is easily accessible, does not unduly burden the surrounding road network, provides adequate pedestrian and recreational trail facilities and minimizes the use of security gates. The proposed access and circulation of the development shall meet the following criteria: 1. Each lot, structure, or other land use within the PUD has adequate access to a public street either directly or through an approved private road, a pedestrian way, or other area dedicated to public or private use. STAFF FINDING: DOES IT COMPLY? YES. Exhibit A — Review Criteria and Staff Findings Page 12/16 All proposed lots and uses have access from public rights -of -way. Staff finds this criterion met. 2. The proposed development, vehicular access points, and parking arrangement do not create traffic congestion on the roads surrounding the proposed development, or such surrounding roads are proposed to be improved to accommodate the development. STAFF FINDING: DOES IT COMPLY? YES The development of two home will replace the two residences currently on the property. Adequate road facilities exist to accommodate this change and staff finds this criterion met. 3. Areas of historic pedestrian or recreational trail use, improvements of, or connections to, the bicycle and pedestrian trail system, and adequate access to significant public lands and the rivers are provided through dedicated public trail easements and are proposed for appropriate improvements and maintenance. 4. The recommendations of the Aspen Area Community Plan and adopted specific plans regarding recreational trails, pedestrian and bicycle paths, and transportation are proposed to be implemented in an appropriate manner. 5. Streets in the PUD which are proposed or recommended to be retained under private ownership provide appropriate dedication to public use to ensure appropriate public and emergency access. 6. Security gates, guard posts, or other entryway expressions for the PUD, or for lots within the PUD, are minimized to the extent practical. STAFF FINDING: DOES IT COMPLY? YES. There is an historic trail through the subject property — the Midland Trail bisects the upper lot. The proposal is for this upper lot to be dedicated as open space and for the trail to continue. This is consistent with this criterion and with the AACP. The proposal does not include any special entry features or gates. Staff finds these criterion met. J. Phasing of Development Plan. (Note: this criteria does not apply to Conceptual PUD applications) The purpose of this criteria is to ensure partially completed projects do not create an unnecessary burden on the public or surrounding property owners and impacts of an individual phase are mitigated adequately. If phasing of the development plan is proposed, each phase shall be defined in the adopted final PUD development plan. The phasing plan shall comply with the following: 1. All phases, including the initial phase, shall be designed to function as a complete development and shall not be reliant on subsequent phases. 2. The phasing plan describes physical areas insulating, to the extent practical, occupants of initial phases from the construction of later phases. 3. The proposed phasing plan ensures the necessary or proportionate improvements to public facilities, payment of impact fees and fees -in -lieu, construction of any facilities to be used jointly by residents of the PUD, construction of any required Exhibit A — Review Criteria and Staff Findings Page 13/16 affordable housing, and any mitigation measures are realized concurrent or prior to the respective impacts associated with the phase. STAFF FINDING: DOES IT COMPLY? YES, CONDITIONALLY The project is not proposed in phases. The City Engineer has highlighted the construction staging issues that could occur and is recommending Lot 2 be developed first with Lot 1 serving as its staging area. Staff has included this as a condition of approval. With as a proposed condition, staff believe this criterion is met. Exhibit A — Review Criteria and Staff Findings Page 14/16 STAFF FINDINGS: AMENDMENT TO THE ZONE DISTRICT MAP (REZONING) In reviewing an amendment to the text of this Title or an amendment to the official zone district map, the City Council and Planning and Zoning Commission shall consider (26.310.040): Note: The rezoning is to acknowledge a PUD overlay on the property. This is a function of any PUD application. a) Whether the proposed amendment is in conflict with any applicable portions of this Title. STAFF FINDING: DOES IT COMPLY? YES. The rezoning is to acknowledge a PUD overlay on the property in compliance with PUD standards of the Land Use Code. Staff finds this criterion met. b) Whether the proposed amendment is consistent with all elements of the Aspen Area Community Plan. STAFF FINDING: DOES IT COMPLY? YES. Please see Staff s response to PUD review standard A1. Staff finds this criterion is met. c) Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering the existing land use and neighborhood characteristics. STAFF FINDING: DOES IT COMPLY? YES. The surrounding area provides a mix of uses and sizes of structures. The PUD overlay will allow development similar in use and intensity as the surrounding development. Staff considers the proposed zoning compatible with the surrounding zone districts and existing land uses. Also see PUD review standard A.2. Staff finds this criterion met. d) The effect of the proposed amendment on traffic generation and road safety. STAFF FINDING: DOES IT COMPLY? YES. This rezoning standard is also covered under PUD review standards. The proposal is for two houses to replace the two units currently on the property. Staff does not consider this change to have any substantive effect on traffic generation or road safety. Staff finds this criterion met. 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. STAFF FINDING: DOES IT COMPLY? YES. Exhibit A — Review Criteria and Staff Findings Page 15/16 The project can be accommodated with existing public infrastructure. Some services will be upgraded by the applicant to address direct needs. No disproportionate public service burdens are expected. Staff finds this criterion met. 0 Whether and the extent to which the proposed amendment would result in significantly adverse impacts on the natural environment. STAFF FINDING: DOES IT COMPLY? YES. No adverse effects on the natural environment as a result of this PUD Overlay have been identified by staff or referral agencies. The improvements will be required to meet all building codes, including drainage requirements. Staff finds this criterion met. g) Whether the proposed amendment is consistent and compatible with the community character in the City of Aspen. STAFF FINDING: DOES IT COMPLY? YES. The PUD overlay will enable the project to be developed compatible with the neighborhood's character. The proposed lot sizes, floor area, and setbacks are very similar to those of surrounding properties. Staff believes this criterion is met. h) Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. STAFF FINDING: DOES IT COMPLY? YES This criterion does not require a change of condition for a rezoning to be approved; it requires that changes in condition be acknowledged. The potential that the upper lot could be developed represents a change that supports the PUD Overlay. The overlay will allow for preservation of the upper lot as open space and preservation of the trail alignment through the property. Staff finds this criterion met. i) 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. STAFF FINDING: DOES IT COMPLY? YES Staff does not foresee any conflict with the public interest and believes the requested PUD overlay is in harmony with the purpose and intent of the Land Use Code. Staff finds this criterion met. Exhibit A — Review Criteria and Staff Findings Page 16/16 EXHIBIT B 219 So. 3 RD ST. DRC SUMMARY The following comments are not intended to be exclusive or exhaustive, but an initial response to the project packet submitted for purpose of the Development Review Committee meeting. PARKS DEPARTMENT: Landscaping and Sidewalk Landscaped area: Landscaping in the public right of way will be subject to landscaping in the ROW requirements, Chapter 21.20. There shall be no plantings within the City ROW which are not approved by the City Parks Department and the Engineering Department. Tree Permit: Per City Code 13.20 an approved tree permit will be required before any tree is removed or impacted under the drip line of the tree. Parks is requiring that the tree permit be approved prior to approval of building permits. If a permit is necessary, contact the City Forester at 920 -5120. Mitigation for removals will be paid cash in lieu or on site per City Code 13.20. Parks will approve a final landscape plan during the review of the tree removal permit based on the landscape estimates. Upper Lot: The City of Aspen Open Space Board supports the sterilization of the upper lot and the transfer of ownership, via deed, from the Applicant to the City of Aspen. Open Space Staff will work with the Planning Office and the Applicant to work out the details on the conservation easement. Limiting development should be further defined so that it prevents building development but doesn't prevent safety and educational improvements to the Midland Trail. Other Elements of PUD: The City of Aspen cannot support the Applicant's request on page 5, section 6. B — Covenant, which states "The owners of the lower lots shall be responsible for maintaining appropriate landscaping north of the existing Shadow Mountain Trail " (also on Page 4, #2). Currently, north of the existing trail (the Midland Trail) is the actual Midland Rail Road Right -of -Way. The old right -of -way is a historically important part of the town's heritage and should be maintained in its current state. Staff feels strongly that the current grade changes between the trail and the proposed lots provide a necessary buffer. The trail tread is several feet lower than the top of the historical rail road bed providing an earthen barrier and buffer. In addition the existence of native landscaping located on the rail road right -of -way and the distance of 45 feet from the edge of trail and property line supports Staff's opinion that an appropriate buffer exists in its current state. Existing landscape easements can remain in place providing a buffer between the trail and existing structure. 219 So. 3" St. Page 1/4 Exhibit B - DRC Summary ENGINEERING DEPARTMENT: Drainage: General note: The design for the site must meet the Urban Runoff Management Plan (URMP) Requirements. Staff was not able to determine whether or not the site will meet these requirements. A full review will be completed when there is enough information to review. A compliant drainage plan must be submitted prior to final plat. Staff was unable to determine whether or not the site is able to meet the Drainage Principals: 1. Consider stormwater quality needs early in the design process 2. Use the entire site when planning for stormwater quality treatment. 3. Avoid unnecessary impervious area. 4. Reduce runoff rates and volumes to more closely match natural conditions. 5. Integrate stormwater quality management and flood control. 6. Develop stormwater quality facilities that enhance the site, the community, and the environment. 7. Use a treatment train approach. 8. Design sustainable facilities that can be safely maintained. Sidewalk and Curb and Gutter: The property is located within the Sidewalk and Curb and Gutter Zone. Because the abutting property to the north does not currently have sidewalk, the dept. will not require the construction of a sidewalk at this time, however a sidewalk improvement agreement will be required prior to building permit. Curb and Gutter is also not installed on the abutting property however, the applicant will be required to install the appropriate drainage improvements to handle the drainage from the site and along 3` street. These improvements will be identified as part of the drainage plan that will be prepared prior to the final plat. Mudflow: The site is located in the blue mudflow zone. As a result a mudflow analysis as required by the URMP will be required prior to final plat. Construction Management: The constructability of Lot 2 will be challenging due to the limited staging area. Lot 2 must be developed first with Lot 1 serving as a staging area. In the alternative, the applicant could submit a construction management plan prior to City Council review demonstrating the constructability of these lots without this sequencing limitation. The building permit application shall include a construction management plan meeting the City's requirements in effect upon submission of a building permit. The plan must 219 So. 3` St. Page 2/4 Exhibit B — DRC Summary include designated construction staging area(s) that minimize construction impacts to the public. Neither Lot will be permitted to use the alley for staging, except for short duration deliveries. Limited use of the 3` Street right -of -way for staging which does not affect traffic patterns may be allowed by the City Engineer. The plan shall describe mitigation for: parking, staging/encroachments, truck traffic, noise, dust, and erosion/sediment pollution. (Note — The Applicant and the City Engineer have worked on an acceptable approach to construction management. The proposed ordinance has been updated with language recommended by the City Engineer. 2.21.12.) Excavation Stabilization: Due to the proximity of the neighboring properties the excavation of the building the City will require an excavation stabilization plan as part of building permit submittal. Detention: This project is considered a Major project and is subject to the Fee in Lieu (of detention) Please refer to Section 2.12.140 of the Municipal Code. Soils: The site may contain contaminated soils from mine tailings. As a result there is a concern of the health and safety and welfare of the residents. Testing and mitigation is recommended. Access and Circulation: The alleyway is currently constrained with encroaching improvements. The final plat shall demonstrate a minimum 16 -foot width of the alley free a clear of obstruction and include a 1 -foot buffer on the south side of the existing historic structure which is partially located in the alleyway north of the subject property (17 feet total from the face of the historic building). To achieve the minimum width, an alleyway easement on portions of Lot 1 may be required. The applicant shall install a protective bollard (as approved by the engineering dept) adjacent to the southwest corner of the historic structure. Utilities: Since the alley will be used for the utility connections for both lots, the City will require that the utilities are installed at the same time for both lots to minimize the disruption to the alley. ASPEN/PITKIN COUNTY HOUSING AUTHORITY: See staff memo from Cindy, attached. 219 So. 3r St. Page 3/4 Exhibit B — DRC Summary SANITATION: Service is contingent upon compliance with the District's 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. On -site utility plans require approval by ACSD. An "Agreement to Terminate Sewer Service Line" will be required. Below grade development may require installation of a pumping system. One tap is allowed for each building. Permanent improvements are 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. All ACSD fees must be paid prior to the issuance of an infrastructure /foundation or building permit. Peg in our office can develop an estimate for this project once detailed plans have been made available to the district. The glycol heating and snow melt system must be designed to prohibit and discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. Soil Nails are not allowed in the public ROW above ASCD main sewer lines and within 3 feet vertically below an ACSD main sewer line. CITY UTILITIES: Individual service lines will need to be provided for each house. Service will need to be from the 6" water line on the east side of 3rd Street, not the larger capacity transmission line. Service routing will need to be decided, but will likely be preferred through the alleyway. The applicant should be aware of new water service development standards going into effect in early 2012. FIRE MARSHAL: A fire suppression system (sprinlders) will most - likely be required for these houses due to proximity to each other. A final decision will be made during building permit review according to the Fire District policies. No hydrant upgrades are necessary. 219 So. 3r St. Page 4/4 Exhibit B — DRC Summary MEMORANDUM Gflt o ff` INUhti- TO: Housing Board i WI CV, FROM: Cindy Christensen, APCHA THRU: Tom McCabe DATE: January 4, 2012 RE: REDEVELOPMENT OF 219 SOUTH i ISSUE: The applicant is proposing subdivision of a lower lot into two single - family home sites, sterilize the upper lot, and request the waiver of mitigation for affordable housing. BACKGROUND: The applicant is requesting approval for a lot split and land preservation for property located at 219 South 3 Street, at the base of Shadow Mountain. The property consists of two distinct lots, separated by the Midland Railroad ROW owned by the City. The upper lot is 3,496 square feet and the lower lot is 9,942 square feet. There is an existing structure on the lower lot. The PUD would split the lower lot into two approximately equal size lots, whereby a single - family residence would be permitted to be built on each of the lots, replacing the existing duplex. The applicant has proposed that the two lower lots be limited to a floor area of 2,951 square feet each, with an addition 390 square feet for above -grade decks and outdoor living space. As to mitigation for affordable housing, the applicant proposes that the City accept the covenant or easement restriction against development of the upper lot as a cash -in -lieu payment of any affordable housing requirements pertaining to the development of the two single - family residences on the lower lots. Under the Code, the mitigation requirement for the proposed redevelopment would be the total square footage minus the existing square footage times the cost per square foot of new structure as stated in the Guidelines. The square footage for the existing duplex has not been verified, but the applicant states that it is around 2,000 square feet. Using this number, the 2011 cash -in -lieu fee would be: (5,902 new square footage — 2,000 of existing square footage) X $74.69 = $291,440.38 Utilizing 2012 cash -in -lieu at an increase of 3 %: (5,902 — 2,000) = 3,902 X $76.93 = $300,180.86 Redevelopment of 219 S 3rd Page 1 RECOMMENDATION: The APCHA Board reviewed the application at their regular meeting held January 4, 2012 and recommended that the waiver of the affordable housing fee be denied. The APCHA Board would prefer the mitigation be satisfied by utilizing the purchase of housing credit certificates; however, if this is not possible, would recommend the payment of the cash -in- lieu fee that is in effect at the time of building permit approval as stated in the Aspen/Pitkin Employee Housing Guidelines. Redevelopment of 219 S 3rd Page 2 A I TABLE OF CONTENTS trikir ce Page 1 Attachment 2 — Land use application � � 4 2 Agreement to pay application fees 3 -6 I- Introduction and Proposed PUD 7 -9 II — Property description and summary of proposed development 10 -12 III — Amendment to official zone district 13 -22 IV — Consolidated PUD review 23 -24 V — Subdivision review, lot split 25 VI — Conclusion 26 Exhibit #1 — Proof of ownership 27 Exhibit #2 — Property description 28 Exhibit #3 — Authorization to act 29 -30 Exhibit #4 — Pre - Application summary 31 Exhibit #5 — Uniformity of street scape 32 Exhibit #6 — Reconstructed grade 33 Exhibit #7 — Vicinity map locating subject property 34 Exhibit #8 — Existing conditions 35 Exhibit #9 — Density allowed under existing conditions 36 Exhibit #10 — Proposed density under PUD 37 Exhibit #11 — Proposed site plan 38 Exhibit #12 — Dimensional Requirements 39 -40 Exhibit #13 — Results of Hazards Study ATTACHMENT 2 —LAND USE APPLICATION PROJECT: Name: . y L P Lt.) St 1 L L C- Location: a 19 S. 3rd 5\-C am Bk oc k 31 be 4 i2 S (Indicate street address, lot & block number, legal description where appropriate) Parcel ID # (REQUIRED) — 1 . S — 12 4 -(06- ob APPLICANT: Name: A(L P Wet* L,L C Address: 1 5:"MG,vx s -ee " yctrc{ \e. 1 94 lc( (o'7 Phone #: a I S — ti 9 3 ` (e (06 REPRESENTATIVE: Name: SV zQn n e- &,5 -er Address: 1 S. - TA s n S4 -r-e4 y A cd t et( , Psi l 0 67 Phone #: I S 3 5 3 1 O 1 TYPE OF APPLICATION: (please check all that apply): ❑ GMQS Exemption ® Conceptual PUD ❑ Temporary Use ❑ GMQS Allotment ® Final PUD (& PUD Amendment) ❑ Text /Map Amendment ] Special Review ❑ Subdivision ❑ Conceptual SPA ] ESA — 8040 Greenline, Stream ❑ Subdivision Exemption (includes ❑ Final SPA (& SPA Margin, Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/ Expansion ] Residential Design Variance ❑ Lot Line Adjustment ❑ Other: ❑ Conditional Use EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) t Dun ► -ex PROPOSAL: (description of proposed buildings, uses, modifications, etc.) L 0 Pei b 0 et I e-y t N R e I nn A t or \-e u e) (--0 4.- 5 P i 4 a r. 6ern Sk- w,c-\`,(rv. L N z<u S t I. - Caul,. y r25 Have you attached the following? FEES DUE: $ 1t XD 21 Pre - Application Conference Summary B Attachment #1, Signed Fee Agreement ® Response to Attachment #3, Dimensional Requirements Form ® Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards ❑ 3 -D Model for large project All plans that are larger than 8.5" X 11" must be folded. A disk with an electric copy of all written text (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3 -D model. Your pre - application conference summary will indicate if you must submit a 3 -D model. 1- COMMUNITY DEVELOPMENT DEPARTMENT Agreement to Pay Application Fees An agreement between the City of Aspen ("City ") and Property Phone No.: .Z t S 5 5 3` t ct Owner ( "I "): P Wes + n Email: 5 L i :r. t L [ �-•n Address of Billing Property: 3. tei c 3 a sr Address: - t 5 . wna (subject of (k- ;pz..,Cv. (send bills here) yta+d J i P t application) I understand that the City has adopted, via Ordinance No. , Series of 2011, review fees for Land Use applications and the payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non - refundable. $ t5 flat fee for ?n ks ( 4 1 2((Ck. , $ flat fee for $ flat fee for $ flat fee for For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. I understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review, and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for non - payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render an application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $ik W1 b8D deposit for 5 a hours of Community Development Department staff time. Additional time above the deposit amount will be billed at $315 per hour. $ 4r 5 deposit for t hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $265 per hour. City of Aspen: Property Owner: L_ P,West c- Chris Bendon Community Development Director Name: S emu. ■w c City Use: Title: V \[s ?(4S. ev,* Fees Due: $ Received: $ November. 2011 City of Aspen 1 1 i0 S. Galena St. 1 (970) 920 -50911 a. 1. INTRODUCTION This is an application requesting that the Aspen City Council approve a lot split and land preservation proposal at 219 South Third Street. 219 South Third Street is located at the base of Shadow Mountain and its Pitkin County Parcel ID# is 2735 - 124 -65 -005. The property is currently zoned R -15. 219 South Third Street consists of two distinct lots of record separated by the Midland Railroad ROW, which is owned by the city. The "upper lot" has a lot size of 3,496 sq. ft. and the "lower lot" has a lot size of 9,942 sq. ft. The Owner of both properties is YLP, West. LLC. (hereinafter, "the applicant) which obtained deed to the property in 2009. Proof of the ownership of the property and a legal description of the property are provided by Exhibits #1 and #2. Suzanne Foster, a manager of YLP, West LLC is the project representative. A letter from the applicant authorizing Alan Richman Planning Services and Ed Timmins, attorney, to act on behalf of the applicant is provided in Exhibit #3 A pre - application meeting was held with representatives of the Community Development Department prior to the submission of this application (see Exhibit #4, Pre - Application Conference Summary). Based on this meeting, the applicant is hereby submitting the following requests: We propose that the City designate this property as a PUD. The PUD designation will provide some flexibility to the applicant in terms of lot sizes and setbacks, allowing the development to be clustered in the most appropriate part of the property. In exchange for obtaining this flexibility, the applicant will preserve a critical portion of the property as open space through a conveyance to the City or a covenant with a local land preservation trust. The resulting density and floor on the property will be less than what is allowed today by underlying zoning. Since the property is less than 27,000 sq. ft. in size, Sec. 26.445.020 of the Land Use Code requires the Community Development Director to find that the PUD application would further the goals of the Aspen Area Community Plan and serve the best interests of the community. We have held a preliminary discussion of this proposal with the Community Development Director and believe that these findings can be made. Designating this property as a PUD will provide for public ownership of the Shadow Mountain Trail as it passes through this property. It will also preserve the base of Shadow Mountain as open space and avoid development in environmentally sensitive areas by restricting development on the upper portion of the property and only allowing 3 development on the flat lower lot. These actions directly support the goals of the Aspen Area Community Plan and further the best interests of the community. The primary elements of the PUD, as shown on the PUD site plan, would be as follows: 1. Lower Lot. The PUD would split the lower lot into two approximately equal size lots, so each new lot would be approximately 4,971 sq. ft. in size. A single family residence would be permitted to be built on each of the two lots, replacing the existing duplex. Since each lot would be smaller in size than is allowed under the R -15 zoning, this would require a PUD variation of the minimum lot size requirements. 2. Upper Lot. The PUD provides that no development will occur on the upper lot. Upon approval and recording of the PUD plan, the owner will, through covenant and quit claim deed to the City, the Aspen Valley Land Trust or another recognized non - profit land conservation organization, or by conservation easement granted to such an organization, provide that no development shall occur on the upper lot, and that owners of the lower lots shall be responsible for maintaining appropriate landscaping north of the existing Shadow Mountain Trail to provide a landscaped buffer zone between the Trail and the lower lots. 3. Floor Area. After the lot split, the floor area permitted on each of the lower lots would be the floor area permitted by right for that lot in the R -15 zone. Since each lot would have an area of 4,971 sq. ft., the allowable floor area for each lot would be 2,951 sq. ft. The upper lot would have no floor area allowed on it. The applicant proposes that the two lower lots also have the right to develop an additional 390 SF of floor area per lot, but that this additional floor area be limited solely to above grade decks and outdoor living space. The rationale for this request is as follows: Under current R -15 zoning the lower lot has an allowable floor area to reconstruct the duplex of 4,145 sq. ft. The upper lot has an allowable floor area of 2,538 sq. ft. The total of these two floor areas is 6,683 sq. ft. The applicant has proposed that the two lower lots be limited to a floor area of 2,951 sq. ft. each, for a total floor area of 5,902 sq. ft. This is 781 sq. ft. less in free market floor area than what is allowed by underlying zoning on the entire property. The applicant proposes to "re- capture" this right by allowing an additional 390 sq. ft. of above grade decks and outdoor living space per lot, for a total of 780 sq. ft. of such space. This allowance would be in addition to the 15% of deck and balcony space allowed by the Code for all residential properties in the City. 4. Setbacks. The PUD would establish the front, rear, and side setbacks for the two lower lots at 10'. A 10' setback allows the lot that faces 3rd Street to align with the existing structures along the street (see Exhibit #6), which is consistent with the intent of the City's Residential Design Standards (Sec. 26.410.040.A). This setback would also enable a minimum of 20' separation to be created between the two structures which will maintain the views from the neighboring property to the north. The setback variation and the reduction in the minimum lot area for the two lots would be the only dimensional standard variations that the PUD would grant. The PUD would otherwise be consistent with the dimensional standards of the R -15 zone district. 5. Consolidated Review Process. Sec. 26.445.030.B.2 of the Land Use Code authorizes the Community Development Director to consolidate conceptual and final PUD review for a project when the full four step review process would be redundant or because the project would serve a community interest. We have held a preliminary discussion of this proposal with the Community Development Director and he concurs that the full four step process would be redundant for this small property with its limited development plan. Therefore we request that this application be processed as a consolidated PUD. 6. Other Elements of PUD. The PUD would also address the following additional elements: a. Slopes. We have previously provided survey information and staff has determined that the slopes on both lots are not natural slopes but instead are the result of prior human activities on the property (primarily related to the establishment of the rail line). Since the slopes are manmade, Sec. 26.575.020 C. of the Land Use Code provides that the slopes do not cause a floor area reduction for this property. We hereby request that the PUD ratify this determination. Please note that the floor area calculations provided above already reflect this determination so this would not result in a floor area "windfall" to the owner. See Exhibit 5, Reconstructed Grade. b. Covenant. The owners of the lower lots shall be responsible for maintaining appropriate landscaping north of the existing Shadow Mountain Trail to provide a landscaped buffer zone between the Trail and the lower lots. c. Affordable Housing. The applicant proposes that the City accept the covenant or easement restriction against development of the upper lot as a cash -in -lieu payment of any affordable housing requirements that the Land Use Code would apply to the development of the two single family residences on the lower lots. Please note that the cash in lieu calculation that would have applied to the 3rd Street facing lot would be reduced by the existing floor area of approximately 2,000 sq. ft. d. Secondary Mass. The applicant seeks relief from the secondary mass standard of the residential design standards (Sec. 26.410.040 B.1). This standard requires at least 10% of the total square footage of each lot to be fully detached from the principal building or be linked to it by a subordinate element. The applicant feels that by splitting the mass allowed for a reconstructed duplex into two detached residences, the intent of this standard has already been met. Given the size of the resulting lots it will be difficult to achieve a further splitting of the mass. A site specific request for relief from this 5 standard will be presented at the time of building permit review for each lot. The applicant believes that all other residential design standards can be complied with. e. Open Space Restriction. The applicant requests that City cooperate with the owner to accomplish the covenant and quitclaim of the upper lot, or to a conservation easement grant to a recognized non - profit land conservation program. II. PROPERTY DESCRIPTION AND SUMMARY OF PROPOSED DEVELOPMENT The subject property is located at the southern end of South Third Street directly abutting the Aspen Townsite line and Shadow Mountain. See Exhibit # 7 Vicinity Map showing Site Location. The property is improved with a duplex that is located on the lower lot. The duplex is approximately 2,000 sq. ft. in size. However, since the R -15 zone district requires a minimum of 15,000 sq. ft. of lot area for a duplex, the existing structure is considered to be nonconforming. The upper lot is vacant, although the Shadow Mountain Trail traverses the property. The Midland Railroad ROW, which is owned by the City, separates the two lots. See Exhibit #8, Improvement Survey. It has always been the applicant's intention to break up the mass that is developed on the lower site into two homes rather than have one large single family home or attached duplex. The applicant has made several applications to the City seeking to accomplish this goal. Prior to purchasing the property, the applicant was made aware that 219 South Third Street had been identified as a potential historic resource under Ordinance 48. After acquiring the property in December of 2009, the applicant applied for historic landmark designation and a lot split. The lot split would have allowed the applicant to achieve the goal of breaking up the mass into two structures. The historic designation had the support of staff. However, the designation was denied by the City Council. Subsequently, the applicant submitted an application proposing that the underlying zoning of the property be changed from R -15 to R -6. Under the R -15 zoning only a single family unit or attached duplex can be built. R -6 zoning allows for the construction of two detached dwelling units on a lot of this size thereby achieving the goal of breaking up the mass into two structures. This zoning change also had the support of staff. However, it was not favorably received by the Planning and Zoning Commission. The applicant has withdrawn the rezoning application and replaced it with this PUD application. In order to understand the benefit our PUD would bring to the neighborhood and to the City's trail system, it is useful to first explain the manner in which the two parcels can be developed under the current zoning. Buildable rights under current zoning Exhibit # 9 shows the mass and scale of what is buildable by right under existing conditions. The plan shows a reconstructed duplex, which is allowed by right. Each of the two units would have a 2 car garage. The project would also include either a two unit affordable carriage house unit, to mitigate for the project's affordable housing requirements on both the upper and lower lots and fulfill the 10% detached mass requirement on the lower lot. These units would have their own outdoor parking along the rear of the lot. The plan also shows the single family home on the upper lot — also with a two car garage, again allowed by right. On the lower lot the underlying zoning would permit the duplex to have an allowable floor area of 4,145 sq. ft. The carriage house would have a floor area of 1,200 sq. ft., and the applicant would receive 600 sq. ft. of bonus floor area for building the carriage house and selling it as affordable housing which would be applied to the lower lot. The single family home on the upper lot has an allowable floor area of 2,538 sq. ft. The total above grade heated living space of all of these units would be 8,483 sq. ft. The total resulting density would be 5 units. The total number of on -site parking spaces would be approx. 8 to 10. Buildable rights under proposed PUD Exhibit # 10* shows the building rights under the PUD proposal. Exhibit #11 shows the proposed site plan On the lower lots there will be two single family homes with 2,951 sq. ft. of floor area each. Each house would be awarded an additional 390 sq. ft. for outdoor above grade decks and patios, as described above. On the upper lot there will be Zero sq. ft. of floor area and no structures are allowed to be built. The total above grade heated living space of these units would be 5,902 sq. ft. The total density on -site would be 2 units. The total number of parking spaces on -site would be approx. 4. *Please note that the exhibit #10 shows an approximation of mass and scale and in no way should or can be construed as an actual architectural plan in style, color, layout or exact mass and scale. The exhibit is intended to show approximate mass and scale only. Site specific drawings showing the architecture and other features for each lot will be submitted at the time of building permit and shall comply with all underlying zoning requirements, except for those requirements that have been varied by this PUD (that is, setbacks and minimum lot area as specified herein). Summary In summary, the PUD proposal would result in a net reduction in density of 1 free market unit plus two affordable housing units, and 2,581 sq. ft. of above grade heated living space (8,483 — 5,902 = 2,581) from that which we could attain by separately developing the upper and lower lots pursuant to the currently allowed provisions of the Land Use Code. The PUD would also result in the preservation of the upper lot as undeveloped land, preserving the current trail alignment and avoiding development along the hillside. These are significant community benefits that justify and support the proposed PUD designation. In return the applicant would be permitted to develop two detached single family residences on the lower lot, using no more than the floor area that would be permitted on those lots by the Land Use Code plus 390 sq. ft. each of additional outdoor above grade decks. Developing the lower lot as two single family residences is the appropriate land use solution that is most consistent with the Aspen Area Community Plan and adjacent development. It has the least impact on the surrounding neighborhood and is of benefit to the overall community. 9 III. AMENDMENT TO OFFICIAL ZONE DISTRICT MAP The applicant proposes an amendment to the Official Zone District Map, to impose a PUD designation on the property so it is zoned R -15 /PUD. The standards to evaluate an amendment to the Official Zone District Map are found in Section 26.92.020 of the Aspen Land Use Regulations. The applicant has the following responses to these standards. A. Whether the proposed amendment is in conflict with any applicable portions of this chapter. Response: The proposed amendment would not be in conflict with any applicable portion of the Aspen Land Use Code. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Community Plan. Response: Designation of the site as a PUD would be consistent with the Aspen Area Community Plan. The PUD designation will allow the upper and lower lots to be evaluated as an entire development parcel. It will enable the applicant to cluster development on the site on the lower lots and to preserve the upper lot as open space, thereby avoiding development that would require the Shadow Mountain Trail to be relocated. It will also preserve valued public views by eliminating the potential for development of the upper lot. All of these purposes are consistent with the AACP. C. Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land use and neighborhood characteristics. Response: Splitting the lower lot into two smaller lots results in a development pattern that is more compatible with the surrounding neighborhood than the development of the lower lot in its current configuration. Currently, the 9,942 sq. ft. lower lot in the R -15 district permits one large single family home or one large attached duplex to be built. The mass and scale of either of these two existing choices is inconsistent with the mass and scale of the surrounding neighborhood which consists of modest to medium sized single family homes. Currently, there are no adjacent homes of overly large size and no adjacent attached duplexes at all. All the adjacent lots are either non - conforming R -15 properties, or are smaller conforming R -6 lots. Typical lot sizes range from 7,500 to as little as 3,000 sq. ft. Two new smaller R -15 lots of approx. 4,900 sq. ft. each will result in two smaller homes, splitting up the total building mass and better fitting with the neighborhood context. The restriction against development on the upper lot will preserve the public trail and neighborhood views of Shadow Mountain. In addition, the 10' front yard setbacks will I 0 align the 3rd Street facing building with the other structures along Third Street, thereby maintaining the existing development pattern in the neighborhood. D. The effect of the proposed amendment on traffic generation and road safety. Response: We feel that the traffic and safely will be greatly improved by the proposed PUD. By right under current conditions, a two family attached duplex with 2 two car garages and an affordable housing carriage house with two units can be built on the lower lot and a single family home with a two car garage can be built on the upper lot. This would generate approx. 8 to 10 cars with the carriage house cars parked outdoors along the alley way or outside the building envelope along the rear of the property. With the proposed PUD there would be no authority to build a carriage house. This would result in two single family homes in the PUD, each with a two car garage. The upper lot would have zero development, so the entire project would generate approx. 4 cars instead of 8 to 10. In addition, having two single family homes rather than the attached duplex and carriage house will create more open space on the lower lot vastly improving snow removal and storage options. 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. Response: The proposed PUD will decrease demands on public facilities. The PUD decreases the allowed density from 5 units to just 2 units and will therefore decrease demands on these public facilities. F. Whether and the extent to which the proposed amendment would result in significantly adverse impacts on the natural environment. Response: The proposed PUD will dramatically reduce adverse impacts on the natural environment. The PUD allows for the preservation of the upper lot where no development will ever be allowed. This preserves open space, the public trail and unobstructed views of Shadow Mountain for pedestrians and neighbors forever and avoids the need for further disturbance of the hillside on the upper lot. G. Whether the proposed amendment is consistent and compatible with the community character in the City of Aspen. Response: The proposed amendment will be consistent and compatible with the character of Aspen. In addition, we believe the community of Aspen's residential districts always benefit from building masses that can be broken down into smaller units. Designating the site as a PUD will allow us to achieve this goal. H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Response: In recent months a dispute has arisen between the City and the applicant as to the ownership of lands within the upper parcel. As a result of this dispute discussions have occurred between the City and the applicant, leading the applicant to reconsider its approach to this property. The two prior applications submitted for this property involved solely the lower parcel. This application instead addresses the entire property ownership, allowing the applicant to appropriately plan for both the upper and lower parcels thus ensuring that development occurs where it is suitable so sensitive lands can be protected for the public benefit. This is a significant change in conditions that affects the subject parcel. A second change in conditions is the result of the recent development of the mountainside portion of the Boomerang project along W. Hopkins Street, which included a zoning change from R -15 to R -6. Prior to this zoning change a massive single family home or attached duplex could have been built on that lot. It now contains two modest sized single family homes and an affordable two unit carriage house, as well as a modest sized single family home building lot. This type of change reflects what is most appropriate for our neighborhood. Our PUD proposes to continue the support of modest sized structures in the neighborhood. 1. Whether the proposed amendment would be in conflict with the public interest, and is in harmony with the purpose and intent of this chapter. Response: As demonstrated herein, the proposed amendment would further the public interest by providing a restriction against development on the upper lot, thus eliminating the possible disturbance of the public trail. Benefits to the public in general include the preservation of open space, maintaining the alignment of the public trail, and unimpeded views of Shadow Mountain, and for the neighbors specifically - consistency of scale within a mostly modestly built community. Designation of this site as a PUD will help achieve significant improvements for our neighborhood over what is currently allowed, and will help maintain its existing charm and scale. IV. CONSOLIDATED PUD REVIEW Section 26.445.010 of the Land Use Code identifies the purposes of the Planned Unit Development (PUD) overlay zone district in the City of Aspen. This designation is intended to encourage flexibility and innovation in the development of land so as to: (a) promote the goals, and objectives of the AACP; (b) achieve a better quality of design and a greater compatibility with surrounding land uses; (c) preserve valuable site features; (d) promote the efficient use of land; and (e) incorporate public input into the planning process and ensure sensitivity to neighborhood and community goals. The Community Development Department determined during the pre - application review that the project could proceed as a consolidated review of conceptual and final PUD, as authorized by Section 26.445.030 of the Land Use Code. The applicant proposes to achieve the above - listed purposes in this consolidated PUD application. The standards for PUD review are found in Section 26.445.040 of the Code. The applicant's response to each of these standards follows below. A. General Requirements. 1. The proposed development shall be consistent with the Aspen Area Community Plan. Response: The proposed development will be consistent with the Aspen Area Community Plan (AACP). As explained above, the PUD allows the upper and lower lots to be evaluated as an entire development parcel. The PUD clusters development on the site on the lower lot and preserves the upper lot as open space, thereby avoiding a currently allowed development that would require the Shadow Mountain Trail to be relocated. It will also preserve valued public views by eliminating the potential for development of the upper lot. All of these purposes are consistent with the AACP. 2. The proposed development shall be consistent with the character of existing land uses in the surrounding area. Response: Splitting the lower lot into two smaller lots results in a development pattern that is more compatible with the surrounding neighborhood than the development of the lower lot in its current configuration. Currently, the 9,942 sq. ft. lower lot in the R -15 district permits one large single family home or one large attached duplex to be built. The mass and scale of either of these two existing choices is inconsistent with the mass and scale of the surrounding neighborhood which consists of modest to medium sized single family homes. Currently, there are no adjacent homes of overly large size and no adjacent attached duplexes at all. All the adjacent lots are either non - conforming R -15 properties, or are smaller conforming R -6 lots. Typical lot sizes range from 7,500 to as little as 3,000 sq. ft. Two new smaller R -15 lots of approx. 4,900 sq. ft. each will result in two smaller homes, splitting up the total building mass and better fitting with the neighborhood context. The restriction against development on the upper lot will preserve the public trail and neighborhood views of Shadow Mountain. In addition, the 10' front yard setbacks will align the 3rd Street facing building with the other structures along 3rd Street, thereby maintaining the existing development pattern in the neighborhood. 3. The proposed development shall not adversely affect the future development of the surrounding area. Response: The applicant has taken care to design this project such that it is consistent with the character of the surrounding neighborhood and will not have an adverse effect on the future development of the surrounding area. 4. The proposed development has either been granted GMQS allotments, is exempt from GMQS, or GMQS allotments are available to accommodate the proposed development and will be considered prior to, or in combination with, final development plan review. Response: The proposed development is exempt from GMQS. Section V. of this application responds to the criteria for a lot split subdivision exemption, which authorizes the City to grant an allotment to the newly created parcel, with the fathering parcel retaining its allotment as a pre -1977 parcel B. Establishment of Dimensional Requirements: The final PUD development plan shall establish the dimensional requirements for all properties within the PUD, as described in General Provisions, Section 26.445.040, above. The dimensional requirements of the underlying zone district shall be used as a guide in determining the appropriate dimensions for the PUD. During the review of the proposed dimensional requirements, compatibility with surrounding land uses and existing development patterns shall be emphasized. The proposed development requirements shall comply with the following: 1. The proposed dimensional requirements for the subject property are appropriate and compatible with the following influences on the property: a. The character of, and compatibility with, existing and expected future land uses in the surrounding area. b. Natural or man -made hazards. 1 Ll c. Existing natural characteristics of the property and surrounding area, such as steep slopes, waterways, shade, and significant vegetation and landforms. d. Existing and proposed man -made characteristics of the property and the surrounding area, such as noise, traffic, transit, pedestrian circulation, parking, and historical resources. Response: The project's existing, allowable and proposed dimensional requirements are shown in Exhibit #12. The only deviations from the allowable dimensions are the proposed 10' front yard setback (which is the current condition for the existing duplex) and the reduced lot size for the two lots created out of the lower parcel. The duplex has a non- conforming 10' front yard setback that aligns with all the other buildings in block 39 that face Third Street. These buildings include the landmarked log cabin and its outbuilding that sits next to the alleyway. The City's residential design standards advocate a unified streetscape whenever possible. 2. The proposed dimensional requirements permit a scale, massing, and quantity of open space and site coverage appropriate and favorable to the character of the proposed PUD and of the surrounding areas. Response: As noted above, splitting the lower lot into two smaller parcels results in a scale and massing that is appropriate to the character of the PUD and surrounding areas. 3. The appropriate number of off - street parking spaces shall be established based on the following considerations: a. The probable number of cars used by those using the proposed development, including any non - residential land uses. b. The varying time periods of use, when joint use of common parking is proposed. c. The availability of public transit and other transportation facilities, including those for pedestrian access and /or the commitment to utilize automobile disincentive techniques in the proposed development. d. The proximity of the proposed development to the commercial core and general activity centers in the City. Response: Each single family home will have a two car garage. The resulting 4 on -site parking spaces will be adequate for the proposed development. 15 4. The maximum density within a PUD may be reduced if there exists insufficient infrastructure capabilities. Specifically, the maximum density of a PUD may be reduced it a. There is not sufficient water pressure, drainage capabilities, or other utilities to service the proposed development. b. There are not adequate roads to ensure fire protection, snow removal, and road maintenance to the proposed development. Response: There is adequate infrastructure available to serve the proposed development since the site is already developed with a duplex, which would be replaced with only two new units. 5. The maximum allowable density within a PUD may be reduced if there exists natural hazards or critical natural site features. Specifically, the maximum density may be reduced it a. The land is not suitable for the proposed development because of ground instability or the possibility of mud flow, rock falls, and avalanche dangers. b. The effects of the proposed development are detrimental to the natural watershed due to runoff, drainage, soil erosion and consequent water pollution. c. The proposed development will have a pernicious effect on air quality in the surrounding area and the City. d. The design and location of any proposed structure, road, driveway, or trail in the proposed development is not compatible with the terrain or causes disturbance to critical natural features of the site. Response: The land on which the development is proposed - the flat lower lot - is not affected by any of the above - listed hazards. And while the applicant has agreed to permanently restrict development on the upper lot thereby avoiding such hazards, they have a study conducted by Yeh and Associates, Inc. from May of 2009 that indicate no such hazards exist for the upper lot as well. See Exhibit # 13 6. The maximum density within a PUD may be increased if there exists a significant community goal to be achieved through such increase and the development pattern is compatible with surrounding development patterns and with the site's physical constraints. Specifically, the maximum density of a PUD may be increased it '(-° a. The increase in density serves one or more goals of the community, as expressed in the Aspen Area Community Plan (AACP) or a specific area plan to which the property is subject. b. The site's physical capabilities can accommodate additional density and there exists no negative physical characteristics of the site, as identified in subparagraphs 4 and 5 above, those areas can be avoided, or those characteristics mitigated. c. The increase in maximum density results in a development pattern compatible with, and complimentary to, the surrounding existing and expected development pattern, land uses, and characteristics. Response: The applicant does not propose to increase the project's density through the PUD. In fact, the applicant is voluntarily agreeing to reduce the allowable free market density from 3 units to 2 units. C. Site Design. The purpose of this standard is to ensure the PUD enhances public spaces, is complimentary to the site's natural and man -made features and the adjacent public spaces, and ensures the public's health and safety. The proposed development shall comply with the following: 1. Existing natural or man -made features of the site which are unique, provide visual interest or a specific reference to the past, or contribute to the identity of the town are preserved or enhanced in an appropriate manner. Response: The applicant proposes to eliminate the development potential of the upper lot. The Shadow Mountain Trail traverses this lot. Preserving that parcel as open space avoids the necessity of relocating the trail when the currently allowed single family home is built. It also avoids a significant cut that would occur to the toe of Shadow Mountain. 2. Structures have been clustered to appropriately preserve significant open spaces and vistas. Response: The houses will be clustered on the flat lower lot. Significant open spaces and vistas will be preserved by the restriction against development on the upper lot, the separation of the planned mass on the lower lot (two smaller structures versus one larger duplex) and by the agreement not to build a carriage house on the lower lot. 3. Structures are appropriately oriented to public streets, contribute to the urban or rural context where appropriate, and provide visual interest and engagement of vehicular and pedestrian movement. Response: The eastern house on the lower lot will be oriented toward Third Street. 4. Buildings and access ways are appropriately arranged to allow emergency and service vehicle access. 5. Adequate pedestrian and handicapped access is provided. Response: Emergency and service vehicles will be able to access the site via the alley and Third Street. 6. Site drainage is accommodated for the proposed development in a practical and reasonable manner and shall not negatively impact surrounding properties. Response: An initial evaluation of site drainage needs for the buildings will be performed by a civil engineer. Soils in this area have not typically been a problem as they are absorbent and should drain naturally. If applicable, a detailed drainage study will be submitted at the time of building permit review. 7. For non - residential land uses, spaces between buildings are appropriately designed to accommodate any programmatic functions associated with the use. Response: This standard does not apply to this proposed development. D. Landscape Plan. The purpose of this standard is to ensure the compatibility of the proposed landscape with the visual character of the City, with surrounding parcels, and with existing and proposed features of the subject property. The development plan shall comply with the following: 1. The landscape plan exhibits a well designed treatment of exterior spaces, preserves existing significant vegetation, and provides an ample quantity and variety of ornamental plant species suitable for the Aspen area climate. 2. Significant existing natural and man -made site features, which provide uniqueness and interest in the landscape, are preserved or enhanced in an appropriate manner. 3. The proposed method of protecting existing vegetation and other landscape features is appropriate. Response: A landscape plan will be submitted for each lot at the time of building permit review. E. Architectural Character. It is the purpose of this standard to encourage architectural interest, variety, character, and visual identity in the proposed development and within the City while promoting efficient use of resources. Architectural character is based upon the suitability of a building for its purposes, legibility of the building's use, the building's proposed massing, proportion, scale, orientation to public spaces and other buildings, use of materials, and other attributes which may significantly represent the character of the proposed development. There shall be approved as part of the final development plan an architectural character plan which adequately depicts the character of the proposed development. The proposed architecture of the development shall: 1. Be compatible with or enhance the visual character of the city, appropriately relate to existing and proposed architecture of the property, represent a character suitable for, and indicative of, the intended use, and respect the scale and massing of nearby historical and cultural resources. Response: A detailed architectural plan will be submitted for each lot at the time of building permit review. The applicant has agreed to comply with the residential design standards applicable to each lot, except for the secondary mass standard, which the applicant requests be waived. 2. Incorporate, to the extent practical, natural heating and cooling by taking advantage of the property's solar access, shade, and vegetation and by use of non - or -less intensive mechanical systems. Response: Given the site's location at the base of Shadow Mountain, solar access is not ideal for this property. A complete heating and cooling plan will be submitted at the time of building permit review. 3. Accommodate the storage and shedding of snow, ice, and water in a safe and appropriate manner that does not require significant maintenance. Response: The elimination of the carriage house and the minimum of 20' between the two units on the lower lot will provide an adequate storage area for snow between the buildings. The 10' front yard setback requested for the rear lot provides adequate snow storage at the rear of the property as well. F. Lighting. The purpose of this standard is to ensure the exterior of the development will be lighted in an appropriate manner, considering both public safety and general aesthetic concerns. The following standards shall be accomplished: 1� 1. All lighting is proposed so as to prevent direct glare or hazardous interference of any kind to adjoining streets or lands. Lighting of site features, structures, and access ways is proposed in an appropriate manner. 2. All exterior lighting shall be in compliance with the Outdoor Lighting Standards, unless otherwise approved and noted in the final PUD documents. Up- lighting of site features, buildings, landscape elements, and lighting to call inordinate attention to the property is prohibited for residential development. Response: All proposed lighting will comply with the City's outdoor lighting standards. G. Common Park, Open Space, or Recreation Area. If the proposed development includes a common park, open space, or recreation area for the mutual benefit of all development in the proposed PUD, the following criteria shall be met: 1. The proposed amount, location, and design of the common park, open space, or recreation area enhances the character of the proposed development, considering existing and proposed structures and natural landscape features of the property, provides visual relief to the property's built form, and is available to the mutual benefit of the various land uses and property users of the PUD. 2. A proportionate, undivided interest in all common park and recreation areas is deeded in perpetuity (not for a number of years) to each lot or dwelling unit owner within the PUD or ownership is proposed in a similar manner. 3. There is proposed an adequate assurance through a legal instrument for the permanent care and maintenance of open spaces, recreation areas, and shared facilities together with a deed restriction against future residential, commercial, or industrial development. Response: The owner will cooperate with the City to accomplish the covenant and quitclaim of the upper lot, or a conservation easement grant to a recognized non - profit land conservation program. H. Utilities and Public Facilities. The purpose of this standard is to ensure the development does not impose an undue burden on the City's infrastructure capabilities and that the public does not incur an unjustified financial burden. The proposed utilities and public facilities associated with the development shall comply with the following.: 1. Adequate public infrastructure facilities exist to accommodate the development. 2. Adverse impacts on public infrastructure by the development will be mitigated by the necessary improvements at the sole cost of the developer. 3. Oversized utilities, public facilities, or site improvements are provided appropriately where the developer is reimbursed proportionately for the additional improvement. Response: As noted above, adequate facilities are present in the area to accommodate the proposed development (which has the same density as the existing duplex). The PUD will actually decrease potential demand for utilities and public facilities by lowering the allowable density of the property. L Access and Circulation. The purpose of this standard is to ensure the development is easily accessible, does not unduly burden the surrounding road network, provides adequate pedestrian and trail facilities, and minimizes the use of security gates. The proposed access and circulation of the development shall meet the following criteria: 1. Each lot, structure, or other land use within the PUD has adequate access to a public street either directly or through an approved private road, a pedestrian way, or other area dedicated to public or private use. Response: Access to the property is provided from Third Street, which is a public road, and via the connecting public alleyway. 2. The proposed development, vehicular access points, and parking arrangement do not create traffic congestion on the roads surrounding the proposed development, or such surrounding roads are proposed to be improved to accommodate the development. Response: The development is not expected to generate any new traffic in the area since the number of units on the property is not being increased. As a result, no road improvements are proposed as part of this development. 3. Areas of historic pedestrian or recreational trail use, improvements of, or connections to, the bicycle and pedestrian trail system, and adequate access to significant public lands and the rivers are provided through dedicated public trail easements and are proposed for appropriate improvements and maintenance. Response: The restriction of development on the upper lot and the covenant ensure preservation of the trail and maintenance of the open space. 4. The recommendations of the Aspen Area Community Plan and adopted specific plans regarding recreational trails, pedestrian and bicycle paths, and transportation are proposed to be implemented in an appropriate manner. Response: No additional trail recommendations from the AACP affect this property. 5. Streets in the PUD which are proposed or recommended to be retained under private ownership provide appropriate dedication to public use to ensure appropriate public and emergency access. Response: There are no streets planned within the project. 6. Security gates, guard posts, or other entryway expressions for the PUD, or for lots within the PUD, are minimized to the extent practical. Response: No such gates or other entryway expressions are planned as part of this project. J. Phasing of Development Plan. The purpose of this criteria is to ensure partially completed projects do not create an unnecessary burden on the public or surrounding property owners and impacts of an individual phase are mitigated adequately. If phasing of the development plan is proposed, each phase shall be defined in the adopted final PUD development plan. The phasing plan shall comply with the following: 1. All phases, including the initial phase, shall be designed to function as a complete development and shall not be reliant on subsequent phases. 2. The phasing plan describes physical areas insulating, to the extent practical, occupants of initial phases from the construction of later phases. 3. The proposed phasing plan ensures the necessary or proportionate improvements to public facilities, payment of impact fees and fees -in -lieu, construction of any facilities to be used jointly by residents of the PUD, construction of any required affordable housing, and any mitigation measures are realized concurrent or prior to the respective impacts associated with the phase. Response: While a phased development is not proposed for this project, it is probable that development on each lot will take place in its own time frame. V. SUBDIVISION REVIEW, LOT SPLIT The applicant proposes to split the lower lot into two smaller residential lots. Therefore, staff has advised that this application is subject to subdivision review as a lot split. Section 26.480.030.A.2 of the Land Use Code provides the review standards for a lot split for the purpose of the development of one detached single - family dwelling on a lot formed through such a split granted subsequent to November 14, 1977. It states that the City may approve a lot split if the following standards 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. Response: The land is comprised of Townsite lots that are not located in a City or County approved subdivision. b. No more than two 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 (8). Response: Two lots are proposed to be created by this lot split. The lots conform to the requirements established by the PUD zoning that is being applied to the property. Affordable housing mitigation is provided for, as described above. 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) (1) (a). Response: The lot has not previously received any of the above - listed approvals. 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 allocations pursuant to Chapter 26.470. Response: The required plat will be submitted following approval of this application. e. 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 2. 3 to record the plat within 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. Response: The applicant agrees to record the plat and agreement within the specified 180 day time frame. e. 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. Response: The existing residential structure has not been demolished. g. Maximum potential buildout for the two parcels created by a lot split shall not exceed three (3) units, which may be composed of a duplex and a single- family home. Response: The proposed buildout is two units, each of which will be a single - family home. a L, VI. CONCLUSION The applicant has submitted all of the materials requested by the staff on the pre - application conference, has responded to the applicable standards of the Aspen Land Use Code, and has demonstrated the compliance of the proposed PUD with said standards. The applicant will respond in a timely manner to any requests from reviewing agencies or City staff for additional information or clarification of any of the statements made herein. Please feel free to contact the applicant through its representatives as may be necessary. 5' I x 4.x Proof -- cv).,0- r shr Owner's Policy of Title Insurance — Schedule A Issued by Lawyers Title Insurance Corporation t andAmerica Lawyers Title Lawyers Tule Insurance Corporation Is a rnember of The LandArnenca family of pee insurance underwnle4 Lawyers Title Insurance Corporation 5600 Cox Road Glen Allen, Virginia 23060 File No PCT22148L6 Policy No C29- Z102631 Address Reference 219 S 3RD ST ASPEN, CO 81611 Amount of I nsurance $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, 0, R AND S, BLOCK 39, CITY AND TOWNSITE OF ASPEN Excepting therefrom that portion of Lots 0, P and O that lies south of the northerly boundary of a right of way described as a 17 foot strip of and 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 tor Authorized officer or agent ALTA Owner's Polity Schedule A (Rev 6/06) Form 1190 -134L 1- 4 2 1__ r t p 1—t Proposed Development: 219 S. 3 Street Aspen, Colorado, 81611 Parcel ID# 2735- 124 -65 -005 Legal Description: 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 fool strip of land being 8.5 feet on each side of the Colorado Midland Railway right of way and southerly 25 feet of Lot R and S as described and shown on deed and map recorded February 27, 1950 in Book 175 at Page 628 xh 31 3 Ak*he( vied- scam, LE City of Aspen Community Development Department Pitkin County Aspen, Colorado The applicant for this project is: YLP West, LLC 7 S. Main Street Yardley, PA 19067 215- 493 -6100 215- 493 -6559 Fax Representatives authorized to act on behalf of the applicant include: Primary Contact: Suzanne Foster Alan Richman, Planning Services 7 S. Main Street Box 3613 Yardley, PA 19067 Aspen, CO 81612 215- 353 -1907 Cell 215- 493 -6559 Fax suzannePtfosterjewelers.com Secondary Contact: Timothy W. Foster Edward P. Timmons, Esq. 7 S. Main Street Timmons LLC Yardley, PA 19067 450 East 17 Ave. 215- 499 -7071 Cell Suite 210 215- 493 -6559 Fax Denver, CO 80203 tim@tfosterlewelers.com Suzanne Foster i '� ( Tirrrioth W. F ter x h■ b �� �t'P k k tc,r. Su mm C1R J CITY OF ASPEN PRE - APPLICATION CONFERENCE SUMMARY PLANNER: Chris Bendon, 429 -2765 DATE: 11.17.11 PROJECT: 219 S. Third St. Lot Split & PUD APPLICANT: Suzanne Foster Tel: (215) 493.6100 DESCRIPTION: The Applicant is pursuing a lot split subdivision to divide the northern portion of the parcel into two lots, each to contain one single - family residence. Planned Unit Development approval is necessary to acknowledge the proposed lot sizes which are smaller than required and possibly to accommodate setback variations. The southern portion of the parcel would not be developed and may be quit claimed to the City for open space and trail use. The parcel is allowed to apply for a PUD as the potential preservation of the southern portion of the parcel is a public benefit. A consolidated PUD is recommended. An amendment to the Official Zone District Map is needed for a PUD overlay to be added. The northern portion of the property is approximately 9,000 sq. ft., is zoned R -15 zoning, and contains a duplex. This type of application is a two -step review involving both the P &Z and City Council where both review boards would determine if the application meets the standards for amending the official zone district map. Due to the limited nature of this PUD and the creation of only two development parcels, submission requirements for specific architectural plans, landscape plans, and outdoor lighting plans are waived. Below is a link to the Land Use Code for your convenience. http: / /www.aspenpitkin. com/ Departments /Community- Development/Pla n n inq- and -Zoni nq/Title-26- Land -Use- Code/ Land Use Code Section(s) 26.304 Common Development Review Procedures 26.310 Amendments to the Land Use Code and Official Zone District Map 26.445 Planned Unit Development 26.470 Growth Management 26.480 Subdivision, Lot Split 26.710.050 R -15 Zone District Review by: - Staff for complete application, DRC for technical considerations - Planning and Zoning Commission (1st Step of Review) - City Council (2 Step of Review) Public Hearing: Yes at P &Z and City Council Copies of Application: 25 Copies Planning Fees: $10,080 Deposit for 32 hours of planning staff time (additional planning hours over deposit amount are billed at a rate of $315 /hour) Referral Fees: $265 Deposit for 1 hour of engineering staff time (additional planning hours over deposit amount are billed at a rate of $265 /hour). $1,575 flat fee for Parks referral. Total Due at Submission: $11,920 To apply, submit the following information: 1. Total deposit for review of the application. 2. Proof of ownership. 3. Completed Land Use Application Form. 4. A signed fee agreement. 5. A Pre - Application Conference Summary. ),9 6. A letter signed by the applicant, with the applicant's name, address and telephone number in a letter signed by the applicant, which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. 7. Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. 8. An 8 1/2" by 11 " vicinity map locating the parcel within the City of Aspen. 9. Existing and proposed site plan. 10. A written and graphic description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. Please provide a written response to all applicable criteria. Summary of Review Fees Planning Review - Administrative Flat Fees Flat Fee Flat fee Note type of review. (e.g. condo Number Type Amt. plat) total Flat Fee 0 1 $79 $0 Flat Fee O 2 $158 $0 Flat Fee O 3 $315 $0 Flat Fee O 4 $630 $0 Planning Review - Hourly Deposit Deposit Note type of review. (e.g. 2 -step, Hours Fate subdivision) total 32 $315 Lot Split and PUD $10,080 Referral Agency Fees - Housing, Parks, Env. Heal th PUD /SP admin. 1 -Step 2 -Step A total Housing $0 Parks 1 $1,575 Env. Health $0 Referral Agency Fees - City Engineering total Engineering service billed at $265 /hour, m in. 1 hour. $265 Total Fees Due for Submission: $11,920 Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. 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Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: 0 Proposed: 0 Number of residential units: Existing: a Proposed: a Number of bedrooms: Existing: Li Proposed: Proposed % of demolition (Historic properties only): t oo DIMENSIONS: Floor Area: Existing: 1 S6 6 Allowable: (o (43 Proposed: 3 9 oZ + 1 -o for Principal bldg. height: Existing: t t Allowable: 2 S t Proposed: 2 S a 6 e �1 raw- t flecks +- Access. bldg. height: Existing: N1 A Allowable: N) (� Proposed: t"l A t - 0,. e- t On -Site parking: Existing: L I Required: NI Proposed: LI t.o t°` 5(34 e t % Site coverage: Existing: 2 0 Required: will Proposed: N (tt % Open Space: Existing: gb e) ` Required: NIP- Proposed: vl (fi Front Setback: Existing: 1 0 Required: 2 - 5 - Proposed: 1 °' Rear Setback: Existing: (oS Required: 1 0 ' Proposed: t o Combined F /R: Existing: 1l is t Required: 3 S Proposed: a s t Side Setback: Existing: (itn I r i r Required: 1 0 Proposed: I n Side Setback: Existing: 6 Required: I O Proposed: l 0 Combined Sides: Existing: %. 5 Required: a o t Proposed: a 0 Distance Between Existing NI A Required: 3.5 Proposed: 2 G Buildings Existing non - conformities or encroachments: Nod e c n F n { y � nit Fau a ✓t! sn1.174 ctt ( 0 Variations requested: fcon 9e.d set'6act ,,{ 1bt on ,Pet ?est , rn A. NAow• Lc, s 33 h lb , 4 3 Res() 1A-,5 a Z Pral s s-Voa7 28 -21 IA 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), (f), (g), (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 39 28 -21 I A Cleary Property, 219 South 3 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. - . H AND ■ SOCI • INC. Reviewed by: Rog-r A. Pihl P.G., (WY #PG -3353) Richard D. Johnson, P.E. i 4 Principal Scientist Senior Geotechnical En ' arL' • Ci ..35832, h) 0 • a�/�'b; 49 Co. 94 STUART BRAFMAN 'Thoted. dolguats. 334 WEST HOPKINS AVENUE ASPEN. COLORADO 8161 I 970 - 3748 REc January 10, 2012 EIV' JAN crTy 1 2 2012 • Aspen Galena Street Commission C tyew/ r Opvr, 130 S. G Aspen, Co 81611 Subject: Final PUD Application — YLP West LLC Dear Commissioners: This letter renders my objection to Mrs. Foster's application to over develop the property at 219 South Third St. I object to the application for the following reasons: 1. The proposed development will significantly exceed prevailing zoning requirements regarding minimum lot size, set back and FAR. The present zoning restrictions are consistent with the use and enjoyment of the neighboring properties. What justification is there to favor one resident's to exceed zoning restrictions to the detriment of the neighboring dwellings. 2. Approval of the application will negatively impact the Midland Trail's use by the public, particularly because of the proposed lot 2's proximity. I appreciate your consideration. Since 4 _ v410 , Stuart Brafm. March 7, 2012 Aspen City Council City Council Chambers City Hall 130 S. Galena Street Aspen, Colorado 81611 Re: 219 S. Third Street Ordinance #7 Series of 2012 Dear Mayor and Council Members: I. MY NAME IS JOHN STATON. I am opposed to the Lot Split approval sought by Applicant. Since 1993, I have owned a home at 431 W. Hopkins at the corner of Fourth Street. II. The proposed Lot Split with a PUD overlay is not permitted by the zoning regulations. It is another, of numerous attempts by Applicant, to enlarge the building area of a lot that now includes a duplex, and carries R -15 zoning. The present lot is too small for a PUD overlay and there is no basis for an exception. III. The transfer of property to the City by Applicant is indefensible in light of the fact that the City already owns the property and is currently defending its ownership in a lawsuit filed by Applicant. IV. Applicant has tried for years to enlarge the building envelope, through a variety of filings. At the end of the day this is an R -15 duplex. Applicant should not be given any variances, waivers or exceptions. V. It is respectfully requested that City Council deny Applicant's PUD overlay request. Respectfully submitted, ' ek Jo , :ton, Jr. JCS /ds cc: Mr. Chris Bendon (Chris.Bendon @ci.aspen.co.us) Chris Bendon From: Steve Goldenberg [steve @goldenberg.com] Sent: Monday, March 05, 2012 10:36 PM To: Chris Bendon Subject: For the Aspen City Council - 217/219 South 3rd St. Application, March 12, 2012 To the Aspen City Council: The Fosters and the neighbors all have rights. The Fosters to build as allowed and as zoned, the neighbors, not to be inundated by a much larger project than allowed. Please respect the neighbors and the applicants rights. P &Z turned this application down and the applicant left in a huff, going around P &Z directly to City Council. There is no good reason to change the zoning, the setbacks, the density etc. This is the usual developers "build as much as I can get away with" routine. Please turn this application down. Thank you. I will be at the meeting to speak and promise not to repeat anything in this letter. Sincerely, Steve Goldenberg .... steve@goldenberg.com 430 W. Hopkins Ave..... phone & fax 970- 925 -1294 Aspen, CO 81611.... cell phone 970- 379 -9778 Radio call .... WOSRG Email secured by Check Point 1 PAUL YOUNG FAMILY March 5, 2012 RE: 219 S Third Street Disputed Ownership Parcel Dear Mayor Ireland and Aspen City Council Members: We all agree that title policy gives Mrs. Foster the right to process a PUD application, but title policy does not prove ownership. I believe the following points provide sound logic for why the City is the rightful owner of the disputed parcel: 1) For approximately 50 years, Tom Cleary, the previous owner, never paid tax on the disputed ownership parcel. The County Assessor office listed land square footage for 219 S. Third Street as only 7000 sf, which would reflect City ownership of the disputed lot with the additional square footage of 3496 sf. 2) My wife and I had conversations beginning in 1994 with Tom Cleary as to property he owned and there was no claim of ownership of the disputed ownership parcel that the Midland Trail intersects. 3) Michael Behrendt, a listed witness for Mrs. Foster, stated for the record at the January 10, 2012 P &Z Meeting that the disputed ownership parcel does not belong to Mrs. Foster. I believe the City's position that if Mrs. Foster gets her approval for a rezone and a lot split along with a PUD, that the lawsuit "will be moot" is premature. Mrs. Foster is disregarding the process of contested ownership which can only be determined by due legal process. I appeal to City Council to table this application until the Court makes a timely ruling with regard to ownership. The resolution of the ownership issue is germane to whether or not Mrs. Foster is truly giving anything for all the exceptional approvals and variances she continues to request. Sincerely, F A-b*Sr/=s — Paul Young III cc: Jody Edwards, Esq 413 W Hopkins Avenue Aspen Colorado 81611 Chris Bendon From: Jennifer Phelan Sent: Friday, January 06, 2012 8:27 AM To: Chris Bendon • Subject: FW: P &Z Foster application FYI Jennifer Phelan, AICP Depity Planning Director Community Development Department City of Aspen 130 5. Galena St. Aspen, CO 81611 970- 429 -2759 www.aspenoitkin.com From: U Erspamer [mailto:walkabout @sopris.net] Sent: Thursday, January 05, 2012 1:03 PM To: Jennifer Phelan Subject: FW: P&Z Foster application Jennifer, This email just in from Steve Goldenberg. LJ From: Steve Goldenberg [mailto:steve @goldenberg.com] Sent: Thursday, January 05, 2012 12:58 PM To: Angela Young; P&Z; Stan Gibbs; Bert Myrin; U Erspamer; Jim DeFrancia; Jody Edwards; Jasmine Tygre Cc: Scott Stuart; Michael Behrendt; Tita }Caspar; Dan Verner Subject: Fw: P&Z Foster application What's going on here? How can they submit a new application on such short notice (Tomorrow)? Aren't the neighbors entitled to enough time to review the new application? How can they write a new letter when the deadline for comments has already expired? This is not due process! This application should be rescheduled to the next P &Z meeting. P.S. I added a sixth item to my previous letter of objection below. Steve Goldenberg .... steve(a@goldenberg.com 1 430 W. Hopkins Ave..... phone & fax 970- 925 -1294 Aspen, CO 81611 .... cell phone 970- 379 -9778 Radio call .... WOSRG From: Jackie Lothian Sent: Thursday, January 05, 2012 11:21 AM To: Steve Goldenberg ; Chris Bendon ; Bert Mvrin ; Cliff Weiss ; Jasmine Tvare ; Jim DeFrancia ; Keith Goode ; U Erspamer ; Stan Gibbs Subject: RE: P&Z Foster application Chris, Steve and P&Z — 219 South Third is coming to P &Z on January 10` with a new application, the last application was withdrawn. I will hopefully have that packet today. Sorry for the confusion Jackie Lothian Deputy City Clerk 130 South Galena Aspen, CO 81611 970 - 429 -2686 From: Steve Goldenberg [mailto:steve @goldenberg.com] Sent: Wednesday, January 04, 2012 9:14 PM To: Bert Myrin forward; Stan Gibbs forward; U Erspamer forward; Jim DeFrancia forward; Jasmine Tygre forward; PandZ; Cliff Weiss; Chris Bendon; Jackie Lothian Subject: P&Z Foster application 1. This application includes a piece of property whose title is in dispute. That dispute should be resolved before the application is considered. 2. The two private homes proposed have a combined FAR of 6,680 which is 150% of what is allowed by right. There is no valid reason to make this exception. 3. There is no valid reason to allow the set back and other variances. 4. A brief site visit shows that the disputed piece of land could never be used for a residence of any size or type. 5. It is not your job to bail out developers that got caught in the real estate crash. 6. This will spoil the Midland Trail experience. Steve Goldenberg .... steve(goldenberg.com 430 W. Hopkins Ave..... phone & fax 970 - 925 -1294 Aspen, CO 81611 .... cell phone 970 - 379 -9778 Radio call .... WOSRG Email secured by Check Point 2 Chris Bendon From: Cheryl Goldenberg [cheryl©goldenberg.com] Sent: Saturday, January 07, 2012 12:57 PM To: Chris Bendon; PandZ Cc: Angela Young Subject: Fwd: 219 South Third Street Follow Up Flag: Follow up Flag Status: Flagged January 7, 2012 Dear Planning and Zoning, Before you make a decision about Suzanne Foster's newest application claiming that she owns property on the mountain side of the Midland Trail you should see the property she claims she can build on. I walk the trail all the time and the mountain side of that trail behind her property is straight up with mine tailings. I believe a few years ago the EPA advised against disturbing the mine tailings for fear of spreading contamination through the community as they are being trucked out of town. It's not a property that can be built on. I'm certain that Tom Cleary (the previous owner who lived there since the 50's) didn't believe that he owned that property and suddenly a new aggressive owner claims that she owns it. Ridiculous! Please don't rezone that property to benefit Suzanne Foster to the detriment of the neighborhood. A duplex within the legal boundaries of the property has been there for years and a new duplex also with legal setbacks will be fine in that space. Even within current zoning laws the new duplex will be much bigger than the current one but that is allowed and we can live with that. If you do decide to change the legal setbacks and other zoning rules for this property would you consider changing the rules for everyone else in the neighborhood? Thanks for your consideration. Sincerely, Cheryl Goldenberg Cheryl Goldenberg 430 W. Hopkins Ave. Aspen, CO 81611 970 - 925 -1294 t Email secured by Check Point 1 ■ ti p FAX NO. :15612725664 Jan. 10 2012 03 :15PM P1 ••f/9 - 543? yak, -ZtonUc //, zPJ2- -m. Nomoste. Enterprises Inc. — „.. Ms. Meta P. Barton 4475 N. Ocean Blvd. Apt. 43A Meta P. Barton, GFPTM, President - Delray Beach, FL 33483 ,MDR12121024 HRW.orB r : Alkn4; o can's •Cndaorl Pe a pp 1. ca:>on fes 5 u. 1 a � i de plapel 219 5, 3rd : J - . n+o s f\ g le .c Ii tynO's . This s pre pe cisacA (v . &a j not nn-rest-11)e i`a?u r`cry en'�S r `11a.ccncg fro 1� A can; 1g units - 1 - 6 . nai{aL oLopiev_ am Clic\Ne -iat oppo c 0 o dhorVe In ?No di w1lict,, woa1d Ther J.acon [bole +Jrts cecjon o T)-e dyer- L eve° 1` Ttrat PAR corn nri , s s Cn Capn y The Op p h moor or ij f u vIl e r c 1,c5 es o r ct3selrenb 6 n properN Ar ew c). cons- AszA ckbion Meg N90e8�• U g s in owner . ni 4 2- quo W y6Plu'ns 01/10/2012 15:46 972 -- 701 -9595 FEDEX OFFICE 0197 PAGE 02 Ty MY NAME IS PAUL YOUNG IV AND MY ADDRESS 15 413 W. HOPKINS AVE. I REPRESENT MY MOTHER, ANGELA YOUNG WHO CANNOT BE HERE. SHE IS A 25 YEAR FLIGHT ATTENDANT WITH AMERICAN AIRLINES AND JUST ABOUT NOW, SHE IS IN AIRSPACE OVER VANCOUVER, BRITISH COLUMBIA. THE FOLLOWING IS HER STATEMENT: LADIES AND GENTLEMEN OF THE P & Z COMMISSION: WISELY YOU HAVE DENIED THE FOSTER'S PRIOR APPLICATIONS AS BEING EXCESSIVE IN SCOPE. THESE TWO PREVIOUSLY DENIED APPLICATIONS TOTALED 4,127 SF OF FAR'S AND TODAY SHE IS PROPOSING 6,682 SF OF FAR'S. AGAIN, WITH REGARD TO EXCESS, SHE 1S ALSO PROPOSING 2 SINGLE- FAMILY RESIDENCES WHEN ONLY ONE STRUCTURE 15 ALLOWED UNDER PRESENT RESIDENTIAL GUIDELINES FOR THIS PROPERTY. IT WAS NOTED IN THE LAST P &Z MEETING THAT THERE WERE TOO MANY UNKNOWNS WHICH MADE THE NEIGHBORHOOD UNCOMFORTABLE. THE INCREASED WAIVERS AND SPECIAL CONSIDERATIONS BEING PROVIDED TODAY TO THE APPLICANT ONLY CREATE MORE UNKNOWNS AND REINFORCE AN EVEN GREATER DISCOMFORT LEVEL AMONG THE NEIGHBORS. PLEASE DO NOT ALLOW MRS. FOSTER TO USE HER QUESTIONABLE LAWSUIT AGAINST THE CITY TO PREMATURELY OBTAIN EXTRA FAR'S FOR HER DEVELOPMENT PROTECT. MRS. FOSTER'S APPLICATION MAKES ABSOLUTELY NO MENTION OF. DISPUTED OWNERSHIP. IT IS ALSO IMPORTANT TO NOTE THAT ONCE AGAIN, MRS. FOSTER MADE NO EFFORT TOWARD NEIGHBORHOOD OUTREACH WITH THIS LATEST APPLICATION. AS PRESENTED TO YOU TODAY, THIS DEVELOPMENT PROJECT COULD BE LIKENED TO A DANTE'S INFERNO FOR OUR NEIGHBORS -THE 13TH CENTURY POET SYMBOLICALLY TRAVELED TO THE NINE CIRCLES OF HELL AND THEN PURGATORY TO FINALLY REACH HEAVEN. BUT WITH THIS PUD APPLICATION,1 THINK OUR NEIGHBORHOOD WOULD LIKELY BE STUCK IN HELL, NEVER TO SEE DANTE'S PARADISE. THANK YOU FOR YOUR TIME. T.!Ad'rty Hotmail Print Message Page 1 of 2 FW: 219 South Third Street From: Angela Young (turtlemom02 @hotmail.com) Sent: Mon 1/09/12 4:55 PM To: Paul Young IV (paulyoung4 @hotmail.com) From: cheryl @goldenberg.com Subject: Fwd: 219 South Third Street Date: Sat, 7 Jan 2012 12:57:08 -0700 CC: turtlemom02 @hotmail.com To: chris.bendon @ci.aspen.co.us; pandz @ci.aspen.co.us January 7, 2012 Dear Planning and Zoning, Before you make a decision about Suzanne Foster's newest application claiming that she owns property on the mountain side of the Midland Trail you should see the property she claims she can build on. I walk the trail all the time and the mountain side of that trail behind her property is straight up with mine tailings. I believe a few years ago the EPA advised against disturbing the mine tailings for fear of spreading contamination through the community as they are being trucked out of town. It's not a property that can be built on. I'm certain that Tom Cleary (the previous owner who lived there since the 50's) didn't believe that he owned that property and suddenly a new aggressive owner claims that she owns it. Ridiculous! Please don't rezone that property to benefit Suzanne Foster to the detriment of the neighborhood. A duplex within the legal boundaries of the property has been there for years and a new duplex also with legal setbacks will be fine in that space. Even within current zoning laws the new duplex will be much bigger than the current one but that is allowed and we can live with that If you do decide to change the legal setbacks and other zoning rules for this property would you consider changing the rules for everyone else in the neighborhood? Thanks for your consideration. Sincerely, Cheryl Goldenberg enrt'21 mail live enm/ mail /PrintMessaues_asnx ?ends= 68cac5ba- 3bld- 1 lel -b... 1/9/2012 Jake Vickery Architect Architecture & Planning 202 East Main Street Aspen, Colorado 81612 970 309 -7722 jakevickery@comcast.net January 10, 2012 TO: Planning & Zoning Commission City of Aspen RE: PUD AND LOT SPLIT FOR 219 SOUTH 3 STREET — FOSTER Dear Planning and Zoning Commission, I have been retained to advise the neighbors on this matter. After review of the application and related documentation including the independent title research prepared by Krishnamurti dated Feb. 12, 2009, there are a number of reasons why this PUD should NOT move forward and should either be denied or tabled. First, it has been established that YLP - Foster may not actually own the southerly piece of property (referred to as the `upper lot "). Whereas typically the City accepts title insurance as sufficient to demonstrate ownership, in this particular case it is inadequate based on a challenge to title, contradicting information, possible title error, possible survey error, and no clear chain of title. If it is upheld that YLP- Foster does not,own this piece of property, the entire basis for the PUD application and lot split has no valid rationale. The other interesting aspect of this is that it is possible that neither YLP- Foster nor the City owns this piece of property and that indeed several third parties in the chain of title are mentioned as actual possible owners in the independent title research. Further, the so called "upper lot" may not be a separate "lot" at all. There is nothing in the documentation indicating that this southerly piece of property was ever created, identified, conveyed, or legitimatized as a separate "lot" and would therefore not have status as a "lot of record ". There is no defensible record regarding this piece of property. The grounds for YLP — Foster alleged ownership is that it is a part, albeit an extension, of Lots R & S, Block 39. For this to be true, this southerly piece of property (so called "upper lot ") would necessarily be considered integrated and combined with the "lower lot" in a master parcel transversed by a right -of -way or surface easement. It follows then that the southerly piece would not possess its own independent and distinct development rights. If it is indeed a separate and distinct "lot" then it was not conveyed to YLP — Foster and she does not own it in any form. Again, either way, the entire basis for the PUI) and lot split has no valid rationale. The City cannot grant approvals, confer development rights, and give benefits to someone who does not have clear ownership of a parcel of property — especially if it is owned by someone else. For this reason, until these title, ownership and legal issues are resolved, this application should be either be denied or tabled. Sincerely, Jake Vey Jake Vickery Special City Planning & Zoning Meeting — Mini LJ Erspamer op- • the special meeti • _ the Planning S in Council :a bers Meeting Roo• .t 4:30. Commiss G Sr ibbs, T D eFrancia, Bert Myr'.' (Keith Goode, Jas Cli eiss. Staff in attend. -' were Jim True, S dal J; ica Garrow, Communi • ! Development and kie LI VA ei Comments V Bert Myrin ask-, ' ow the land for Th-.: e on the Park 1 penny taxes open space; this was . -fequest that was n the Park, raring and would be c..• ied onto Council. Je aea Marrow responaeu the d. =imination was that ye ' was purchased and . was an appropriate use . . 't didn't violate any of e rules related to that ., ection for the use of those 64 ds. Jessica said the 4fermination was give -• City Council from John,' orcester and the Pks Department was th. e issue raised by P &Z w,a not an p y � issue but it was • c done. Jas •', e Tygre and Bert Myrinequested f something iin icing about the fundi ;:�` , , it t Bert as about the AACP sir puling. Chris there is a sedule. Jessica said the gist . ` it is after the Counc' /% ork Session with P &Z t1Jegrequested public inpu t 2 gh a public input p .e cess and they have set up edule to go into 1 ar ft "d adings with City C • 4'�cil over the next few weed the second item l night are those "gap" co. amendments and priorit * implementing the CP. • Declarationt of Interest, None statjd. "" /°''' / LJ ed the Commissio tubers if any had to lea . i£t 7 o'clock. Jasmine , gre said that she h o leave before 7 and Ji eFrancia said he had to ave at 6:30. Public Hearing: 217 - 219 South Third Street LJ Erspamer opened the public hearing on 217 — 219 South Third Street. Chris Bendon stated this was an application regarding 219 South Third Street that has been noticed pursuant to the City Code. Chris said the application seeks to develop 2 single family homes where there currently is a duplex on the property. The property is at the corner of Hyman Avenue and South Third Street just west of the St. Moritz Lodge. Chris utilized the overhead to show a map of the property and the same one that is on the front 2 Special City Planning & Zoning Meeting — Minutes January 10, 2012 page of the memo; the property consists of 2 lots on the "lower lot" that is the primarily flat portion of the property that is currently developed with the duplex and then there is the "upper lot" bisected by the Midland Trail. Chris noted there is a lawsuit between the applicant and the City of Aspen regarding ownership of the upper lot. Chris said the applicant has a claim to this property and the City has a claim to this property; there is litigation that is pending. The application before you is potentially a way for the parties to resolve the litigation and Jim True is Special Counsel for the city. Chris said the lower lot was approximately 9,942 square feet and is zoned R -15; there is a mixture of zoning in this area that you saw; the upper lot is smaller at approximately 3,496 square feet and it is zoned Park. The application is to split the lower lot through a lot split which is a type of subdivision that City Council can approve; it is typically an application that is only reviewed by City Council so there is no action required by P &Z on that matter. However the resulting lot size of splitting the lot that 9,942 square foot parcel into 2 lots is smaller than what is required in the R -15 zone district so there is a PUD (Planned Unit Development) that is proposed that would do 3 things; it would recognize the new lot sizes, it would recognize or establish a floor area for the 2 new properties and it would also establish setbacks for the 2 new parcels. The upper lot would be preserved as open space and deeded to the city; it is a potential way to resolve the litigation and would be in the resolution. Chris said the lower lot allows for a duplex and there is one there currently; it allows for a duplex to be built at 4,145 square feet and is probably a little more than double of what the current structure is now. That would be approximately 2,072.5 square feet if you were to divide that between the 2 duplex units. The request in the new application is for each of the 2 new lots to have a floor area of 2,951 square feet; the premise of the request is that is the floor area that would be derived from the size of the 2 new parcels. Staff does have a concern about the magnitude of that floor area of these parcels; the R -15 zone expects to deal with properties that are 15,000 square feet plus or minus. So the scale for floor area in our opinion ends with a floor atea that is somewhat over sized and over scaled for the properties. Staff proposed 2,707 square feet for each lot taking half of the potential lot total 5,414 square feet and this would be a reasonable lot. Chris said the upper lot is zoned Park but concurrent with the litigation of the ownership of the upper lot; there is probably a very similar argument about the upper lot. The park zone district was in the late 1970's or early 1980's; they haven't found an Ordinance yet but it was rezoned to the Park Zone District is the assumption is that it was owned by the city. Chris said if it were zoned to R -15 depending on slope 3 Special City Planning & Zoning Meeting — Minutes January 10, 2012 reductions the floor area would be anywhere between 1900 square feet and up to 2500 square feet. If you take the maximum potential floor area of that upper lot which is roughly 2,538 square feet; if you assume that a maximum potential build out of the upper lot and you divide that in half and you assign that floor area to the existing floor are of the lower lot you end up with a total 5,414 square feet if you divide that you end up with 2,707. Chris said that it would be more reasonable to develop on those lots and for the neighborhood. There were pictures of the neighborhood that Chris showed the 219 property and the corner of Hyman and Third and the alleyway condition currently that we talked about in the memo and an encroachment from the northern part of the property with a small shed and residence connecting into the right -of -way. Chris showed the access way to the Midland Trail and a photo from the Midland Trail to the east. This photo was taken on Third Street looking north and the large building to the right is the St. Moritz Lodge. Chris described more photos, the Scott Building, a multi - family on Third and Hopkins, looking down Hopkins etc. Chris said there was a request that the 2 new properties enjoy additional deck floor area in addition to what the code normally allows; staff does not support this because the 2707 floor area is adequate to recognize the open space preservation and that it is reasonable for these properties and secondly they were concerned that deck space in addition to the traditional space might look like the deck that ate the house. Staff supports the request for 10 foot setbacks on all sides; a 25 foot setback would not align with the neighborhood. Chris said the houses across the street have a 5 foot setback so we are supporting the 10 foot setback on all sides for the 2 new properties. Chris said the applicant wanted the lower lot as a flat lot and there was some discretion of man-made slopes; it is actually a discussion that we have had before with this applicant and when you are on this site; the grade was manipulated for the midland railroad and was originally a lot flatter than what exists today. Staff supports that where they have been before. Chris stated the application requests a covenant on the open space for the purpose of maintaining landscape and the City does not support that; the Parks Department believes that they have adequate capability to manage the property appropriately and would prefer that the applicant would just quit claim that upper property to the City with no reservations. Chris said there was a request that the affordable housing mitigation requirements be waived for these 2 new lots; staff and the housing authority do not support that. 4 Special City Planning & Zoning Meeting — Minutes January 10, 2012 Chris said the reason for not supporting that was that affordable housing resources to support open space and it is kind of a mixing of policy areas. There is a request that the secondary mass requirement of the residential design standards be waived for these 2 new properties and staff does support that; going from a duplex structure to 2 single families is a preferable way to break up the massing. Chris said during the DRC Committee an issue came up that one is the alleyway is currently constrained by the lot to the north having that structure partially encroaching into the alleyway. The city engineer is requesting a 16 foot wide clear space for the alleyway and a 1 foot buffer along that structure so 17 feet from the edge of the structure to the south that would likely result in an easement on new lot 1 so we are putting that in as a condition of approval to allow for adequate access in and out of the alleyway. Chris said there was a concern over the sequence of development of both lots to be somewhat limited in terms of being able to properly stage construction activities; there is some ongoing discussion going on between the applicant and the City Engineering Department; that department regulates the construction management program. Chris said there was a consideration that lot 1 would house the existing residence and lot 2 would be developed; so that doesn't allow for lot 1 to be used to stage the development for lot 2. Chris stated there was a proposed resolution with a couple of areas highlighted in red and the commission would need to discuss and make a decision on. The applicant proposed in this staff memo floor areas on page 3 for both lots 1 and 2; the next page the issue regarding deck allotment you see the staff recommendation and the applicant request and on page 5 you will see the staff and applicant request for the open space transfer. Staff is recommending it be an unconditional transfer and the applicant is requesting a covenant for their ability to maintain landscape. Section 7 of the resolution discussed affordable housing mitigation. Cliff said the Midland Railroad has been there since the 1880's and there are a lot of adjacent properties that have lots that were re- proportioned in the 1970's and this is not the only property along the Midland Railroad Trail so what has happened to all the other properties along the Midland Trail. Chris asked Jim to help him answer. Jim True said there was the Midland Trail which is the trail and the Midland Railroad was carved out in the 1880's; Jim asked if he was talking about the trail that exists. Cliff said he was trying to determine this proof of ownership and what happened with other lots that would be adjacent or further up the line towards Shadow Mountain. Jim True said there were different ownerships of properties as it went up but at this point the ownership of that upper lot is not 5 Special City Planning & Zoning Meeting — Minutes January 10, 2012 something for you to review; it is part of litigation. Jim said the applicant here produced a title commitment saying that they own the upper lot and that is what is used to establish ownership to pursue an application based on their assertion that they own this property. Jim said what was before P &Z was this PUD to be under the assumption that they own that upper lot. Jim showed a map of the 3 lots that were conveyed to the city next to this lot; there is no formal deed to the city for these 2; we none the less have claimed to that ownership but for the purpose of this application they have submitted based on the claim of ownership by a title policy. Cliff asked if there was a document dating back to the 1970s. Jim said it was very complicated and he didn't want get into an effort to litigate the ownership of the lot. Stan said he didn't understand how he got the 2707 per lot because the R -15 Zone District (page 12 of 700). Chris responded the lot size was 4,971 so what we want to know is how much is in excess of 3,000 that gives you 2910; that is what you get with the 2 new lots so the proposed subdivision so staff is suggesting a lower floor area. Chris said this was a PUD and the PUD would subdivide the parcels, recognize the lot size as allowed in the R -15 zone, it set the FAR and sets the setbacks at 10 foot all the way around the perimeter. Chris said everything else was by code. Jasmine Tygre said that on page 7 of the memo a parcel of land across from the Boomerang was rezoned from R -15 to R -6 as was determined that the character of the neighborhood determined it allowed for denser smaller houses; since we are doing a rezoning right here would it have made more sense to rezone this R -6 with a PUD overlay. Chris replied potentially yes; the floor area schedules are the same for R -6 and R -15 at this size property; the applicant has recently proposed that the property be rezoned to the R -6 zone district. They received a negative recommendation from the P &Z and they did not pursue that application to City Council and withdrew that application. Staff did support that rezoning application. Bert Myrin said so 4145 is the FAR number for something. Chris said that is the allowable floor area for the lower lot; if Suzanne were to walk out of here and go to the building department and pull a building permit for a duplex she could build 4145. Bert said the memo from the last time we saw this has the FAR but also a slope reduction. Bert said master page 4 talks about setbacks and the rear setback would be 25 feet in R -15. Chris said that would be for the front from Third Street. Bert said and this is being proposed to be 10 from 25. Chris said this may be useful; the current building is approximately 10 feet off the property line so you can see the eastern carport; it is 10 to 12 feet off the property line. Bert asked if a 6 Special City Planning & Zoning Meeting — Minutes January 10, 2012 TDR could land on a PUD. Chris replied only to the extent the PUD recognizes TDRs as being able to be landed in PUD; not with the current proposal as requested, so no. LJ asked if the berm could be removed. Chris replied they could retain it, dig into it; depending what that berm is made out of the soil might need to be remediated before it is removed from the site. Chris said a soil's report is included and required for building permit solution based on that report; City Engineering would recommend different remediation or covering or whatever. LJ asked if the state should require this. Chris said based on that soils report it will be required or not required to go to the state. LJ asked if the drainage report had requirements that the applicant has to follow. Chris said there was a drainage manual that the City Engineering that describes the details for how you design a drainage plan. Chris said to get back to Bert on TDRs; this resolution is not explicit on TDRs so you would refer to the R -15 zone district which does allow for TDRs to land. Suzanne Foster introduced herself and her husband Tim Foster and attorney Ed Timmons. Suzanne thanked everybody for coming out and appreciated the time and Special Meeting. Suzanne thanked their planner who was Alan Richman and she thanked staff. Suzanne said that she wanted to clarify something about the FAR and why they feel the FAR that they are asking for makes sense. Suzanne said what kind of mass is going to be and how much actual build out on can be on this site and for what you understand a duplex with a single family FAR in the district currently without a PUD; they can build at 4145 square feet. In addition we can build a for sale carriage house that would be about 1200 square feet; it would be affordable housing and you get a 600 square foot bonus. Suzanne said if they were not going to have a PUD and build today under R -15 and had to build an attached duplex it would make sense to build the affordable housing carriage house; it would fulfill the 10% detached mass requirement and they would get the 600 foot bonus and it would mitigate about $300,000.00 in employee housing fees so under today's circumstances the amount of mass that can be on site is 5,945 square feet. Suzanne said the code says 5,902 square feet after the lot split is less amount of mass on the site than we can currently put on the site now without the PUD and without giving away the upper lot which has its own additional FAR and massing; she wanted to make sure everyone is clear on that. When staff thinks that there is going to be too much density on this site and they want to reduce that we can actually put more on the site right now than is allowed by code after the lot split. Suzanne said they 7 Special City Planning & Zoning Meeting — Minutes January 10, 2012 bought this property with the intent to make it into 2 parcels, keep 1 parcel to raise our family here. Suzanne said when they bought the property it was under Ordinance 48 as being a potential resource and with a lot split accompanying that there was a good chance that we were going to accomplish our goal. Suzanne said that they did go before Council with that with staff and HPC review and Council did deny that. As Chris mentioned we did go before the P &Z about a year ago with an idea to again separate the mass by rezoning the property R -6; if it R -6 you are allowed to detach the duplex instead of attaching it and that would satisfy that 10% detached use. Suzanne said this would mitigate for affordable housing and we would achieve our goal a single family home that is a sensible size for 3 people. They did go before P &Z and they were not receptive so they decided to withdraw that application; it is important to note in both those applications the Ordinance 48 and the R -6; it was just involving the lower lot, it did not have the upper lot. Suzanne said that was changing under this new PUD they are bringing the upper lot into the mix; after discussions with our planners we came up with the idea of the PUD to accomplish our goal on the lower lot which is to split up that mass and in return give something to the City that is valuable for them as well; that is the preservation of open space and the Aspen hiking trail. Suzanne said they would like to see P &Z recommend this application to Council for the discussion about some of these issues that can take place but we feel it is an appropriate place for development for this site when you think about the kind of mass that can be on there anyway and make it make sense to put on there without the PUD under R -15 as a single lot and then you look at the neighborhood and things with mass and scale under this PUD with the amount of FAR that we are asking for and that would be appropriate for any other lot under similar circumstances. Suzanne said this was the most appropriate development opportunity for this property. Suzanne said there were some questions about the front yard setback and there is a map of this in your packet showing the aerial view of this area and she pointed out the 5 foot setbacks; there is a historic log cabin; she showed the out building that encroaches on the alley and showed their property. Keith Goode asked the approximate square footage of the house in place now. Suzanne replied it is about 2,000 square feet with a much bigger footprint because of the carports. 8 Special City Planning & Zoning Meeting — Minutes January 10, 2012 Bert Myrin said he was trying to find out the differences to make this a PUD and the last one to rezone from R -15 to R -6. Suzanne said the difference was the R -6 we would have been able to make a detached duplex. Cliff Weiss asked about the alleyway that needs 16 feet plus a foot buffer was a structure that blocks the alleyway; what is your position on that structure. Suzanne answered they were happy to install the bollard that is required and we are happy to create the easement that is needed on their property LJ Erspamer asked about the fence on the property at the deep end of the alley. Suzanne said the fence on the end of the alley is on the property line that's not the part of the alley where the encroachment is and that is a temporary thing so that is not the section of the alley. Chris stated that they should have derived 2951 from their lots and then you don't need any development rights from the upper lot to get to get to that development scenario. Bert asked if it was a staff recommendation to move in this direction because there is some controversy over that claim of the upper lot and transfer that development to the lower lots. Jim True said in his opinion the staff recommendation is to approve this application and move it onto Council; one of the effects in the interest of the city to do that. Cris said like with any PUD application we look at the base case so with this application if you take away the lawsuit and look at the base case and you have 3 houses and development on the upper lot which would be unfortunate at best and so what is an appropriate result of a PUD application here is what we are supporting the 2 houses at 2707 square feet each. Bert asked about the lot that that was to be sterilized or owned by the Parks. Chris felt the application was a little soft on that point and we weren't sure if the applicant was going to just quit claim that portion to the City or is they were going to dedicate an easement; what we suggest is an unconditional quit claim to the City in addition there would be an open space conservation easement dedicated to Aspen Valley Land Trust or a similar land trust. Suzanne asked to comment on that. LJ asked if this title was acquired through a quit claim or was it specially warranty deed or general and that would be a question for City how did your title company insure over this and how is the City going to take title especially if it is a conservation easement, which has different requirements to it than opposed to a different designation. Jim True responded that we would anticipate taking title to this with a quit claim deed from the applicant; what we think is important is you 9 Special City Planning & Zoning Meeting — Minutes January 10, 2012 were willing to approve this and move it to Council the language be such that we come up with an appropriate method to address their concerns; whether it be through a conservation easement or otherwise. Stan Gibbs asked if there was a precedent for a PUD expanding multiple properties; he didn't remember one. Chris replied you can have it multiple lots and they don't have to be contiguous, they can be separated by right -of -way, they can be one on one side of town and one on the other side. Stan said if this PUD all goes forward and they have a lot split and a PUD over the whole thing is that single family residential; which goes by the use so each of the lots would allow for a single family. The third lot the upper lot would be an open space parcel not a development parcel. Stan said that if you want to do a parcel that is residential the parcel has to be more than 27,000 square feet; if it is less than that you can do multi- family residential so what was he missing. Chris said it talks about a single family not requiring a final PUD approval; so if you have a lot that is zoned with a PUD overlay and you want to develop a single family house according to the underlying zoning you are not required to go through a PUD review. LJ opened the public comments. Public Comments: 1. Scott Stewart read a letter into the record saying that our community was under siege right now; at the moment we have the Jewish Center will start to be built shortly and then the Boomerang. As such the community has gotten together and hired an architect to help with our responses, Jake Vickery, who was unable to be here tonight. Scott read Jake Vickery's letter into the record dated January 10, 2012. (On laserfiche with the packet.) 2. Dan McCarty said he was a resident of the neighborhood and this application to P &Z was premature at this time and it seems as if the planning department is trying to help out the legal department here and he doubted if this was moral given the contentious of this development. If P &Z continues with the application they are just being complacent with a project because this is way ahead of its time. Dan said that we need to resolve all the legal issues before proceeding with this application. 3. Tita McCarty read a letter from Cheryl Goldenberg dated January 7, 2012. (On laserfiche with packet). 4. Paul Young IV said that he was representing his mother Angela Young who could not attend tonight and read her letter into the record dated January 10, 2012. (On laserfiche with packet). • 10 Special City Planning & Zoning Meeting — Minutes January 10, 2012 5. Paul Young said he lived at 413 West Hopkins and said in March of 2011 Mr. Gibbs said making something conforming was a good principal to uphold and please encourage the applicant to build a one single family residence on her one single family lot. The surrounding neighbors as depicted by the red Xs opposed up- zoning, they opposed increased development of 2 separate homes, they opposed the reduced front yard setback and the neighbors oppose the increased impacts on the alley and the Midland Trail. Paul said the board of directors of Shadow Mountain which represent 1,000 members have gone on 2 previous letters expressing their opposition. Paul had charts depicting the area. Paul said the applicant has less than 1/3 of the minimum lot areas. Paul asked for denial of this application in support of the neighborhood and for Mrs. Foster to build only what she is entitled to by code and standards without exemptions, variances, waivers and special consideration. 6. Michael Beherant said he lives across the street from 219 and he didn't know how many meetings there have been about 219 in the last couple of years. Michael said the title work will show that there is no claim to that upper lot. Michael said once you ask for a PUD everything is open and optional. Everyone in the neighborhood thinks the applicant ought to get what they bought so all we are talking about is what they bought; we know that they bought an R -15 non - conforming duplex with a certain amount of square footage. Michael said the neighborhood is asking to keep this what it was when they bought it because we are creating a lot of something else if we don't. LJ Erspamer closed the public comments portion of the hearing. Jim DeFrancia asked the legal status because of the picture that they are painting. Jim True replied there is a trial set for May, the 3` or 4 setting and it may not go through. Jim DeFrancia asked if the ownership confusion impact the validity of the PUD application. Jim DeFrancia asked the primary benefit to the public. Chris answered the preservation of the open space, the upper parcel which included the heavily used recreation trail through the center of it. LJ said there will be something built on this lot and agreed with staff on 2707, he voiced concern for the berm and would like to have it memorialized that they don't remove that berm and they do keep the landscaping as recommended by staff. LJ said it was reasonable that the setbacks are coordinated with the other buildings in the neighborhood. LJ did not want to waive the housing requirement and it is a big 11 Special City Planning & Zoning Meeting — Minutes January 10, 2012 issue with the ownership of that parcel. LJ said no TDRs can be transferred to this site and the fence has to come down. Cliff said he couldn't support this without proof of ownership. Cliff said that he would not be for the affordable housing waiver and was for not being able to buffer or screen the trail. Bert said the 3 bullets were what we were requested to do on pages 2 and 3. Jasmine said she agreed with what was said about the deck space but she wanted to go back to PUD because PUD allows a better development so the question she has is this PUD better than under regular R -15 zoning or not. Jasmine agreed with the other members of the commission on the third lot and the extent that development would be permitted on it. Putting the 3 lot in especially when there is such question about the ownership and possible usage in this steepness of slopes and how much development would be allowed and the soils and all of those things. Jasmine suggested tabling this application until we have a better idea of what is going to happen with that 3 lot. Chris said the PUD as it is now provides for 2 smaller houses on 2 smaller lots. Jasmine said it starts getting murky with the 3 lot to affect what can be developed on the first 2 lots. Chris said the uncertainty of the 3 lot is just kind of clouding everything. Jasmine said she thinks so but again she is speaking as her own preference would be to see that 3 lot separated and just deal with those 2 lots. Cliff said that the compromise situation was before them and he agrees with Jasmine's assessment of this. Jim True said that under our code they have presented an application with proof of ownership in the form of a title commitment. Jim DeFrancia endorsed Jasmine's suggestion to table the application and encourage the applicant to listen to the views that were expressed and work with staff and make some changes and amendment and maybe we will consider that in the future. Jasmine stated the reason the 3 lot is important is not necessarily the ownership but because that lot is being used in the calculations of allowable FAR; the lot looks separate. Chris said if the position of the commission is that this shouldn't be discussed until the ownership of the 3 lot is fully resolved and it would be useful to City Council 12 Special City Planning & Zoning Meeting — Minutes January 10, 2012 to recommend denial of the current application because there is uncertainty around the 3 lot and be willing to entertain the application again after the resolution of the ownership of the 3 lot. MOTION: Jim DeFrancia moved to table the 217 -219 South Third Street seconded by Bert Myrin. Vote 2 to table and 5 not to table. Discussion prior to the vote: Suzanne Foster said that she would prefer that we not table it and would rather P &Z deny it and just move on. LJ Erspamer said the applicant said not to do this so he was going with the applicant. Stan said that he discounted the upper lots and he doesn't have solid information and it was not something he could do to make a decision but on the other hand he didn't actually see it required. Stan said he believed they could build just given the R -15 zoning; he said you can build 2960 on each lot. Stan said he was the only one who supported the R -6 and given the alternative the applicant is stuck with R- 15 but he cannot support a greater non - conformity by splitting these 2 lots. Stan said that he didn't believe that it was appropriate for a PUD to be placed on this property and he hasn't seen significant community benefits demonstrated. Stan said the variance for the employee housing was also inappropriate. MOTION: Jim DeFrancia moved that we forward to the City Council with the recommendation for denial of 217 — 219 South Third Street; seconded by Stan Gibbs. Roll call vote: Jasmine Tygre, yes; Keith Goode, yes; Stan Gibbs, yes; Cliff Weiss, yes; Bert Myrin, no; Jim DeFrancia, yes; LJ Erspamer, yes. Approved to deny 6 -1. Jim DeFrancia and Jasmine Tygre excused themselves at 6:55 pm. Public Heari. • . Code A i i dments "• a' issue " • - CP LJ Ers.. er opened the pus ' earing. Jessic. 1 7.. ow said the P &Z • - . s to open . • • continue the p • is hearing on the ; e CP "gap" Code A • dments to ne • eek January 17 It 4:30 in Sister Citie . Jessica said staff , nted very itial feedback fro , e commission on • content in the packe Chris said th wanted to consid> ' e gap Code Arne- dments first on the 17 d the 31 j in case and pre the South Aspen - eet to open on the 1 . d continue to t e 24 Cli • ' eiss said that we • ~ ded a whole meetin' or this. Bert Myr' sked for the Tuesdays in Janua r, the 24 and the 31 13 Special City Planning & Zoning Meeting — Minutes January 10, 2012 Jessica said while the code may not be perfect and the "gap" language may not be perfect we think that it does a good job covering our bases. Jessica said it was important to keep in mind what is a gap issue and what is a substantive issue that really changes policy and really changes the code. MOTION: LJErspamer moved to continue the AACP "gap" Code Amendments to January 17`" seconded by Cliff Weiss. Adjourned at 7:35 pm. Jackie Lothian, Deputy City Clerk 14 KLEIN, COTE & EDWARDS, LLC k;b&__ 2w So 3 ATTORNEYS AT LAW HERBERT S. KLEIN hsk @kcelaw.net 201 NORTH MILL STREET, STE. 203 LANCE R. COTE, PC* Irc@k„kcc1aw.net ASPEN, COLORADO 81611 JOSEPH E. EDWARDS, H1, PC jet@ kcelaw.net TELEPHONE: (970) 925 -8700 KENNETH E. CITRON** kcitron@kcclaw.net FACSIMILE: (970) 925.3977 MADHU B. KRISHNAMURTI n(bk@kcelaw.net www.kcelaw.net OF COUNSEL: JOSEPH E. EDWARDS, JR., PC joe@kcelaw.net *also admitted to California •• also admitted in Raw Yak and Massachusetts February 6, 2012 40 Via Hand Delivery c19.516\NIII? Mayor and Councilors City of Aspen 130 South Galena Street Aspen, CO 81611 RE: Lot Split, PUD and Rezoning Application for 219 S. Third Street Dear Mayor and Councilors: As you know, I represent Angela and Paul Young and Staspen, LLC. For the following reasons, we urge you to deny the application for approval of a lot split, PUD and rezoning for 219 South Third Street. I. Lot Split. The proposal does not satisfy the required criteria for a lot split. In order to approve the lot split, both resulting lots must "conform to the requirements of the underlying zone district." Code §26.480.030A2b. PUD is an overlay zoning designation (like SPA, LP and others), and R -15 is the underlying zone district. To read this sentence to allow the resulting lots to conform by virtue of a variance granted through the PUD overlay (Le., by virtue of §26.445.040C) is to completely ignore the word "underlying." Courts require that you give meaning to every word. The existing lot does not conform to the lot size requirement for the R- 15 zone district (15,000 sq feet) and the two new lots will be even more non - conforming with regard to the underlying zone district. Also, neither the front yard setback nor the floor area limitations comply with the requirements of the underlying zone district. Therefore the application for a lot split must be denied. 2. PUD. The purpose ofa PUD is to "encourage flexibility and innovation in the development of land" which promotes the purposes of the AACP and achieves a more desirable development pattern "than would be possible through the strict application of the underlying zone district provisions." Code §26.445.010. Here there is nothing innovative or more desirable Mayor and City Council February 6, 2012 • Page 2 - only variation to the lot size limitation, setbacks and floor area. Moreover, the Code requires that only lots of 27,000 square feet or larger be allowed to apply for a PUD overlay, unless the Community Development Director finds that a smaller parcel will "further the goals of" the AACP. In the P &Z memorandum this was justified based on the potential settlement of the lawsuit concerning the "Disputed Parcel" and the resulting preservation of critical open space and a trail. This justification for allowing a 9,000 square foot project to proceed when the code requires 27,000 square feet is based on an assumption that the City does not own the Disputed Property. This is false. 3. Lawsuit/Disputed Property. The applicant is correct that a title commitment is sufficient for filing a land use application. But the applicant is wrong when the applicant asserts that the title commitment proves ownership. Only the courts can determine final ownership. All the title commitment actually does is to create a rebuttable presumption of ownership - that is, it shifts the burden of proof to the City or anyone who believes that the applicant does not own the property. My office has done exhaustive research on the title to the Disputed Property and we concluded that the City owns that property. While this letter is not the appropriate place for an exhaustive title analysis, the City also believes it owns the Disputed Property. The City asserted in a Motion for Summary Judgment filed with the District Court that the City owns the Disputed Property. See Exhibit A attached hereto. Although I am not privy to the City Attorney's opinions, I do know, because of Rule 11, Colorado Rules of Civil Procedure, that the City Attorney believes after "reasonable inquiry" that the Motion is "well grounded in fact and warranted by existing law." Therefore, it is reasonable to conclude that the City also believes it owns the Disputed Property. Yet, the current proposal is for the City to give the applicant bonus floor area credit for land that the City believes the City owns, is zoned as Park, has a public trail through the middle of it and is encumbered by steep slopes (which would lower the floor area). The fact that a title company made a mistake and issued a title policy for property zoned as a park and through which a public trial had been in existence for many years before the applicant purchased the property is not a good justification for granting floor area bonuses. It may be a good justification for that title company to pay the applicant on the insurance policy but the neighborhood should not be asked to absorb that floor area as a result of that mistake. For the forgoing reasons we respectfully request that you follow the lead of the Planning Commission and deny the application. Sincerely, KLEIN, CO & EDWARDS, LLC ! B . ; :_ . . ^ 9 r� 0 Jost, E. Edwards, III DISTRICT COURT, PITKIN COUNTY, STATE OF COLORADO EFILED Document CO Pitkin County District Court 9th JD Filing Date: Oct 7 2011 4:24PM MDT Court Address: 506 E. Main St., #E Filing 1D: 40258693 Aspen, CO 81611 Review Clerk: Jonna Goldstone YLP WEST, LLC, a Pennsylvania limited liability company, ♦ COURT USE ONLY t Plaintiff, vs. Case No.: 2011 CV 110 CITY OF ASPEN, municipal corporation; and all unknown persons who claim any interest in the subject Courtroom: matter of this action, Defendants. ATTORNEYS FOR DEFENDANT CITY OF ASPEN: James R. True, Esq., #9528 Special Counsel John P. Worcester, Esq., #20610 City Attorney City of Aspen 130 S. Galena Street Aspen, Colorado 81611 Telephone: (970) 920 -5055 Facsimile: (970) 429 -1839 E -mail: jim.trueAci.asnen.co.us E -mail: john.worcesterQci.aspen.co.us DEFENDANT'S MEMORANDUM BRIEF IN RESPONSE TO PLAINTIFF'S MOTION OF SUMMARY JUDGMENT AND IN SUPPORT OF THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT The Defendant, City of Aspen, by and through its undersigned counsel, hereby submits the following memorandum brief in response to Plaintiff's motion for summary judgment and in support of the Defendant's motion for summary judgment: 1 EYW(D Ir 1. STATEMENT OF CASE This action was commenced by the Plaintiff on or about May 2, 2011, upon the filing of an action pursuant to C.R.C.P. 105 to determine the rights of the parties to this action with respect to real property located in Aspen, Colorado. In answer to the complaint, the Municipal Defendant City of Aspen (hereinafter referred to as the "City") denied that the Plaintiff had an appropriate claim to the property and asserted that the City either owned the property in question in its entirety or had obtained a large portion of the property through prescriptive easement or adverse possession. Plaintiff has moved for summary judgment quieting title to the property in question in the name of Plaintiff. The City has moved for summary judgment dismissing this action. Although dismissal of Plaintiff's case may not act as a determination of the proper owner of the property, the City asserts that the Plaintiff simply has no claim to the disputed property. Neither Plaintiff's motion nor the City's motion addresses the status of the prescriptive easement/adverse possession claim. 11. STATEMENT OF FACTS The City agrees that the facts in this case, with one major exception, are mostly undisputed. Although the City's discussion of the facts of this case may require a somewhat protracted discussion of early town actions, such discussion is important to understand a complete history of the property in question. Rather than cite in this section of this memorandum brief all of the documents and facts that are relevant to this case, the City will incorporate specific factual references in its arguments and discussions below. 2 Di ARGUMENT A. Overview. To assist the Court in its understanding of the nature of the dispute, the City will refer to Figure 1, below, submitted by Plaintiff as its Exhibit 7: L.. t `, / `� t a " �3� ` , ` \ ��'"�: ;fig h' • 1 ..��FF 1 N its' ; s .p,� 4 �` "Y '.,, 10 1.1 N4yx 410403/4 l.1.1 V..V.4. .., t North Figure 1 Figure 1 is a portion of a survey of property alleged to be owned by Plaintiff. The entire survey was submitted by Plaintiff as Exhibit 6 to its motion for summary judgment, with a one page copy attached as Exhibit 7. The property in question is the portion highlighted in yellow at the bottom right of this Figure 1. This property is Hereinafter referred to as the "Disputed Property." Hyman Avenue is to the right of the Disputed Property, and proceeds to the east. Third Street 3 runs essentially north -south and parallels the Disputed Property to the right of Lot S. The Plaintiff asserts that the Disputed Property was part of Lots R and S of Block 39, which its predecessor obtained in a tax deed in 1956. That tax deed described the property conveyed to that grantee as all of lots 0, P, Q, R and S, Block 39. However, for the reasons set forth below, the City asserts that the Plaintiff cannot meet its burden necessary to establish any ownership interest in the Disputed Property. B. Standards for Review. 1. Standard for Determination of a Motion for Summary Judgment. The standard upon which a motion for summary judgment may be granted is well settled. As stated by the Colorado Supreme Court in Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987): "Under C.R.C.P. 56(c), summary judgment is proper only when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. E.g. Huydts v. Dixon, 199 Colo. 260, 606 P.2d 1303 (1980). The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986); Urban v. Beloit Corp., 711 P.2d 685 (Colo. 1985); Ginter v. Palmer and Co., 196 Colo. 203, 585 P.2d 583 (1978). This burden has two distinct components: an initial burden of production on the moving party, which burden when satisfied then shifts to the nonmoving party, and an ultimate burden of persuasion, which always remains on the moving party. See IOA C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 (2d ed. 1983)." A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. Guaranty Nat. Ins. Co. v. Williams, 982 P.2d 306, 309 (Colo. 1999) and Casebolt v. Cowan, 829 P.2d 352, 354 (Colo. 1992). Pursuant to these standards, Plaintiff cannot prevail on its motion for summary judgment. ' Ownership of Lots 0, P, and Q of Block 39, are not in dispute. 4 However, given the undisputed facts, the City is entitled to a judgment dismissing this case as a matter of law. 2. Standards for Consideration of a Quiet Title Action. In any quiet title action, the parties are required to assume the burden of establishing by competent evidence its title to the lands respectively claimed. See, Gilpin Inv. Co. v. Perigo Mines Co., 161 Colo. 252, 421 P.2d 477 (1966) and Keith v. Kinney, 140 P.3d 141, (Colo.App. 2005). Also, as Plaintiff noted, deeds are generally construed in accordance with the general rules of construction of written instruments. A deed which accurately and correctly describes a tract of land is not subject to construction or interpretation. Terry v. Salazar, 892 P.2d 391 (Colo.App.,1994). See, also, Morrissey v. Achzi • er, 147 Colo. 510, 364 P.2d 187 (1961). C. Chain of Title. 1. 1880 Map. In support of its claim of title to the Disputed Property, the Plaintiff discusses the chain of title in reverse order, commencing with its deed and working back to a City map purportedly recorded in Gunnison County in 1880. The City suggests that the proper analysis of this case must proceed in chronological order commencing with that 1880 map. Employing this timeline, it is evident that there are serious discrepancies with that 1880 map. Nonetheless, a careful analysis of the facts resolves this dispute in favor of the City. As Plaintiff noted, a town site map was recorded in Gunnison County on or about March 25, 1880. Pitkin County was not formed until 1881. However, the map relied on by Plaintiff and purported to be recorded is not the map that was actually recorded. A certified copy of the recorded 5 document recorded in the Plat of Towns 1, at pages 28 and 29, is attached hereto as the City's Exhibit The City asserts that this is a correct copy of what was actually recorded and is therefore the "official" plat of the City of Aspen. On the other hand, Plaintiff relies on a map that is, for lack of a better description, an 1880's version of a "photocopy" of the recorded document. Plaintiffs Exhibits 10 and 11 are apparently from a hand -drawn copy of the City's Exhibit "A" that was recorded in the Plat Book of Towns in Gunnison County in 1880. In support of the City's position, it points to the language in the Plat: "1 hereby certify that this plat was filed for record in this office at 9 O'clock A.M. March 25 1880 and is duly transcribed in Book of Plats at pages 28 and 29." As can be seen in Exhibit "A ", these pages are from the actual plat book. Also, the index to the recordings show that an Aspen Plat was recorded in Plat Book 1 at page 28 and 29. See, Exhibit "B ", attached hereto. The City recognizes that Gunnison County maintains a copy of the Nat upon which Plaintiff relies. But, given the above information that document cannot be deemed an "official map ". The difference in the two maps is crucial to this case. Figure 2, below, shows a portion of the recorded document, attached as Exhibit "A ". This map clearly shows that Hyman Avenue proceeds below Lots R & S of Block 39 and does not terminate at Third Street. 6 f1 JtIt:. a z Third Street 8 0,..: -wits aim • • • • • t North Hyman Avenue Figure 2 7 Figure 3, below, shows a portion of the hand-drawn copy of the map copied from Plaintiff's Exhibit 10. This shows that Hyman Avenue dead ends at Block 39 and that Lots R and S are elongated stretching to the town boundary. Third Street .0;1.9 / es G9 e: ( k II t z E. lrc - rt,u s'`?`r':s4 /44. i1 ir o iL: /I I • North Hyman Avenue Figure 3 Even if this map represented in Figure 3, were deemed the `official map ", it contains an inherent inconsistency. This map states in the "Notes ": "Lots are 30 feet by 100 feet ". See, Plaintiffs Exhibit 10. Although there were maps drawn after this date that show Hyman Avenue stopping at the lot in question, as asserted by the Plaintiff and as shown in Figure 3, other maps and subsequent recorded actions by the owners of the property support the position that the disputed property was 8 part of Hyman Avenue and that the lot that was eventually obtained by the Plaintiff was never more than a standard 30 x 100 foot lot. For instance, in 1888, another town map was filed of record. This too shows Hyman Avenue continuing to the border of the City and showing that the Blocks in the City consisted of standard rectangular blocks. See, Exhibit "C ", attached hereto. Also, as part of the patent process, a map was prepared by an individual named John B. Stitzer and dated October 20, 1890. This map again shows Hyman Avenue proceeding to the town's border and Block 39 consisting of standard 30x100 foot Tots. See, Exhibit "D ", attached hereto. The City's ownership of Hyman Avenue was confirmed in 1888. On April 3, 1888, the same day as the map in Exhibit "C" was recorded, the County and Probate Judge issued to the City of Aspen a deed conveying: "all the streets and alleys of said Townsite according to their metes and bounds as described in the plat on file in the office of the County Judge of said Pitkin County and Trustee of said Townsite excepting those parts of streets and alleys heretofore vacated by resolution of the municipal authorities of the Town or City of Aspen and that part of the east end of Bleeker Street and fractional part of alley in Block 92 heretofore deeded by said Trustee. And excepting those streets and alleys in conflict with the plat of the Avenue also on file in the office of said Trustee." See, Exhibit "E ", attached hereto. The most compelling evidence in support of the City's present position may be an action by the City in 1892. After acquiring title to the streets and alleys pursuant to the deed attached hereto as Exhibit "E ", on August 18, 1892, the City of Aspen entered into an agreement and lease with the Roaring Fork Mining Company for the mineral rights lying underneath certain named streets and alleys within the City and Townsite of Aspen. That agreement conveyed mineral rights to the mining company for: "All parts of ... Hyman Streets which lie to the west of Third Street, ..." (Emphasis supplied.) The lease was for 20 years running until August 8, 1912. The City expressly reserved to itself the property and right of property in all minerals to be extracted from the said premises during the term of the lease. See, Exhibit "F ", attached hereto. "All parts of ... Hyman Streets which lie to 9 the west of Third Street, ..." is the Disputed Property. Only if the City owned this parcel could it have conveyed mineral rights to the mining company. If Hyman dead ended at Block 39, as asserted by the Plaintiff, then there was no part west of Third Street to convey. Clearly, and undisputedly, in 1892, the City of Aspen owned the Disputed Property. 2. Southerly portion of lots R and S. Block 39. As Plaintiff recognizes, its deed contains an exception within the property description. That exception states: "Excepting therefrom that portion of Lots 0, 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 f t of Lot R and S as de 'bed : nd s .wn in de . and ma . r- aided Febru: 27 1950 in Book 175 at Page 628." (Emphasis supplied.) See, Plaintiff's Exhibit 1. The genesis of this exception again supports the City's position that the Plaintiff does not have a claim to the disputed property. During the 1880's, the Colorado Midland Railway Company was building a rail line into the City of Aspen. On October 27, 1886, Clark Cornwell, for the sum of $50, conveyed to the Colorado Midland Railway Company the following real property: "So much of the rear or south part not exceeding twenty five (25) feet in depth of lots 'R' and `S' in Block thirty-nine (39) of the townsite and City of Aspen." See Exhibit "0", attached hereto. In addition, two other deeds conveyed the north (75) feet of Lots R and S of Block 39. See, Exhibits H and I. In 1945, the Denver and Rio Grande Western Railroad Company, successor of the Colorado Midland Railway Company, conveyed by Quit Claim Deed this section of lots R and S to the Koch 2 Although the deed uses the term "Hyman Street" instead of "Hyman Avenue" there is no evidence that it was referring to a different street and there certainly is not another Hyman Street or Hyman Avenue that crosses Third Street. Just as Cooper Avenue in Aspen is often refereed to a Cooper Street, it is believed that this is just a colloquialism that does not impact the relevance of the conveyance. 10 Lumber Company. This deed, attached hereto as Exhibit J, was recorded in the real property records of Pitkin County, Colorado in Book 175 at page 628 and is the deed that is reflected in the Plaintiff's title exception. That deed provides a plat of the area delineating what the "southerly 25 feet" of lots R and S is. Figure 4, below, is a copy of a section of a map of Colorado Midland Railway Company similar to that attached to Exhibit "J". A copy of this full map is attached hereto as Exhibit "K ". x l 7R iv v r ti N t. 5. N 1 r 1111 t North Figure 4 The conveyance is clearly the small rectangles shown on the southern part of Lots R and S and is based purely on the understanding that Lots R and S were standard 30 x 100 foot lots. As noted in Figure 1, at page 3, above, and the survey attached to Plaintiff's motion as Exhibit 6, the Lot S that borders Third Street is 169.10 feet in length. It simply makes no sense whatsoever that anyone at the time considered lots R and S as being elongated as argued by the Plaintiff. Otherwise, the rear or "southerly" part of Lots R and S would be that abutting the town boundary. As noted, deeds should be construed in accordance with the general rules of construction of written instruments. Terry 11 v. Salazar supra. Using this standard of construction, there can be no doubt that Lots R and S, were never considered anything more than standard 30 x 100 foot lots. Koch Lumber retained ownership of this south portion of lots R and S until the property was ultimately conveyed to the City of Aspen in 1985 from the successors of Koch Lumber. See, Exhibit L, attached hereto. 3. Cleary Tax Deed & Quiet Title Action. On or about August 16, 1956, Thomas P. Cleary obtained Lots 0, P, Q, R, and S of Block 39 in a tax sale. In May, 1958, Mr. Cleary commenced a quiet title action regarding these lots. Again, this action exempted any claim to the Koch Lumber property described above. See, Plaintiff's Exhibit 4. What is most significant, however, is that at that time there was no claim asserted or assertable to anything below this "southerly" portion of the property and no way to read the order as addressing the Disputed Property. This quiet title action simply did not name the City of Aspen. Thus, any claim that the City of Aspen had that the Disputed Property was part of its right -of -way was not addressed in this action. The final order may have determined that Mr. Cleary owned lots R and S, with the exception of the 25 foot "southerly" portion of the lots. It did not, however, in any manner define the lots by length or suggest that the title that was quieted in name of Mr. Cleary included the Disputed Property. 4. 1959 official city map. Plaintiff relies most significantly on a map of the City of Aspen adopted by the Aspen City Council on November 2, 1959. (The map and ordinance are attached to Plaintiffs motion as Exhibits 9 and 8, respectively.) Although the snap shows Hyman Avenue ending at the property in question and purports to show that lots R and S are elongated, its relevance to this case is limited. 12 First of all, although a "Whereas" clause within the ordinance states that the map has been completed by the City Engineer: "with all City boundary lines, lots, blocks and all streets and alleys shown thereon,..." it did not and could not act to establish ownership of particular lots. Second, within the controlling language of the ordinance, it provides a dedication to the public of existing streets, "except such streets and alleys as have heretofore been vacated by Ordinance or Resolution ". The City does not dispute that the Hyman Avenue at this location may not have been an existing street at that time. But, as has been shown in this case, it was an existing right -of -way. This 1959 ordinance does not use any words that could be interpreted as expressing an intent to vacate any existing right -of -way. Thus, since the evidence is overwhelming that until this point the Disputed Property was a City street, it remained a public right -of -way despite this map. At best, Plaintiff would have to argue that this 1959 ordinance and map, contrary to the language employed, did act as a vacation of this particular section of the City right -of -way. However, pursuant to the state vacation statute, which today is substantially similar to that effect in 1959, the property would revert to the abutting landowner. See, C.R.S. Section 43- 2 -302and Morrissey v. Achziuer, supra. In this case, in 1959 that would have been Koch Lumber, which was the City's predecessor in interest, not the Plaintiff's. IV. CONCLUSION By reason of the foregoing, Defendant respectfully requests that this Court deny Plaintiffs' motion for summary judgment and grant the City's motion for summary and dismiss this action with prejudice. DATED this 7 day of October 2011. /s/ James R. True James R. True, Special Counsel City of Aspen COUNSEL FOR DEFENDANT 13 CERTIFICATE OF SERVICE I hereby certify that on this 7 day of October 2011 a true and correct copy of the foregoing was electronically filed and served via LexisNexis upon the following persons: Edward P. Timmins Jo Timmins TIMMINS LLC 450 East 17 Street, Suite 210 Denver, CO 80203 /s/ Tara Nelson Tara Nelson 14 fl's MEMORANDUM TO: Mayor Ireland and Aspen City Council COPY: Jim True, City Attorney FROM: Chris Bendon, Community Development Director V JV'V RE: Appeal of Pre - Development Slope Determination — 219 So. 3rd St. DATE: March 12, 2012 SUMMARY: A property's development rights are based on the size and characteristics of the property. The presence of steep slopes reduces the "net lot area" upon which allowable floor area is determined. Many properties contain slopes which are man-made. The City's Land Use Code permits the Community Development Director to accept an estimation of pre - development topography of a parcel in cases where the grade of the property has been affected by development. The estimation must be prepared by a professional surveyor or civil engineer. The Community Development Director accepted an estimation of pre - development topography for the 217/219 property. An administrative decision was issued February 21, 2012. The owners of the neighboring property, Paul and Angela Young represented by Jody Edwards, have appealed the decision. There are three criteria upon which the City Council has to decide an appeal of an administrative decision. Based solely upon the record established by the decision, the City Council shall consider whether: 1) There was a denial of due process; 2) The administrative body exceeded its jurisdiction; or, 3) The administrative body abused its discretion. These standards ask whether the Director's actions were ethical. The City's code states that the decision or determination made by the administrative officer shall not be reversed or modified unless there is a positive finding on one of these criteria. (Please see Exhibit C for the entire code section.) STANDARDS OF REVIEW: 1. Due Process — The code permits the Community Development Director to accept an estimation of pre - development topography. The Director did accept such an estimation for the 219 property prepared by a professional land surveyor. Tthe Director informed the Youngs and their attorney of the determination so as they may avail themselves of this appeal process. The appellant is not claiming there was an abuse of due process. 1 2. Jurisdiction — The Director's jurisdiction to accept an estimation of predevelopment topography is set forth in the City's Land Use Code, Section 26.575.020 -1 (a table). "In instances where the natural grade of a property has been affected by prior development activity, the Community Development Director may accept an estimation of pre- development topography prepared by a registered land surveyor or civil engineer. The Director may require additional historical documentation, technical studies, reports, or other information to verify a pre- development topography. Staff believes this language is clear and the appellant is not questioning the jurisdiction of the Director. 3. Discretion — With respect to abuse of the Director's discretion, the code does allow the Director to use discretion. The code allows the Director to accept a pre - development slope estimation which has been prepared by a registered land surveyor or civil engineer. The estimation was prepared by John Howorth, a professional land surveyor registered with the State of Colorado. In his commentary, Howorth cited similar site conditions along the Midland Railroad right -of -way and concluded the condition of the 219 property to be man-made along with his estimation of the grade prior to development. The language of the code goes on to permit, but not require, the Director to require additional documentation as may be necessary to make a decision. The Director consulted with the City Engineer Tricia Aragon, a professional civil engineer also registered with the State. After reviewing the Howorth estimation, she reported that the site grade was not natural and agreed with Howorth's pre - development grade estimation. Based on the Howorth information and the clarity of the City Engineer's response, the Director determined additional information was not necessary to verify the pre - development topography and did not require additional studies, reports, etc. The Director did need to use his discretion in rendering the decision. The question is whether the Director abused that discretion or acted unethically. The decision was based on the professional opinion of both a registered land surveyor and a civil engineer. At some point, the Director must make a decision that sufficient information has been provided to render a decision. In his discretion, the Director determined that the information provided by two qualified professionals was sufficient. The Director believes that his discretion was applied appropriately and that the decision was based on sufficient information. PRIOR HEARING: The appellant cites minutes from a prior appeal concerning this property. This information is simply not part of the record for this determination of pre - development topography. The minutes and documentation of the prior appeal are not part of the decision. In addition, the prior hearing addressed an interpretation of a prior version of the land use code, which is no longer in effect. The code now provides a very clear process by which the City can recognize man-made slopes and accept a profession estimation of pre - development grade. 2 TWO RESOLUTIONS: Attached are two Resolutions. One finds that the Director acted correctly and affirms the decision. The second finds that the Director abused his discretion and reverses the decision. RECOMMENDATION: Staff believes the Director's decision was rendered correctly. Staff recommends City Council uphold the Director's decision by adopting the proposed Resolution affirming the decision. CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all motions Rust be made in the positive) "I move to approve Resolution No. Series of 2012, [affirming or reversing] the Community Development Director's decision regarding topography of the 219 property." ATTACHMENTS: Exhibit A — Administrative determination of slope dated February 21, 2012, with attachments Exhibit B — Appeal letter from Jody Edwards, with attachments Exhibit C — Land Use Code Section Regarding Appeals Exhibit D — Affidavit of notice • 3 RESOLUTION NO. _ (SERIES OF 2012) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN ADMINISTRATIVE DECISION BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING TOPOGRAPHY OF A PROPERTY LOCATED AT 217/219 SOUTH THIRD STREET, ASPEN, COLORADO. WHEREAS, the Community Development Director received a request from YLP, LLC, owner of a property located at 217/219 South Third Street, to accept an estimation of pre - development topography prepared by a professional land surveyor registered with the State of Colorado; and, WHEREAS, pursuant to Chapter 26.3575.020 -1 (table) — Calculations and Measurements, the Community Development Director is authorized to accept an estimation of pre - development topography prepared by a registered land surveyor in instances where the grade of a property has been modified by prior development; and, , the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, pursuant to Chapter 26.3575.020 -1 (table) — Calculations and Measurements, the Director did accept such estimation by issuance of an administrative determination dated February 21, 2012; and, WHEREAS, neighbors Paul and Angela Young, aka Paul Yound and Staspen, LLC, represented by attorney Jody Edwards, appealed the administrative decision; and, WHEREAS, the City Council has taken and considered written and verbal testimony from the appellant, the Community Development Director, and has found that the Director provided due process and neither exceeded his jurisdiction or abused his authority in rendering the administrative determination; and, WHEREAS, the City of Aspen City Council fords that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community Development Director's administrative determination regarding pre - development topography of the 217/219 South Third Street property. 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 conducted and concluded under such prior ordinances. 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 by the Aspen City Council at its regular meeting on , 2012. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor APPROVED AS TO FORM: James R. True, City Attorney Resolution No. , Series of 2012. Page 1 RESOLUTION NO. _ (SERIES OF 2012) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REVERSING AN ADMINISTRATIVE DECISION 13Y THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING TOPOGRAPHY OF A PROPERTY LOCATED AT 217/219 SOUTH THIRD STREET, ASPEN, COLORADO. WHEREAS, the Community Development Director received a request from YLP, LLC, owner of a property located at 217/219 South Third Street, to accept an estimation of pre - development topography prepared by a professional land surveyor registered with the State of Colorado; and, WHEREAS, pursuant to Chapter 26.3575.020 -1 (table) — Calculations and Measurements, the Community Development Director is authorized to accept an estimation of pre - development topography prepared by a registered land surveyor in instances where the grade of a property has been modified by prior development; and, , the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, pursuant to Chapter 26.3575.020 -1 (table) — Calculations and Measurements, the Director did accept such estimation by issuance of an administrative determination dated February 21, 2012; and, WHEREAS, neighbors Paul and Angela Young, aka Paul Yound and Staspen, LLC, represented by attorney Jody Edwards, appealed the administrative decision; and, WHEREAS, the City Council has taken and considered written and verbal testimony from the appellant, the Community Development Director, and has found that the Director abused his discretion in rendering the administrative determination; and, WHEREAS, the City of Aspen City Council fmds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council reverses the Community Development Director's administrative determination regarding pre - development topography of the 217/219 South Third Street property. The current grade of the property shall be the basis for development allowances on this property. 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 conducted and concluded under such prior ordinances. 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 by the Aspen City Council at its regular meeting on , 2012. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor APPROVED AS TO FORM: James R. True, City Attorney Resolution No. , Series of 2012. Page 1 CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT ADMINISTRATIVE DETERMINATION (� 217/219 South Third Street JURISDICTION: City of Aspen DATE: Febru- 21, 2012 APPROVED BY: 0 Chris Bendon, AICP Community Development Director Purpose: The Community Development Director is issuing this Administrative Determination to accept an estimation of pre - development topography for the 217/219 South Third Street property, pursuant to Section 26.575.020 of the City of Aspen Land Use Code. Background and Review: The property contains a steep embankment along the southern portion of the property. A surveyor evaluated the site, determined the existing grade to be man-made as part of the development of the Midland Railway, and prepared an estimation of the pre - development grade for review by the Community Development Director. Prior to making a determination, the Director conferred with the City Engineer as to the evidence of the embankment being man-made and the estimation of prior grade. Determination: In accordance with the procedures, standards and limitations of Title 26, this Administrative Determination acknowledges and accepts the estimated pre - development topography prepared by professional land surveyor John Howarth February 21, 2012. This estimated topography shall be used as the basis for development allowances for this property. Attachments: Aragon email dated February 21, 2012 Howarth letter and survey dated February 21, 2012. Chris Bendon From: Trish Aragon Sent: Tuesday, February 21, 2012 5:01 PM To: Chris Bendon Subject: 219 S. 3rd Chris, I have reviewed the letter and cross sections in the. Howarth survey dated 2/21/12. I agree that the site grade appears to be affected by the railway and is not natural. I also agree with the historic grade outlined in the cross sections. I do want to say that it is hard to really tell unless borings are taken. But in general I do agree with Howarth's interpolation of historic grade. Trish Aragon, P.E. City Engineer 130 S. Galena St. Aspen, CO 81611 (970) 429-2785 • 1 RECEIVED Feb 21, 2012 FEB 21 2012 CITY OF ASPEN Mr. Chris Bendon, Director comma DEVELOPMENT City of Aspen Community Development Department 130 South Galena Street Aspen, CO 81611 Dear Chris, The purpose of this letter is to address the narrow band of steep slope that runs through the Foster property, located at 217 -219 South Third Street in Aspen. My firm has prepared a survey of the Foster property that depicts both improvements and topography. I have evaluated the slope that runs east to west through the property, just to the north of what was previously the Midland Railroad right -of -way. I have examined this slope in the field. During my career as a surveyor I have also examined similar slope conditions on other properties along the Midland Railroad right -of -way as it traverses the City of Aspen. It is my conclusion that this slope is not a natural condition on this property, but rather is a man -made condition that is the result of the installation of the railroad. If you have any questions about my conclusions please do not hesitate to contact me. Sincerely, n Howarth Aspen Survey Engineers • KLEIN, COTE & EDWARDS, LLC 110'f 11• ATTORNEYS AT LAW HERBERT S. KLEIN' hsk @kcelaw.net 201 NORTH MILL STREET, STE. 203 LANCE R. COTE, PC' Irc @kcelaw.net ASPEN, COLORADO 81611 JOSEPH E. EDWARDS, III, PC jee @kcelaw.net TELEPHONE: (970) 925 -8700 KENNETH E. CITRON kcitron @kcelaw.net FACSIMILE: (970) 925 -3977 MADHU B. KRISHNAMURTI mbk @kcelaw.net www.kcelaw.net OF COUNSEL: JOSEPH E. EDWARDS, JR., PC' joe @kcelaw.net also admitted in Hawaii March 6, 2012 ' also admitted in New California or RECEIVED also admitted in New York and Massachusetts 'also admitted in Texas VIA HAND DELIVERY MAR 0 6 2012 Chris Bendon, Director Community Development Department CITY OF ASPEN 130 S. Galena St., 3 Floor COMMUNITY DEVELOPMENT Aspen, CO 81611 Re: Notice of Appeal concerning Administrative Determination Related to Man - Made Slopes; 219 South Third Street, Aspen, CO (the "Property ") Dear Chris: This letter constitutes a Notice of Appeal pursuant to Section 26.316.030 of the Aspen Municipal Code. This office represents Angela and Paul Young, the owners of property known as 413 West Hopkins, Aspen, CO, and Staspen, LLC, the owner of the property known as 431 West Hopkins, Aspen, CO, both of which are within 300 feet of the Property. On February 21, 2012, an Administrative Determination was issued concerning the acceptance of an estimation of pre - development topography for the Property. The purpose of this letter is to appeal that Determination to the City Council pursuant to Code Chapter 26.316. The basis for the appeal is that the Determination was issued based on an abuse of discretion. Please consider the following. The City Council considered arguments concerning the slope of the Property on October 27, 2009. The City Council made it very clear at that hearing that the City would require the property owner to provide "evidence" concerning what is man- made and what is natural slope and "in the absence of that showing, the natural slope is what one sees." Further, the Property owner's representative, Bart Johnson, acknowledged that the owner would be required to provide such "evidence." See highlighted portions of the Minutes of that meeting attached as Exhibit A. As Mayor Ireland stated in the October 27, 2009 hearing, "it is reasonable to assume that if a railroad is being built, one would put it where the natural land forms support it." Moreover, the City Engineer's email of February 21, 2012, states, "it is hard to tell unless borings are taken." See copy of email attached as Exhibit B. This is consistent with what Larry Doble said in 2009 — "Without doing test borings there is no way to tell." See email from Larry Doble attached as Exhibit C. Chris Bendon, Director City of Aspen Community Development Department March 6, 2012 Page 2 The Determination is based on a letter and topographical survey from a local surveyor who says he went to the property and looked at it and that he has looked at other properties along the same rail line. This is nothing more than a superficial investigation - no borings were performed. From his observations he concludes that "this slope is not a natural condition on this property." This is not "evidence" — it is a best guess. He does not say what portion of the slope is natural and what portion is man-made, because he can't do that unless he performs the borings which the City Engineers suggested. There is not even an estimation of the percentage of the slope that is natural and is man-made. The visual analysis is inconclusive regarding the portion of the slope which may be cut and which may be fill or what was "original" grade in this location. Regardless, the current grade has been in place for approximately 130 years, long before we had a land use code, and is integral to and a permanent part of the landscape and infrastructure of the City. Absent some reasonably conclusive evidence showing what portion of this slope is natural and what portion is man-made, especially given that it is reasonable to assume the railroad would be built where natural landforms will support it, it is inappropriate to accept a guess that 100% of the slope is man-made. A reasonable estimation can be made that shows the entire slope is natural. See sketch attached as Exhibit D. In these circumstances, it was an abuse of discretion to render a Determination without sufficient evidence to establish this historical grade of the property. Enclosed are our (1) Land Use Application Form, (2) Agreement to Pay Fees and (3) the fee in the amount $1,260.00. If you require any additional information in order to pursue the Appeal of the Determination, please contact me. It is my understanding that the City has already published Notice of the Appeal hearing date. Sincerely, KLEIN, CO ' & EDWARDS, LLC , ■ ' B ar _ Jose E. Edwar s III cc: Paul and Angela Young John Staton young \Itr to Bendon appeal slope determination doe RECEIVED MA° 0 6 2012 ATTACHMENT 2 —LAND USE APPLICATION CITY OF ASPEN PROJECT: - COMMUNITY DEVELOPMENT Name: Foster Lot Split Location: 219 South Third Street (Indicate street address, lot & block number, legal description where appropriate) Parcel ID # (REQUIRED) APPLICANT: Name: Paul Young and St aspen, LLC Address: c/o Klein, Cote $ Edwards, LLC, 201 North Mill St., #203, Aspen. CO Phone #: 925 -8700 REPRESENTATIVE: Name: Joseph E. Edwards, III Address: 201 N. Mill St. , #203, Aspen, CO Phone #: 925 -8700 TYPE OF APPLICATION: (please check all that apply): ❑ GMQS Exemption ❑ Conceptual PUD ❑ Temporary Use ❑ GMQS Allotment ❑ Final PUD (& PUD Amendment) ❑ Text/Map Amendment ❑ Special Review ❑ Subdivision ❑ Conceptual SPA ❑ ESA — 8040 Greenline, Stream ❑ Subdivision Exemption (includes ❑ Final SPA (& SPA Margin, Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/ Expansion ❑ Residential Design Variance ❑ Lot Line Adjustment ® Other: Appeal ❑ Conditional Use EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) Non - Conforming duplex PROPOSAL: (description of proposed buildings, uses, modifications, etc.) Have you attached the following? FEES DUE: $ ❑ Pre - Application Conference Summary ❑ Attachment #1, Signed Fee Agreement ❑ Response to Attachment #3, Dimensional Requirements Form ❑ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards ❑ 3 -D Model for large project All plans that are larger than 8.5" X 11" must be folded. A disk with an electric copy of all written text (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3 -D model. Your pre - application conference summary will indicate if you must submit a 3 -D model. COMMUNITY DEVELOPMENT DEPARTMENT Li. Agreement to Pay Application Fees An agreement between the City of Aspen ( "City ") and r1n Property Phone No.: 925 -8700 0 _ ) Owner ("I"): Paul Young and Staspen, LLC Email: jee @kce1aw.net T o M cra _ Address of Billing 201 North Mill St. #203 W N o Property: 219 South Third Address: (subject of (send bills here) Aspen, CO 81611 m N rn application) 0 1 understand that the City has adopted, via Ordinance No. , Series of 2011, review fees for Land Use applications and the payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non - refundable. $ flat fee for . $ flat fee for . $ flat fee for . $ flat fee for . For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. I understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review, and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. 1 agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for non - payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render an application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $ 1,260.00 deposit for 4 hours of Community Development Department staff time. Additional time above the deposit amount will be billed at $315 per hour. $ deposit for hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $265 per hour. Appel 1 ant : Paul Young and Staspen, LLC City of Aspen: ° : • / dik 41 l ir Chris Bendon . 4:1 Community Development Director I � e. ... City Use: Ti e: Attorney for Appellant Fees Due: $ Received: $ November, 201 I City of Aspen 1 130 S. Galena St. I (970) 920 -5090 • • Continued Meeting Aspen City Council October 27, 2009 Mayor Ireland called the continued meeting to order at 4:12 p.m. with Councilmembers Romero and Johnson present. • RESOLUTION #89, SERIES OF 2009 — Code Interpretation Appeal — Man-made Landforms Chris Bendon, community development department, told Council this is an appeal of a land use code interpretation made by the community development staff on lot area and man made land forms. Bendon said one of the tasks of the community development director is to interpret the land use code, which is a formal process at the request of an applicant. The interpretation affords the applicant the right to appeal the decision. Bendon noted there is a section in the land use code that outlines the details and the time frames for code interpretations. Bendon explained this is because the code is not always clear; there are differences of opinion. This is a process of determining what the codes says. Bendon noted there are also conversations about what the code should say and there is a separate process for amending the land use code. Bendon reminded Council this appeal is of the record. Bendon said this interpretation deals with how man made landforms affect development rights. Bendon said the city reduces development rights for conditions existing on a property, which comes down to a calculation called lot area. Lot area is reduced for areas under high water, areas within former rights -of -way, and areas that are affected by slopes. This particular appeal is about slopes. Bendon said the definition of lot area mentions slopes, high water lines, rights -of -way. There is not a definition of slope, which is what this appeal comes down to, what is the meaning of slope. Bendon noted this interpretation cites a term that is defined, structure, which describes what can be constructed on one's site and one of those is a berm, which can be constructed on site. Technically a berm is a structure. Bendon said this interpretation allows the planning office to accept an assumed natural grade when there is clear evidence there is an unnatural condition. Bendon said property owners are allowed to go back to what was originally there prior to man having an affect on site. Bendon said this particular appeal is in regard to 219 south Third, which had a lengthy review in front of Council. Bendon pointed out a portion of the property is impacted by a railroad right -of -way with a significant change in topography related to the railroad right -of -way on the south side of the property. Bendon said if the interpretation stands, it will allow the planning department to work with the land owner to come up with a pre - railroad grade which may add up to 500 square feet of additional floor area. Bendon told Council this interpretation could apply to many sites in town. There are two ways to look at this issue; one is the way in which the planning department has traditionally looked at this, to allow property owners to go back to a virgin landscape and assume the slope prior to the affect of man. The other is to look at the condition of the site right now, which includes all the things that have happened to the site. Bendon said property owners could change their landscape and flatten out steep topography in order to increase the development rights. Bendon stated there are several places in the land use code where that activity is specifically prohibited. EXHIBIT I A Continued Meeting Aspen City Council October 27, 2009 The best example is height which is measured to a natural or developed grade, the lower of the two. A property owner cannot mound up their property in order to develop and increase the allowable heights. Bendon said this is an example of not allowing property owners to affect their property in order to increase development rights. Bendon noted there are 3 standards on which Council needs to make their decision; these are contained in the code. The standards are whether there was a denial of due process, the administrative body exceeded its jurisdiction, or the administrative body abused its discretion. Bendon said due process is about the process up to this point issuing this opinion. Bendon reiterated the land use code describes as one of the tasks of the community development director to issue interpretations. Bendon stated whether the administrative body abused its discretion is the heart of this discussion. Bendon noted the community development director needs to use discretion when faced with terms that are not defined, one needs to look to other terms in the code and use judgment in rendering an interpretation. Bendon told Council his interpretation is consistent with how the city has applied the issue of manmade topography in the past and is a technical analysis of the terms in the code, what other terms that can be relied on, the history of the policy and the analysis of the effects of various decisions. There is a resolution to support the decision of staff and one to overturn that decision. If Council overturns the interpretation, they will need to set out policy going forward. John Worcester, city attorney, told Council the appellant has stated there was an abuse of discretion not a violation of due process so Council can focus on that standard. Worcester pointed out a decision of the administrative body that is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority is an abuse of discretion. Worcester said Council must determine whether Bendon's determination was a proper one, whether they agree with it is not relevant. Council should not determine whether the decision was correct but only whether it was an abuse of discretion, a violation of due process or exceeding one's jurisdiction. Jody Edwards stated his is withdrawing the second appeal. Edwards said he will focus on definition of lot area. Edwards said the appellants have no complaints regarding due process or concerning jurisdiction or ethical behavior. The only basis for the appeal is whether the community development director abused his discretion by reading words into the code that are not presently there. Edwards pointed out page 3 of staff's memo and quoted "the question in a code interpretation is what does the code say" not what should the code say. The memorandum points out the appropriate venue for what the code should say are a code amendment through that process. This appeal is only looking at what the code does say. Edwards said practically, the public has to be able to read the code, to read the law, and to know what it means. The public should not have to imagine what words should be added or subtracted to meet the desires of the governing body. Edwards noted people have to be governed by what the law says, not what people believe it should say even if one does not agree. The principle is what the law says; the fundamental rule of statutory interpretation is that if the law is clear as written, then no interpretation is necessary. 2 Continued Meeting Aspen City Council October 27, 2009 Edwards noted Courts must presume that a legislature says in a statute what it means and means in a statute what it says. Edwards noted the definition of "lot area" in the code which states "areas with slopes of greater than 30% shall be excluded ". Edwards said this is a simple statement with no ambiguity. It does not matter whether the slope was created by the formation of the Rocky Mountains, by a mudslide or by a group of men building a railroad. No distinctions are made by the language in the code and making any distinctions is to add language to the code. Edwards said if the lack of language results in hardships, a land owner can appeal to the Board of Adjustment or appeal to Council to amend the code. Edwards stated it is an abuse of discretion for staff to add words to the code that are not there, such as man made or natural. Edwards said in the interpretation, staff expresses concern that a property owner could regrade steep slopes in a benched or terrace fashion and increase the allowable floor area on the site. Edwards pointed out the city's code states anything other than landscaping is defined as development and therefore requires a permit. Any such permit could be granted with a note that it is not granting additional floor area. Edwards said staff and the attorney for the owner at 219 S. Third street state that staff previously interpreted the term slope so as to not include man made slopes. Edwards said this provides a course of conduct, it does not justify the interpretation. Edwards stated the fact that there have been informal, unappealed staff determinations that man made slopes are excluded from the deductions from lot area does not justify further areas in the applications of what is clear and simple language. Edwards pointed out in the memo the community development director notes that other provisions of the code do not allow a property owner to artificially elevate the land to increase heights or to add a vacated right -of -way to lot area in order to increase floor area and the code does not penalize a lot owner by reducing area lot area for dedicated public trails. Each of these assertions is correct and is provided for with existing language in the code. The code specifically states that height is to be measured from natural or finished grade, whichever is lower at any point around the perimeter of the building. The definition of lot area specifically excludes areas that are vacated rights -of -way and specifically includes trails. Edwards said this is different from the present case where language states steep slopes are to be excluded. Edwards noted staff believes that means "natural terrain prior to being affected by development ", which language does not appear in the code. Edwards said the measurement for height, natural or finished, is covered in the code but slopes are not which indicates that slopes, manmade or natural, should be excluded from lot area. Edwards reiterated the issue is what the code says; not what it should say. The code contains a clear statement that slopes in excess of 30% must be excluded from lot area for purposes of calculating floor area with no qualifiers like natural or man made. Mayor Ireland said the suggestion by Edwards is that the people who created the code intended a one -way effect on development, to decrease a property's developability by putting a berm on it but one cannot increase by flattening it. Edwards told Council that is not what he is saying; he asserts that slope is slope. Councilman Romero asked if staff 3 Continued Meeting Aspen City Council October 27, 2009 has had code interpretations relating to slope and calculating lot area. Bendon said not regarding slope. Councilman Romero said in calculating lot areas, staff has treated man made forms as part of the lot on which to calculate floor area. Councilman Romero noted there is an operating precedence but no actual interpretation or appeal. Bart Johnson, representing the owner of 219 South Third subject of the appeal, noted Council asked if there was any evidence of legislative intent. Johnson pointed out staff wrote that Council minutes from hearing on this provision do not reference slope and staff believes that by slope the drafters meant the natural terrain prior to being affected by development. There is in the record a statement of what staff believes what the intent was. Johnson clarified there is one official request for interpretation on this issue, which did not result in an official interpretation from staff. Johnson said this request was made in 2006 by the owner of the property at the southwest corner of Midland Avenue and east Hopkins and is referenced in the record. Johnson provided materials that show the applicant was pemtitted to move forward based on interpolated natural slopes. There is some precedence that that policy goes back years. (Councilman Skadron came into the meeting) Johnson said slope is not defined in the city's land use code. The land use code does have rules of construction, 26.104.080 which states when a word or phrase has acquired a technical or particular meaning whether by ordinance, definition or otherwise, it should be construed accordingly. Johnson said in this case, it is clear through prior interpretation and staff policy, the term slope has acquired a particular meaning — natural slopes prior to man's interference with them. Johnson said the code also provides when one is reading the code, one has to read all provisions as a whole to fulfill legislative intent. Johnson said the logical conclusion of Edwards' argument is that slope is a forever changing thing and what matters is the slope that exists on a site the day of applying for a building permit. Johnson pointed out the city code does not prohibit interference with slopes in the 20 -30% zone. The county code has a provision that one cannot modify slopes; there is nothing in the city code that would present someone walking in with a building permit for earthmoving and flatten out their complete site to maximize their site before applying for a building permit. Johnson said that is not the intent of the city code. Johnson said the community development director needs to be able to read some common sense into the code and Council should follow his interpretation that slope must have meant the natural land forms that existed. Johnson said the argument against that is that in granting a permit for grading, a condition could be attached stating the land can be re- graded but not to the benefit of the property owner. Johnson stated there is no authority in the city's code to place that type of condition on a grading permit. The community development director should be allowed to interpret slope to mean natural landforms and to read the code in a larger context. John Worcester, city attorney, said Councilman Skadron should not participate unless the parties waive that. Johnson stated they would prefer the Councilmembers present for the entire argument participate. 4 Continued Meeting Aspen City Council October 27, 2009 Councilman Romero asked about the reference to general rules of construction. Johnson said that refers to principles used to interpret the code. Councilman Romero asked for an explanation of "acquired a meaning ". Johnson quoted from Section 26.104.080(a) general rules of construction and application, "words and phrases that have acquired a technical or particular meaning, whether by ordinance definition or otherwise, shall be construed and applied accordingly ". Johnson argued that the term slope is not defined in the code and one needs to look outside the code unless there is a clearly defined common meaning that is undisputable. The code's rules of construction also state that words should be given their plain meaning. Johnson said the term slope is questionable about what it means; it can be a technical term, and it is not defined in the city code. Johnson said he read the general rules of construction and then tried to determine how to figure out what slopes means. The community development director is charged with interpreting the city code. Johnson noted that state statute also says the person charged with enforcing the code is given the task of interpreting it. Johnson said he looked into how the community development department has interpreted slope in the past. Johnson said he found that the term slope has been defined for the property at Hopkins and Midland Avenue, that slope means the natural terrain not manmade terrain. Otherwise one would end up with constantly changing landscape and people can regrade their Lots. Mayor Ireland said if the assertion is that slope is natural terrain prior to man's action, the question is when, when does land acquire its natural terrain. Johnson said "when" is when humans starting developing in Aspen's townsite. Johnson said for this particular lot, it can be pinpointed to when the railroad came into Aspen, about 1889. The city's engineer has concluded, based on investigation of the site, that it is a manmade landform. Johnson stated his argument is not that manmade landforms should be excluded but that Chris Hendon, community development department, did not abuse his discretion in reaching his conclusion. Johnson pointed out in order for Council to reverse the interpretation, they have to find there is no evidence to support his conclusion. Mayor Ireland asked how much of the berm is manmade. Johnson said they do not know that. Mayor Ireland said there is nothing in the record to show that all or part of this berm did not exist and it is reasonable to assume that if a railroad is being built, one would put it where the natural land forms support it. Johnson said this case is about how one interprets the land use code and beyond that, the separate issue is how the land code is enforced. Johnson said his client will submit information that provides evidence on what is natural and what is manmade in this berm. Johnson noted the city engineer pointed out it may be necessary to do borings in this area. Mayor Ireland said he believes every body of law requires interpretation because words change in meaning and use over time. Councilman Johnson asked if the community development director has discretion in interpreting the land use code. Worcester said he does have discretion; there is a section of the land use code giving the director the 5 Continued Meeting Aspen City Council October 27, 2009 authority and anyone can ask the director to make a land use code interpretation to help them in their planning. Edwards said it is a stretch to state that the word "slope" has acquired a meaning when there are one or two instances where this has been interpreted to be man made. Edwards said that has not acquired a meaning in the community at large or among the land use community. Edwards said the "when" issue is important because slopes will change both by man made and by natural changes, like avalanches, earth, mud, earthquakes. Edwards asserted it should be the slope as existed at the time the code was adopted, which time makes sense. Edwards said there is the question of what is natural and what is man made. Edwards said the community development director and city engineer went to the site; the engineer said it is probably man made but to know for sure, test borings have to be done. Councilman Johnson noted staffs memo states, the slope has been altered from its original condition; why then are boring samples necessary. Bendon said that will address what the natural slope is, that the berm is constructed, how far down the man made slope is. Councilman Romero said he is not sufficiently swayed by the arguments that the community development director stepped outside his realm of discretion in performing the duties of reasonable interpretation. Councilman Romero said although there is only one decision in the record regarding this issue, there is a historical common application of the code, specifically to grades and the motion of pre - existing "natural" grades and slopes. Councilman Romero said the measurement for heights between pre- existing and reconstruction is in the code, which is reference for the construction industry and has acquired meaning and this indicates the community development director stayed within his realm in rendering his decision, taking in precedence and taking the entire land use code to apply a reasonable result. Councilman Romero said the community development director did not violate his discretion. Councilman Johnson said the community development director has, as one of his duties, the task of interpreting the code and has discretion to do that. Councilman o J hnson said there will always be things in the code that are not clear. Councilman Johnson stated the community development director has not abused his discretion. Mayor Ireland proposed this be modified to incorporate the principle that it is the burden of the applicant to show what the original natural slope was and in the absence of that showing, the natural slope is what one sees. The applicant should have the opportunity through a public process what that man made portion is. Mayor Ireland said he would like this modified that it is the burden of the applicant to reasonably show to what degree the original slope was. Mayor Ireland said that should be a public hearing where evidence can be presented. Worcester said the motion to approve the resolution should be amended in the 4' WHERAS clause "the City Council has taken and considered written and oral argument 6 Continued Meeting Aspen City Council October 27, 2009 from counsel for the appellant, counsel for the owners of the subject property and the community development director and has found that the director provided due process and neither exceeded his jurisdiction or abused his authority in rendering the interpretation ". Councilman Romero moved to adopt Resolution #89, Series of 2009, with the amendment outlined above; seconded by Councilman Johnson. Mayor Ireland said the code needs to be amended in the future to know when the natural grade was so the community knows from when this is dated. All in favor, motion carried. Bendon said staff needs to see reasonable and credible information provided by the applicant to determine what is man made and what is natural. This can be soil borings, site inspection or technical information. That is the burden of the applicant to provide these and to make an argument to staff. Bendon said this can include old surveys, old flyovers, or a report from a geotechnical engineer. Johnson requested clarification that this is to be done in a public hearing process. Johnson said this can be done with staff in the building permit process. Bendon said there is no remaining public process on this property. Mayor Ireland said the Council has been asked to grant variations and exceptions. Bendon noted that process is concluded. Councilman Romero said this is now back to normal course of business within the land use code. Councilman Romero agreed the applicant will submit technical and reasonable evidence to the community development department. This will not come back to Council for a public process. Councilman Romero moved to adjourn at 5:25 p.m.; seconded b Mayor Ireland. All in favor, motion carried. a ✓�� - / L Kathryn' . Koch, City Clerk 7 Chris Bendon From: Trish Aragon Sent: Tuesday, February 21, 2012 5:01 PM To: Chris Bendon Subject: 219 S. 3rd Chris, I have reviewed the letter and cross sections in the, Howarth survey dated 2/21/12. I agree that the site grade appears to be affected by the railway and is not natural. I also agree with the historic grade outlined in the cross sections. I do want to say that it is hard to really tell unless borings are taken. But in general I do agree with Howarth's interpolation of historic grade. Trish Aragon, P.E. City Engineer 130 S. Galena St. Aspen, CO 81611 (970) 429-2785 • 1 EXHIBIT B Larry Doble From: Larry Doble Sent: Wednesday, July 15, 2009 11:43 AM To: Amy Guthrie Subject: RE: 219 s. 3rd st. FAR and 30% Slopes Amy, It appears to be reasonably accurate. Without doing test borings there is no way to tell. Larry From: Amy Guthrie Sent: Wednesday, July 15, 2009 11:39 AM To: Larry Doble Subject: FW: 219 s. 3rd st. FAR and 30% Slopes Hi Larry -will you look at the attached site section and tell me if you think it is accurate (the estimated natural grade part.) thanks From: Bill Maron [mailto:bill @strykerbrown.com] Sent: Wednesday, July 15, 2009 9:39 AM To: Amy Guthrie Cc: suzanne @tfosterjewelers.com Subject: 219 s. 3rd st. FAR and 30% Slopes Amy Sorry this is later than I said, I had a joint P &Z and Town Board work session in basalt to prepare for and was unable to complete this in time. I wanted to double check my math. Bill Maron Stryker Brown Architects 119 South Spring Street . Aspen, CO 81611 P: 970.925.2100 F: 970.925.2258 C: 970.948.5358 W: strykerbrown.com EXHIBIT 1 8 c Mar01 1210:08a Paul Young 970 - 544 -4929 p.4 t - e_ Its N , [ T h 1 e ° a .4 . . it v‘ ..k - 1 1 0 ' S e Z Z.„... 0 • ,,,'"1 • • 4 C) ‘a- - • AM -r o � '� ,, L. r . W e • • g - EXHIBIT D Chapter 26.316 ','►ii1ike co APPEALS T..1i Sections: 26.316.010 Appeals, purpose statement. 26.316.020 Authority. 26.316.030 Appeal procedures. 26.316.010 Appeals, purpose statement. The purpose of this Chapter is to establish the authority of the Board of Adjustment, Growth Management Commission, the Planning and Zoning Commission, and City Council to hear and decide certain appeals and to set forth the procedures for said appeals. (Ord. No. 17 -2002 § 2 (part), 2002) 26.316.020 Authority. A. Board of Adjustment. The Board of Adjustment shall have the authority to hear and decide the following appeals: 1. The denial of a variance pursuant to Chapter 26.314 by the Planning and Zoning Commission or Historic Preservation Commission. B. City Council. The City Council shall have the authority to hear and decide the following appeals: 1. An interpretation to the text of this title or the boundaries of the zone district map by the Community Development Director in accordance with Chapter 26.306: An appeal of this nature shall be a public meeting. 2. Any action by the Historic Preservation Commission in approving, approving with conditions, or disapproving a development application for development in an "H, ", Historic Overlay District pursuant to Chapter 26.415. An appeal of this nature shall be a public meeting. 3. The scoring determination of the Community Development Director pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting. 4. The allocation of Growth Management Allotments by the Planning and Zoning Commission pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting. 5. Any other appeal for which specific authority is not granted to another board or commission as established by this title. An appeal of this nature shall be a public meeting. C. Planning and Zoning Commission. The Planning and Zoning Commission shall have the authority to hear and decide an appeal from an adverse determination by the Community Development Director on an application for exemption pursuant to the growth management quota system in accordance with Section 26.470.060(D). City of Aspen Land Use Code. August, 2007. Part 300, Page 35 D. Administrative Hearing Officer. The Administrative Hearing Officer shall have the authority to hear an appeal from any decision or determination made by an administrative official unless otherwise specifically stated in this title. (Ord. No. 17 -2002 § 2 (part), 2002; Ord. No. 27 -2002 § 23, Ord. No. 12 -2007; 2002) 26.316.030 Appeal procedures. A. Initiation. Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the city office or department rendering the decision or determination within fourteen (14) days of the date of the decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this title to appeal any decision or determination. B. Effect of filing an appeal. The filing of a notice of appeal shall stay any proceedings in furtherance of the action appealed from unless the Community Development Director certifies in writing to the chairperson of the decision - making body authorized to hear the appeal that a stay poses an imminent peril to life or property, in which case the appeal shall not stay further proceedings. The chairperson of the decision making body with authority to hear the appeal may review such certification and grant or deny a stay of the proceedings. C. Timing of appeal. The decision - making body authorized to hear the appeal shall consider the appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is practical under the circumstances. D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by publication to all other affected parties. (See section 26.304.060(E)). E. Standard of review. Unless otherwise specifically stated in this title, the decision - making body authorized to hear the appeal shall decide the appeal based solely upon the record established by the body from which the appeal is taken. A decision or determination shall be not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. F. Action by the decision making body hearing the appeal. The decision - making body hearing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, if the decision is modified, shall be deemed to have all the powers of the officer, board or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision - making body may also elect to remand an appeal to the body that originally heard the matter for further proceedings consistent with that body's jurisdiction and directions given, if any, by the body hearing the appeal. The decision shall be approved by written resolution. All appeals shall be public meetings. (Ord. No. 55 -2000, §§ 4, 5; Ord. No. 27 -2002 § 24, Ord. No. 12 -2007, 2002) • City of Aspen Land Use Code. August, 2007 Part 300, Page 36 AFFIDAVIT OF PUBLIC NOTICE II = "it{ E 1 REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE _ ADDRESS OF PROPERT : zil c t I9 atAtrrWl , Aspen, CO SCHEDULED PUBLIC HEARING DATE: t1cvvcA" `Z , 20 STATE OF COLORADO ) ) ss. County of Pitkin ) I rAlieks tpct.\ (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 ( of the Aspen Land Use Code in the following manner: of V Mailing of notice. By the mailing of a notice obtained from the Community Development.Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public meeting, notice was mailed by first class postage prepaid U.S. mail to the appellants. The names and addresses of property owners are those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attac I d hereto. Signature The foregoing "Affidavit of Notice" was acknowledged before me this QL)da of F� br�1a;-�� ,20g by C.l1�2i5 r �F4i ,,i . WITNESS MY HAND AND OFFICIAL SEAL ' My commission expires: 0411 / �,b 1 S 1 1 1 9i- OF CO,o ,P � !kit) t' Public Paul and Angela: Community Development recently issued a determination . regarding the pre - development grade of Suzanne Foster's property. I sent Jody Edwards the staff memo. I don't know if you will choose to appeal this decision. If you do appeal it, the meeting to discuss the appeal has been scheduled for the March 12, 2012, City Council meeting. If you decide not to appeal the decision, the issue will be deleted from the agenda. Please contact me if you have any questions. Thanks. Chris Bendon — 429 -2765. PUBLIC NOTICE RE: APPEAL OF PRE - DEVELOPMENT SITE GRADE DETERMINATION FOR 217/219 SOUTH THIRD STREET NOTICE IS HEREBY GIVEN that a public meeting will be held on Monday, March 12, 2012, to begin at 5:00 p.m. before the Aspen City Council, Council Chambers, City Hall, 130 S. Galena St., Aspen, to consider an appeal of a determination of natural site grade by the Community Development Director for the property 217/219 South Third Street. The determination was made on February 21, 2012, concluded the existing grade of the property to be man-made, and accepted an estimation of pre - development topography prepared by a professional land surveyor. The property is owned by YLP West, LLC.; 7 South Main Street; Yardley, PA 19067; represented by Suzanne Foster of the same address. The subject property is legally described as Lots 0, P, Q, R, and S, Block 39, City and Townsite of Aspen, excepting therefrom that portion of Lots 0, 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. For further information, contact Chris Bendon at the City of Aspen Community Development Department, 130 S. Galena St., Aspen, CO 970.429.2765, (or by email chris.bendon @ci.aspen.co.us). s/Michael C. Ireland, Mayor Aspen City Council 1 4V wi V1# Aa , to tbIbt j og - ) afri VLS Atilt WI tOadk, St S g firlfs"- to trio tit • • �os n o .i 'n P E4 f � y p z z ; z al C.n OW"' c� 3 - , i , , ..z E s ,, q, f 3 ..1.3 a ii. , i A RFt • ' A41ti_N. Std D O N UNI j O N UNIT o S> F .r. T A - rt. 9 m • a, >, N N -713 A ' ■ N 4) N t !h Y G] ® 1 ON m 0 N T m 2 2 • 9 ® gi - 7 N 0W � iil L m + N O m -' N 0 CO • AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: trO4C1 Co 3 Cf. . atireet \ , Aspen, CO SCHEDULED PUBLIC HEARING DATE: P' [4'1r-it` 12 , 2012 STATE OF COLORADO ) ) ss. County of ) I, Gy L R ? (name, please print) being or representin an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: 1/ Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Signature The foregoing "Affidavit of Notice" was acknowledged before me this day of T,yhfury L3 - by , 20 - by iyt1F��S Y1�E ( /J\ WITNESS MY HAND AND OFFICIAL SEAL My commission expires: 4.I 1(p tQd91A ate Notary Public ATTACHMENTS AS APPLICABLE: COPY OF THE PUBLICATION r 111 --- flU Li s_�a g 3' �9g� ag ritt? rn to E5 c :s ` L. 4 o- o N n �Bm tvi Jd t g¢ N 1g . 2Reg ',M1 1 S C N� ' Rt20pt 1. w a t f b (5 _ U _ F U J U a re b y jO lu t 6 'p �'n q. U o- 3RE F w� ��}$¢5 ¢�� 0 5Qpgpg$ � Vy lit lot >it MIA CIMI # fl _. x 0"f y co to t C � F � ' S N G] r . R - o s . 8 4 $' x' r te — E 3 led "to �. P Fd - � . _ $ pCC 4 4s r rwitn' al cc to C° O O �E N a) ❑o N e u C b o4 ao:oG �x"'E 0 C roG O 2 .5+.� d"i 7 .d v . v o a .a = 1-' a) T co a: C - co N L C " Y� F 0 °' a< o E'= °'y E mH > C m� c 3 0 c 5 m n t ' ¢ o 8 V li q '.E U Co ° o o m E ma a) O 4 A 8 d d m° o r E o a cc a j h �C° ttl 4p -, = v as. 3 to m.0 `v, 'S i a 3' m O ap. O a O L C .. ). C 1e N • u) h C d U b L. 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N d O .co �, ® � � .�' F E CLw �. L' >w4 w`Zi, 4 m ° E a O m m O E: A �. O V O O. C ea 1 ac c�7 c� y . O a) m y A� p O C O a�v . Eb N W ro # : LL w —y �`oF 85 )t= V oq u-6-7; A °'S a C d 3 z 3 ' 8 o1 - • ' �.. y� E. I-1' 4G 0) >-• 9 fi s OOO 1a Y #+d d` b g C15 > w O C M `"' ^ - 5 1 . • 5 y O • E O r. 'O p � 0 y U O G7 0 > "s a 18 0 u) Chris Bendon From: Jody Edwards [jee@kcelaw.net] Sent: Wednesday, March 07, 2012 10:09 AM To: Chris Bendon Subject: RE: 219 slope appeal Yes, thank you — I confirm you gave me notice. Thanks, Jody Joseph E. Edwards, III Klein, Cote & Edwards, LLC 201 North Mill Street, Ste. 203 Aspen, CO 81611 Tele: (970) 925 -8700 Fax: (970) 925 -3977 iee(a,kcelaw.net www.kcelaw.net From: Chris Bendon [mailto:Chris.Bendon @ci.aspen.co.us] Sent: Wednesday, March 07, 2012 9:12 AM To: Jody Edwards Subject: 219 slope appeal Jody: I'm scheduling your appeal hearing for this coming Monday night, the 12 Please confirm your receipt of notice. Thanks. Cheers, Chris Bendon, AICP Community Development Director City of Aspen 970 - 429 -2765 www.aspenpitkin.com/ Email secured by Check Point I tib MEMORANDUM TO: Mayor and City Council FROM: Kathryn Koch, City Clerk DATE: March 1, 2012 RE: Referendum Petition — Ordinance #30, 2011 — Rezoning to Public the Castle Creek Energy Center As reported to Council in February, the referendum petition to repeal Ordinance #30, Series of 2011, was found to contain more than the required 594 signatures of city registered electors. No protest was filed by the statutory deadline, February 27 therefore the petition is determined sufficient by the city clerk. Section 5.6 of the City Charter sets out Council action: Section 5.6. Action on petitions. (a) Action by council. When an initiative or referendum petition has been finally determined sufficient, the council shall promptly ... reconsider the referred ordinance by voting its repeal; ... and provided further, that repeal of any referred ordinance may be effected only by a three - fourths majority vote of the entire council. (b) Submission to voters. The vote of the City on a proposed or referred ordinance shall be held not less than thirty (30) days and not later than ninety (90) days from the date of the final council vote thereon. If no regular city election is to be held within the period prescribed in this subsection, the council shall provide for a special election; otherwise, the vote shall be held at the same time as such regular election, except that the council may in its discretion provide for a special election at an earlier date within the prescribed period. Copies of the proposed or referred ordinance shall be made available to the public within a reasonable time before the election and also at the polls at the time of the election. Attached are three resolutions for Council consideration. (1) Resolution #I3, 2012, which reconsiders and repeals Ordinance #30, 2011; no further action would be required. (2) Resolution #14, 2012, calling for and setting a special election with the date to be determined May 15 or May 22, 2012. Section 5.6(b) of the Charter of the City of Aspen states the vote "shall be held not less than thirty (30) days and not later than ninety (90) days from the date of the final council vote ". Section 2.2 of the Charter of the City of Aspen states, "Any special municipal election may be called by resolution or ordinance of the council at least sixty (60) days in advance of such election. The resolution or ordinance calling a special municipal election shall set forth the purpose or purposes of such election." C.R.S. 31 -10 -108 Special Elections. Special elections shall be held on any Tuesday designated by ordinance or resolution of the governing body. No special election shall be called within thirty days before the date thereof, nor shall any special election be held within the thirty -two days before or after the date of a primary, general or congressional vacancy election. A special election may be held at the same time and place as a primary, congressional vacancy, or general election as a coordinated election ". The date for the proposed Pitkin County primary election is June 26, 2012. The county will not know whether a primary is necessary until April 27, 2012. These various statues narrow the possible dates for a municipal special election to May 15 or 22, 2012. (3) Resolution #15, 2012, Setting forth the ballot question for the municipal special election. The question reads REFERENDUM — APPROVAL CASTLE CREEK ENERGY CENTER AND HYDROPOWER PLANT ZONING Shall Ordinance #30, 2011, be approved? Ordinance #30, 2011, which grants final land use approvals, including rezoning to Public Zone District, to the property commonly known as the Castle Creek Energy Center and Hydroelectric Plant is approved? The question is stated in the affirmative to meet the requirements of C.R.S. 31 -11- 105(4), which states "If, upon reconsideration, the ordinance or part thereof protested is not repealed, the legislative body shall submit the measure to a vote of the registered electors at a regular or special election ... The ordinance or part thereof shall not take effect unless a majority of the registered electors voting on the measure at the election vote in favor of the measure. RESOLUTON #13 (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, RECONSIDERING AND REPEALING ORDINANCE #30, SERIES OF 2011, THE CASTLE CREEK ENERGY CENTER AND HYDROPOWER PLANT WHEREAS, a referendum petition seeking the repeal Section 3 of Ordinance #30, Series of 2011, rezoning the affected parcel, has been deemed sufficient by the City Clerk; and WHEREAS, no protest was filed within the statutory period as set forth in C.R.S. 31 -11- 110; and WHEREAS, after due deliberation, the City Council has determined that it is in the best interest of the City to reconsider adoption of said Ordinance #30, Series of 2011,; and WHEREAS, upon reconsidering Ordinance #30, Series of 2011, the City Council has determined that it should repeal Section 3 of Ordinance #30, Series of 2011, granting rezoning to the affected parcel; and WHEREAS, the approval of the final land use approvals and the granting of a development order for the Castle Creek Energy Center and Hydropower plant is dependent and conditional upon rezoning of the affected parcel, it is the City Council's determination that Ordinance #30, 2011, should be repealed in its entirety and all approvals granted in said ordinance shall become null and void. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO; Section 1 Pursuant to Section 5.6 of the Charter of the City of Aspen, Ordinance #30, Series of 2011, is hereby repealed. Dated: March 12, 2012 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 at a meeting held March 12, 2011 by a vote of to Kathryn S. Koch, City Clerk RESOLUTION #14 (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, CALLING FOR AND ESTABLISHING A DATE FOR A SPECIAL MUNICIPAL ELECTION TO BE CONDUCTED ON MAY XXX, 2012 WHEREAS, section 2.2 of the Home Rule Charter of the City of Aspen provides that any special municipal election may be called by resolution or ordinance of the City Council at least sixty (60) days in advance of such election, and WHEREAS, the City Council desires to place before the Aspen electorate certain ballot question relating to the referendum petition that Ordinance #30, 2011, regarding the Castle Creek Energy Center and hydropower plant not take effect, and WHEREAS, the City Council may add such additional questions to the ballot as it may hereafter deem appropriate. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 A special municipal election shall be and is hereby called and established for Tuesday, May XXX, 2012, for the purpose of submitting to the electorate a question approving Ordinance #30, 2011, regarding adoption of the Castle Creek Energy Center and hydropower plant and any other questions to be determined by the City Council at a future date. Section 2. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 12` day of March, 2012. 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 March 12, 2012. Kathryn S. Koch, City Clerk RESOLUTION #15 (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, SUBMITTING TO THE ELECTORATE OF THE CITY OF ASPEN A CERTAIN QUESTION RELATING TO THE APPROVAL OF ORDINANCE #30, SERIES OF 2011, THE CASTLE CREEK ENERGY CENTER AND HYDROPOWER PLANT WHEREAS, a referendum petition seeking the repeal Section 3 of Ordinance #30, Series of 2011, rezoning the affected parcel, has been deemed sufficient by the City Clerk; and WHEREAS, no protest was filed within the statutory period as set forth in C.R.S. 31 -11- 110; and WHEREAS, the City Council pursuant to Section 5.6 of the City Charter did reconsider the adoption of Ordinance #30, 2011; and WHEREAS, after due deliberation, the City Council has determined that it is in the best interest of the City to submit the proposed referred Ordinance #30, Series of 2011, to the voters; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO; Section 1 The following question, which seeks approval of Ordinance #30, 2011, shall be placed on the ballot at the city's special election to be held on May XX, 2012. • REFERENDUM — APPROVAL CASTLE CREEK ENERGY CENTER AND HYDROPOWER PLANT ZONING Shall Ordinance #30, 2011, be approved? Ordinance #30, 2011, which grants final land use approvals, including rezoning to Public Zone District, to the property commonly known as the Castle Creek Energy Center and Hydroelectric Plant be approved? Yes No Dated: March 12, 2012 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 at a meeting held March 12, 2012. Kathryn S. Koch, City Clerk EXECUTIVE SESSION to Date March 12, 2012 Call to order at: I6 fm. I. Co cilmembers present: Councilmembers not present: ick Ireland ❑ Mick Ireland eve Skadron n Steve Skadron am Frisch n Adam Frisch orre n Torre Derek Johnson ❑ Derek Johnson II. Motion to go into executive session by ; seconded by\14MAte_____ Other persons present: AGAINST: FO Loi k Ireland ❑ Mick Ireland Vyv Skadron n Steve Skadron me Frisch ❑ Adam Frisch orre n Torre Derek Johnson n Derek Johnson III. MOTION TO CONVENE EXECUTIVE SESSION FOR THE PURPOSE OF DISCUSSION OF: C.R.S. 24-6-402(4) (a) The purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest (b onferences wi ,an a orney for the local public body for the purposes of receiving legal advice on specific legal questions. (c) Matters required to be kept confidential by federal or state law or rules and regulations. (d) Specialized details of security arrangements or investigations, including defenses against terrorism, both domestic and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law; (e) Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators; (0(I) Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if the personnel matter involves more than one employee, all of the employees have requested an open meeting. IV. ATTESTATION: The undersigned attorney, representing the Council and being present at the executive session, attests that the subject of the unrecorded portions of the session constituted confidential attorney-clie communication: � _., e::-.-, The undersigned chair of the executive session attests that the disc ssions in this executive session were li ited to the topic(s)described in Section III, above. Adjourned at: l• as m