HomeMy WebLinkAboutLand Use Case.216 Monarch St.A052-01
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MEMORANDUM
TO: Aspen Planning and Zoning Commission
THRU: Julie Ann Woods, Community Development Director
Joyce Ohlson, Deputy Director ~
FROM: Steve Clay, Planner ~~
RE: 216 S. Monarch; Rustique Bistro Special Review, Public Hearing
DATE: June 26, 2001
ApPLICANT: Rustique LLC
LOCATION: Lots A, B, C, Block 81,
City and Town Site, Aspen,
Colorado, Katie Reid
Building, 301 East Hopkins
Ave
PARCELID: 2737-073-82005
ADDRESS: 216 S. Monarch
ZONING: Commercial Core (CC) Zone
District.
CURRENT
LAND USE: Restaurant with outdoors seating.
PROPOSED
LAND USE: Restaurant with outdoor
seating.
~REA OF PROPOSED SEATINGI
SUMMARY:
The purpose of this Special Review is to
allow for the continued use of required open
space for outdoor restaurant seating
associated with the Rustique Bistro. The
restaurant was allowed outdoor seating of 16
seats and now requests to expand the seating
to 32 seats. The area of use has changed from
along Monarch Street and Katie Reid Courtyard to
courtyard. The square footage has not changed.
/
a location totally within the
The Special Review approval on July 5, 1994 was to utilize four two-person tables in two
different locations that would seat 16 people. The applicant would like to consolidate all the
tables and chairs in the patio area behind the Katie Reid House, by Mesa Bank. This
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arrangement would allow all the tables to be grouped in one area allowing the restaurant to
use a total of 8 tables that will seat 4 people each to accommodate a total of 32 people. With
the new proposal no new seating will occur along the Monarch Street sidewalk.
REVIEW PROCEDURE:
A. General. An application for review of a special review shall be processed in
accordance with the Common Development Review Procedures set forth at
Chapter 26.304. of the Aspen Land Use Regulations.
B. Steps Required: One - Public hearing before Planning and Zoning
Commission
C. Notice Requirements: None.
The Planning and Zoning Commission shall by resolution approve, approve with
conditions, or disapprove a development application for Special Review, after
recommendation by the Community Development Department.
REVIEW STANDARDS FOR SPECIAL REVIEW:
No development subject to special review shall be permitted unless the Planning and Zoning
Commission makes a determination that the proposed development complies with all
standards and requirements set forth below:
A. Dimensional requirements. Whenever the dimensional requirements of a proposed
development are subject to special review, the development application shall only
be approved if the following conditions are met.
I) The mass, height, density, configuration, amount of open space, landscaping
and setbacks of the proposed development are designed in a manner which is
compatible with or enhances the character of surrounding land uses and is
consistent with the purposes of the underlying zone district.
The applicant demonstrates that the proposed development will not have adverse
impacts on surrounding uses or will mitigate those impacts including, but not
limited to, the effects of shading, excess traffic, availability of parking in the
neighborhood, or blocking of a designated view plane.
Staff Finding: The proposal will not have adverse impacts on the
surrounding uses and no mitigation will be required. The Monarch
sidewalk area will now be open to pedestrians, yet the "vitality" of the
outside dining will be visible.
B. Replacement of non-conforming structures. Whenever a structure, or portion
thereof, which does not conform to the dimensional requirements of the zone
district in which the property is located is proposed to be replaced after
demolition, the following criteria shall be met: The proposed development shall
comply with the conditions of Section 26.430.040(A) above; and, there exist
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special characteristics unique to the property which differentiate the property from
other properties located in the same zone district; and, no dimensional variations
are increased and the replacement structure represents the minimum variance that
will make possible the reasonable use of the property; and, literal enforcement of
the dimensional provisions of the zone district would cause unnecessary hardship
upon the owner by prohibiting reasonable use of the property.
Staff Finding: The will be no replacement of non-conforming structures
therefore this requirement is not applicable.
C. Reduction of open space requirement in the Commercial Core (CC) zone district.
Whenever a special review is conducted to determine whether a reduction of the
open space requirement in the Commercial Core (CC) zone district is to be
granted, it shall be reviewed in accordance with the standards set forth at Section
26.575.030(B).
Staff Finding: There will be no reduction of open space from what was
granted approval in 1994.
D. Increase of Floor Area. Whenever a special review is conducted to determine an
increase in the external Floor Area Ratio, as provided in specified zone districts,
the development application is subject to the following criteria:
I) A minimum of sixty (60) percent of the additional t100r area shall be
affordable housing, with no more than forty (40) percent of the additional
t100r area intended for other uses.
2) The development complies with the dimensional requirements criteria of
Section 26.430.040(A) above.
3) For Historic Landmark Structures the affordable housing portion of the
additional floor area may be provided either off-site or via a cash-in-lieu
payment, if the following criteria are met:
a. In order to ensure the addition is compatible with the Historic
Landmark in terms of design, scale, site plan, massing, or volume, on-
site affordable housing mitigation is undesirable.
b. Any off site affordable housing mitigation is provided at a level
meeting or exceeding the provisions of Section 26.470.070(D)(5).
c. The amount of non-affordable housing floor area does not exceed forty
(40) percent ofthe additional Floor Area Ratio allowed by Special
Review.
Staff Finding: This requirement is not applicable
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E. Off-street parking requirements. Whenever a special review is conducted to
determine a change in the off-street parking requirements, it shall be
considered in accordance with the standards set forth at Chapter 26.515.
Staff Finding: There will be no change in the off-street parking
requirements.
F. Utility/trash service area. Whenever a special review is conducted to
determine a change in any utility/trash service area requirements, it shall be
considered in accordance with the standards set forth at Section 26.575.060.
Staff Finding: There will be no anticipated change in any
utility/trash service area.
G. Subdivision design standards. Whenever a special review is for development,
which does not meet the subdivision design standards of Section 26.480.050,
the development shall be approved only if the conditions set forth at Section
26.480.050 have been met.
Staff Finding: This standard is not applicable
H. Accessory Dwelling Unit Design Standards. Whenever a special review is
conducted to determine a change in the design standards required for
Accessory Dwelling Units, it shall be considered in accordance with the
standards set forth at Section 26.520.080(D).
Staff Finding: No Accessory Dwelling Units are proposed therefore
this requirement is not applicable.
STAFF COMMENTS:
The Katie Reid parcel provides approximately 2,300 sq. of open space, meeting the
minimum 25% open space requirement for the CC Zone District
The current outside seating allowance calls for eight tables, but only provides for two
seats at each table. Rustique indicates that requests for tables of two are not as common
as request for tables of four; the need for tables of four seems appropriate.
The Liquor Licensing Board requires fencing and gates. The existing gates will be re-
used and are currently painted to match the rest of the building elements. Staff has
spoken with the Liquor Licensing Board representative regarding the change in seating
and was informed that Rustiqe Bistro's current liquor license would not be affected and a
new license will not be required.
The tables are to be thirty square inches, made of maple hardwood, waterproofed and
sealed, stained to match the structure of the building, which is a rustic brick red. The
chairs will be cast iron, with a rustic copper color and will be stored inside the restaurant
at night. Standard outdoor propane heaters, commonly seen throughout Aspen, will be
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used to accommodate guests during cooler days.
heating is aesthetically appropriate for the site.
The outdoor furniture and appurtenant
Staff has received a diagram from the Fire Marshal that indicates the appropriate and
proposed seating arrangement regarding safe evacuation if necessary. The applicant will
be using the proposed fire marshal seating arrangement per the submitted the plan.
Staff concludes that the proposed new seating arrangement and increase in seats per tables
complies with all standards and requirements set forth above.
STAFF RECOMMENDATION:
Staff recommends approval to amend the original Special Review approval in July 5, 1994
regarding the outdoor seating arrangement and allowance at 216 South Monarch as proposed,
finding that the outdoor dining in this location will not inhibit pedestrian movement or
emergency access and the use is compatible and consistent with the summer activities found
in downtown Aspen.
Staff recommends approval with the following conditions:
I) The use of open space is for outdoors dining seating up to eight 32 people.
2) This approval may run with the restaurant until such time that the patio use is
expanded which shall require an amendment to this approval of the property
owners terminate the use of this area for outdoor dining purposes.
3) The fencing, gates, and access ways shall be in accordance with any
applicable Environmental Health, Building Department, Fire Department or
Liquor Licensing requirements.
4) All representations made in the application or by the applicant at the Planning
and Zoning Commission meeting shall be adhered to.
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RecommenlIed Motion:
"I move to approve Resolution No.i!l Series of2001, allowing the outdoor dining seating
of 32 people in the Katie Reid courtyard required open space, finding that the review
standards have been met."
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CIJ'JMU,,:TY O:'/ELOPMEm
April 16, 2001
City of Aspen
Planning and Zoning
Re: Request for Amendment to outdoor seating disposition and allowance at 216 South Monarch
To Whom It May Concern:
The purpose of this letter is to ask for an amendment to the outdoor seating allocated to spaces
A, B, and C, located at 216 South Monarch, the Katie Reid Building, currently occupied by Rustique
Bistro. fultified in 1994, the current allowance provides for 8 tables, to be divided between the
frontage on South Monarch Street, and in the patio behind the Victorian House. In the past, four
tables of two were situated on Monarch Street, which necessitated the presence of a cast iron gate
that infringed upon the sidewalk and public right of wa)', as well as four more tables of two isolated
in the patio area, which is private land.
We are requesting an amendment to the disposition of these tables for the following reasons:
1. We would like to consolidate all the tables and chairs in the patio area behind the Katie Reid
House, currently occupied by Mesa Bank. This would give us eight tables grouped in one
area, accessible from the bar area of Rustique. We feel that the benefits are as follows:
. Benefits to the building and to the City of Aspen:
. By creating a more vibrant outdoor life in what is otherwise a little traveled, uninhabited
and often sterile area in the downtown core, we would be bringing a dynamic "cafe
experience" to the edge of town during the Summer months.
. Many locals and tourists park their cars on this side of town in the evening, and a
bustling patio serving reasonably-priced food and beverages is an attractive welcome to
them as they walk into the down town core.
. The fence on the South Monarch side of the building is the only "Mall Lease"
arrangement with the city that is not on one of the malls. It is our opinion that the sidewalk
is not the best place for an outdoor cafe, as the view is primarily of parked cars, and not
actually of Bass Park. In addition, glare from headlights and automobile exhaust is often an
annoyance to diners in this area.
. Benefits to patrons and staff:
. Research shows that people like to congregate in popular areas for their recreation. A
bustling little "cafe scene" where everyone is grouped together will be more successful than
one where people are separated from one another on two sides of the building.
. In the current situation, all table service needs to come through the front door as guests
216 SOUTH MONARCH' ASPEN CO. 81611
PHONE: 970-920-2555 . FAX: 970-925-6634
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April 16, 2001
are entering or leaving. This creates congestion and possible collision of wait staff with
patrons, and is a traffic problem. Given the popularity of Rustique with local Aspenites, we
would like to eliminate this potential disaster by placing all the outdoor dining in an area to
be serviced through a new door from the bar and kitchen, away from the entrance to the
restaurant.
. The current situation takes twice as many employees to service, and is inefficient. This
hampers the experience for both guests and staff members. By concentrating all the dining
on the pacio, we can effectively direct guests to one area, as well as create a more pleasant
and cohesive work environment for our staff.
2. The current seating allowance calls for eight tables, but only provides for two seats at each table.
We are asking that the seating allowance be increased to four seats per table, for the following
reasons:
. Rustique is a family restaurant, and tables of two are a rarity for us. We are much more
likely to need tables of four.
. As mentioned above, people tend to gravitate toward busy areas. A dynamic patio with
eight larger tables creates an atmosphere of conviviality, and will bring more people to the
edge of the downtown core, thereby diversifying the cornrnunity.
. The comer of East Hopkins and South Monarch has historically been a "fringe block"
of the downtown core, with little pedestrian traffic. Since the advent of Renaissance in
1990, we have worked hard against the detriments of our location to increase traffic by word
of mouth. The presence of La Cocina, Cache Cache, Campo de Fiori, Jimmy's, and now
Elevation are assisting in establishing our block as "Restaurant Row". We believe the
expansion of patio dining on private land is an enhancement to the block and .fo dining
options for the public during the summer months.
. Precedent: Both Cache Cache and Campo di Fiori have considerably more than sixteen
seats for their outdoor dining. They, too, are situated on private land, and in our opinion,
this outdoor seating contributes significantly to the desirability of their businesses in the
summer months.
3. Description of elements:
. Gates are required by the liquor licensing authorities. We propose to re-use the e.,osting
gates, which have already been approved and which are painted to match the rest of the
elements of the building.
. Tables: to be thirty-inch squares, made of maple hardwood, waterproofed and sealed,
stained a rustic brick red to match the structure of the building.
. Cruurs: Cast iron, stacking, rustic copper color. Will be stored inside the restaurant at
night.
. Heaters: Standard outdoor propane standing heaters, as are seen everywhere in Aspen.
. Umbrellas: if installed, umbrellas will be of a pleasing character, and well maintained.
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April 16,2001
We feel tlut our proposed modifications to the seating allowance and disposition at 216 South
Monarch ,vill be of benefit to the Aspen community as a whole, and we ask for your consideration in
allowing us to pursue our vision for a vibtallt, exciting, well-planned and attractive patio area on the
North side of the Katie Reid Building.
Sincerely,
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Charles Dale
Chef and Owner
Rob Ittner
General 1'vfanager and Partner
Attachments:
Diagram of existing conditions.
Diagram of proposed modifications.
06/21/2001 14 45 9709256634
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PAGE 01
RUSTIQUE
<:lJistro
m Ai UNY 01 1000
Renaissance Restaurant & Rustique Bistro
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304 East Hopkins Ave.
Phone: 970.925-2402
Fax: 970-925-6634
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Fax Cover Sheet
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06/21/2001 14 45
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9709256634
RENAISSANCE
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June 12,2001
Amy Guthrie
Planning and Zoning Dept.
Aspen City Hall
Dear Amy,
This letter should serve as an addendum to our request for additional outdoor
seating and modification of location for Rusti9ue, at 216 South Monarch St. I
have attached the landlord's authorization to J proceed in the form of a signed
diagram of the proposed seating.!
PAGE 02
In addition, when we removed the seats from the Monarch St. side, we felt that
the space looked bare, and was not easily identifiable as a rest1lUr:mt.
Consequently, we ask permission to keep the small round tables and chain; in
front of the restaurant, with our guarantee that they will be used only as a place
for patrons to wait to be seated in the restauJ:.ant. These tables will not be used
for dinner or cocktail service, but they do add to the feeling of a country French
bistro as a purely decotative element. You will note that we have removed the
iron railing<; on this side as a further guatimtee that no cocktails will be served in
front of Rustique. . ; J ~ffi .
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Many thanks to you and to the board for considering our request.
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Charles Dale
Chef Owner
Renaissance and Rustique
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RUSTTQUI:! BISTRO
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April 16, 2001
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City of .A.pen
Planning and Zoning
Re: Request for AmcndmenllO outdoor seating disposition ond allowance.t 216 South Mo""",d\
To Whom II Moy Concern:
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'lh. pllIpose of this letter is to ask for an am<:ndmcnt to the outdoor scating allocaled 10 spaces
A, B, and C. located at 216 South Monarch, The Katie Reid Building. currently occupied by Rustique
Bistro. Ratitied in 1994, thc currenl allowancc provides for 8 tables, to be divided bet\Veeii the
frontage on South Mocarch Street, and in the patio behind the Victorian HouSe. In the pas~: four
tables of two were situaled on Monarch Street, which necessitated the presence of a cast irori:' gate
i:hat infringed upoo the sidewalk and public tight of WIlY, as well as four more tables of twO is~lated
in rhe patio area, which is private land. '
,
We are requesting an ,unendment to the dispo.itiotl of these tables for the following reas~:
1. We would like to consolidate all the 1l1blcs and cllilis in the patio arc. behind the Katie'Reid
House, cum:ndy occupied by Mesa Bacl<. 'l.'his would give us eight tables grouped;1i one
area, accessible from the bar are. of Rustiquc. We reet that the benefit.< = as follows: I
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. Benefit>; to rhe building and to the City of Aspen:"
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. By c.rcating a more vibrant outdoor life in what is orherwi.. . little traveled, uninhilbited
and often sterile lU:ea io tllC downtown COte, we would be bringing a dynamic "cafe
experiencc" to the edge of rown during the Summer months.
. :Many locals and tourists park their Clll:s on this side of 10wn in the evening, and a
bustling patio serving rcaoonably-priced food and bever.ge. is an ._ctive wcle~ to
them lIS they walk into thc downtown core.
. 'rhc fence on the South Monarch side of rhe building is the ollly "Mall lase"
arrangement with thc city that is liot on one of the molls. It is our opinion that dIe sidewalk
i. n()t the best place fo. an outdoor cafe, as the view is primarily of parked cars, and not
aetually of Bass Park, In addition, glare from headlightll and automobile exhaust is orren on
~noy;mcc to diners ill this :m::3.
. Benefits [0 patrons and staff;
. Research sbows that people like to c01!b"'egate in popular arc... for their recreation. ^
bustling little "cafe scene" where everyone is grouped together will be more successf",l than
one where people are separated from one another on two sjdes of the building. ~
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. In the current situation, all bble service needs to come through the front door as gues1><
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April 16, ~OOl
are entering or leaving. This creates congestion and possible collision of wait staff~th
patrons, and is a tl'affic problcJn. Given the populoticy of Rustique with local Aspenite!., we
would like to eliminate this potcnti,d. disaster by placing all the outdoor dining in an = to
be serviced through a 1'= door from the bar and kitchen, away from the entrance tQ the
.rest::.lura11t.
. The current ,ituation takes twice as many employees to service, and is inefficient. 'This
hamp<:rs the experience for both guests and slllff membcts. By concentl'ating aU the dining
on the patio, we can effcctively direct guests to one area, as well as create a more pleasant
and cOhesive work environment for our st.1ff,
2. 'Ibe cw:renl seating allowance calls for eight IlIbles, but only provides for two scats at eacb table.
We arc asking that the sOllting alluwance be increased to four seats per table, for the fot' l'.o"g i.'
re:a.'<<>Ds: 7,
. Ru.tique is a fa11iily restaUfllnt, and tables of two are a tlItity for u.. We arc much inoIc I,
likely to need bibles of four. " i
. As mcntionccl above, p"ople tend to gravitatc tow=! busy arcail. A dynamic patio;with
eight larger tables creates an al:lllOOphere of conviviality, and will bring more people tb the
edge of the downtown cote, thereby diver.;ifyinp; the community. ,
. '1'hc corner of East Hopkins and South Monarch has historically been a "ftinge block"
of the downtown core, with little pedesttUn lr.\ffic. Since the advent of Rcnaissaap: in
1990, we h,lY<: worked hard against the de'trimcnt>; of our location to increase 1r.affic by 1-vord
of mouth. The presence nf La Cocin.-., Cache Cache, Campo de I'iori, Jimmy's, and' now
Elevation are :ossisting in establishing our block as "Rcs",w:ant RoW'. We bclie~i: the
expansion of patio dicing on private land is an enhancement to the block and 10 dicing
options for the public during the summer months. !
. Precedenr. Both Cache Cache and uunpo di Fiori have considerably more than ltccn
scats for th... outdoor dining. 'I'hey, too, arC situated on private land, and in our op/nion,
this outdoor seating contributes significantly to the desirability of their busine..t'S iP the
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3. .I)escription of clement>;: i
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. Gate, arc required by the liquor licensing authorities. We propose 10 rc-use the e.>dsting
gates, which have already been approved and which arc pointccl to ma1cll the res! Of the
elements of the buildingl ,
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. 'rable.: 10 be thirty-inch square., nude of maplc hardwood, waterproofed and sellled,
stained a i'llstic hrick red to match the .tructw'e of the building.
. Chairs: Cast iron, stacking, rustic copper color. Wi.ll be stored in.<idc the '''''tauranl at
night,
. Heaters: Standatd outdoor propane stallding he...te",. a. are .ct:!\ everywhere in Aspen.
. Umbrellas: if installed, Ulnbrcll... w:ill be of " pleasing char&ctcr, and well maintained.
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April 16. fOOl
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We feel tbat ow: proposed modifications to the seating alln=nce and disposition at 216 Sbuth
Monarch will be of benefit to the Aspen comnmnity as a whole, and we ask fot your c<=lideration in
allowing u.. te> pUISue our vision fOE a vibrant, exciting, wcll.pl2nned and attr.active patio area 0.,1 the
North side of the Kaue Reid 13uildin!} j
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Sincerely,
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Charles Dale
Chef and Owner
Rob Ittner
General Manager a.nd Partner
1\ ttaehments:
Diagram of existing conditions.
Diagram of proposed modifications.
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ASPENlPlTIaN
COMMUNITY DEVELOPMP:NT DEPARTMENT
Allreement for Pavment of City of Aspen Development Application Fees
CITY OF ASPEN (hereinafter CITY) and
(hereinafter APPLICANT) AGREE AS FOLLOWS:
I. APPLICANT has submitted to CITY an application for
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(hereinafter, THE PROJECT).
2. APPLICANT understands and agrees that Ctty of Aspen Ordinance No. 45 (Series of 1999)
establishes a fee structure for Land Use applications and the payment of all processing fees is a condition precedent
to a determination of application completeness.
3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it
is not possible at this time to ascertain the. full extent of the COSts involved in processing the application.
APPLICANT and CITY further agree that it is in the interest of the panies that APPLICANT make payment of an
initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis.
APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he
will be benefited by retaining greater cash liquidity and wi11 make additional payments upon notiiication by the
CITY when they are necessary as costs are incurred. CITY agrees it wi11 be benefited through the greater certainty
of recovering its full cOSts to process APPLICANT'S application.
4. CITY and APPLIC.....::-rr further agree that it is impracticable for CITY staff to complete
processing or present sufficient information to the Planning Commission and/or City C~uncil to enable the Planning
Commission and/or City Council to make legally required fmdings for project consideration, unless current biHings
are paid in full prior to decision.
5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect
full fees prior to " determination of application completeness, APPLICANT shall pay an initial deposit in the
amount ofS C)on which is for ---5? hours of Community Development staff time, and if actual
recorded COSts exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse
the CITY for the processing of the application mentioned above, including post approval review. Such periodic
payments shall be made within 30 days of the bi11ing date. APPLICANT further agrees that failure to pay sue;
accrued COSts shall be grounds for suspension of processing, and in no C:lSe will building permits be issued until all
costs associated with C:lSe processing have been paid.
CITY OF ASPEN
APPLICANT
t(.t-J.
Julie Ann Woods
Community Development Director
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Mailing Address:
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By:
Date:
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THIS LE S . ASSIGNMENT, AMENDMENT ANDtbN$EN'f(iiAssigrtmentliYisu,~<,,; :
entered into this ~day of September, 2000, by and between GI~~.I..~'R,W$T,l:'1.1:l:, a . . . . .. .....
Colorado corporation ("Assignor"), RUSTIQUE1 LLC,.a .c:()I(),r~cl8Jip:1HrclJi#)?iFtycO~pa.nY;
("Assignee", a "Tenant"), and ASPEN ARCADE LIMITED, LLLP, a Colora.do limited li~bility
limited partnership ("Landlord"). . .
',', (. "~,'\;'0;;<';~>,~'-;;
RECITALS
A. On, November. 24, 1993, Assignor and Landlord.entered int9..!l~~t~jL~a~~"" ....
concerning Spaces 203, 204, 103(A) and 103(B) in the Katie Reed Buildlng, Aspen,
Colorado, which was amended qy Assignment of Lease dated December 29, 1994....'
. . '.' , ,,' '" ': ....,- .'.-' .".. ".->': ',..:.. ","." ,:"..:"...,.:.".,..:-..:' .'i'.':" ",,''':''-1.;':'.:;~''>'',. ":._.".,....;.!..,/'.. ,.c':."."........,.
and qy Amendment to Retail Lease dated July 15, 1998. SuchLeaseil.lld.all'...
modifications and amendments thereto heretofore made axe hereinafter referred to as
the "Lease".
B. Assignor now desires to assign all of its right, title and interest astheT~llllllt under '.
the Lease to Assignee; and Assignee desires to assume all obligatidtis"of Tenant
under the Lease. . .
C. The Assignee and Landlord desire by this document to further amend the Lease.
AGREEMENT
In consideration of the mu tual covenants contained herein, the parties hereby
follows: .
1.
t"
A!ITeement. Assignor hereby assigns to Assignee, all of its right, title and.interllstto
the following:
I" the Lease and an modifications and amendments relating th~retol1~.retofore
.' made (a complete copy of which is attached hereto as ExhibitA); and' . .
2: the security deposit under the Lease in the amount ofTen TliousanoDolial's
($10,000.00). .
2. Assumption. Assignee hereby assumes all obligations for the timely penol'l'l1a.l1dio.t
all covenants, term$, conditions and provi~ions required to be kept, observed or
performed by the Tenant under the Lease and hereby agrees to inde~.J'!ifY, hold
harmless and defend Assignor from and against any and allliabillty undel' the Lease
incurred from and after the date hereof.
" " ,'. ........~.
3. Substitution of Cash for tetter of Credit: Restatement of AD:icle XXVTIf 1'~~()lle .
Hundred Forty Thousand Dollar ($140,000.00) letter of credit referenced in Section'
1
~
28 of the Lease shall be terminated. Assignor, instead,
and Landlord agrees to accept a Fifty Thousand Dollar
deposit. Article XXVIII is deleted and restated in is as
Additional Security -"Upon execution of this Lease,Gibralter West, Ltd. shalld~nver'.
to Landlord as additional security for the performance by Tenant of its ooHg;ations
under this Lease, cash in the amount of $50,000.00, which sum shall no.t bl;lIl'
interest, may be commingled with other funds of Landlord, and may be expended by
Landlord in its discretion to cure any Event of Default of Tenant under the Lea.sll'
It is expressly understood that such Additional Security is not an advance payment
of rental or a measure of Landlord's damages in case of default by Tenant, and that
Landlord shall have no obligation to apply said Additional Security or any part
thereof to cure a default by Tenant in the payment of rent or other amounts due from:"
Tenant under the Lease, and that Landlord may instead exercise anyone or more of
its default remedies set forth in Article XVIII of the Lease (including without
limitation retaking possession of the premises) and preserve the Additional Security
for potential subsequent defauJtsby Tenant. Should the Additional Security or any
portion thereof be appHed by. Landlord for the payment of overdue rental or o.ther
sums due and payable to Landlord by Tenant hereunder, or for any other breach on
the part of Tenant, the Tenant shall within five (5) days after the written demanci of
the Landlord, forthwith remit to the Landlord a sufficient amount in cash to restore
the Additional Security to the sum of $50,000.00. . In the event Tenantispotin
default in the performance of any of Ten ant's obligations under this Lease on A.ugUsf .
31,2004, Landlord agrees to return the 550,000.00 Additional Security (or so much
thereof as has not been applied by Landlord to prior Tenant defaults) to Gibralter
West, Ltd. within 30 days following that date."
,......'.:,..,..,..:".....,
4. Notice Copied to Assiznor. Until the expiration of the initial term of the Lease, the
Landlord agrees to provide a copy of any notice of default thereunder to the
Assignee, to the Assignor at:
% William R. Jordan III, Esq.
418 E. Cooper Avenue, Suite 202
Aspen, COlorado 81611
5. Rent Increases for Remainder of Initial Term. During the remainder ofth(irHti~b
term of the Lease expiring August 31, 2004, and during the first renewal te.l'lrl
commencing September 1, 2004 and expiring August 31, 2009, (assull1ing Assignor
timely exercises such first renewal option), annual fixed minimum cost oflivingreni' .
increases for each Lease Year under Article III of the Lease .shall be fou~ (4%)
percent cumulatively applied. Such increases shall be effective for the Lease Year
commencing January 1,2001, and for each Lease Year thereafter during the initial
term and the first option term of the Lease.
6. Rent Establishment and Increases for Renewal Terms. The folJovving fSacld€c1to
Paragraph 6 of the Amendment to Retail Lease dated July 15, 1998, amending
2
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-' ..,.. -., :. ::>'J\:t:,:~:;~ii;rjt;hi.1,:~:\;~~~~:1~1~'4+~#@j;::~-,;:'
Article II of the Lease.. Tenant shall.have.a sec?nd 5-year option peri9d,u~,t~e.ugti~t c'. . ,.... ......
31,2014, as more partIcularly descnbed m ArtIcle II of the Leas~,. R~ferens~sj~ s~id
Article II to the "initial tenn of the Lease" shall be amended to say the.iflist.opiion"
period." References in said Article II to the "first year of the option period" s~aU b~
amended to say the "first year of the second option period in conn~ctionV;"ith tI1~ 9:" .... c.
year option period". References in said Article II to the "option period" sh~r(!'~"N
amended to say the" second option period." References in said Article)l to tbe "final
8 months of the initial Lease tenn" shall be amended to say the "fin~18 m:o~thsoftl1~>"'.""
first option periOd." Dllring the second option period, the fixed mlnlirillni8.iiii~arren:("""
. . shall initially be detennined by the provision of Article II (a-d)OI theLeaSe.aH,r"", .........
annual fixed minimum cost ofliving rent increases thereafter shall be detennineciby
the provisions of Article III of the Lease, in both instances as contained)n the
November 24, 1993 Lease document. .. .' .
7. Release of Assie:nor. Except as herein provided, Landlord hereby relea.sesAssignOr
and each anel all of Assignor's g11arantors of the Lease, and all of Assigrior's
collateral and deposits, (except the $50,000.00 Additional Secllrity llerein referred'
to) from any and all obligations on the Lease.
Security Deposit Increase. The Security Deposit referenced in Section 8 of the :Retail
Lease/Summary of Bllsiness Terms which forms a part of the Lease isincreased t()
Fifty Thousand Dollars ($SO,OOO.OO) from Ten Thousand Dollars($lO~OOO.OO)~nd
the Landlord acknowledges the receipt of an additional Forty Tho~sand!l.oll~~
($40,000.00) from the Assignee. The Security Deposit shall be held by Larid16ia!if
an interest bearing Cedificate of Deposit at Mesa National Bank
accruing as additional secllrity deposit. .
8.
<""'~";>:~:,"""N""""'"''
,....;",.".." ';'.'~'" ""
New Door:;: Relief. Landlord hereby grants approval to Assignee to instal1ne."..
double entry doors to the Leased Premises, subject to approval by the Landlordofffie
plans and specifications therefor, which approval will not be unreasol1~bly yrithhe19'
The cost thereof will be paid by the Assignee. The doors shall become a part of the
Leased Premises owned by the Landlord. Landlord shall partly reimburse Assignee
fgr the expense of the doors by giving Assignee one (1) free month minimum rent
Assignee shall select sl1ch month and shall provide Landlord with ninety (90) days
advance written notice thereof. In addition; if the Assignee shall exercise it's option
for the first five (5) year extension of the term of the Lease, Assignee sha(lbe f\Irther c.
reimbursed for the expenses of such doors by receiving from the Landlordanotner .
one (1) month of free (IXed minimum monthly rent during the first five (5) year
option term, as designated by the Assignee by written notice to the Landl()rd at least .'
ninety (90) days in advance of the selected month.
10. Rent Relief for Second Renewal Term. If the Assignee shall timely exercise its
option for the second five (S)year option term, the Landlord agrees to gral1tthe
Assignee one (1) free month of fixed minimum rent during the second five (5) year
option term, said month to be designated by Assignee by written notice to the
Landlord at least ninety (90) days in advance of the selected month.
9.
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11.
Extension of NMotiation Period. The second paragraph of Article X of
previously amended, is restated in its entirety as follows: '
"If Landlord decides to sell the Leased Premises (as condominiumized), Landl()rd
agrees to notify Tenant in writing of such decision and, to negotiate with Tenant
during the 90-day period following the giving of such notice as to the price and terms
on which the Leased Premises may be purchased by Tenant. If prior to the expiration
of said 90-day period Landlord and Tenant have not signed a mutually acceptable
contract for the sale O,f the Leased Premises to Tenant, Landlord shall h~ve n9, ftIrth,er
obligation to negotiate with Tenant in conne9ti<:,,1'l with thesaie of the t..easeq
Premises, and Landlord shall be free to sell the Leased Premises at any tilne, to anY
person, at any price and on any terms, subject always to all of Tenant's rights under
thi~ Lease. The foregoing provision shall not apply if Landlord elects to sell the
entire building, in which event Tenant shall have no rights under this Article X."
as
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12. Landlord's Consent to Assi!PUllent. The Landlord hereby consents to tl1eassi~itte~t'
herein made.
13. Captions. The captions in this Assignment are inserted only for the purpose of
convenient reference and in no way define, limit or prescribe the scope or intent of
this Agreement or any part thereof.
15.
14. Governing Law. The laws of the State of Colorado shall govemtfievaliaHy,'
performance and enforcement of this Assignment. Should either party institute legal
suit or action for enforcement of any obligation contained herein, it is agreed thilt the
venue of such suit or action shall be in Pitkin County, Colorado.
Attornevs' Fees. Should this Assignment become the subject of!itigati()lJ.t61e~61~e> 'ii,
a claim of default in performance by either party, the party who is determined to be
in default shall pay the attomeys' fees, expenses and court costs of the non-defaulting
party.
i;i...."~;.....,' '
16, Irtte2ration and Modification or Amendment. This Assignment contains the entire
understanding of the parties with respect to the matters herein contained. There are
no representations, warranties, covenahts or undertakings other than those expressly
set forth herein. This A~signment may not be modified or amended except by a
writing signed by all parties hereto.
17. Countet:parts: Facsimile Siszoatures. This Assignment may be executed in rnultiple
counterparts, each of which shall constitute an original, but all of which)a](en
together shall constitute one and the same document. Facsimile signatures sharI
constitute valid original signature for purposes of execution. Facsimile signature
shall be followed by transmittal of original signatures by mail to each of the other
parties hereto.
4
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IN WITNESS WHEREO F, the parties have executed this Assignment as of
first above written.
ASSIGNOR:
GIBRALTER WEST, LTD.'
By:
\~'.
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LANPLORD:
ASPEN ARCADE LIMITED,LLLP,
. a Colorado limited liability liniitedpartn.ership
By: ASPEN ARCAOEMA!\iA~lvl:Er-rr' INC.,
a Colorado corporation, General Partner.' ,
.....;.:;,...'C
By:
-,.,.-.,.....""..,."-,,,,,?,,,.,-.,.,,,,,".,-.,,
Larry A. Brooks, President
ASSIGNEE:
RUSTIQUE, LLC
By: y/ ~
Charles C.'Dale, Manager/Member
By:~J!44r~ '
Robert Ittner, Jr., Manager/Member
,-1
5
STATE OF COLORADO )
)55.
COUNTY OF PITKIN )
The foregoing instrument wasacla:J.owledged berote me this.9Lday of
2000, by William R. Jordan nI, as President of Gibralter West, Ltd.
STATE OF
)
)ss.
)
COUNTY OF
#
' .. .. :,'..
~~
Nary Public
,.,:,....."...., "-"'.'-;";">'
The foregoing instrument was acknowledged before me this _ day of ,
2000, by Larry A. Brooks, as President of Asoen Arcade Limited, LLLP, a Colorad? li~it~d
liability limited partnership By: Aspen Arcade M~agement, Inc., a Colorado corporation, qenera\
Partner.' , ..
WITNESS 'my hand and official seal.
My Commission expires:
(SEAL)
.:'
'<:!;"<'~.S~;~~i;;~2/,", '
Notary Public
.. ""'0 ;.;.>,'" ,,':-.,',.-' e"";;; 0>A"i;;;O;~i;So";'~,,"'.0;~'"
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this8~ay of -iAi-
2000, by Charles C. Dale and RoberW.ttner, Jr., as Managers and Members of R;t{que, LLC.
~~,J ~~
Nota Public
6
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IN WITNESS WHEREOF, the parties have I:>xecuted this Assignment as of the
first above Written.
ASSIGNOR:
LANDLORD:
GlBRALTERWEST. LID.
ASPEN ARCADE ~'ttJ:jii""""""""i''''''''
',' ';".>' "0 ,t.. .... .... ._..~
a Colorado litnitecili..bility limited pattneIShip '," , .
By: ASPEN ARCADEMANAGEMENt,INC,
i1 Colorado corporation. General Pa.rtper
'c.""'" .;--.-d:"h';fii4::"d.:.,i".\.:-,',
By:
William R. Jordan III, President
ASSIGNEE:
RUSTIQUE, LLC
By:
Charles C. Dale, Manager/Member
By: . """
Robert Ittner. Jr.. ManagerlMember
-,;""",,"..-;'::,.-,
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.,
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5
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STATEOFCOLORAOQ )
)$s.
COUNTY OF PITKIN )
The foregomg instrument was acknowledged before me this _ day of
2000, by William R. Jordan III, as President of Gibralter We$t. Ltd.
WITNESS my ha.lld and official seal.
My Commission expires:
(SEAL)
Notary Public
,
STATE Of'
~.
)
)55.
COUNTY OF) ,
TheforegOing instrument was acknowledged before me this .i:: day of ~~~ .
:ZOOO, by, J.a",enc~..\l. Erogks, 'iI=>. President ~f ~pell Atc"de,MaIiil,g~ent Ilic'; t', a
Colorado corporation';' G-<o"e.al Part"e;:;:o'f Aspen' ucac1'e L1lll.!tec1' LLLP, ... Color.ac1o:
li~ted'liab1l1ti l1m1ted'part"ership. .
WITNESS my hand and official seal.
My Commission expires:'7..d ~1. .;4<>-)-
(SEAL) ,",
I ij - -,,;,; t,,;,~;; -,
I Commilllon # 1170990
~ ~.. . No;c:y P'JOlic . Cellfornia ~
, Los Angeles Covnty
. My Comm. 8<i;:ires""b21. 2q)2,
($f;.,,~L^ I'~
Notary bl1c .,
STATE OF COLORADO
COUNTY OF PItxlN
)
)ss.
)
The foregoing instrUment was acknowledged before me this day of
2000, by Charles C. Dale and Robert Ittner, Jr., as Managers and M;;;;bers ofRustique. LLC.
WITNESS my hand and official seal.
My Commission expires:
(SEAL)
Notary Public
6
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