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HomeMy WebLinkAboutminutes.council.20151026Regular Meeting Aspen City Council October 26, 2015 1 SCHEDULED PUBLIC APEARANCES .................................................................................................... 2 COUNCILMEMBER COMMENTS ............................................................................................................ 2 CITY MANAGER COMMENTS ................................................................................................................ 2 BOARD REPORTS ...................................................................................................................................... 2 CONSENT CALENDAR ............................................................................................................................. 2 Aspen Recreation Center Advisor Committee Appointment ............................................................ 3 Resolution #117, Series of 2015 – Truscott Site Improvement Project Vertical Scope Change Order and Budget Increase ...................................................................................................................................... 3 Resolution#113, Series of 2015 – Aspen Recreation Center Concession Lease Agreement ................ 3 Resolution #121, Series of 2015 – Contract Approval for Rio Grande Park Irrigation Upgrades ........ 3 Resolution #120, Series of 2015 - Civic Building Relocation Project – NV5 Construction Manager as Advisor Services ....................................................................................................................................... 3 Minutes – October 12, 2015 .................................................................................................................. 3 Resolution #123, Series of 2015 – Approval of Wheeler Marketing Firm Contract ............................ 3 Supplemental Budget Request – Wheeler Passenger Elevator ............................................................. 3 RESOLUTION #111, SERIES OF 2015 – Policy Resolution – Miscellaneous Code Amendments ........... 3 ORDINANCE #42, SERIES OF 2015 – 72 Cloud Nine Lane Aspen Highlands Village PD Amendment . 4 RESOLUTION #126, SERIES OF 2015 – 305-307 S. Mill St. – Temporary Use Request ......................... 6 ORDINANCE #27, SERIES OF 2015 – Land Use Code Reliance Code Amendment ................................ 8 RESOLUTION #124, SERIES OF 2015Littlw Annie’s Deed Restriction - Clarification of Ordinance 5, Series of 2012 ............................................................................................................................................. 10 Regular Meeting Aspen City Council October 26, 2015 2 At 5:00 pm Mayor Skadron called the regular meeting to order with Councilmembers Daily, Frisch, Myrin and Mullins present. SCHEDULED PUBLIC APEARANCES Mayor Skadron presented Terry Trish with a proclamation congratulating him on his retirement and proclaiming October 28th as Terry Trish day. COUNCILMEMBER COMMENTS Councilman Frisch said he went to Washington DC the last few days and we have it pretty good here. Councilman Myrin said he would like to have a conversation going forward about completion bonds as to what happened in Snowmass Village and the Dancing Bear 2. Jim True, city attorney, stated we have requirements in the code as to completion of projects. Completing a building such as the Dancing Bear when it goes into bankruptcy is virtually impossible to do. What is important is to secure it and complete the public aspects of it. We do collect the money in the form of cash. Mayor Skadron said we should have this as a work session. Councilman Frisch said in the movie industry they have this as insurance. He is not sure if it is a good idea but we should talk about it. Mayor Skadron said Aspen Community Theater will be presenting Beauty and the Beast next week at Aspen District Theater. Last week we hosted the leadership team from Whistler. He thanked them for coming and the locals who helped guide them while they were here. He received and email from an Indonesia group that will be visiting Aspen and other Colorado cities in November. Halloween is Saturday be careful and have fun. CITY MANAGER COMMENTS Jessica Garrow, community development, presented Council with the the American Planning Association Award that was given to the City at the State Planning Conference for the Transportation Impact Analysis Guidelines. BOARD REPORTS Councilwoman Mullins said RUEDI held the water summit last Thursday. 50 people from different municipalities attended and worked on the water efficiency plan. She will be back with suggestions about what the City of Aspen can do. Mayor Skadron attended the CAST meeting last Thursday in Estes Park. Estes Park was devastated in the floods a few years ago and they heard from the Mayor, police chief, biologists and wild life managers. They are back and booming. They also heard from a non-profit manger about duplication of services. CONSENT CALENDAR Councilwoman Mullins asked for the ARC appointment they appoint one to the swimmers and Council appoints two. There are no term limits. Tim Anderson, recreation, replied correct. The terms are two years at a time but noting that says no consecutive terms. Mayor Skadron asked for comment on the two week closing of the pools. Mr. Anderson said they started work on the replacement of the water slide. The pool will be closed for two weeks. The swim team will have access to the lap pool during dinner time. The slide will be safer which is most important. They will also fix the rust and sound issues as well as some lighting. Regular Meeting Aspen City Council October 26, 2015 3 Mayor Skadron said Resolution #113 is a fresh look at the concession. Mr. Anderson said they are excited about it and it addressed a lot of things the patrons have wanted. It will provide fresh sandwiches and healthy foods but the snacks will still be there. They are pleased with the direction he is going. Resolution #121 – irrigation upgrades Councilwoman Mullins asked about the schedule and how impactful it will be. Chris Forman, parks, said they were waiting for the athletic groups to be finished. It will be a three week process. The construction of the individual lines will be one at a time. Sections of the park will be under construction at different times. If weather effects the project it will resume in April 2016.  Aspen Recreation Center Advisor Committee Appointment  Resolution #117, Series of 2015 – Truscott Site Improvement Project Vertical Scope Change Order and Budget Increase  Resolution#113, Series of 2015 – Aspen Recreation Center Concession Lease Agreement  Resolution #121, Series of 2015 – Contract Approval for Rio Grande Park Irrigation Upgrades  Resolution #120, Series of 2015 - Civic Building Relocation Project – NV5 Construction Manager as Advisor Services  Minutes – October 12, 2015  Resolution #123, Series of 2015 – Approval of Wheeler Marketing Firm Contract  Supplemental Budget Request – Wheeler Passenger Elevator Councilman Frisch moved to adopt the consent calendar, seconded by Councilman Daily. All in favor motion carried. RESOLUTION #111, SERIES OF 2015 – Policy Resolution – Miscellaneous Code Amendments Justin barker, community development, told the Council this will clarify existing regulations and policies as well as fixing incorrect code references. He gave examples include conflicts in the APCHA guidelines and the land use code. Another is for the measurement of grade and clarifying what constitutes grade. For building envelopes there are a few properties that do not have specific prescriptions about what can happen within and outside those envelopes. This would provide clarity for those properties. Development in setbacks is confusing about what and where hot tubs and mechanical equipment can be placed. This would provide clarity and flexibility. One item that has not been pursued by comdev but requested by architects is height exemption of elevators. The current regulations allow the height to extend a maximum of ten feet above the required height and some architects have expressed this can be difficult to meet. Staff is requesting if this should be included as part of this review. This is the second step in the required three step process. These changes were presented in the community development newsletter which received little feedback. Staff also met with P&Z. The minutes were attached in the packet. Staff recommends approval. Councilman Myrin asked regarding elevator heights, is there technology coming forward that might allow this to work without changing the code. Mr. Barker replied there might be but it is not widely use. Councilman Myrin said he would like more details if it is possible to do this without changing the code. For measurement at grade, does this create creep in height of buildings. Mr. Barker said it is an existing policy for stacking planter boxes and using the height of the stack for finish grade. This would prevent that. Councilman Myrin said if anything this will reduce height or fix it to be consistent with the policy. Are there any changes that favor developers more than the city. Mr. Barker said the only that may is development in the set back with a mechanical or water feature in the set back. Mayor Skadron said the question about the elevator height, is it around the technology specifically. Councilman Myrin replied it is, the technology is changing. Regular Meeting Aspen City Council October 26, 2015 4 Councilman Frisch said the excuse it is expensive is going to fall on deaf ears in regards to the elevator. It is 6 inches or 25 feet. Have you got a sense of that from the design community. Mr. Barker replied he has received no specific examples. Councilman Frisch said he thinks we need to know what higher means. Chris Bendon, community development, replied we have the same question. If you want us to spend some time on it we will. Councilman Frisch said he is happy to explore it. The rest of the stuff is good. The planter boxes kind of threw me. He appreciates we are extending grade to five feet to have it considered. Everything is going in the right direction but need more clarification on the elevator. Councilman Daily stated he agrees with Councilman Frisch’s comments. Mayor Skadron opened the public comment. 1. Marcia Goshorn said this is a situation that has been asked for before. With the higher elevator for ADA compliance that is generally where it is. It is not ok to make the entire floor higher just the elevator shaft. If something is for ADA compliance it should not be a variance. Mayor Skadron closed the public comment. Councilwoman Mullins moved to adopt Resolution #111, Series of 2015; seconded by Councilman Daily. All in favor, motion carried. ORDINANCE #42, SERIES OF 2015 – 72 Cloud Nine Lane Aspen Highlands Village PD Amendment Jennifer Phelan, community development, stated this will amend the Aspen Highlands planned development. This is a single family affordable housing unit located within Aspen Highlands. There are free market, affordable housing, commercial and lodging within Highlands. The applicant is asking for a 660 square foot addition to the first and second floors to make them accessible to all members of the family. PD includes different caps for uses. The affordable housing allowance has been met and additions need to be though the PD. As part of the request they are asking for a fee waiver for building permit and land use fees. The PD is to add the addition to the rear of the one car garage and a second story on top of the garage. It creates an elevator lift access and remodels both floors and adds ramping. The criteria for the planned development are met. The design review board for the HOA has approved the proposal and APCHA has reviewed it and is fine with adding the additional unit to the inventory. Staff supports the PD amendment. The total fees are around 37,500 dollars. One fee that can’t be waived is the school fees. Waiving the fees is at Council’s discretion. Staff is assuming not all the fees are for accessibility and recommending half the fees are waived or 18,000 dollars be waived including all the land use fees and half of the building permit fees and impact fees. Staff is recommending approval of the PD and the fee waiver is at Council discretion. If approved the ordinance notes the waiver is at 100 percent of land use and 50 percent of engineering and building fees. There are two clean ups in the ordinance, a whereas clause needs amended for public hearing date and ground floor and second story addition needs amended. Councilman Frisch said he thinks you are trying to say anything to do with accessibility issues Staff is more willing to waive than a general increase of unit size. Ms. Phelan stated Staff is saying they are not sure if all improvements are accessibility improvements. Councilman Daily stated he supports a complete fee waiver in this extraordinary condition. Councilman Myrin asked if the unit will remain in the affordable housing inventory going forward. Is there a priority for accessibility units going forward. Ms. Goshorn replied yes, this will be a unit in the inventory as a wheel chair accessibility unit with first priority for a family member in a wheel chair. Regular Meeting Aspen City Council October 26, 2015 5 Councilman Myrin asked if this were being built as new how would those fees work. Steve Barwick, city manager, said the fees are typically cut in half. Councilman Myrin asked if the other half get passed on to the buyer. Mr. Barwick said it is subsidized. Councilwoman Mullins asked for the parks and air quality fees what is Staff recommendation. Ms. Phelan replied the school lands cannot be waived. The recommendation is to reduce the building and engineering at 50 percent and the land use fees at 100 percent. The impact fees should be charged at the typical rates. Marcia Goshorn, representing the applicant, said on the building fees the second story is proposed to be modular construction so the inspection would be at the point in Denver. She is not sure if that would make a difference on the fees. The size of this house is not massive. This will make it fully accessible. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Myrin said he is excited the addition fits into the footprint, scale and character of the neighborhood. The fees should be 50 percent to start with and reduced further to reflect what it would be to be newly built. If fees are through affordable housing he would be comfortable with 100 percent. Mr. True stated he thinks Council could direct that. Right now there is not a priority program with ADA properties. Ms. Goshorn replied it would be a new deed restriction on this property. Mr. True stated with that justification it could come from the housing funds. Ms. Phelan replied it could be modified in section two of the ordinance with an updated deed restriction. Mr. True said he is not sure it requires a deed restriction. Councilwoman Mullins asked if there is any other ADA single family home in the inventory. Ms. Goshorn replied no. Councilwoman Mullins stated she is not convinced by the argument that 50 percent should be waived because only 50 percent of the improvements have to do with ADA because they are all intertwined. For the value of having an ADA home in the inventory she will support 100 percent of the waiver. Looking at the plans, a minimal amount of work is being done to make it ADA. Without a compelling reason to not waive a percentage of the fees she would support waiving 100 percent. Councilman Frisch said he does not see any reason why we should collect any fees. Has the APCHA board discussed this about the possible 14,000 dollar fee coming from there. Ms. Goshorn said APCHA has discussed this but the money coming out of the fund has not been discussed. Mr. Barwick stated the money comes from the City. Mayor Skadron said the discussion is the entire waiver comes from the general fund. Mr. Barwick replied yes. Mayor Skadron said he concurs with Council comments. Mr. True said section two changes include all applicable fees other than school land fees shall be waived by City Council to be compensated to the proper authorities as Staff shall determine at a later date. Ms. Phelan stated to amend section one to add ground floor and second story and changing the public hearing date. Mayor Skadron said never has there been such agreement around waiving fees. Councilman Daily moved to adopt Ordinance #42, Series of 2015 with amendments; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Myrin, yes; Daily, yes; Mullins, yes; Frisch, yes, Mayor Skadron, yes. Motion carried. Regular Meeting Aspen City Council October 26, 2015 6 RESOLUTION #126, SERIES OF 2015 – 305-307 S. Mill St. – Temporary Use Request Sara Nadolny, community development, told the Council they have the ability to approve a temporary use request for 180 days. The request is to cover the trellis with a tent like structure. This is the request from the applicant for the same temporary use. Council granted approval from January through April of this year for same request. At the time, Council said it was a onetime approval. Staff does not support the request. Temporary use is a way to bypass design review and employee mitigation. This site is located in the historic commercial core zone and requires historic preservation review. The code no longer allows the use of plastic and fabric add on structures such as air locks or extended seating areas and have been phased out in favor of more permanent seating structures. The tent covers space on site that was approved as public amenity space. One of the requirements of public amenity is the area has to be open to the sky. The tent has roll down sides and a roof. Council can approve or deny the request. Council may choose to approve the request with employee housing mitigation. A mitigation formula has been provided for a third of the calendar year. Staff is recommending denial and suggests the applicant pursue a permeant code compliant solution. Ryan Chadwick, Grey Lady owner, said he sat here last year and Council made it clear not to come back. He said he emailed Amy Simon in July asking to pull a permit to do this the correct way. He was told there was a permit that was currently outstanding and there could not be two permits for the same property. Since Mark has a permit for the space he is not allowed to get one. That is why he is here now asking for the temp use. He is willing to pay the employee mitigation fees. His lease expires in April and he probably won’t be back. Mayor Skadron asked what would have been the procedure if the building had not had an application. Ms. Nadolny replied historic preservation with a call up. It would have to meet the requirements of the commercial character area, ensuring is a permanent structure that blends into the fabric of the building and surrounding area and public amenity space. Councilwoman Mullins said she does not understand that they could not go after a permit since Mark has a permit. Mr. Bendon said they don’t allow applicants to submit more than one development applications. Mark Hunt currently has a pending application for the space. The application process includes an HPC review. We certainly have an issue with the plastic and canvas box. It would likely trigger a referendum 1 vote. There is a substantial amount of employee mitigation requirement and potentially develop off site housing mitigation. Mr. Chadwick stated he knows they plan on enclosing the space and paying those fees weather I’m there or not. What I want to do is use what I used there last there. My lease expires in six months. I have to maintain the space. My alternative is to leave it as a snow bank this winter. Councilman Daily said he is kind of torn with what is less attractive. We made it as clear as can be this is a onetime deal. I understand Mr. Hunt is changing the whole building. I’m not hardnose about stuff like this but we do have some regulations we have to stick with. Councilman Frisch stated he thinks he was on the losing end of this last time. I did have people complaining about the tent and restaurant people complaining why they could not do it. On the micro level I’m worried about having 35 tents around town. I’m going to have a hard time supporting this. Councilman Myrin said he agrees with Councilman Frisch. Mayor Skadron said it puts us in a really hard situation. What would have happened if two weeks after the temporary use he submitted an application. Mr. Bendon said the application is always from the owner. Regular Meeting Aspen City Council October 26, 2015 7 Councilwoman Mullins said she was against this last year primarily about the appearance. She thinks it looked terrible. It is in the center of town. There is nothing attractive about it. It shouts exclusivity. It wasn’t open area for a long long time. Mayor Skadron said if the primary objection is the look, is there another design option to consider. Mr. Chadwick said they could put glass on the sides and seal in the windows. They pay for the space year round and lease the space from the city in front. Mayor Skadron opened the public comment. 1. Andrew Sandler said Ryan did a great job last year. It is the same group of people who go to these restaurants. It is good to have this space. If Bootsy isn’t open his place will be more slammed. 2. Jim Farrey said as it relates to other restaurants and the desire to close areas it would be public area. This pergola sits on private property. It is a one off. It is only a seasonal closure. Mr. Bendon said there are at least 10 with the same situation. Mr. Farrey said he did a fine job last year. It is serving the community and tourists when they arrive. 3. Peter Greeney asked if there a way to do it on a new year’s, president’s day, x games basis. Mr. Bendon said Mr. Chadwick has the ability to ask staff for a seven day permit and it can be kicked up for a Council review. He would not approve that based on his past application. Mayor Skadron closed the public comment. Councilman Frisch said it is not a one off and he has nothing against the Grey Lady. What one personally feels and what one thinks is good policy does not always add up. It would be bad policy to go down this road yet again. We are better off dealing with the snow fall and open space. Mr. Bendon said he is fine with a seven day but wants to make sure everyone knows what happens on day eight. Councilwoman Mullins said the esthetics are secondary to the policy. Maybe seven days over the holidays but she cannot support this. Councilman Myrin moved to approve Resolution #126, Series of 2015; seconded by Councilman Frisch. Mr. True said if anyone has an interest in a seven days permit they could amend this resolution. Councilman Daily moved to amend Resolution #126 to 12-24-15 to 1-3-2016; seconded by Councilman Frisch. Councilman Frisch said there are lots of people in town those eight days. Should we allow every restaurant to recapture their summer use those eight days and put up whatever they want. Councilman Myrin said he agrees with Councilman Frisch. Mayor Skadron suggested the request for seven days not be part of this resolution. Councilwoman Mullins agrees with the Mayor. Councilman Daily withdrew his amendment, seconded by Councilman Frisch. Back to the original motion to approve Resolution #126. None in favor, motion failed. Mr. Bendon said the next steps are Mr. Chadwick can come back to Council for a seven day temporary use tent permit. Regular Meeting Aspen City Council October 26, 2015 8 ORDINANCE #27, SERIES OF 2015 – Land Use Code Reliance Code Amendment Jessica Garrow, community development, said the proposed amendment clarifies what land use code a project can rely on when it is part of a multi-step review or when it is amending a previously vested approval. It does codifies what code a project is subject to when part of a major amendment. It addresses three different types of land use cases including minor amendments that do not effect material representations of the projects. These amendments do not affect the material representations of the project like changes to building materials, internal reconfigurations and landscaping. Despite the term minor, these often do require lengthy visits with P&Z and or Council. The second part is related to major amendments to a site specific development plan. These changes do affect the material representation including use mix, height, floor area and overall scale. An example of this is the Boomerang. There was a change in use from lodge to affordable housing then back to lodge. Staff believes these amendments should be subject to the current code. The third part is multi-step. This clarifies that a project can rely on the code that was in place when the first application was made. A project receives Council approval in its first step. Staff believes this amendment strengthens the City’s ability to ensure projects meet the most current standards and recommends approval. Mayor Skadron asked what did we ask last time. Ms. Garrow said clarity and what does it mean in terms of review process. They added table F. She gave the example of the Aspen Club. There was a request to add retaining walls and set backs, change roofing materials and convert a stair to an elevator. These were all things that were not material to the initially approved application and would be under the vested code as a site specific development. Other amendments would go to the current code. They also asked to increase the affordable housing building height from 28 to 30 feet. P&Z and Council reviewed that under an old code. If this code amendment is passed, and this project came forward today it would be reviewed under today’s code which would go to Council. Councilman Frisch said the table is helpful. He is a little confused. There was some pushback from Marcella and the former Mayor. He is confused about what the concern is especially about the 30 day window. Mr. True said we struggled with trying to understand where some of the pushback is coming from. Part of the issue is over the definition of site specific development plan. Councilman Myrin just provided me with something Ms. Larsen provided and I don’t think we can go as far as she is proposing. Ms. Larsen does provide another change that really just changes paragraph 4 for the definition of major and minor amendments. Our position is the definition of minor amendment in section 1 paragraph 4 attempts to define a minor amendment under the old law and everything else is a major amendment under the new law. Councilman Frisch said going back to the original intent is to make sure we all agree with minor and major and are we happy with those processes. Looking back at all these applications, if people want to argue that we treated major applications as minor I’m happy to have that argument. I think the plan is to make sure we are on the right track for minor and major and using this table as an example I think we are on the right track. Councilman Myrin passed out Ms. Larsen’s email. Mr. True said site specific development plan is not really a part of this and he does not think we should amend it. She is suggesting we change the definition of minor and major. Mr. Bendon said Staff reached out to Telluride. When someone applies an application is kept in the code they originally applied even if it is multi-step. Councilwoman Mullins said the ordinance references the term site specific and it is also used in the state statute. Mr. True said the vested property rights act allows municipalities to adopt their own meaning of it, with limitations. Councilwoman Mullins asked why are you suggesting we should not be discussing that tonight. Mr. True said it is not part of this. Councilwoman Mullins asked if it is something we could go back to. Mr. True replied absolutely, it is just not the subject of this ordinance. Regular Meeting Aspen City Council October 26, 2015 9 Councilman Daily said he is supportive of what is being proposed by Staff. He likes the change to major amendments. Boomerang and Aspen Town homes should come under major. If additional work should be done let’s take that up separately. Mayor Skadron said we have the option to continue this. Mr. Bendon said we have done that a couple times and reached out to those folks. Councilman Myrin said he has been pretty persistent and kept getting the same feedback. Here we have something we can have a conversation about. Councilman Frisch said he does not think one pushes the other one out. Mr. True said it is hard to make commitments like that at the table. We were comfortable with the way major and minor amendments were defined. Councilwoman Mullins said she supports Staff. They did a good job with getting comments from various people. She does not support the changes in number 4. She supports if we want to change the definition of site specific development to do it at a later date. Councilman Myrin said looking at some of the changes she added citizen to section five. Mr. True said it is broader than what we allow. We might want to expand it to neighbors within 300 feet. He would be reluctant to have any citizen be able to appeal. Councilman Frisch said he would be happy to move to approve ordinance 27 as it stands. It we want to have further discussion on SSDP he is willing to do it. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Seconded by Councilwoman Mullins. Councilman Myrin asked Council to consider an amendment to number 5 to be an applicant or what Jim proposed. Ms. Garrow would suggest it say any person with a right to appeal an adverse decision or determination may appeal to city council per chapter 26.316. Councilman Myrin said it is clearer if it references it to more than just applicants to appeal. Ms. Garrow said the way the ordinance is currently written it is just applicants who can appeal. Mayor Skadron asked what are the implication of this. Why is it necessary to have it here when the right to appeal is already in the code. Mr. Bendon said this is an appeal of an administrative process. Mr. True said this is a relatively narrow administrative process. If you want to broaden it to a neighbor this would be the place to do it. Ms. Garrow said the other option is to state appeals are heard pursuant to 26.316 and shall be heard by City Council. Councilman Frisch stated he supports Ms. Garrow’ s recommendation; seconded by Councilwoman Mullins. Councilman Myrin said for section A she added amendments to pending applications or approved site specific development plans. Mr. True said he does not see the difference. Councilman Myrin said the last change is paragraph 4 increasing massing through subgrade rooftop and parking. Councilman Frisch said the overall thing is the implication Staff has made the wrong call between minor and major and I don’t see that. Roll call vote. Councilmembers Mullins, yes; Frisch, yes; Daily, yes; Myrin, no; Mayor Skadron, yes. Motion carried. Regular Meeting Aspen City Council October 26, 2015 10 RESOLUTION #124, SERIES OF 2015 - Little Annie’s Deed Restriction - Clarification of Ordinance 5, Series of 2012 Jim True, city attorney, said they are requesting Council approve a deed restriction required by ordinance 5, 2012. The proposed deed restriction and a proposal by the owners representative is before Council. In 2012 there was a proposal for the redevelopment of the corner of Hyman and Hunter known as the Aspen Core building including the empty parking lot, Benton building and Little Annie’s. The Benton and Little Annie’s had to go through a demolition procedure through HPC. In all the discussions there were concessions by all parties to the application. One of these by the applicant was to agree that Little Annie’s would be deed restricted as an affordable restaurant. The ordinance was fairly broad but the goal was to assure there would be a low priced restaurant at the Little Annie’s site. We have been in discussions for some time in the terms of the deed restriction. It was recommended by me that this be approved by Council. We have come to an agreement about the menu terms. The deed restriction would require that the menu prices would be consistent with today’s menu. At least four lunch items with the average price of 14 dollars and four dinner items with an average of 19 dollars. It would include specific kinds of items and reasonable proportions. We could not come to agreement on the rental that would be charged to prospective tenants. This was to be based on 2012 and CPI increases thereafter. The applicant representatives requested rental included triple net expenses; insurance, utilities and common area maintenance fees. The applicant has agreed to restrict those charges but staff has had difficulty agreeing to those restrictions. The proposed deed restriction states rent includes anything designated as additional rent including triple net charges and a percentage of profits but would not necessarily include utilities separately metered, taxes if separately assessed. Insurance is also a somewhat difficult matter. We suggest it be included in the rent being offered to the tenant. It starts at 9,500 dollars per month with CPI increases per year. We are not arguing about paragraph 1. There is a disagreement in paragraph 2. Justice Snow is most comparable but there are no common area maintenance charges. We are concerned that if you allow certain triple net charges you can quickly lose affordability for the restaurant space. Lex Tarumianz, representing the applicant, said as far as triple net charges, utilities would be the tenants, taxes and insurance. Mr. True said we don’t agree with insurance. Mr. Tarumianz said management fee. Mr. True said we recognize the triple net that the landlord is proposing has been limited by the owner but they are approximately 8 percent. Mr. Tarumianz said the affordability of a restaurant is a function of the menu and the rent. The recommendation is utilities and taxes will be passed through to the tenant. They would reduce the management fee to 2 percent. On insurance, Little Annie’s is a 40 plus year old building, it is often more expensive to insure than a newer building. They are willing to share the insurance with the tenant and insure it separately from the rest of the condo association. The other fee is the maintenance fee for the overall property. The pro rata share is 3,000. They have asked for a capital reserve assessment to the triple net lease. Councilman Daily asked if Section 7 is from the 2012 ordinance. Rent shall not exceed rent from the current year. What would that be today. Mr. True said that is listed in the deed restricted proposed. 9,500 was the rent in 2012. CPI would bring it to 9,800. Typically rents are defined as the monthly rent plus additional rent. We believe it was rent and CPI. Councilman Daily said he reads it as utilities can be added as additional rent. I don’t see where the argument comes from adding triple net charges are consistent with the 2012 ordinance. Mr. Barwick said the applicants made a primary concession to this as a low cost restaurant. They agreed to a set price, not a set price plus, plus, plus. Councilman Daily said he concurs with what you just said. Councilman Myrin said he agree with Councilman Daily, Steve Barwick and Jim True. Staff recommendation is where he is. Councilman Frisch said he and Torre sat down there in 2012 to kick this off. The plan was to keep Little Annie’s Little Annie’s and a 2 million investment in the Benton building instead of three little condos there would be one big one. Mr. Tarumianz said the total rent collected in 2012 was 11,000 with common area and maintenance. There is nothing in here that describes if this is a base rent or triple net rent. I Regular Meeting Aspen City Council October 26, 2015 11 don’t see how that is interpreted by Staff. Councilman Frisch said I don’t think we got into monthly rent at the council table. I appreciate 90 percent might be triple net leases but they don’t have some kind of government regulation on there. At the time of the council I think we were looking at the total that would be paid out by the restaurant owner. It has been three years, why now. Mr. Tarumianz replied he thinks the interpretation has been upon the completion of the building. The rent has been charged the same as since day one. From the property owner standpoint it has been a seamless transition. Mr. Bendon said part of the trigger for the deed restriction is the CO on the mixed use building on the penthouse. Councilman Frisch said he thinks the city negotiated on good faith and he does not know why we need to ask for a rent increase for the land lord. Councilwoman Mullins agrees with what has been said and staff recommendation. Mayor Skadron agrees with Council. Staff recommendation adheres most closely and honors the intent of the original ordinance. Mr. Tarumianz said we want the restaurant to be viable and 14 and 19 might be low can we go to 15 and 20. Councilman Frisch asked why should we or you get involved in the menu prices. If we are keeping the rent low why are we having that discussion. Mr. Tarumianz said it is one more thing to consider. It is below Annie’s dinner menu. Mr. True said his memory is there are four dinner items 18.95 or less and four lunch items 14.95 or less. The restaurateur will pay taxes and separately metered utilities. Mr. True said Council can pass the resolution adopting the deed restriction or wait for you to have this conversation. Councilman Daily said the language talks about the future shall not exceed 2012 and CPI increases. Councilman Frisch moved to adopt Resolution #124, Series of 2015; seconded by Councilman Daily. All in favor, motion carried Mr. True said staff recommends going into executive session pursuant to 24.6.402.4a, purchase, lease, transfer, or sale of any real, personal or other property and e negotiations related to the purchase, lease, transfer, or sale of any real, personal or other property. Councilwoman Mullins moved to go in to executive session at 9:10 p.m.; seconded by Councilman Frisch. All in favor, motion carried. Councilman Frisch moved to come out of executive session at 9:40 p.m.; seconded by Councilwoman Mullins. All in favor, motion carried. Councilwoman Mullins moved to adjourn at 9:40 p.m.; seconded by Councilman Daily. All in favor, motion carried. Linda Manning City Clerk