HomeMy WebLinkAboutordinance.council.029-03
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ORDINANCE NO. 29
(SEtUES OF 2(63)
AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING THE
DANCING BEAR LODGE PRESERVATION MINOR PLANNED UNIT
DEVELOPMENT APPLICATION INCLVDING REZONING, SUBDIVISION,
TIMESHARE, MOUNTAIN VIEW PLANE, AND GROWTH MANAGEMENT
QUOTA SYSTEM EXEMPTION (GMQS) FOR LODGE PRESERVATION AND
AFFORDABLE HOtJSING FOR. THE PROPERTY LocATED AT 411 S.
MONARCH STREET, LOTS P, Q, R, AND S, BLOCK 77, CITY AND TOWNSITE
OF ASPEN, PITKIN COUNTY, COLORADO.
Parcel No. 2735-182-19-002
WHEREAS, the Community Development Department received an application
from MSE Aspen Holdings, Inc, owner, represented by Mitch Haas of Haas Land
Planning, LLC, requesting approval of a Lodge Preservation (LP) Minor Planned Unit
Development including Rezoning, Subdivision, Timeshare, Mountain View -Plane, and
Growth Management Quota System Exemptions (GMQS) for Lodge Preservation on the
property described as Lots P, Q, R, and S, Block 77, City and Townsite of Aspen; and,
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WHEREAS, the subject property is approximately 11,957 square feet, and is
located in the Lodge/Tourist Residential (L1TR) Zone District; and,
WHEREAS, pursuant to Land Use Code Section 26.304.060(B), Combined
Reviews, the Community Development Director in consultation with the applicant has
concluded that a combined review of the land use requests associated with this
application would reduce duplication and ensure economy of time, expense, and clarity;
and, .
WHEREAS, pursuant to Land Use Code Section 26.310, Map and Text
Amendments; Section 26.435, Mountain View Plane; Section 26.445, Planned Unit
Development; Section 26.470, Growth Management Quota System; Section 26.480,
Subdivision; and, Section 26.590, Timeshare, the City Council may approve, approve
with conditions, or deny the land use requests made by the applicant during a duly
noticed public hearing after taking and considering comments from the general public,
and recommendations from the Planning and Zoning Commission, Community
Development Director, and relevant referral agencies; and,
WHEREAS, the Community Development Director recommended approval of
the Minor PUD and its associated land use requests, finding that the applicable review
standards have been met; and, .
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WHEREAS, during a duly noticed public hearing on April 15, 2003, the
Planning and Zoning Commission voted three to three (3-3) on adoption of Resolution
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No.6, Series of2003, effectively recoITnnending that City Council deny the Dancing Bear
!v1inorPtIDarid its associated larul use requests; and,
WHEREAS, during a duly noticed public hearing on June 23, 2003, City Council
conducted and continued the public hearing on the Dancing Bear PUD to July 28, 2003;
and,
WHEREAS, during a duly noticed public hearing on July 28, 2003, City Council
conducted and continued the public hearing on the Dancing Bear PUDto August 11,
2003; and,
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WHEREAS, the Aspen City Council has reviewed and considered the development
proposal under the applicable provisions of the Municipal Code as identified herein, has
reviewed and considered the recommendation of the Planning and Zoning Commission, the
Community Development Director, the AspenlPitkin County Housing Authority, the
applicable referral agencies, and has taken and considered public comment at a public
hearing; and,
WHEREAS, the City Council finds that the development proposal meets or exceeds
all applicable development standards and that the approval of the development proposal,
with conditions, is consistent with the goals and elements of the Aspen Area Community
Plan; and,
WHEREAS, the City Council finds that this Ordinance furthers and is necessary for
theprdm()tion of public health, safety, and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THECI:ry
OF ASPEN, COLORADO THAT:
Section 1:
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code,
Lots P, Q, R, and S of Block 77, City and Townsite of Aspen, is hereby rezoned to L1TR
(Lodge/Tourist Residential) with Planned Unit Development (PUD) and Lodge
Preservation (LP) Overlays.
Section 2:
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code,
City Council hereby approves the Dancing Bear Timeshare Lodge Minor PUD, which
includes applications for Minor PUD, Subdivision, Timeshare, Mountain View Plane, and
Growth Management Quota System Exemptions (GMQS) for Lodge Preservation and
Affordable Housing for the development of a timeshare lodge consisting of twenty-seven
(27) lodging bedrooms and two (2) affordable housing units (consisting of two 2-
bedroom units) as was represented on the plans presented to City Council at the August
11,2003 meeting, which included a centered fourth floor gazebo of approximately 1,580
square feet, subject to the following conditions:
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a. The information required to be included in a PUD Agreement,
pUrsuant to Section 26.445.070(C).
2. A Final PUD Plan shall be. recorded within ..180 days of the final approval
granted by City Council and shall include:
a. A final plat meeting the requirements of the Community
Development Engineer and showing easements, encroachment
. agreements and licenses with reception numbers for physical
improvements, and the location of utility pedestals.
b. An illustrative site plan of the project showing the proposed
improvements, landscaping (including all plantings, species,
numbers, and locations), parking, and the dimensional requirements
as approved.
c. A drawing(s) representing the project's architectural character.
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3. :prior to applying for a building permit, the applicant shallcause and pay
for recordation of a PUD Agreement and the Final PUD Plans, as
specified above, with the Pitkin County Clerk and Recorder.
4. The following dimensional requirements of the PUD are approved and
shall be printed on the Final Illustrative Plan:
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6,000 Square Feet
No requirement
One lodge or residential (27 lodge rooms and 4
affordable housing) bedroom per 380 square
feet of lot area.
60 feet
8 feet for main structure! 0 feet for small
architectural wall shown on ro osed lans
5 feet for main structure/3 feet for architectural
overhangs arid columns, and 0 feet for stairs,
lanter boxes, and walkwa definin walls:
1 foot
No Requirement
46' 6" feet from existing grade to the top of the
fourth floor elevator shaft.
No Requirement
9 Percent
35 square feet, plus loading area
2.98:1
.67spaces per bedroom (21 spaces for 31 bedrooms)
5. The building permit application shall include the following:
a. A copy of the final recorded Ordinance.
b.. The conditions of approval printed on the cover page of the
building permit set.
c. A completed tap permit for service with the Aspen
Consolidated Sanitation District.
d. A tree removal permit as required by the City Parks Department
and any approval from the Parks Department Director for off-
site replacement or mitigation of any removed trees.
e. A detailed ventilation plan of the parking garage ventilation
system prepared by an engineer that specializes in the design of
ventilation and heating systems.
f. A fugitive dust control plan which includes proposed
construction fencing, watering of haul roads and disturbed
areas, daily cleaning of adjacent paved roads, construction
speed limits, and other measures necessary to prevent
windblown dust from crossing the property line.
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g. A detailed kitchen plan for approval by the City Environmental
Health Department.
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Astlldy performed by a Colorado licensed Civil Engineer
demonstrating how the required excavation of the site may be
performed without damaging adjacent structures and/or streets.
If the applicant utilizes soil pins to stabilize excavation cuts, the
applicant shall be required to provide a financial assurance in an
amount to be determined by the Community Development
Engineer. The City Engineering Department strongly prefers
that the applicants use soil hardening techniques rather than soil
pins to stabilize the excavation cuts.
1. A drainage plan, including an erosion control plan, prepared by
a Colorado licensed Civil Engineer, which maintains sediment
and debris on-site during and after construction. If a ground
recharge system is required, a soil percolation report will be
required to correctly size the facility. A 2-year storm frequency
should be used in designing any drainage improvements.
6. Prior to issuance of a building permit:
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a. The primary contractor shall submit a letter to the Community
Development Director stating that the conditions of approval have
been read and understood.
b. All tap fees, impacts fees, and building permit fees shall be paid.
If an alternative agreement to delay payment of the Water Tap
and/or Parks Impact fee is finalized, those fees shall be payable
according to such agreement.
7. The Applicant shall comply with the City of Aspen Water System
Standards, with Title 25, and with applicable standards of Title 8 (Water
Conservation and Plumbing Advisory Code) of the Aspen Municipal
Code, as required by the City of Aspen Water Department.
8. The Applicant shall comply with the Aspen Consolidated Sanitation
District's rules and regulations. Ifnew sewer lines are required, then the
existing service must be excavated in the alley and disconnected at the
main sewer line. No clear water connections (roof, foundation, perimeter
drains) shall be allowed to ACSD lines. All improvements below grade
shall require the use of a pumping station.
9. The Applicant shall abide by all noise ordinances. Construction activity is
limited to the hours between 7 a.m. and 7 p.m. on Monday thru Saturday.
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10. The Applicant shall agree that there'Nill be no construction material or
dumpsters stored on the public rights-of-way unless a temporary
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encr()acpnent lic.ellseis granted by the City Engineer. In addition, the
Applicant shall submit a full set of construction management plans as part
of the building permit application, and the management plans shall include
a noise, d~st control, and construction traffic and construction parking
management plan which addresses, at a minimum, the following issues:
a. Defining the construction debris hauling routes and associated
impacts on local streets; and
b. Construction parking mitigation, except for essential trade
. trucks, no other personal trucks are to be parked in the area
around the site. The city encourages that site workers be
shuttled in from the airport parking area.
11. The Applicant shall complete (prior to any of the remodel work, including
removal of drywall, carpet, tile, etc.,) the Building Department's asbestos
checklist, and if necessary, a person licensed by the State to do asbestos
inspections must conduct an inspection. The Building Department cannot
sign any building permits until they get this report. If there is no asbestos,
the demolition can proceed. If asbestos is present, a licensed asbestos
removal contractor must remove it.
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12. The Applicant shall not track mud onto City streets during construction.
A washed rock or other style mud rack must be installed during
construction.
13. All exterior lighting shall meet the City of Aspen Lighting Code
requirements set forth in Land Use Code Section 26.575.150, as may be
amended from time to time.
14. The Applicant shall install an adequate fire alarm system throughout the
structure as determined by the Fire Marshal. The Applicant shall also
install a fire sprinkler system and fire extinguishers that meet the
requirements of the Fire Marshal. In addition, the water service
connection to the sprinklers must provide an adequate flow of water to
eliminate the need for a fire pump. The Applicant shall also install
standpipes within the stairwells.
15. The Applicant shall submit financial assurance in an amount and form
acceptable to the City Engineer and City Water Department Director for
excavation in the public right-of-way. The Applicant shall also schedule
the abandonment of the existing water tap prior to requesting a new water
tap.
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16. The Applicant shall provide the Water Department with a detailed plan for
relocating the fire hydrant that demonstrates that the water mains will be
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shut down during the relocation of the hydrant. This plan shall be
approved by the Water Department prior to relocation ofthe hydrant.
17. The Applicant shall install an oil and grease separator in the restaurantlbar
that meets the Aspen Consolidated Sanitation District'sregulations. The
applicant shall also install an oil and sand separator for the indoor parking
facilities.
18. All design, installation, and maintenance of the pools and spas must
comply with the State of Colorado's "Swimming Pool and Mineral Bath
Regulations."
19. The Applicant shall obtain a Colorado Retail Food Establishinent License
prior to serving guests food that has been prepared on-site. The Applicant
shall also obtain a liquor license prior to serving alcoholic beverages.
20. A bear-proof dumpster shall be located on-site meeting the standards of
the City of Aspen Wildlife Ordinance.
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o 21. The Applicant shall mitigate for PM -10 as proposed in the application by
1) providing a fleet of five (5) bicycles for use by guests and employees,
by 2) providing a shuttle to and from the airport on demand of guests, 3)
by providing free bus passes to lodge employees, and by 4) providing a
fleet of atleast two (2) hybrid vehicles for use by guests and employees.
22. All landscaping in the public right-of-way shall meet the requirements set
forth in Municipal Code Chapter 21.20, Trees and Landscaping on Public
Right-of-Way. Any landscaping in the public right-of-way shall be
approved by the City Parks Department prior to installation. The
Applicant shall also obtain a revocable encroachment license from the
City Engineering Department prior to installation of any landscaping or
improvements in the public right-of-way.
23. The Applicant shall install tree saving construction fences around the drip
line of any trees to be saved.
a. The City Forester or hislher designee must inspect this fence
before any construction activities commence.
b. No excavation, storage of materials, storage of construction
equipment, construction backfill, foot or vehicular traffic shall
be allowed within the fenced drip line.
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24. Each owner of an estate shall have an undivided interest in the common
recreational areas within the facility.
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25. The Applicant shall adequately mitigate for employee generation by
providing affordable housing mitigation for at least 2.35 FTEs in the form
of constructing two (2) deed restricted units (two 2-bedroom units) on-site,
which will provide mitigation for 4.5 FTEs. The required employee
housing mitigation shall be completely satisfied in the manner specified
herein prior to issuance of a certificate of occupancy for the proposed
development.
26. The Applicant shall install two (2) ADA accessible sidewalk ramps. One
ramp shall be constructed from the sidewalk onto Monarch Street and the
other ramp shall be constructed from the sidewalk onto Durant Avenue.
The applicant shall install sidewalk, curb, and gutter that meet the City
Engineer's required specifications along Monarch Street and Durant
A venue prior to issuance of a Certificate of Occupancy. A minimum
radius of twenty-five (25) feet from the flowline ofthe comer shall be
maintained at Durant Avenue and Monarch Street. If the applicant cannot
provide a radius of twenty- five (25) feet from the flowline of the comer
because they wish to maintain the existing Pine tree, then the applicant
shall provide the largest radius possible without damaging the tree. The
applicant shall also reconstruct the alley driveway pan at the east end of
the alley.
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27. The Applicant shall not install a char broiler on the rooftop patio.
28. The Applicant shall have an electric connect load summary conducted by
a licensed electrician to determine if the existing transformer has sufficient
capacity for the Dancing Bear Development. If a new transformer is
required, the applicant shall provide for a new transformer and its location
shall be approved by the Community Development Department prior to
installation. The applicant shall provide an easement to allow for City
Utility Personnel to access the new transformer.
29. The Applicant shall sign a shared sewer service line agreement prior to
building permit issuance.
30. The Applicant shall sign two (2) of the surface parking spaces that are
accessed off the alley as thirty (30) minute parking for use by guests for
the purpose of checking in.
31. The Applicant shall provide priority to the occupant( s) of the affordable
housing units, for the use of four (4) of the on-site parking spaces. In the
event that the occupant(s) of the affordable housing units do not own cars
or desire use ofthe parking spaces, the parking spaces shall remain
available for the general use of the lodge guests.
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The Applicant shall pay the applicable fee in-lieu of school hind
dedication as determined by the City of Aspen Zoning Officer for the
Affordable Housing Units prior to building permit issuance.
33. The affordable housing units shall be deed restricted at the Category 2
rental rate, but since the units are for the use ofthe lodge, income and
asset restrictions shall be waived. Further, the Applicant shall meet with
the Housing Office Staff prior to the completion ofthe project to establish
mutually acceptable lease terms for employees whose units are attached to
the business.
34. As volunteered, the Applicant shall convey an undivided fractional interest
(one-tenth of one percent) in the ownership of the deed restricted
employee housing units to the AspenlPitkin County Housing Authority for
the purposes of complying with the Colorado Supreme Court Decision
regarding rent control legislation. To satisfy the rent control issue, the
Applicantmay submit an alternative option acceptable to the City
Attorney.
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35. The Applicant shall indemnify and hold harmless the AspenlPitkin County
Housing Authority and City of Aspen from any claims, liability, fees or
similar charges related to ownership in the deed restricted affordable
housing units.
36. All unsold timeshare units that are not used by the Applicant for exchange,
marketing or promotional purposes shall be made available for short-teim
rent until purchased. This condition shall be included in the PUD and
Subdivision Agreements to be recorded in the Pitkin County Clerk and
Recorder's Office.
37. Nothing in the timeshare documents shall prohibit short-term rental or
occupancy of the units. It is the intent of this condition that the non-deed
restricted units shall be available for short-term rental purposes when not
occupied by the purchaser or its guests or utilized for exchange programs.
38. The final PUD plans shall contain a parking ramp width of at least twenty-
one (21) feet.
39. The Applicant shall submit all timeshare documents and disclosure
statements to the City Attorney for review prior to their recordation at the
Pitkin County Clerk and Recorder's Office.
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40, The City of Aspen Finance Department shall conduct an annual audit of
the sales tax revenues that the City collects from the Dancing Bear Lodge
over its first five (5) years of operation, to determine if the projected
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revenlle~. .~re a.ccurat~~The Applicant shall cooperate with the Finance
Department in its. annual audit efforts.
41.
Any conversion to the use of the restaurant area. shall require approval of a
PUD amendment.
42. . The Applicant shall install a non-reflective coating or use non-reflective
glass on the glass gazebo to reduce outward glare as much as possible.
43. The Applicant shall install opaque window coverings in the glass gazebo.
44. The Applicant shall pay the applicable Park Development Impact Fees to be
calculated by the City of Aspen Zoning Officer for the creation of new
lodging and residential bedrooms prior to building permit issuance.
Section 3:
This Ordinance shall not effect any existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances repealed or
amended as herein provided, and the same shall be construed and concluded under such
prior ordinances.
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Section 4:
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any
reason held invalid or .unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the
validity of the remaining portions thereof.
Section 5:
A public hearing on the ordinance was held on the 23rd day of June, 2003, in the City
Council Chambers, Aspen City Hall, Aspen, Colorado, and continued to July 28,2003.
Section 6:
A continued public hearing on the ordinance was held on the 28th day of July, 2003, in the
City Council Chambers, Aspen City Hall, Aspen, Colorado, and continued to August 11,
2003.
Section 7:
A continued public hearing on the ordinance was held on the 11th day of August, 2003, in the
City Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law,
by the City Council ofthe City of Aspen on the 27th day of May, 2003.
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FINALLY, adopted, passed and approved by a vote of three to two (3-2), this 11th day of
August,2003.
Attest:
Approved as to form:
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John P. Worcester, City Attorney
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PLANNED UNIT DEVELOPMENT (PUD)
& SUBDIVISION IMPROVEMENTS AGREEMENT
FOR
THE DANCING BEAR LODGE PROJECT
THIS AGREEMENT is made this _ day of , 200 , between
MSE ASPEN HOLDINGS, L TD, a Colorado Limited Partnership, (Michael S. Egan, President,
MSE Aspen Holdings, Inc., as General Partner) (the "Owners") and THE CITY OF ASPEN, a
municipal corporation (the "City").
RECITALS:
WHEREAS, the Owners own that certain real property (the "Property") known as the
Dancing Bear Lodge and formerly known as the Aspen Manor Lodge located at 411 South
Monarch Street (Parcel Identification Number 2735-182-19-002) in the City of Aspen, County of
Pitkin, State of Colorado, legally described as:
Lots P, Q, R, and S, Block 77, City and Townsite of Aspen, County of Pitkin,
State of Colorado; and,
WHEREAS, the Property is being redeveloped by the Owners as follows, where said
redevelopment is hereinafter referred to as the "Project":
· The twenty-three (23) existing, outdated rooms will be replaced with nine (9) three-
bedroom lodging units, where each lodging unit includes a one-bedroom lock-off, providing a total
of eighteen (18) units. It will also include two (2) two-bedroom employee housing units on the
ground floor. In total, the redeveloped structure will include three subgrade levels, three stories
above grade, and a roof-top gazebo, as follows:
· The three sub-grade levels accommodate a floor of guest and service facilities (such as, but
not limited to, a computer/library room, a theater, television and game rooms, reStrooms, an office,
a housekeeping staging area, and various storage facilities), a floor of parking, and a floor of
storage with a conference room;
· The ground level includes one (1) three-bedroom unit/one-bedroom lock-off unit, and two
(2) two-bedroom employee dwelling units, as well as a lobby with a front desk check-in area, an
office and operations area, and a loungelbar-type facility;
· The second and third floors will each include four (4) three-bedroom units, where each of
these four (4) units includes a one-bedroom lock-off unit; and,
· The centered fourth floor gazebo structure of approximately 1,580 square feet to house
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mechanical equipment and guest facilities such as, but not limited to, restrooms and an exercise
room.
WHEREAS, pursuant to Ordinance No. 29, Series of 2003 ("Ordinance"), the City granted
Rezoning to Lodge-Tourist Residential with Lodge Preservation and Planned Unit Development
overlays (L- TRlLP/PUD), Minor Planned Unit Development, Subdivision, Timeshare, Mountain
View Plane, Growth Management Quota System (GMQS) Exemptions for Lodge Preservation
and Affordable Housing, approval for the Project; and,
WHEREAS, the City and the Owners wish to enter into a PUD and Subdivision
Improvements Agreement for the Project; and,
WHEREAS, Owners have submitted to the City for approval, execution and recordation, a
Final PUD Plan and Final Plat for the Prpject (collectively, the "Plat") and the City agrees to
approve, execute and record the Plat at Owners' expense on the agreement of the Owners to the
matters described herein, subject to the provisions of the Municipal Code of the City of Aspen (the
"Code"), the Ordinance, and other applicable rules and regulations; and,
. WHEREAS, the Owners are willing to enter into such agreement with the City and to
provide assurances to the City.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and the
approval, execution and acceptance of the Plat for recordation by the City, it is agreed as follows:
1. Descri12tion ofProiect. Refer to the second "Whereas" statement.
PUD Dimensional Requirements. As set forth in Condition 4, Section 2 of the Ordinance, the
following dimensional requirements were approved by the City as part ofthe Project, are
shown on the Final PUD Plan, and shall be printed on all final building permit plan sets:
a. Minimum Lot Size: 6,000 square feet.
b. Minimum Lot Area per Dwelling Unit: No requirement.
c. Maximum Allowable Density: One lodge or residential bedroom per 380 square feet oflot
area.
d. Minimum Lot Width: 60 feet.
e. Minimum Front Yard (East Durant): 8 feet for the main structure, and 0 (zero) feet for
small architectural wall shown on Final PUD Plan.
f. Minimum Side Yard: 5 feet for the main structure, 3 feet for architectural overhangs and
columns, and 0 (zero) feet for stairs, planter boxes, and walkway defining walls.
g. Minimum Rear Yard: I foot.
h. Maximum Site Coverage: No requirement.
i. Maximum Height: 46 feet and 6 inches from existing grade to the top of the fourth floor
elevator shaft.
J. Minimum Distance Between Buildings: No requirement.
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k. Minimum Percent Open Space: 9 percent.
1. Trash Access Area: 35 square feet, plus loading area.
m. Allowable External Floor Area Ratio (FAR): 2.98: 1.
n. Minimum Off-Street Parking Spaces: 0.67 spaces per bedroom (21 spaces for 31
bedrooms, including the four employee housing bedrooms).
3. Acceptance of the Plat. Upon execution of this Agreement by the parties hereto, the City
agrees to approve and execute the Plat for the Project submitted herewith, and which conforms
to the Final PUD Plan and Plat requirements of the Code and the Ordinance. The City agrees
to accept such Plat for recording in the office of the Pitkin County Clerk and Recorder upon
Owners' payment ofthe recordation fee. If the approved Final PUD Plans change subsequent
to this approval, a complete set of revised plans shall be provided to the Engineering and
Community Development Departments for review and evaluation.
4. Development Reguirements. The following development requirements will be satisfied by
Owners pursuant to the Ordinance.
a. Emwyee Housing. The Project is required to adequately mitigate for employee generation
by providing deed restricted employee housing for at least 2.35 full-time equivalent employees
(FTEs). The Project includes two (2) two-bedroom deed restricted employee housing units, limited
to occupancy by employees of the Dancing Bear Lodge. The units need not meet the minimum net
livable square footage requirements of the AspenlPitkin County Affordable Housing Guidelines
(the Guidelines) in effect at the time of building permit issuance, but must be deed restricted at the
Category 2 rental rate as described in the Guidelines then in effect; however, since the units are to
be used only by employees of the lodge itself, income and asset restrictions are waived. Owners
shall complete and record the deed restrictions prior to applying for building permits to construct
such units. Further, the Owners shall meet with the Housing Office staff prior to the completion of
the Project to establish mutually acceptable lease terms for employees whose units are attached to
the business. The two (2) employee units provide housing credit for 4.5 FTEs, which is 2.15
FTEs more than required.
In an effort to be consistent with Section 38-12-301, C.R.S., and the Colorado Supreme
Court decision on the Town of Telluride v. Lot ThirtY-Four Venture L.L.C. (Case No. 98
-5C-547, decided June 5, 2000), Owners desire to grant to the Aspen/Pitkin County
Housing Authority (APCHA) an undivided one-tenth of one percent (0.1 %) ownership
interest in the above-described employee housing units of the Project. With the APCHA
consent to accepting an interest in the property, the Owners agree to indemnifY and hold
harmless for any claims, liability, fees, or similar charges related to ownership of an interest
in the affordable housing units. Conveyance of the hereinabove described ownership
interest from Owners to the APCHA shall take place prior to or concurrent with issuance
of a Certificate of Occupancy for the units and after said units have been rendered capable
of separate conveyance by way of condominium map or the similar (as described in
paragraph 5, below). The APCHA shall not be entitled to the payment of monies upon sale
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SILVIA DAVIS PITKIN COUNTY CO R 56.00 0 0.00
or rental at any time of any residential units in the Project, nor shall the APCHA be entitled
to derive any economic benefit by virtue of its undivided interest in the Project. Owner
reserves the right to submit an alternative option, subject to review and acceptance by the
City Attorney, to satisfy the rent control issue.
b. Wastewater and Surface Drainage. The site development will meet the runoff design
standards of the Aspen Municipal Code at Section 26.580.020(B)(6). Full soils reports, drainage
plans, and erosion and sediment control plans for both during and after construction, will be
submitted for review by the Engineering Department as part of the building permit application.
The drainage and erosion control plan shall be prepared by a Colorado licensed Civil
Engineer, and said plan shall demonstrate maintenance of sediment and debris on-site
during and after construction. If a ground recharge system is necessary, a soil percolation
report will be required to correctly size the facility. A two-year storm frequency should be
used in designing any drainage improvements. Foundation drainage systems must be
separate from site storm drainage systems. Rain and snow melt runoff must be detained
and routed on-site. These facilities must be shown on the drainage plans and submitted for
approval as part of the application for building permit. The drainage and erosion control
plans shall prevent mud from getting tracked into the streets and shall demonstrate that roof
drainage will not be discharged onto the sidewalk or into drain chases through the
sidewalk. There shall be no clear water connections such as roof drains, foundation drains,
or storm water connections to the Aspen Consolidated Sanitation District (ACSD) sewage
lines.
c. Building Permit Plan Reguirements. In addition to such requirements enumerated
elsewhere herein and otherwise required by the City of Aspen Building Department, the
following information shall be submitted as part of the building permit application:
1. A copy of the Ordinance; construction dust and noise mitigation plan;
2. A list of all conditions of approval associated with the Project printed on the cover
page of the building permit plans set; a completed tap permit for service with the
ACSD;
3. A tree removal permit as required by the City Parks Department and any approval
from the Parks Department Director for off-site replacement or mitigation of any
removed trees;
4. A detailed ventilation plan of the parking garage ventilation system prepared by an
engineer that specializes in the design of ventilation and heating systems;
5. A fugitive dust control plan which includes proposed construction fencing, watering
of haul roads and disturbed areas, daily cleaning of adjacent paved roads, construction
speed limits, and other measures necessary to prevent windblown dust from crossing
the property line;
6. A detailed kitchen plan for approval by the City Environmental Health Department;
and,
7. A study performed by a Colorado licensed Civil Engineer demonstrating how the
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required excavation of the site may be performed without damaging adjacent structures
and/or streets. If the applicant utilizes soil pins to stabilize excavation cuts, the applicant
shall be required to provide a financial assurance in an amount to be determined by the
Community Development Engineer. The City Engineering Department strongly prefers
that the applicants use soil hardening techniques rather than soil pins to stabilize the
excavation cuts.
d. Building Permit Issuance Requirements. In addition to such requirements enumerated
elsewhere herein and otherwise required by the City of Aspen Building Department, the following
shall be provided prior to issuance of any building permits:
1. The primary contractor shall submit a letter to the COlllillunity Development Director
stating that the conditions of approval have been read and understood.
2. All tap fees, impacts fees, and building permit fees shall be paid. If an alternative
agreement to delay payment of the Water Tap and/or Parks Impact fee is fmalized, those
fees shall be payable according to such agreement.
3. Owners shall sign a shared sewer service line agreement with the ACSD.
e. Utility Connections. Owners shall comply with ACSD rules and regulations; if new sewer
lines are required, then existing services must be excavated in the alley and disconnected at the
main sewer line. Owners shall comply with the City of Aspen Water System Standards, with Title
25, and with applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of
the Aspen Municipal Code, as required by the City of Aspen Water Department. Owners shall
have an electric connect load summary conducted by a licensed electrician to determine if the
existing transformer has sufficient capacity for the Project; if a new transformer is required,
Owners shall provide for a new transformer, its location shall be approved by the Community
Development Department prior to installation, and an easement shall be provided to allow for City
Utility Personnel to access the new transformer. In general, all utility meters and service
connection points will be accessible to service personnel in the completed project and will not be
obstructed by garbage or recycling containers, other structures or vegetation. Any necessary and
new utility easements, required for surface utilities such as a pedestal or other above-ground
equipment, shall be shown on the plan set submitted for building permits. The Owners shall install
and replace utility service lines and appurtenances, as required, to the standards of the utility
provider. The costs of any necessary upgrades to existing utility lines, systems, and/or facilities
attributable to the Project will be borne by the Owners. The Owners will use good faith efforts to
not disrupt utility service to adjacent properties during construction.
f. Fire Protection. Owners shall install an adequate fire alarm system throughout the structure
to the extent required by the Fire Marshal. Owners shall also install a fire sprinkler system
and fire extinguishers that meet the requirements of the Fire Marshal. Standpipes shall be
installed within the stairwells. In addition, the water service connection to the sprinklers
must provide an adequate flow of water to eliminate the need for a fire pump.
g. Construction Management. Mud shall not be tracked onto City streets during demolitions.
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A washed rock or other style mud rack shall be installed during construction as a
requirement of the City of Aspen Streets Department. Construction materials shall not be
stored in or on the public rights-of-way unless a temporary encroachment license is granted
by the City Engineer. Construction is prohibited on Sundays and between the hours of7:
00 p.m. and 7:00 a.m. on all other days. All City noise ordinances shall be abided by. A
full set of construction mallagement plans will be submitted by the Owners to the City as
part of the building permit application and said management plan will include a noise, dust
control, and construction traffic and construction parking management plans addressing at
least the following: (a) definition of construction debris hauling routes and anticipated
impacts on local streets; and, (b) construction parking mitigation where, except for
essential trade trucks, no personal trucks are to be parked on public streets around the site,
and shuttling in of personnel from the airport parking area is encouraged.
h. Future ImQrovement District~). Owners agree to join any future improvement district(s)
formed for the purpose of constructing public improvements which benefit the property
under a fair share assessment formula. Prior to the issuance of a Certificate of Occupancy
for any part of the Project, Owners agree to sign a sidewalk, curb and gutter construction
agreement and pay any applicable recording fees associated therewith.
1. Lighting. Any and all outdoor lighting shall comply with the applicable portions of
Section 26.575.150, Outdoor Lighting, of the Aspen Land Use Code, as may be amended
from time to time. Owners shall installllnon..reflective coating or use non-reflective glass on
the fourth floor glass gazebo to reduce outward glare as much as possible, and opaque
window coverings shall be installed inside the glass gazebo.
j. Work In Rights-Of-Way. Owners shall obtain a revocable encroachment license from the
City Engineering Department prior to commencing any landscaping or improvements in the public
right-of-way. With regard to excavation, water taps, landscaping, sidewalk, and roadway
improvements in public rights-of-way, the following shall also be required:
1. Owners shall submit financialllssurance in an amount and form acceptable to the City
Engineer and City Water Department Director for excavation in the public right-of-way. Owners
shall also schedule the abandonment of the existing water tap prior to requesting.a new water tap.
2. All landscaping in the public right-of-way shall meet the requirements set forth in
Municipal Code Chapter 21.20, Trees and Landscaping on Public Right-of- Way. Any landscaping
in the public right-of-way shall be approved by the City Parks Department prior to installation.
3. Owners shall install two (2) ADA accessible sidewalk ramps. One ramp shall be
constructed from the sidewalk onto Monarch Street and the other ramp shall be constructed from
the sidewalk onto Durant Avenue. Owners shall install sidewalk, curb, and gutter that meet the
City Engineer's required specifications along Monarch Street and Durant Avenue prior to issuance
ofa Certificate of Occupancy. A minimum radius of twenty-five (25) feet from the flowline of the
comer shall be maintained at Durant A venue and Monarch Street. If Owners cannot provide a
radius of twenty-five (25) feet from the flowline of the comer because they wish to maintain the
existing Pine tree, then Owners shall provide the largest radius possible without damaging the tree.
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SILVIA. DAVIS PITKIN .COUNTY C.O ... ...... ..-=-'~'.~Zc~-Z'-..>C-7~--T7C<.7--:2
Owners shall reconsthlcfllieaITey driveway -panat the east end of the alley.
4.
k. Trees, Protection, Removal Permits. and Planting Plans. In the event required and prior to
building permit application, a tree removal permit must be obtained from the Parks
Department for any tree(s) that is/are to be removed or relocated. Owners shall install tree
saving construction fences around the drip line of any trees to be saved, and with regard to
such tree saving fences: (a) The City Forester or his/her designee must inspect this fence
before any construction activities commence; and (b) No excavation, storage of materials,
storage of construction equipment, construction backfill, foot or vehicular traffic shall be
allowed within the fenced drip line.
1. Parking and PM I 0 Mitigation. Owners shall mitigate for PM 10 by 1) providing a fleet of
five (5) bicycles for use by guests and employees, by 2) providing a shuttle to and from the airport
on demand of guests, 3) by providing free bus passes to lodge employees, and by 4) providing a
fleet of at least two (2) hybrid vehicles for use by guests and employees. Satisfaction of these
requirements shall be sufficient PM 10 mitigation to satisfy all associated requirements of the
Environmental Health Department.
Two (2) ofthe surface parking spaces that are accessed off the alley shall be signed as
thirty (30) minute parking for use by guests for the purpose of checking in. Priority to the
occupant( s) of the affordable housing units shall be provided for use of four ( 4) of the on-
site parking spaces; in the event that the occupant(s) of the affordable housing units do not
own cars or desire use of the parking spaces, the parking spaces shall remain available for
the general use of the Project's other occupants or guests. The ramp providing access to
the subgrade parking garage shall have a width of at least twenty -one (21) feet.
m. Water and Sewer.. In addition to all other water and sewer related requirement enumerated
herein, the following shall be required. Owners shall provide the Water Department with a
detailed plan for relocating the fire hydrant that demonstrates that the water mains will be
shut down during the relocation of the hydrant; this plan shall be approved by the Water
Department prior to relocation of the hydrant.
Owners shall install an oil and grease separator in the restaurant/bar that meets the Aspen
Consolidated Sanitation District's regulations. The applicant shall also install an oil and
sand separator for the indoor parking facilities.
n. Asbestos. Owners shall notify the State prior to remodel, expansion or demolition of any
buildings, including removal of drywall, carpet, tile, etc., and a licensed asbestos inspector
must conduct an inspection. If there is no asbestos, the demolition can proceed. If asbestos
is present, a state licensed asbestos removal contractor must remove it. Owners shaH report
these findings to the Environmental Health Department and Building Department prior to
the issuance of demolition and building permits.
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SILVIA DAVIS PITKIN COUNTY CO .
o. Pools and Snas. All design, installation, and maintenance of the pools and spas must
comply with the State of Colorado's "Swimming Pool and Mineral Bath Regulations."
p. Food and Alcohol Service. Owners shall obtain a Colorado Retail Food Establishment
License prior to serving guests food that has been prepared on-site. Owners shall also
obtain a liquor license prior to serving alcoholic beverages. Installation of a char broiler on
the rooftop patio shall be prohibited. Any conversion to the use of the restaurant area shall
require approval of a PUD amendment.
q. Fees. Prior to issuance of a building permit, all applicable tap fees, impact fees and
building permit fees shall be paid. Cash-in-lieu of school land dedication shall be paid at the time
of building permit issuance, the amount of said fees shall be determined by the City of Aspen
Zoning Officer, and fees shall be assessed only for the affordable housing units being built.
Park development impact fees are due and payable to the City of Aspen at the time of
building permit issuance, and said payments shall be made on a proportional basis to the net
number of bedrooms (lodging and residential) being constructed. Twenty-three (23)
lodging bedrooms exist on the Property for purposes of calculating the net number of new
bedrooms being developed in the Project. The park development impact fees due shall be
calculated by the City of Aspen Zoning Officer.
Both the cash-in-lieu of school land dedication and the park development impact fees shall
be assessed based on the adopted standards/rates in effect at the time of payment.
If an alternative agreement to delay payment of the Water Tap and! or the Park Development
Impact fee is finalized, those fees shall be payable according to such agreement.
r. Timeshare. Owners shall submit all timeshare documents and disclosure statements to the
City Attorney for review prior to their recordation at the Pitkin County Clerk and Recorder's
Office.
Each owner of an estate shall have an undivided interest in the common recreational areas
within the facility.
All unsold timeshare units that are not used by Owners for exchange, marketing or
promotional purposes shall be made available for short-term rent until purchased.
Nothing in the timeshare documents shall prohibit short-term rental or occupancy of the
units; it is the intent of this condition that the non-deed restricted units shall be available for
short-term rental purposes when not occupied by the purchaser or its guests or utilized for
exchange programs.
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s. Sales Tax Revenue Audits. The City of Aspen Finance Department shall conduct
an annual audit of the sales tax revenues that the City collects from the Project over its first
five (5) years of operation, to determine if the projected revenues are accurate. Owners
shall cooperate with the Finance Department in its annual audit efforts.
5. Colorado Common Interest Ownership Act (CCIOA). As soon as construction of the Project
allows, Owners will likely need to submit the Project to a plan for condominiumization created
pursuant to Colorado Common Interest Ownership Act (CCIOA) in order to facilitate the
conveyance of fractional shares and an ownership interest in the employee housing units to the
APCHA. The City agrees to process for approval and for recordation a condominium map
prepared in accordance with the Code and CCIQA. As the Qwershaye provided employee
housing pursuant to the Code, the Project is exempt from paying the Affordable Housing
Impact fee.
6. Recordation. Pursuant to Section 27.480.070(E) of the Aspen Land Use Code, once fully
executed, this Agreement and the Final Plat shall be recorded in the office Qf the PitkinC:Olil1ty
Clerk and Recorder. Failure on the part of the Owners to record th~ plat within one-hundred
eighty (180) days following approval by City Council shall render the plat invalid and
reconsideration and approval ofthe plat by the Planning and Zoning Commission and City
Council will be required before its acceptance and recording, unless an extension or waiver is
granted by for a showing of good cause. The one-hundred eighty (180) day recordation
requirement contained herein shall not apply to the recording of condominium maps, or
declarations or any other documents required to be recorded to accomplish a
condominiumization in the City of Aspen.
7. Financial Security for Public Improvements in the R.O.W. In order to secure the
performance of the construction and installation of improvements in the public RO.W.
including landscaping, the Owner shall provide a letter of credit, cash or other guarantees in
a form satisfactory to the City Attorney prior to the issuance of any building permits for the
project. The amount of the required financial security shall be 125% of the estimated cost
ofthe improvements in the RO.W. The guarantee documents shall give the City the
unconditional right, upon clear and unequivocal default by the Owners in its obligations to
complete the public improvements, to withdraw funds against such security sufficient to
complete and pay for installation for such public improvements, or to withdraw funds
against such security sufficient to complete and pay for installation for such public
improvements. If the improvements have not been completed to the satisfaction of the City
within one year, the City may require the Owner to adjust the amount of the financial
security for inflation.
As portions of the civil site improvements in the RO.W. are completed, the City shall inspect
them, and upon approval and acceptance, shall authorize the release of the agreed estimated
costs for that portion of the improvements, except that ten percent of the estimated costs of
the improvements shall be withheld for the benefit of the City until (i) all of the
improvements have been inspected and accepted by the City, (ii) a two-year maintenance
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,~ILVIA DAVISPITKINCOUNTY.C? .......R56.0.0 ..0 0.00 .
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bond has been provided by the Contractor, and (iii) as-builts provided (if required).
As portions of the landsca12ing improvements in the R.O.W. are completed, the City shall
inspect them, and upon approval and acceptance, shall authorize the release of the agreed
estimated costs for that portion of the improvements, except for thirty-five percent (35%) of
the estimated costs of the improvements. Ofthis thirty-five percent, ten percent (10%) shall
be released by the City after (i) all ofthe landscaping improvements have been inspected
and accepted by the City, and (ii) as-builts provided (if required). The remaining twenty-
five percent (25%) of the financial security shall be retained by the City until the
landscaping improvements have been maintained in a satisfactory condition for two (2)
years.
In the event that any existing municipal improvements are damaged during Project construction,
on the request ofthe City Engineer, a bond or other suitable security for the repair ofthe
improvements shall be provided by the Owner to the City.
8. Notices. Notices to the parties shall be sent by United States certified mail to the addresses set
forth below or to any other address which the parties may substitute in writing.
To the Owners:
MSE Aspen Holdings, Inc.
c/o Michael S. Egan, President
th th
110 SE 6 Street, 29 Floor
Fort Lauderdale, FL 33301
With Com.: To:
Herbert S. Klein, Esq.
201 N. Mill Street, Suite 203
Aspen, CO 81611
To City of AS12en:
City Manger
130 South Galena Street
Aspen, CO 81611
With CO]2Y To:
City Attorney
130 South Galena Street
Aspen, CO 81611
9. Binding Effect. The provisions of this Agreement shall run with and constitute a burden on the
land on which the Project is located and shall be binding on and inure to the benefit of the
Owners' and the City's successors, personal representatives and assigns.
10. Amendment. The Agreement may be altered or amended only by written instrument executed
by the parties.
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11. Severabilin:. If any of the provisions of this Agreement are determined to be invalid, it shall
not affect the remaining provisions hereof.
ATTEST:
corporation
APPROVED AS TO FORM:
~~ey
OWNERS:
MSE ASPEN HOLDINGS, INC.
By:
STATE OF COLORADO
Witness my hand and official seal.
My commission expires:
STATE OF FLORIDA )
)ss.
COUNTY OF BROW ARD )
The foregoing instrument was acknowledged before me thisL day of !JtAY
200'7, by Michael S. Egan, as President ofMSE Aspen Holdings, Inc.
Witness my hand an. d Offi.lCl..alS em. ~ ~
M commission expires: All,. 1./ (~OO h
;t.~" "''''~, MARYBETH HONE
f \. Nomry Public - State or Florida No Pub!"
S' . E M')' Commill6ion Ellp/re!; A/..l1;J 4, 2008
.~~Ui1m1~~ ear\D Bear Agreement