HomeMy WebLinkAboutLand Use Case.307 S Mill St.18A-86
CASELOAD SUMHliliY SH EI:.'"l' ---
, City of Aspenr::1737-Ita.-K7-0D5
DATE RECEIVED: It, "2..dl!'v~ 10' C~ ~ols'A\~'f,
DATE RECBIVED Cm1PLETE: C,!i1i6~ STA;F':' <;..&,' "
PROJECl' NAi"lE,:-;rfH"m ~~ :S~c4{,J,1?tY~- Co...--~,-,.\ k>;~""","".:l. '-.;~
elAPPLlCANT:_.~ Lillf.,(\.\ ~ Ar...~YL- '
\,j Applicant Address/Phon~ ~ '2.213 ~ Crt €"f..''Z..
REPRESEN'rATIVE~b 1=Y~'.' .
Representative Address/Phone: ZIS- s. ~d..o~ to!
Type of Application:
I. GMP/Subdivision/POD
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____ Aspen Consolo S.D. School District ~'~
____ Mtn. Bell _, Rocky !1tn. Nat. Gas :,'~.,.
Parks Dept. ____ State Hwy Dept (GlenwoJ' '!iI.
_. Holy Cross Electric ____ Statellwy Dept (GLJtnJ .~)
L.- Fire Marshall ____ Blog: Zoning/Inspectn $'!!!.'".
--=-- Fire Chief Other: ~
Roaring Fork Transit Roaring Fork Energy Center ~-
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City Atty _ City Engineer _' Building Dept. _~t}
1 Other: Erl\liY'o~IV\'U\.\.&..{tJy~ - Other: it!!!:
FILE S'rATOS AND LO('.ATION: r;{tJ!..~ 4-0 V~ '
1. Conceptual Submission
2" Prel iminary plat
3. Final Plat
20
12
6
$2,730.00
1,640.00
820.00
II. Subdivision/PUD
1" Conce pt ual Submi ssion
2. preliminary Plat
3. Final Plat
14
9
6
11
$1,900.00
1,220.00
820.00
'$1,490.00 I
$ 6 80 . 0 0
III. All "'I'wo Step" Appl ica tions
IV. All "One Step" Appl ications
5
v.
Referral Fees - Environmental
Health, Housing Office
1. Minor Appl ications
2
5
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50.00
$
$
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125.00
2. Major Applications
Referral Fees-
Engineering
.
~inor Applications
Major Applications
80.00
200.00
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~ CC MEETING DATE: \?\~-\ PUBLIC HEARING:' 'YES ~
DATE REFERRED: ~1;~' INITIALS: ~
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~ City Engi neer
Housing DiL
Aspen ~Iater
City Electric
Envir. Hlth.
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Revie\~cd by:
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A trash/utilities/service nrea shall be provided includin. a
trash enclosure 10' feet wide and l~ feet .~~ to accoll1I'1od, te
a 6 yard dumpster, a service corridor to the rear of he
Barnard Building 6 feet wide and a service vehicle access
area in front of the trash enclosure/l20 feet in lenoth to
the Eyman Street curb. ot1'li<;t 0
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The appl icants shall compl ete the paving and landsca~ling
scheme \"ithin 6 ",eeks of opening including: paving br i ks
laid, installation of street lights, placement of t ee
grDtes around existing pine trees and planting of as en
trees, flol-lers, shrubs and grass as represented in he
application. . ,1
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A planter shall be,p~aced on th~ \~e~tern e~ge of the p:Iiaza , t
area as representee 1n the appl1catlon, .,~~ .,landBd1ape pllln ~Yl
i;1I:Cil.6 along Hyman and IJill Streets shall be '
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Letter~ from the'sanitatiOn District and I-later nepartmlnt
indicating that there is adequate s~~er and water service~to
the popcorn \'lagon shall be obtained by the applicants nd
submi tted to the Plannino Office and Env i r onmental Heal th
Department prior to issua~ce of a Certificate of Occupan~.
The type of street lights and illumination intensity shJll
be reviewed to the satisfaction of the Commercial Core ~nd
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The Building Dept.
The Planning Dept.
Aspen, Colo"
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I wish t~ verify that the small area between the
Popcorn Wagon's kitchen facility and the Wheeler Square
building was used as a storage and office before it was
demolished. I understand that the owners of the Popcorn
Wagon demolished that area and wish to rebuild it as it was,
Sincerely,
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KLEIN. SEIGLE & KRABACHER
HERBERT S, KLEIN
JON OAVIO SEIGLE
B. JOSEPH KRABACHER
PROFESSIONAL 'CORPORATION
ATTORNEYS AT LAW
201 NORTH MILL $TRE:ET
ASPEN. COLORADO 816t 1
TELEPHONE
13031 925.e700
THOMAS C. HILL
June 24, 1986
William L. Comcowich, Trustee
Estate of Dr. Robert Barnard
Trust of Robert Barnard
420 West Main Street
Aspen, Colorado 81611
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VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Re: Lease Agreement dated July 3, 1985
Dear Dr. Comcowich:
We are writing this letter to you on behalf of Howard Gunther and Grill
on the Park, Inc., a Colorado corporation (formerly known as Tavern on the
Park, Inc.) (the "Company"), with respect to that certain Lease Agreement
dated July 3, 1985, for Unit B and a portion of Unit C, Aspen Commercial
Condominiums, Pitkin County, Colorado (the "Lease").
There are several problems with respect to the water and sewer systems
of the premises, and we are writing this letter to you in order to put you on
notice as to these problems and to make formal demand that the problems be
rectified.
1. With respect to the water lines, the plumber for the Company,
Ludwich Risch, has informed us that the main water line into the restaurant
is insufficient to handle the restaurant's needs. The Company has already
installed 3/4 inch water lines within the structure of the building, but the
main line going into the restaurant is not large enough to handle the loads
that will be placed upon it by the restaurant. In addition, it is our
understanding that the Popcorn Wagon is tying into this line, and this will
further increase the load on the water line and may cause additional
problems. We have requested that the water line be changed in order to
handle the loads that will be placed upon it by the restaurant and by the
Popcorn l'/agon. This letter will confirm that you agreed with Howard
Gunther to remedy this problem during the next two weeks, and that your
attorney Bob Francis has all necessary authority to remedy the problem.
2. With respect to the sewer, it is our understanding that the Popcorn
Wagon is tying into the building's sewer line. As you know, the sewer line
has had a history of bad disposal problems. The Company has routed the
sewer line as far as possible in order to alleviate any potential problems. In
order to avoid any potential problems, the Company has had the restaurant
install an extremely large grease trap to prevent overloading the sewer. We
are at a loss to determine what, if anything, the Popcorn Wagon is doing to
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William l. Comcowich, Trustee
June 24, 1986
Page 2
mitigate potential problems with the sewage disposal system. Due to the prior
history of bad sewage problems, we feel that the Popcorn Wagon may overload
the sewer, and if this occurs, we intend to hold the Lessor under the Lease
responsible for all damages and costs, including loss profits and loss of
business. As you know, at the time the Company entered into the Lease
none of its officers or directors were informed, or had any knowledge, that
the Lessor would be leasing the space on the corner of Hyman Avenue and
Mill Street to the Popcorn Wagon.
We are taking the liberty of providing copies of this letter to the
Aspen/Pitkin Sanitation Department and the City of Aspen, Engineering
Department. We hope this matter will be solved by your agreement to remedy
the water line problem and by requiring the Popcorn Wagon to connect to the
city's main sewer line rather than the restaurant's service line. We will
continue to moniter the situation as developments occur. Should you have
any questions with regard to this letter, please feel free to call the
undersigned at your earliest convenience.
Very truly yours,
KLEIN, SEIGLE & KRABACHER P.C.
By
B. Joseph K rabacher
BJK:nwt
cc: Robert A. Francis, Esquire
Aspen/ Pitkin Sanitation Department
City of Aspen, Engineering Department
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'__.;PEN/PITKIN PLANNING OFFfc.. '
130 S. Galena Street
Aspen, Colorado 81611
(303) 925-2020
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. RE l-ff.l.e' pal'~ uJl"IG<J,.J
Dear L I
This is to inform you that the P1~ning Office has completed its
preliminary review of your 6~;a./J0r2v;w application for complete-
ness. We have determined that'your application
JG is complete.
is not compl ete.
The additional items we will require are as follows:
Disclosure of ownership (one copy only needed).
Adjacent property owners list (one copy only needed).
Additional copies of entire application.
Authorization by owner for representative to submit
application.
Response to the attached
ing compliance with the
regulations of the Code, or
A check in the amount of $
list of items demonstrat-
applicable policies and
other specified materials.
is due.
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A. Since your app1ic tion complete, we h<;lve scheduled it
for review by the i '~on --.JUI'IL...2~ /9,F-C,. .
We will be calling you if need any additional information
prior to that date. In any case, we will be calling you
several days prior to your hearing to make a copy of the
review memorandum available to you" Please note that it
(is) (is not) your responsibility to post your property with
a sign, which we can provide you.
B. Since your application is incomplete, we have not
scheduled it for pUblic review at this time. When we have
received the materials we have requested, we will be happy
to place you on the next available agenda.
Please feel free to call S\-w~ ~~i'"\ , who is the planner
assigned to this case, if you have any questions.
Sincerely,
ASPEN/PITKIN PLANNING OFFICS
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Alan Richman, Planning and ()
Development Director
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MEMORANDUM
FROM:
Aspen Planning and Zoning Commission
Steve Burstein, Planning Office
TO:
RE: Popcorn Wagon Special Review Commercial Restaurant
in Open Space and Reduction in Trash and Utilities
Requirement
Parcel ID#2737-182-17-005
DATE:
June 24, 1986
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LOCATION: Lots Rand S, Block 82, City and Townsite of Aspen,
souta_est corner of Mill and Hyman Streets.
ZONING: CC
APPLICANTS' REQUEST: Lillian Lively and Dan Arrow request
permission to place the Popcorn Wagon on required open space of
the Barnard Property. Proposed changes to the site include brick
pavers and planters, tree grates around existing trees, new
plantings, two streets lights and a trash dumpster enclosure. A
commissary would be located in an existing cement block portion
of the adjacent building.
APPLICABLE SECTION OF CODE: Section 24-3.7(d) (8) states required
open space may be used for commercial restaurant use if, on
review, the Planning Commission shall determine that such use not
be in derogation of the purposes of open space requirements of
this section.
Section 24-3.7(h)(4) establishes minimum required dimensions of a
utility/trash service area abutting an alley consisting of 20
feet by 10 feet deep. Reduction of trash and utility access
requirements can be permi tted by the Planning Commi ssi on through
Section 24-3.5 of the Code.
PLANNING OFFICE COMMENT:
a. Trash and Utilities Access: The Barnard Property abuts the
alley of Block 82 next to Wagner Park. This alley abutment
is not appropriate for utility and trash service for
occupants of the property. The trash area f or the Gr ill,
Waterfall Hope. as well as the Wheeler Square Building is
presently handled on the Hyman Street open space. The main
delivery service' to the Grill is also through this part of
the site. The applicants propose to more tightly define and
enclose a trash area on the western edge of the property to
serve all existing users.
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After discussion with the Engineering Department, BPI, the
applicants and the manager of the Grill, it was felt that
the best solution would be to create a trash enclosure area
10 feet wide and twenty (20) feet deep (to accommodate a 6
yard dumpster), leave a service corridor to the rear of the
building 6 feet wide, and a service vehicle access area in
front of the trash enclosure of 20 feet to the curb of Hyman
Street.
b. Restaurant Use of Open Space: The Popcorn Wagon is an
unusual entity, and is subject to question whether it is
~lithin the normal definition of restaurants. Given the type
of services the Popcorn Wagon has provided in the past, we
find that the use is a "Commercial Restaurant" and therefore
subject to Section 24-3.7(d)(8).
c. Paving, Planters and Plantings: The appl icants propose to
pave the major portion of the site with paver bricks and
place two (2) foot high, one (1) foot wide planters along
the edges of the property abutting the Mall. The narrow
brick-faced planters would make for a harsher edge to the
mall than what we feel is appropriate for this open space
and would constrain the roots of any trees planted in them.
We suggest that the proposed plantings of aspen trees,
f 10"/ er s and grass be pI anted di rectly into the ground
adjacent to Mill and Hyman Streets. The width of planted
area should be wider than that proposed and a low picket or
iron fence may be necessary to protect this planted area.
The applicants believe that the planters are most appropri-
ate because the flowers can be better attended, wash water
w ill not drai n into the vegetati on and the pI anters better
organize the plaza space. The planter adjacent to the Wagon
and along the utility strip should be built as proposed to
"anchor" the Wagon and buffer the trash and service area.
Tree grates for the existing spruce trees on the site should
be provided as proposed. Trimming of the pine trees should
be restrained to the plan proposed inthe applicant's June
23 memo to accomplish the Clearing of six (6) feet in
height.
d. Street Lights: Two street lights would be installed. The
Commercial Core and Lodging Commission requested to conduct
a final review of the type of street lights to ensure that
they are compatible with mall lights. Illumination inten-
sity should also be reviewed by CCLC.
e. Vehicular and Pedestrian Traffic: The proposed operation
should not significantly impede vehicular or pedestrian
traffic. During times of service vehicle deliveries, there
will be some additional congestion. The trash and service
plan shOUld help accommodate traffic somewhat better than it
is done at the present time.
Water and Sewer Service: The Water Department and Sanita-
tion Di strict have indicated that they can service the
Popcorn Wagon. It appears that there are complications
wi thin the Barnard building that Idll require the attention
of the building owner and tenants. Lee Cassin, Environ-
mental Heal th Officer, expressed concern over the freez ing
of winter lines in her letter of June 9, 1986 (attached).
HCMever, the applicants are responsible for keeping the
above-ground water lines from Jreezing.
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Restrooms: Arrangements( have been made for the use of
restrooms in the MagnifiCO/Building. Approval was given by /'J
the Environmental Health Department provided that the ,\\>!f
restrooms are available while the Popcorn Wagon is open. Ij.l~4\,
RECOMMENDATION: The Planning Office recommends approval of the i~jwO\i\"\:
Popcorn Wagon use of required open space, and trash area reduc-'
tion special review, subject to the follCMing conditions:
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A trash/utilities/service area sha~~be provided including a
trash enclosure 10 feet wide and '2-Q:: feet keep to accommodate
a 6 yard dumpster, a service corridor to the rear of the
Barnard Building 6 feet wide and a service vehicle access
area in front of the trash enclosure 20 feet in length to
the Hyman Street curb.
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The appl icants shall compl ete the paving and landscaping
scheme within 6 weeks of opening including: paving bricks
laid, installation of street lights, placement of tree
grates around existing pine trees and planting of aspen
trees, flowers, shrubs and grass as r€;f.resented in the
application. ff:-leLLec-()f"'-creait or bOl1aI.:sball be submitted
for these improvements to the sati sfaction of the Ci tY(P,iJd, AnJ
Attorney. The Zoning Official shall be ,contacted to inspect\: D
the landscape improvements prior to redemption of the bond - .
or letter of credit.
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A planter shall be placed on the western edge of the plaza
area as represented in the application, and the landscape
areas along Hyman and Mill Streets shall be planted directly
into the ground in strips as shCMn in the site plan at least
two (2) feet in width. 1~'I&J;vT wiJ..
Letters from the Sanitation District and Water Department
indicating that there is adequate sewer and water service to
the Popcorn Wagon shall be obtained ~ the applicants and
submitted to the Planning Office and Environmental Health
Department prior to issuance of a Certificate of Occupancy.
The type of street lights and illumination intensity shall
be reviewed to the satisfaction of the Commercial Core and
Lodging Commission prior to iss""ncp of ~ificatc of
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The Popcorn Wagon
P.O. Box 2213
Aspen, Co. 81612
Owners: Lillian Lively and Dan Arrow
923-3627
Relocation of the Popcorn Wagon to Barnard Property
Present Zoning is Ccommercial Core
Use of approx 2067 sq ft of total lot size approx 6000 sq ft
Lot located at the intersection o,f Mill and Hyman Sts. S.W. corner,
known as the Barnard Property.
Existing uses:
fenced "lawn" 1282 sq ft, gravel parking and dumpster
space '665 sq ft, stor;age room 120 sq ft
Proposed use: to relocate and resume operation of the restaurant
known as the Popcorn Wagon, whi~h includes the
folloWing changes to the property:
-remodel storage room into a clean food prep
commissary
-install new electric and natural gas ,service
-repaint the currently white cinderblo,ck walls
a color which will make the walls inconspicuous
-trim lower branches of pine trees
-lay paving bricks on seating area, which
includes cleaning up the current parking space
-relocate and design the concealment of trash
dumpster
-install streetlamps
-build brick planters and plant with perennial
flowers and aspen trees
-place wagon in existing parking spaces and
permanently install sewer,water,gas and electric
Background of Request
Popcorn Wagon owners appeared at City Council on May 12
requesting an amendment to the Administrative Policy on Exterior Uses
because Bill Dreuding determined that the ?opcor-n Wagon did not fit
in the current policy. Council dir-ectedstaff (Planning Dept.) to
"make it happen on the Barnard Proper-ty". Appear-ed at Council work
session on May 19 and Planning Dept. reported that five steps wer-e
necessary befor-e placing the Wagon 6n the Barnar-dProper-ty.
1. City Council amendment to the "Administrative Policy on
Exterior Uses" to allow a food service use that is not immediately
adjacent to a restaurant.
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2. Planning Commission special review approval of "commercial
restaurant use" of required open space pursuant to Section 24-3.7(d)
(8). Presuming that this site constitutes part of the required open
space for the parcel, the Planning Commission would need to determine
that the Popcorn Wagonqual:i,fies as a "cofilmercialrestaurant use" and
therefore is eligible to apply for this review, and that the Popcorn
Wagon "is'not in derogation of the purpose of open space
requirementslt..
3. Historic Preservation Committee review to authorize
"construction or erection of any improvement... llPon any site or area
included within an H, Historic Overlay District" pursuant to Section
24-9.10(a) (3) of the Municipal Code.
4. Commercial Core and Lodging Commission review and approval
should be accomplished to ensure that the wagon would fit in with
mall concepts.
5. Board af Appeals exempting the Wagod frofu Fire Code distance
requirements.
With the following results:
1. City Council amended the Administrative Policy on Exterior
Uses to allow the Popcorn Wagon to locate on the Barnard Property.
Council also not",d the th.e Popcorn Wagon is an asset to the community
and would effectively extend the mall on Hyman Street. Council dent
their enthusiastic "upport to the relocation.
3. Historic Preservation Committee gave preliminary approval for
Popcorn Wagon relocation planswith recommendations on landscaping. A
public hearing has been scheduled for June 24.
4. Commercial Core and Lodging Commission gave approval for
Popcorn Wagon r<;!location plans with recommendations on choice of
streetlamp design.
5. JimWilsonJ Chief Building Official and Fire Marshal gave
approval for proposed situation of Wagon on property, noting that
that distance would be sufficient to not pose a fire hazard.
The lot, as it now sits, is not particularly. pleasant. As
visitors exit the Visitor's Center in the Wheeler they are greeted
with the sight of two large unfriendly "No Parking" signs, a very
large dumpster and usually a car or two. If the visitor were to cross
Hyman Street for a closer look he/she would note that the "lawn" is
used for the storage of dog droppings and little bits of stray trash.
The "law,n" is fenced, which further inhibits it's use by humans.
The parking space, is not requir-ed in the Commercial Core
district and by definition is not open space. The placement of the
Popcorn Wagon on the property will effectively increase the open
space by 32% (from 1282 sq ft to 1692 sq ft).
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The Popcorn Wagon placement on the lot, we feel, will enhance
the visual aspect of the lot and will make the space available for
use by people. The parking space and "No Parking" signs will be
replaced with the Wagon and the "lawn" will be replaced with paving
bricks, upon which will be tables and chairs. The dumpster will be
hidden from view and Popcorn Wagon employees and management will take
responsibility for keeping the area clean.
The limbs of the pine tree will be trimmed to allow free
movement underneath the trees and more trees will be added to the
property. Benches will be placed on the Hyman St. perimeter, where
the sidewalk is sufficiently wide to allow easy pedestrian flow.
Upon approval of this move the following timetable will; apply to
improvements:
1 week:
paving bricks laid
wagon in place
commissary complete
util~ties to the wagon
tables and chairs placed
wagon open for business
mid-sept (at the latest):
complete landscaping
planters built
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TRASH
1. There will be no reduction of area dedicated to
trash. Presently entire 665 sq ft has space for dumpster
and 2 automobile parking spaces. Trash dumpster,on any
particular day, could be found anywhere on that area. Trash
overflows are placed wherever there is no car.
2. The Popcorn Wagon will provide its own separate
dumpster which will be covered and not visible from the
street or mall. We will not use existing dumpster.
3.
\vheeler
will be
As previously stated, Don Fleiscer (Manager of
Square) and Dr.Comcowich (Executor of Barnard estate)
enclosing the present trash dumpster.
4. Location of that dumpster enclosure will be as in
attached drawing.
5. Area in front of trash dumpster enclosure (currently
used as parking space) will be service vehicle access, where
none existed before.
6. Access to THE GRILL will be 6' area between dumpster
and Wheeler Square.
7. Current problem with overflow of trash dumpster is
due primarily to boxes which are not flattened. As the new
neighbors, we will be requesting that dumpster users flatten
boxes before inserting in dumpster in order to prevent
overflow.
,-..
-.
PLANTERS
We will be requesting from HPC and P&Z to build planters
as in drawing.
TREES
Trimming of trees will be as follows:
Western evergreen tree- 9 branches plus 2 bare branches
closest to the ground, to a level of about 6' at the trunk.
Eastern evergreen tree- 6 branches to a level of about
6' at the trunk.
Cherry Tree 1 branch on western side which is
completely broken at this time.
Pine trees are currently trimmed in a lopsided manner,
and our trimming will even this out.
LIGHTING
At this time the street lamp design is not decided, CCLC
must be consulted on this matter. 100 watts in each lamp may
be sufficient to light the area. This will need to be tested
on site to be sure that there is sufficient lighting for the
safety of our customers.
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PlANTERS
Da'rk Brown brick consistant with }iall Pavers
Concrete liner 314"^to I" thick
Red tile cu'ps.
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MEMORANDUM
~
TO:
Steve Burstein, Planning Department
FROM:
Elyse Elliott, Engineering Department
June 18, 1986
DATE:
RE:
Popcorn Wagon Special Review
=====~=============================================================
The Engineering Department has no problems with this application
providing that all commitments are fulfilled concerning utilities
and dumpster facilities.
Two on-site parking spaces will be lost as a result of the new
landscaping.
EE/co/PopcornWgSR
.-,
--.
_MORANDOM
TO:
Elyse Elliott, City Engineering Department
Steve Burstein, Planning Office
Popqorn~agon Special Review - Commercial Restaurant in
Open Space
Parcel IDt2737-l82-l7-005 Case No. 018A-86
June 17, 1986
FROM:
RE:
DATE:
=========================================~======================
Attached for your review is an application submitted by Dan Arrow
and Lil Lively, requesting special review approval for a commer-
cial restaurant (The Popcorn Wagon) in open space.
We are requesting tonight, June 17, that P&Z attend a special
meeting on June 24th to review this application and would
appreciate your comments on a rush basis, and in any event no
later than Thursday, June 19th.
If you anticipate problems meeting this deadl ine I pI ease let me
know immediately.
Thank you.
M.3
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,.;'.:.,'ENVIRDNMENTAL : HEALTH "DEPARTMENT: :, ..
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June 9, 1986
, Lil Lively
Dan Arrow
f>opcorn Wagon
f>"O. Box 2213
Aspen, CO 81612
Dear Dan and Lil:
I have reviewed the
Wagon ,and Commissary.
comments.
plans you gave me today for the Popcorn
They are approved with the following,
1. The use of restrooms, in the Magnifico Building is approved an~
this office needs a copy of the contract or agreement between you
and the building manager. The restrooms must be available at all
times while you are open.
2. My biggest concernds with the freezing of the water lines
that has occurred in-,. i;he past. The lines do not have to be
'buried if you can use ~ufficient heat tape/ insulation or other
means to ensure that the pipes never freeze.
3. While a 6" overhang is recommended from the edges of all
cooking surfaces to the edges of the hood, the three to four
inches that exists in some parts of your hood is acceptable. '"
4. The installation of;the'mopsinkbeneath the vegetable sink and
the hands ink aboveAAg,~;,three-c?mpartment sink are approved as
long as they are conveni~ntenough to use.',
r~: ::,:)t-.',
Thank you for getting- ~e plans to me before I left and if you
have questions while I am gone, please feel free to contact Tom.
Sincerely,
Pi.,C~
Health Officer
cc:Aspen/Pitkin
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BROWNING-FERRIS INDUSTRIES
Aspen District
June 2, 1986
Ms. Lil Lively
The Popcorn Wagon
Box 2213
Aspen, CO 81612
Dear Ms. Lively,
We wish you luck at yoUr new location. The trash service you
had at the Yolk property should be sufficient at your new lo-
cation, one 90 gallon trash can picked up daily. If needed,
we could always add a second container. I am sure you will
keep the trash container in a similar spot as at the Yolk
property, virtually invisible from the street.
0172 PACIFIC AVENUE. PO, BOX 7966. ASPEN. COLORADO 81612. (303) 925.6505
..
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~ d. ~J'l'a/1~ / ATTOFINEYATLAW
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city of Aspen
Planning & Zoning Commission
130 S. Galena Street
Aspen, Colorado 81611
,1986
.-2.
RE= Lil Lively and Dan Arrow!
The Popcorn Wagon
Ladies & Gentlemen:
As I am sure you know, the Estate of Dr. Robert Barnard
has entered into a lease agreement with Lil Lively and Dan
Arrow for open space located at the corner of Hyman and Mill
Street. Dan and Lil have apprised the Estate of the
improvements they plan On installing, and the Estate has
approved those plans. The purpose of this letter is to advise
the Planning and Zoning Commission that those proposed
improvements have been so approved.
If you have any questions, please do not hesitate to
contact the undersigned.
Sincerely,
r~~
Ro ert A. Franc~B, P.C.
RAF:jw
2'~S,"ONAACH,SUIH'Ol
ASPEN,COI.~AD08'6"
3Q3-92H!150
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To: Ron Mitchell, Acting City Manager
Mayor Stirling and City C~uncil
From: Dan Arrow and Lil Lively, Owners of the Popcorn Wagon
Re: Popcorn Wagon Relocation on Barnard Property
Date: May 19, 1986
============================================================
We were very pleased with the statements of support of and
appreciation for the Popcorn Wagon made by Mayor Stirling and City
Council at the May 12 meeting and have also been touched by the
abundant concern and support we have received from fellow businessmen
and loyal patrons.
Further, we were releived and encouraged by the City Council
directive to Staff (specifically the Planning Department) to "make it
happen on that space". After the meeting that evening we offered to
work with Steve Burstein of the Planning Department to "make it
happen" and the offer was readily accepted. However, by Thursday, we
were informed by Steve that the Planning Department "didn't like us
on that corner" and was recommending other locations, and we were
amazed to discover that the Planning Department was unaware of our
basic needs (electricity, water, sewer, natural gas, commissary and
bathrooms).
Although we understand that perhaps the Planning Department has
a responsibility to point out the negative and to offer alternatives,
we are distressed that the directive of "making it happen on that
space" was ignored. We trust that we can work with the City Manager,
Planning Department and City Council to locate the Popcorn Wagon
on the Barnard property without delay.
We offer the following comments for your consideration and in
answer to the memorandum dated 5/15/86 from the Planning Office and
Building Departments regarding the relocation of the Popcorn Wagon
The wagon was moved to the Barnard Property on Sunday, May 11 in
order to remove it from its previous location on the Volk property
(which was due for demolition on Monday, May 12.) It's positioning on
the property was temporary and we apologize for any indications it
may have given the City that it was permanently positioned"
With the wagon operating on the corner, clearly the "lawn would
be ruined", however, we feel that our improvements can be a plus for
the city. As the corner stands, the lawn is covered with dog
droppings, little bits of trash, large pieces of trash and piles of
dirt and gravel. Adjacent to the lawn are a very large dumpster,
parking space, and numerous unpleasant "No Parking-We Tow" signs (put
up by the previous occupants of the building).
The tree that Steve Burstein observed as cut down was not a pine
tree but a dead crabapple tree. The stump is available for
examination. A few pine boughs were trimmed from the lower part of
the 2 large evergreen trees.
".
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The suggested alternative locations on the mall do not appear
workable. The Popcorn Wagon must be attached to water, sewer,
electricity and natural gas and must have nearby, easily accessible
commissary and bathrooms. At none of the proposed locations would any
of these be available and/or concealable"
The expense of installing and arranging the aforementioned makes
the recommended conditions of a lease from the City (experimental &
subject to 6 month review and revocation) unacceptable. The Popcorn
wagon has a record of operation for the past 17 yeras and a permanent
location is required quickly. The Popcorn Wagon would require as much
space on the mall as it does on private property and we find no
apparent justification for using public open space rather than
private.
The Administrative Policy on Exterior Uses (July 28,1982) allows
for food service or restaurant use. Since The Popcorn Wagon is
considered a building, it can be considered as a restaurant and
consequently qualifies as restaurant use. The Barnard property is
available, is currently leased to the Popcorn Wagon and the property
will be aesthetically pleasing with the placement of the Popcorn
Wagon.
The Popcorn Wagon can be located, attractively, 20 feet away
from the main building as recommended in the memorandum dated 5/15/86
to Peggy Seegers, Zoning Official from Jim Wilson, Chief Building
Official. We would prefer and will request from the Board of Appeals
to be 12 to 15 feet from the building.
We understand the concern expressed by the Wheeler Opera House
and wish to join in the expression of concern for the elegant
evergreens on the Barnard property. It is our intention to trim and
groom only the lower branches of the evergreens and to plant small
aspen trees and indigenous flowers as part of the design of the
seating area.
We understand the potential problem of popcorn going into the
Wheeler and offer to place signs and to verbally discourage our
patrons from taking our popcorn into the Opera House. We feel that a
well placed sign at the Opera House would further discourage people
from taking popcorn into the theatre.
We look forward to meeting with the HPC, CCLC and Board of
Appeals for the necessary approvals.
,~
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'.
The requirements for operation of the Popcorn Wagon are:
(all of which are available on the Barnard property)
- elecrticity 150 amps 110
- sewer
- natural gas connection
- potable water
- male and female bathrooms within 200 ft.
- appro x 350 sq feet of outdoor seating, bordered by
brick planters with flowers and trees
- 150-200 sq ft commissary
Our plans for the property are: (see drawings)
-remodel storeroom into clean, food prep commissary
-install new electric and natural gas service
-repaint the currently white cinderblock walls a color
which will make the walls inconspicuous
-trim lower branches of pine trees
-lay paving bricks on seating area which includes
cleaning up the parking area
-relocate and work with Don Fleischer (manager of the Wheeler
Square) to design the concealment of the dumpster
-install an antique street lamp
-have 30" high brick planters built and planted with
perennial flowers and aspen trees
-lastly, place wagon at the approved distance from the buildings
and permanently install to releive stress from springs and
axles
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MEMORANDUM
Ron Mitchell, Acting City Manager
Steve Burstein, Planning Office
Peggy Severs, Building Department
Bill Drueding, Building Department
Popcorn Wagon Relocation
May 15, 1986
-----------------------------------------------------------------
-----------------------------------------------------------------
We offer the fOllowing comments regarding the relocation of the
Popcorn Wagon:
1. The location on the southeast corner of Galena and Hyman
where the Popcorn Wagon has been moved since Sunday night,
appears to be inappropriate. This small area is part of the
Barnard property open space, is fenced in and contains lawn
and pine trees. If the wagon remains on this site, the
lawn would be ruined and pine trees disturbed, particularly
if seating, trash disposal and other accessory facilities
are incrementally added to the site. As of a site visit
today one pine tree has been cut down, for which there
appears to be no justification. We are checking whether
the tree was part of the required landscaping plan of the
parcel and should be replaced. In addition, the Fire
Marshall has determined that the wagon must be at least 20
feet from the other buildings according to the Fire Code.
This location appears to violate this code criterion.
If the Popcorn Wagon were to be located on this si te, the
following approvals would be necessary:
a. 'City Council amendment to the "Administrative Policy on
Exterior Uses" to allow a food service use that is not
immediately adj acent to a restaurant.
b.
Planning Commission special review approval of "commer-
cial restaurant use" of required open space pursuant to
Section 24-3.7(d) (8). Presuming that this site
constitutes part of the required open space for the
parcel, the Planning Commission would need to determine
that the popcorn wagon qualifies as a "commercial
restaurant use" and therefore is eligible to apply for
this review, and that the popcorn wagon "is not in
derogation of the purpose of the open space require-
ments."
~
c. Historic Preservation Committee review to authorize
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"construction or erection of any improvement...upon any
site or area included within an H, Historic Overlay
District" pursuant to Section 24-9.l0(a)(3) of the
Municipal Code.
d. Commercial Core and Lodging Commission review and
approval should be accomplished to ensure that the
wagon would fit in with mall concepts.
e. Board of Appeals exempting the wagon from Fire Core
distance requirement.
2. We believe that the popcorn Wagon can be better accommodated
on the mall, and we offer the fOllowing alternatives (see
map attached for location).
a. Rubey Park plaza on corner of Durant and Galena. The
area has heavy pedestrian traffic but the wagon would
not significantly impede pedestrian movement. Advan-
tages include 1) Fire code provisions could be met on
this site, and 2) The City would have sufficient review
powers over the operation through a vending license and
lease agreement. However, during ski season the plaza
is a queing area for ski bu:ses. The Wagon would
conflict with this use and therefore the site is not
the preferred alternative.
b. Notch of open space west of Think Toys store. FrOIll the
perspective of integrating the Popcorn, Wagon into mall
activities this is a good location. However, it is
presently used by rafting companies; and the 20 foot
distance from other buildings required in the Fire Code
cannot be met.
c. On the Mill Street mall across from Wagner Park. This
area is very heavily used in the summer and the popcorn
wagon would contribute to further congestion. This is
therefore not a desirable choice.
d.
On the
Lodge.
is not
Galena Street mall across from the Independence
This area is also quite heavily used, and again
a preferred site.
e. On the Cooper Street Mall, within the center green-
space. In this location, fire code requirements can be
met and the City can review the operation periodically.
The Wagon will not block pedestrian flow, street
sweeping, snow removal, or fire lanes. The Wagon should
generate activity in an area of the Mall that is
typically underutilized. This alternative entails some
modification of the open ditch and lawn, but no trees
would need to be removed.
We recommend Alternative (e) (with areas c and d as possible
.,-.....,'.
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second or third choices) under the following conditions:
I" City Council must grant a lease agreement and vending
license to the Popcorn Wagon subject to Section 13-61 of the
Municipal Code. The applicant shall submit a site plan
specifying the location of the wagon and any seating. The
vending 1 icense shall be exper imental and subj ect to rev iew
and revocation after 6 months.
2. HPC and CCLC review and approvals shall be accomplished
prior to issuance of vending license.
cc: Jay Hammond
Paul Taddune
SB.SlS
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M E M 0 RAN DUM
TO: Peggy Seegers, Zoning Official
FROM:
Jim Wilson, Chief Building Official ~
Popcorn Wagon Relocation
RE:
DATE:
May 15, 1986
----------------------------------------------------------------
----------------------------------------------------------------
By building code definition, the popcorn wagon is a building,
RAny structure used or intended ~or supporting or sheltering any
use or occupancy.R Section 501 requires the Building Official to
classify every building according to its use or the character of
its occupancy. Various building code requirements are then
applied based on the particular occupancy classification. I
would classify the Popcorn Wagon as a Group B, Division 2,
Occupancy for the application of building code.
A building's location on property is not restricted by building
code, but construction, based on the location, is controlled to
prevent fires from spreading to adjacent properties. A B-2
Occupancy is required to have fire resistive walls if closer than
20 feet to property line. Prohibiting or protecting openings in
exterior walls is also necessary when close to a property line.
Becau$e the Popcorn Wagon is not fire resistive and has openings
on all sides, it should be located a minimum of 20 feet from any
building,.
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CO,'e; I
TO:City Council '1i.3 -:'627-
FROM: Dan Arrow & Lil Lively (owners of The Popcorn Wagon)
DATE: May 7,1986
SUBJECT:Amendment to Administrative Policy on Exterior Uses
Dan Arrow and Lil Lively, owners of The Popcorn Wagon
request that the City Council of Aspen amend the
Administrative Policy on Exterior Uses dated July 28,1982
that The Popcorn Wagon be permitted to provide resturant
service on private property.
It is the intention of the owners of The Popcorn Wagon
to relocate on private property at the SouthWest corner of
Hyman and Mill, next to Waterfall Hope and the Mason & Morse
Building.
The Popcorn Wagon has served the Aspen Community and
visitors as a unique fast food resturant for over l7yrs and
is consistent with the "type of ambiance" that Aspen is
trying to provide. The use of open space on private property
for The Popcorn Wagon, we feel, does comply with "traditional
uses".
It has operated in compliance with state and local '
health ordinances as a resturant (rather than as a pu@h cart)
thus making it different from recent food vending requests.
The Popcorn Wagon is not a lunch truck, a street vender, or a
push cart.
The Policy on Exterior uses was amended at the Dec.9th
1985 meeting of the City Council to include Christmas tree .
sales and raft trip use and we feel that allowing the Popcorn
Wagon this use is as valid and wanted by the community"
The Popcorn Wagon, at the corner of Galena and Cooper,
installed year round outdoor seating which over the years has
become a much used meeting and eating activity center for the
community. It is very likely that at the new location such
activity will follow and make that open space much more
useful than it has ever been"
Since The Popcorn Wagon (grandfathered in its old
location) will soon need to relocate it is important that
this special permission be given so that Aspen can keep this
asset. It is used in promotions for Aspen regularly and
represents one of the things that is old that we want to
keep.
The Popcorn Wagon was located at this "new" location up
until 1975.
The owners will be renovating the wagon so that it has
an attractive appearance and represents Aspen well.
.
I"""'>
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'.
TO: City Council
FROM: .Wayne Chapman
DATE:. July 2'8, 198:1
SUBJECT: Administrative Policy on Ext~r~or Uses
The Zoning Enforcement officer met with the C~ty Attorney and
C~tY Manag,er to .'e:!iscuss the issue of ext;erior uses on prJ.:vate
property. This e:!iscussion Wasprecipitatee:! by a complaint that
tne zoning 'enforcement officer had rece~vee:! concerning a flower,
stand Which has been constructed and .is currently 'o~era~lng entirely
on pldvate property next to R.P..~s restaur<l;nt. _ 'h.. (.,c~"e .. , .
----- .. - ',; .... . .
'rhe dutc9!l\e of th:z.s rneet:z.ng:'resulted in' the ~ollowizig admin:z.stratl.ve
~~l.cy regard:z.ng exterior uses. .
\ l"\! (,' 'F~Od . ser~ice' useS or restaurant uses will be permittee:!
,\.::.;/ . " to.. provide .direct service to ,custom'er's' in ,the, ~mmediate
.adjac~nt exterio~' area.provided that ,the primary l.nterior
,_ '. tis,€! is.a' food' serv;i:ce or re'staurant ,use. ,However f, thl.s
;'Wl.ll not 'permit, expanS:101); into the,pub.lic ,right-of-way.
. . .' . .
2. ~aftingcompanl.~s will be perm1tted,to' setup temporary.
structures on pr:z.vate'prqperty only.
--- . r.
:.:s. Al-l other reta~l sales as ext.eriqr \lses will. be prohib~"ted.
Thi--s policy is pased largely on tradit~onal uses and ~s d:z.rectee:!..
toware:! ma~ntain:l.ng the type, of ambiance that we feel Aspen is'
trying to provide. ,
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ReaularMeetina ..
Aspen City Council December 9. 1985
REOUEST FOR -FD0D-CONCESSIONSTAND
Bill Drueding, building department, recommended Council reinforce
the administrative policy memorandum of July 1982 on exterior
uses, adding the sale of Christmas trees. Drueding pointed out
the zoning code states that no commercial uses may be operating
in the 25 percent open space requirement. The Code has been
amended to allow restaurants to use open space for seating,'
Drueding said this proposed potato wagon will operate on the only
open space at the corner of Hyman and Mill, but is not the same
intent as a restaurant putting tables outside their property,
Councilman Isaac said he would not want to see a proliferation of
vending in open spaces around town. . David ~amp, applicant,
presented a picture of the potato wagon he would like to opeiate
on private property at the corner of Hyman and Mill. Camp told
Council the agreement he has with the owner of the property is to
operate until April 1st. The popcorn wagon will be moving to
this location April 1st. Camp said he has worked out a base of
operations with the Village Pantry. Steve Burstein, planning
office, said they feel the administrative policy of July 1982 ,is
in effect and it would exclude this operation. Assistant City
Manager Mitchell said Council had decided to handle these
requests on a case by case basis. Councilwoman Fallin said she
would like to see more detail, where the toppings for the
potatoes would be, and setaing, etc.
Mayor Stirling moved to amend the administrative policy dated
July 28, 1982 in section 2, \12 that rafting companies and the
sa'les of Ch1:'istma's.trees will be permitted to set up temporary
structures on private property; seconded by Councilwoman Fallin,
Mayor Stirling said this is a difficult issue, but his inclina-
tion is to not open it up at this time, Mayor Stirling said
because of the dear nature of restaurant space in downtown Aspen,
.it makes it more difficult for restaurants to operate year round.
City Attorney Taddune told Council it is advisable not to expand
on the administrative policy without changing the city code.
~,
(""""'\
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MEMORANDUM'
Date: D'ec'ember 3', 1985
, TO:
R~n Mitchell, Asst City Manager
D.i 11 Drueding, Zoning: Enforcement Offic'er lJ..;,0
Potato Wagon and Outside Uses
FROt-:!:
SUBJE,CT:
In July., 1982, a flower stand was placed east of R-Peas' building
on p~iMate pr6per~y" the same area as requested by. Mr. C_mp. "At
that time it was determined that ou'r building and zoning co"des
did npt explicitly address this' type of exterior bu~iness ~se'on
private property. T.here "had also. 'been requests "for pretzel
wagons,.hot dog "'sta.nds, el;c., on private property.' Subsequently',.
Wayn~ Chapm~n'pr~senied the July 28; 1982~ Administrative Policy
to City Council. .' . ,.
We have since had 'similar e'xte.r:-ior '\1 s"e " r,equests, frqm Clark's
Mark~t and City Market. After' meetings with, the ,qit'y Attorney."a~
ordinan~e. was drafted and presented' to ,'c;i,ty Council.' Yo~'r' memo',
of March 4',' 1985., is' atta,c;:hed. As' Y"ou ,indicat~d to' lI1.e', ,Counc.i-l,
did not take action on the Ordinanc.e ,draft -but,instead dealt on'1y'
with the' Hicko~y Meat ,Smokers. To my kn~~ledge, there'h~s not
been 'any ~ction sin~e. .
In reference to Mi. Neiley's letter' of November 26,' 1985. In the
CC 20ne, 25% op~n space.is, requir~d. Section'2-:\-3.7(d)(8)" ,u."T11e
provisions of subpar_sgraph (7) abo've' no.twithstsl1ding,required '
open space may be'u$ed for commercial restaurant use if; on
review, the plan'nin~( c::onunis~ion shEl,ll de:termin'e tna.t such use no~
be i::l dct"02;':;:tic:: of the l'U !"r'ce' el"!- '~'f "he n~""f"8p~~'IiI:r""quir'p.ment:s
of t'his 'se'ct'ionl provided" h'owe'ver, that nothing herein shall b'e
const["'ued' to permit the construction of structure's' prohibited by
this section in. desi'gnated ,open space areas.'~
It appears to me,that the Potato Wagon would operate in required
open spa,ce. r would not consider this wagon a restaurant ,and
therefore may n,ot even be consid'ered under. the? '" Z revie.w
process. r believe this section 'was amended to allow exi~ting
restaurants io 011er outside, summer' dining on private property,
such as with P,ou~, La France. There is outside dining .on City
property. T~e Mall seating is by co.ntr.a.ct wit:h t;~ty Council.
Mr. Neiley also'menti.ons Christmas, tree sales'~ Every,.year thi.s
problem arise's~ .'rh~se.lots_ 'on ,West' Main',Street 4re selling,
retail in an. office z9ne and;. therefore, not permitt.ed~ It ha8if
been an unofficial policy to ,adv,ise the ,propriet.ors thae they are
in violation of ~~nin~ ~odes' ana to.giv~~lhem, thi~ti (30) days t~
abate. ' , ,
, ,
, ,
Concern i n go "1 unch trucks": P/?pper'lpi'n t,'- Pa t,ty has the' on 1)' .current
vending contr~ct' ~.'ss'ued by', Cit~y ~Coun.c~'l;. It is my under,standing
that Aspen Catering' 40es not vend. t~ the pub),ic ~ut, se~l~ tp
constructiop .s;it'es after getting, a, con,trac't ,with ,the b,uiiding"
contractor which at this P?int.seems .~o fulfil~ 'the needs.
, '
Concerning the previ~us offer~d amendments to Sect~on 13~14~, at a
time when Council'i~ ~equesting few~~ laws; this appears to
increase Council and, staff's wbrk load' and .furthe'r fat.tens ,the .
Aspen Muriicipal 'Code: For a $100.60 tee, Council Bnd staff would
be req~ired to review 'any type 6f outdoor use on privat. p~operty
from pot'at.o wagons 'to liv'e bait sales. Upon requests, clothing
and ski r.acks could be placed outsid~ of businesses, etc. I feel
if any tempora~y uses ~re to be considered th~se should be listed
and all bther ~ses. not be consider.d. '
.
;""'"\
;""'"\
Ron Mi tchell. Asst, ct ty Manager
December 3'. 1985
Page 2
'After'~niorcin, city codes for over' five (5) years,
the administrative memo of July 28, 1982. should be
and Christmss trees adaed to those uses permitted.
attempt t~ look.at every temporary' use request will
of imaiinot~ve requests to Council~
Also, .if the 'now grandfathered- Po.pcorn Wagon ,moves it's I'acstion;'
it will '~iolate' ~~e 1982 administrative policy.'
r fe,el that
reinforced
I feel an
open '8 deluge
cc: Paul Ta'ddune. 'C'ity Attof'ne.y
Patsy Newbury, Zoning Official
Alan "Rich.man, PJann~n-g
IIa1 Schilling, ,City M~nager'
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Popcorn wagon 5/27/86 I
Preliminary review of th~ popcorn wagon, relocation NW corner
Mill Street and Hyman,Li1 Lively and Dan Arrow.
Georgeann Waggaman said ~hat in the presentation the board whats
to know what is happenin~ with the trees.
" 'I
Dan Arrow open by statin that there are two big fur tr~es on the
lot, a cherry tree over ext to the Wheeler square, the applicant
said that they will no touch the cherry tree but proposed to
trim the fur ,trees,so pe pIe' can walk underneath them, about six
feet. Right now one of he trees, the bows touch theground, and
others are six feet, and will need a little bit of trimming, the
sitting will be near one pf the trees. CCLC recommendation included
placing grates around th~ trees to protect the roots.
The parking spot will e eliminated,showing the drawing, first
one is how it looks no , and the second of how the applicant
plans to make it" I
The applicant will be [paving the area with paving briCks, the
popcorn wagon itself wip be almost totally on the" exsisting
parking space. The reason to park it there was because of fire
relation,it could not b~ closer to the building,ithad to be 20
feet from the bUildinl' The applicant has gone through City
Council, and CCLC, sugg sted that the applicant change the tree
lamps, CCLC did give pe mission to place conduit and review the
street lamps. I
Burstein asked about th~ benche:,the placement, and if they were
on private or public ri~ht of way. '
The ~pplicant stated' t1t CCLC did not want the benches on the
Mill Street side, unles the y could see how it would work ,it
looked to close to the rees on the mall. They did like the idea
of placing them on the Hyman street side if it did not encroach
on the public right of jay.
There lease is for the ~and up to the Wheeler Square property.
The planters will be da1k brown brick,about the same color as the
mall brick, about 30 inclheshigh and will place trees and flowers,
Georgeann Waggamn said lhat this will come to be a urban park.
Burstein attended the C LCmeeting, and his commit was that there
be more greenry at less next to Waterfall and Hope,but the
response iwas that grass does not grow well there, its to shaped,
but Burstein would like to see less pavedsurface,and some green
area in it place, besid s just the planters.
..1 .
Drueding said that the oPen space and the sitting'of the restaruant
will have to go to P&Z for review., '
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the bases of the trees? I
Arrow said the problem fith that idea is the bric~s will have to
b~ washed down every dar' there concern would be with the mud.
Waggaman said there is uch a hard surface,if only something could
soften up the look may e some trees and the bark chips would
buffer that wall.Maybe attractive fence would look nice.
poss said that the app
have them come back t
soften, but that is up
icant need a better landscape plan,and
HPC,the plan is harsh,and needs to be
o the applicant.
Pat O'Byran said the OilY problem she has cutting the beautiful
trees, and wants toknow how much they plan to prune?
The applicant said th one on the right, is already lop sided,
there is a hole on the eft side, and then the limbs on the right
go down to the ground, f the limbs went all the way down to the
ground he would not t im it, the one on the left is already
trimmed about five feet
"
Waggaman asked if the ~Iables really had to go tha~ close to the
trees? If the applicant would bring the tables out closer to the
mall side asnd let the rees grow down lower, that way the spacce
is block out more in th back.
Cunniffe said that the] applicant should do a park like setting
more than the look of tfe mall"
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Pasquarella likes the lidea of keeping the wagon in town, it has
historic value, and is probably the only place in town that this
can be placed. !
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Georgeann Waggaman sai~ that she has no .problem with preliminary
approval with considera~ion at the Public Hearing of the suggestion'
HPC has given the appli~ant. June 24th will be the Public Hearing.
I .
The applicant asked thit HPC approval with the amendment of the
applicant leaving a line perhaps between those two trees
undeveloped, at this po'nt. ' ,
Waggaman said that thi~ will have to go 'to Public Hearing, and
this is only prelimina~y approval, the public will have to have
imput to this item. I
Nick Pasquarella moved~to approve for preliminary approval with
asking their considera ion to rearrange the softening of the
degree of the landsc ping more to HPC suggestions, second,pat
O'Bryan, all in favor, otion carried.
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LEASE AGREEMENT
THIS LEASE AGREEMENT made in Aspen, Colorado this ~th
day of August
, 1985, by and between the Estate of Robert
Barnard (hereinafter referred to as "T"essor") and Lil Lively
and Dan Arrow, jointly and severally, (hereinafter referred to
as "Lessee") '\o;o~~y ~,~(pnm, {uv.&65.
Q\~~
WIT N E SSE T H:
1. Premises. In consideration of the rents and covenants
hereinafter specified to be paid and performed by Lessee,
Lessor does hereby lease to Lessee and Lessee does hereby rent
from Lessor the following described premises:
Approximately 2048.13 square feet of land, the same
consisting of an approximate rectangle 61.3 feet by
34.0 feet, including all improvements presently
thereon, and being a part Of the Aspen Commercial
Condominiums as shown on the Condominium Map filed
for record in Plat Book 4 at Page 449. Said area is
more specifically depicted on Exhibit "A", attached
hereto (as outlined in red), and is here,inafter
referred to as "the Premises". The premises is
subject to a right of access (as shown on
Exhibit "A") in favor of the tenants of Unit B of the
Aspen Commercial Condominiums. Lessee may improve
the Premises in the area of the access so long as the
right of access is not interfered with.or diminished
in any fashion.
2. Primary Term. The term of this Lease Agreement shall
be three (3) years and five (5) months (or until such term
shall sooner cease under any provisions of this Lease
Agreement), said term commencing on April 1, 1986, and ending
on August 31, 1989. Lessee shall also have an option to extend
this lease for five years (to and including August 31, 1994)
provided that Lessee serves written notice of its election to
exercise such option no later than July 1, 1989, and provided,
further, that Lessee is not in default upon any of its
obligations hereunder at the time of the exercise of such
option, or at any time between such exercise and the
commencement of the option period, and provided further that
the amount of rent for the first year of the option period
shall be automatically increased on September 1, 1989 by 10% of
the amount of rent for the last year of the base period. The
rent for each ensuing option year shall based upon such
increased rent, as modified for cost-of-living increases
I"""
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.
provided hereinafter in Paragraph 3, but the automatic increase
shall occur only once, and only upon the exercise of this
option.
3. Rental. The rent for said term is a sum total of
Fourty-Nine Thousand Two Hundred Dollars ($49,200.00) payable
over the term of the lease in equal monthly installments of
$1,200.00 per month due and payable to Lessor in advance of the
first day of each calendar month of the primary term at
420 E. Main Street, Aspen, Colorado or such other place as
Lessor may from time to time designate in writing to Lessee,
subject, however, to an annual adjustment equal to the
increase, if any, in the Cost of Living Index, Bureau of Labor
Statistics, all items, Denver area. Said adjustment, if any,
shall be effective as of the first day of each April during the
term of this lease, except April 1, 1986, and shall be based on
the most recently available annual cost-of-living index. For
example, if the' first available published annual cost-of-living
figure appears in December, 1986, it shall be th index used in
April, 1987 to adjust the rate for the year of April 1, 1987 -
April 1, 1988.
No payment by the Lessee or receipt by the Lessor of a
lesser amount than the monthly rent stipulated in this Lease
shall be deemed other than a payment on account of the earlier
rent due, nor shall any endorsement or statement on any check
or in any letter accompanying any check or payment intended as
a rent payment or payments, and which endorsement or statement
purports to render such check or payment full payment of a
rental amount under dispute bind Lessor, and the Lessor may
accept such check or payment without prejudice to its right to
recover the balance of the rent or to pursue any other remedy
provided for in this lease. Acceptance of any such rent shall
not be deemed a waiver by the Lessor of any breach of this
lease by Lessee then existing.
4. Payments due Lessor in Advance of Occupancy. The
following sums shall be due Lessor in cash or certified funds
on or before February 1, 1986 and failure to pay the same
2
~
,-.,
shall, notwithstanding the execution hereof, render this Lease
Agreement at once null and void and without any force and
effect, said sums being:
$1,200.00
$1,200.00
First monthly installment of rent
Last monthly installment of rent
5. Personal Guaranty. Simultaneously with the execution
of this Lease Agreement, Lil Lively and Dan Arrow, individuals
and majority stoc~holders of Lessee, shall execute their
personal guaranty of this I,ease Agreement in the form annexed
\ hereto as Exhibit "B". It is expressly agreed and underst.ood
between the parties hereto that any failure or refusal by
either of these individuals to execute the personal guaranty as
required hereunder shall render this entire Lease Agreement
null and void and without any force or effect.
6. Real Estate Taxes. In the event real estate taxes on
the property in which the Premises is located (Lots H and I,
Block 82, City and Townsite of Aspen) for the year 1986 or any
year thereafter under the primary term or any options to extend
above granted, exceed the amount of real estate taxes payable
for the year 1985, Lessee shall pay to Lessor as additional '.'
rent for said year 1986 and every year thereafter an amount
equal to that portion of the increase over 1985 real estate
taxes that the square footage of the Premises bear to the
entire square footage of the said property of which the
Premises is a part, provided that if such an increase is
appropriate for 1986, it shall be apportioned to reflect the
fact that Lessee shall only occupy the Premises for eight
months of that year.
In the event such additional rent shall be determined to
be due, Lessor shall furnish Lessee a statement showing the
computation of the additional rent and Lessee shall pay the
additional rent to the Lessor within ten (10) days after the
receipt of the statement. If after Lessor shall have made
payment of additional rent, Lessor shall receive a refund of
any real estate taxes for any calendar year on which such
3
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,.-,
additional rent has been based, Lessor shall within ten (10)
days after receiving the refund pay to Lessee a portion of the
refund computed on the same basis as was the additional rent
for that calendar year less any expenses (including attorney
fees and appraisers fees) incurred by Lessor in connection with
any proceeding or application that resulted in said refund.
Nothing contained in this paragraph may be construed to create
any duty or obligation on the part of Lessor to contest any tax
increase. Lessor's computations of additional rental to be
paid hereunder shall be conclusive and binding, but shall not
preclude any adjustment of the computation if Lessee shall,
within 30 days after receiving notice that additional rents are
payable, notify Lessor of any claimed error in the computation;
provided, however, nothing herein shall be construed to extend
the time provided above when additional rents as determined by
Lessor are due and payable by Lessee. Lessor's computations
shall include square footage of the premises, square footage of
the entire property, the amount of the tax increase and where
appropriate, proration for any period where Lessee, occupies the
Premises for only a part of the year. l,andlord' s remedies for
failure to pay such additional taxes shall include, without
limitation, all of its remedies in the event of a failure to
pay rent.
7. Permitted Uses. All uses to the extent hereinafter
permitted are commercial; no residential use of the Premises
shall be allowed. The Premises shall be used as a snack
bar/restaurant which shall include the right to dispense
alcoholic beverages, provided that Lessee, at Lessee's expense,
shall obtain the necessary licenses and permit, and provided
further, that Lessee, at Lessee's expense, shall at all times
comply with the terms and conditions of such licenses and
permits.
8. Assignment or Subletting by Lessee. For purposes of
this paragraph, any event, directly or indirectly, causing Lil
Lively and Dan Arrow to become in the aggregate the owners of
4
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r"\.
less than fifty-one (51%) per cent of the outstanding stock of
Lessee shall ipso facto be considered an assignment of this
Lease and for purposes of Lessor deeming itself secure as to
the ownership of the stock of Lessee, Lessor or its duly
authorized agent is hereby granted the right to inspect at any
reasonable hour, the stock certificate books, minute or
resolution books, or other records of Lessee necessary to
determine the ownership of the stock of Lessee. Lessee shall
not assign this Lease nor any portion of its interest in the
leasehold estate created hereby without the prior written
consent of Lessor having been first obtained; provided that
said consent shall not be unreasonably withheld by Lessor;
however, in the giving of such consent Lessor may impose any or
all of the following conditions, none of which separately or
together shall be considered unreasonable:
(a) Lessor may require prepayment by Lessee to
Lessor of the next to last month's rent due under the term
as granted under this Lease Agreement. Said additional
prepayment shall be held by the Lessor for the entire term
hereof or any options to extend and may be comingled with
other funds of the Lessor, shall not earn interest for the
benefit of Lessee, and shall not be construed to be held
in trust for the Lessee. The prepayment of the next to
last month's rent as provided herein shall in no way be
construed to establish or be an amount of liquidated
damages and Lessor expressly reserves the right to proceed
against Lessee for any unpaid rents, or with respect to
any other breach or default under any condition or
covenants of this Lease Agreement over and above said next
to last month's rent.
(b) Lessor may require the proposed assignee or
sublessee to demonstrate to Lessor sufficient net worth
and ability to pay all rents reserved hereunder and
perform all covenants and conditions under this Lease
5
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Agreement. Failure to so demonstrate shall entitle Lessor
to withhold consent to such assignment.
(c) Nothing contained in this paragraph or in this
Lease Agreement may be construed as Lessor's approval or
consent to any sublease, encumbrance, pledge, or the
granting of any security interest in, or the use as
collateral in any fashion of this Lease Agreement or the
interest of Lessee in the leasehold estate created
hereunder and further Lessee shall not sublet, encumber,
pledge, grant any security interest in or use as
collateral in any fashion this Lease Agreement or the
interest of Lessee in the leasehold without the written
consent of Lessor having been first obtained.
(d) In the event Lessor's consent to any assignment
or sublet is given such assignee or sublessee shall during
the term of said assignment or subletting assume the
covenants, conditions and obligations of Lessee under this
Lease Agreement; provided, however, I,essee and any
personal guarantors hereof shall at all times remain fully
liable for the performance of all said covenants,
conditions and obligations. Lessor may also require the
personal guarantee of any assignee or sublessee as a
condition of approval of such assignment or sublease.
(e) Any assignment, sublet, encumbrance, pledge,
grant of any security interest in, or use as collateral in
any fashion of this Lease Agreement or the interest of
Lessee in the Leasehold in violation hereof shall be null
and void, without any force and effect and shall at once
be deemed a breach of this entire Lease Agreement.
(f) Notwithstanding any other provision of this
paragraph, in the event Lessee shall desire to obtain a
business loan from a lending institution to be applied for
the use and benefit of operations to be conducted in let
premises and said lending institution shall require of
Lessee a conditional assignment of this Lease Agreement to
6
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secure said loan, Lessor shall not unreasonably withhold
its written consent to the same, provided that such
assignment, if any, shall not impair Lessor's position or
security hereunder in any fashion.
9. Improvements. Lessee shall not make additions,
improvements, repairs, alterations or changes in or on the
Premises or any part or portion thereof, including exterior or
interior painting or the placement of signs, without the prior
written consent 'of Lessor, which consent shall not be
unreasonably withheld, and all improvements, repairs,
alterations, or changes made at any time during the term of
this Lease Agreement or prior to the commencement thereof,
shall immediately become the property of Lessor to be
surrendered as part of the Premises at the end of this Lease
Agreement; provided, however, Lessee shall have the Landlord's
permission to place upon the Premises the Popcorn Wagon
presently located at the corner of Cooper and Galena Streets,
Aspen, Colorado, which shall remain the Lessee's property and
which may be removed by Lessee upon termination, and provided
further that Lessee shall be permitted to remove any street
lights which it may install during the term hereof, and
provided further Lessee shall have the right at its own cost
and expense to remove any and all furniture and other items or
personalty not permanently affixed to the Premises prior to
termination or other expiration of this Lease. Lessee assumes
all responsibility at its own cost and expense to secure
building permits, if any, or any other governmental approvals,
certificates, licenses, or otherwise that may be necessary for
any improvements that will be permitted by Lessor. VTith
respect to any additions, improvements, repairs, alterations,
or changes made by I,essee to the Premises prior to the
execution of this Lease Agreement, Lessor's signature hereto
shall be deemed his written consent to all of the same. Public
liability insurance for the benefit of Lessor and Lessee as
their interests may appear, with adequate coverage shall be
7
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maintained by Lessee at all times when any work is in progress
in connection with any such work as is contemplated in this
Paragraph. Lessee shall promptly pay for all such remodeling,
additions, alterations, substitutions, replacements or
removals; shall discharge any and all liens filed against the
leased Premises arising therefrom; and, upon the request of
Lessor, shall promptly deposit with Lessor a surety bond or
other security satisfactory to Lessor to insure completion
thereof. Nothing contained in this Lease Agreement shall be
construed as constituting the consent or request of Lessor,
expressed or implied to any contractor, subcontractor, laborer
or materialman for the performance of any labor or services or
the furnishing of any materials for any improvement of the
leased premises or any remodeling, alteration, addition or
repair thereof, nor as giving the Lessee the right, power or
authority to contract for or permit the rendering of any
services or furnishing of any materials that would give rise to
the filing of mechanic!'l lien or other lien against the fee of
the premises. In,the further event Lessee commences such
alterations it agrees to post the notice permitted by C.R.S.
~38-22-105 in such a fashion to advise all third parties or
Lessor's interest in the Premises. Failure to post such notice
shall be a default of this lease.
10. Utilities, Other Charges, Taxes. Lessee shall pay
for all utilities to the Premises. Lessee shall pay all
occupation and use taxes, personal property taxes as to
property of Lessee and all other expenses incident to the use
of the Premises. Lessee shall at its own expense keep free and
clear from snow and debris all external sidewalks and pavement
surfaces which abut on the leased premises, it being agreed
that the maintenance of the said pavement in a safe and
attractive condition is the sole responsibility of the Lessee.
11. Further Obligations of Lessee.
(a) To pay rent promptly as provided herein.
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(b) Upon termination of this Lease Agreement to quit
and surrender the premises in as good order and condition
as at the beginning of the term, with only reasonable wear
and damage excepted.
(c) Maintain workmen's compensation insurance as
required by law, and comply with rules and regulations
pertaining to employers taxation, tax withholding, social
security and unemployment compensation. A copy of any
notice of delinquency of levy by any taxing authority
shall be given Lessor promptly.
(d) To keep the Premises and is appurtenances in a
clean condition, free from hazards to health or safety to
persons and property.
(e) Not to use the Premises for any purposes
contrary to this Lease Agreement or any applicable law or
regulation.
(f) To prevent any disorderly conduct or nuisance
whatever within the premises.
(g) To prevent overloading or abuse of the floors,
walls or structure and to prevent any use of the Premises
which would render the insurance void and/or the insurance
risk more hazardous.
(h) To permit the Lessor to advertise the Premises
for re-lease at a reasonable time before the,Lease
expires, or the tenancy otherwise terminates, by signs or
other devices placed in or about the Premises.
(i) Any uses of the Premises permitted under this
Lease Agreement shall be at all times subject to and in
compliance with the Condominium Declaration for the Aspen
Commercial Condominium, and any amendments or supplements,
thereto, and the Articles of Incorporation, By-Laws, or
amendments or supplements thereto or rules and regulations
of the Aspen Commercial Condominium Association.
12. Compliance. The Lessee shall promptly comply with
all laws, ordinances, rules, regulations, requirements, and
9
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directives of the federal, state, and city or municipal
governments or other public authorities and all. of their
departments, bureaus and subdivisions, applicable to and
affecting the said Premises, their use and occupancy, for the
correction, prevention and abatement of nuisances, violations
or other grievances in, upon or connected with the Premises,
during the term hereof; and shall promptly comply with all
orders, regulations, requirements and directives of the Board
of Fire Underwriters or similar authority and of any insurance
companies which have issued or are about to issue policies of
insurance covering the Premises and its contents, for the
prevention of fire or other casualty, damage, or injury, all at
the Lessee's own cost and expense.
13. Hold Harmless. For all its covenants and conditions
contained herein, the Lessee agrees to and shall save, hold and
keep harmless and indemnify, the Lessor from and for any and
all payments, expenses, costs, attorney fees and from and for
any and all claims, judgments, awards or liability for any
losses or damage to property or injuries or death to persons
occasioned wholly or in part by or resulting from any acts or
omissions by the Lessee or Lessee's agents, employees, guests,
licensees, invitees, sublessees, assignees, or successors, or
for any cause or reason whatsoever arising out of or by reason
or any use, occupancy or possession by the Lessee or by the
conduct of the LeSsee's business. This indemnification clause
shall not be construed to create a right of action or basis of
claim for third persons against either party hereto.
14. Insurance. Lessee, at its own cost and expense,
shall obtain and keep in full force during the term of this
Lease Agreement or any extension thereof, general public
liability insurance against any and all liability or claims
arising out of or occasioned by or resulting from any accident
or otherwise in or about the Premises for injuries or death to
any person or persons or property of any person or property of
any person or persons with such carriers as shall be approved
10
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by Lessor for limits of not less than $1,000,000.00 for
injuries to one person and $2,000,000.00 for injuries to more
than one person in any one accident or occurrence which
policies shall contain the name of Lessor as an insured party
thereunder. Copies of all policies of insurance required
herein to be obtained by Lessee shall be delivered to Lessor
together with periodic proof of timely payment of premiums
thereon. At least fifteen (15) days prior to any cancellation
or termination date of any such policy, Lessee shall deliver to
Lessor a renewal or replacement policy with proof of payment of
premiums thereon. Lessor shall insure the building which is
upon the land of which the Premises is a part against fire,
normal extended coverage perils, vandalism and malicious
mischief. In the event Lessee fails to maintain insurance as
required herein, then Lessor may, but is not required, obtain
such insurance for Lessee, may pay I,essee' s insurance premium,
or may take any other appropriate action to protect itself.
Any amounts advanced by Lessor on behalf of Lessee for Lessor's
insurance protection, or to pay Lessee's insurance premium
shall be deemed additional rent and due from Lessee together
with the rental payment next due hereunder.
15. Abatement. If, as a result of damage to or
destruction of the Premises due to fire or the elements, or as
a result of any other cause whatsoever (unless such other cause
is by Lessee's negligence), the whole or any part of the let
premises shall become untenantable, dangerous or unfit for
Lessee's use, or Lessee loses the use of all or a portion of
the leased premises, rent shall abate justly and
proportionately during the continuance of such condition.
16. No Waiver. No assent expressed or implied by the
Lessor to any breach of anyone or more of the covenants or
agreements hereof by the Lessee shall be deemed to be construed
a waiver of any succeeding or other breach.
17. Holding Over. If the Lessee shall, with the
knowledge and consent of the Lessor, continue to occupy the
11
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Premises after the expiration of the primary term hereunder or
any extension thereof, the Lessee shall become a tenant from
month to month on the same terms and rents as herein stipulated
for the last month of the term of the Lease. Nothing herein
shall be construed, however, as implying that Lessee has any
right to hold over, and any such holdover period shall be, if
at all, with Lessor's waiver of any rights and subject to all
of Lessor's rights and remedies.
18. Bankruptcy. In the event Lessee voluntarily files a
petition in bankruptcy or institutes insolvency, reorganization
or receivership proceedings in any court, or in the event the
Lessee is adjudicated a bankrupt or adjudged to be insolvent,
or if a receiver is appointed by any court for the Lessee, or
if the Lessee makes an assignment for the benefit of creditors,
the Lessor may immediately elect to declare this Lease ended.
In such event the Lessor may, at its option, immediately, with
or without notice, notice being waived, terminate this lease
and immediately retake possession of the Premises, using such
force as may be necessary without being guilty of trespass or
forcible entry or detainer and without working any forfeiture
of the obligations of the Lessee hereunder. In any such event,
the Lessor may at its election have a provable claim in
bankruptcy or receivership or similar proceedings in an amount
equal to at least the sum of the last six (6) monthly payments
of rental provided for during the primary term hereof, which
sum is hereby fixed and liquidated as the minimum amount of
damages sustained by the Lessor as a result of'any such
occurrence.
19. Eminent Domain. In the event that the land upon
which the Premises is located is taken in whole or in part by
condemnation proceedings or eminent domain, or in the event
that Lessor and Lessee shall convey all or a part of said
Premises in avoidance or in settlement of such condemnation
proceedings, or threat of condemnation proceedings (either of
which is referred to hereinafter as "the taking"), Lessor and
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Lessee herein agree as follows: If the taking is of a part of
the Premises, then from the time of taking of physical
possession by the condemnor or proposed condemnor, the then
rent payable hereunder shall abate in the ratio that the area
of the leased premises taken bears to the area of the leased
premises before such taking1 provided, however, that in the
event a portion of said Premises in excess of one-third (1/3)
of the area thereof is taken, or if such taking shall render
the remainder of the Premises unsuitable for the use to which
it has put immediately prior to such taking, then at Lessee's
option this Lease shall terminate. Whether condemnation be for
a part or the whole of the Premises, the award, sale price or
amount received in settlement, will be apportioned between
Lessor and Lessee as follows:
(a) First, to the Lessor-All amounts attributable to
the value of the land and improvements constructed by the
Lessor, taken with such land and improvements to be valued
as if free and clear of all liens and encumbrances
including this Lease, and as in the cOndition at the time
of execution of this Lease Agreement.
(b) Next, to the Lessee-All amounts attributable to
the value of any improvements constructed on the Premises
by Lessee.
(c) Finally, to the Lessor-The balance of the award,
if any.
Any person or party claiming by, through or under Lessor or
Lessee, respectively, shall share in any award, sales proceeds
or settlement only out of the portion thereof allocated to the
party by, through or under which they claim. In the event of
the taking of the whole of the Premises, this Lease shall
terminate and all obligations of the parties to each other
hereto shall cease upon the taking of physical possession by
the condemnor or proposed condemnor. In the event of the
partial taking or condemning of the premises, hereinabove
mentioned, and if in such event Lessee does not, pursuant to
13
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its rights hereunder, elect to terminate this Lease, the award
made to Lessee for such partial taking or condemnation o.f the
buildings or improvements shall be used for the restoration of
the buildings and improvements located on the land on which the
building is situate to the extent necessary to render the same
a complete unit as nearly as possible equal in quality and
character as existed prior to the taking.
20. Default. If the premises shall be deserted or
abandoned or if there shall be default in the performance of
any covenants, agreements, or conditions herein contained on
the part of the Lessee for more than five (5) days after
written notice of such default is given Lessor, this Lease
Agreement at the option of Lessor shall thereupon become null
and void and Lessor shall have the right to re-enter or
repossess the Premises, either by force, summary proceedings,
surrender or otherwise, and dispossess and remove therefrom the
Lessee or other occupants thereof, and their effects, without
being liable for any prosecution therefor. In such case the
Lessor may, at its option, relet the Premises or any part
thereof, as the agent of the Lessee, and the Lessee shall pay
the Lessor the difference between the rent hereby reserved and
agreed to be paid by the Lessee for the portion of the term
remaining at the time or re-entry or repossession and the
amount, if any, received or to be received under such reletting
for such portion of the term. Further, no right of redemption
shall be exercised under any law of the State of Colorado in
the event Lessee is dispossessed from the Premises for any
cause or Lessor obtains possession of the Premises due to a
breach or default under any provision of this Lease Agreement
by Lessee, any and all remedies or rights conferred upon or
reserved to Lessor hereunder are cumulative and not exclusive.
If the default in the observance or performance of any covenant
or provision of this Lease by Lessee be other than the payment
of rents and such default continues for more than five (5) days
after notice of such default is given by Lessor, Lessor shall
14
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not be entitled to treat such default as a default in the
observance or performance of any covenant or provision of this
Lease if Lessee in good faith is diligently proceeding to cure
said default.
21. Peaceful Enjoyment. So long as Lessee is not in
default under any of the terms or provisions of this Lease,
Lessor covenants to protect Lessee's right of peaceful
enjoyment of the Premises.
22. Estoppel Certificate. Lessee, upon request of Lessor
or any holder of a mortgage against the fee, shall from time to
time deliver or cause to be delivered to Lessor or such
mortgagee, within ten (10) days from date of demand a
certificate duly executed and acknowledged in form for
recording, without charge, certifying, if true that this Lease
Agreement is valid and subsisting and in full force and effect
and that Lessor is not in default under any of the terms of
this Lease.
23. Partial Invalidity. If the term or provision of this
Lease Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease Agreement and the application of
such term of provisions to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this
Lease Agreement shall be valid and be enforceable to the
fullest extent permitted by law.
24. Attorney Fees. In the event that the Lessor shall,
without fault on the Lessor's part be made a party to any
litigation by or against the Lessee then the Lessee shall pay
all costs of such litigation and reasonable attorney's fees
incurred by or charges against the Lessor in enforcing the
covenants, terms, and conditions of this lease or in
terminating this lease by reason of the Lessee's default. In
any litigation between the Lessor and the Lessee the Lessee
agrees that it shall pay the Lessor's costs and attorney's
15
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costs and attorney's fees, provided however, that the Lessor is
determined to be the prevailing party in such litigation.
25. Notices. Wherever this Lease provides for notice
from Lessor to Lessee, or from Lessee to Lessor, the same shall
be served by personal delivery (including the posting by Lessor
upon the Premises) or by registered or certified mail, postage
prepaid, addressed as follows:
LESSOR
The Estate of Robert Barnard
clo Dr. William L. Comcowich
420 West Main Street
Aspen, Colorado 81611
LESSEE
Lil Lively and Dan Arrow
P.O. Box 2213
Aspen, Colorado 81612
COPY TO
COpy TO
provided, however, that Lessor and l,essee may, at any time
change the place of receiving notice by written notice of such
change of address to the other1 provided further that nothing
herein contained shall preclude or render inoperative service
of any notice that Lessor may desire or is required at any time
to give or serve upon Lessee in any manner prescribed or
permitted by the laws of the State of Colorado. Notice by mail
as herein provided shall be deemed given, unless sooner
received, three (3) days after the date of registration or
certification, including Saturdays, Sundays and all legal
holidays. Lessee agrees that all of its officers,
stockholders, directors and the personal guarantors herein, are
appointed its agents for personal delivery of any notice
required or permitted to be given hereunder, and that such
persons are further appointed its agents for personal service
of process pursuant to Colorado law in any action occurring
between the parties to this Lease and arising out of the
letting of the Premises by Lessor to Lessee. Lessee agrees
that any service of process upon such individuals shall be
16
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,-.,
considered service upon Lessee or all purposes hereunder and
binding upon Lessee.
26. Successors. This Lease Agreement shall be binding
upon and shall inure to the benefit of the parties hereto,
their assigns, heirs, successors and personal representatives.
The term "Lessor", as used in this Lease so far as covenants or
obligations on the part of Lessor are concerned, shall be
limited to and mean and include only the owner or owners of -the
building in which the premises is located, and in the event of
and transfer or transfers of such interest, Lessor herein named
(and in the case of any subsequent transfers or conveyances,
the then grantor) shall be automatically freed and relieved
from and after the date of such transfer or conveyance of all
liability with respect to the performance of any covenants or
obligations thereafter to be performed under this Lease
Agreement, it being intended hereby that the covenants and
obligations of Lessor contained in this Lease or provided by
law shall be binding on Lessor, its successors and assigns,
only during and with respect to their respective successive
periods of ownership.
27. Right of Lessor to Enter Premises. Lessor or its
agents or employees may enter upon the Premises at any
reasonable time during the term of this I,ease with reasonable
notice to Lessee or without such notice if it is deemed
necessary by Lessor for protection of the Premises. Such right
of entry shall include the right to enter the improvement(s)
upon the Premises.
28. Authority of Lessee. Lessee represents and warrants
that it is a corporation duly organized, existing and in good
standing under the laws of the State of Colorado and that it is
duly authorized and empowered to enter into this Lease
Agreement, bind Lessee hereto and perform all of the duti.es,
covenants and obligations of Lessee under this Lease Agreement.
17
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This Lease Agreement shall not be
29. Modification.
altered, modified or otherwise changed except by a further
written agreement between the parties hereto.
30. Descriptive Headings. The descriptive headings of
this Lease are inserted for convenience in reference only and
do not in any way limit or amplify the terms and provisions of
this Lease Agreement.
31. Genders. Where necessary to carry out the meaning
hereof the singular shall mean the plural, the plural the
singular, and any gender apply to all genders.
32. Counterparts. This Lease Agreement may be executed
in counterpart each of which shall be deemed an original, but
which together shall constitute one and the same Lease
Agreement.
33. Controlling Law. This Lease Agreement shall be
construed, interpreted and subject to the law of the State of
Colorado.
IN WITNESS WHEREOF, the parties hereto have caused this
Lease Agreement to be duly executed on the day and year first
above written.
LESSEE:
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STATE OF COLORADO
:ss
COUNTY OF PITKIN
~ The foregoing instrument was aC~~g~d
qay of ~ ' 1985 by . . 'd?r
. 1~ . . . v.. ,
before me this
and
Witness my hand and Offi~. . al seal.
My commission expires: /~ /l'1/'17
Y
No
Ad
ry Public/?
ress: ,jl/J p, /!1ctvUe..,()
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STATE OF COLORADO
:ss
COUNTY OF PITKIN )
The forego~g instrument was acknowledged before me this
cl~~L day of t~A~ ' 1985 by William L. Comcowich,
Personal Represe at~ve for the Estate of Robert Barnard.
Witness my hand and of~al seal.
My commission expires: V:;~/' /.( /7'i .
\4-.4<ii:J tl ad)
Ji.6t:a.ry Public .1
Address :C::</Jp, /)t}?/l-t..v
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GUARANTY OF LEASE AGREEMENT
GUARANTY given by Lil Lively and Dan Arrow, the undersigned to the
Estate of Robert Barnard (Lessor), this 20th day of August , 1985,
FOR VALUE RECEIVED, and in consideration for, and as an inducement to
Lessor making that certain Lease Agreement dated the 20th day of August,
1985, with Lessee, Lil Lively & DanArroWfor space described as:
Approximately 2048.1~quare feet of land, the same consisting of
an approximate rectangle 61.3 feet by 34.0 feet, including all
improvements presently thereon, and being a part of the Aspen
Commercial Condominiums as shown on the Condominium Map filed for
record in Plat Book 4 at Page 449. Said area is more
specifically depicted on Exhibit "A", attached hereto (as
outlined in red), and is hereinafter referred to as "the
Premises". The premises is subject to a right of access (as
shown on Exhibit "A") in favor of the tenants of Unit B of the
Aspen Commercial Condominiums. Lessee may improve the Premises
in the area of the access so long as the right of access is not
interfered with or diminished in any fashion.
"
the undersigned guarantee to Lessor, Lessor's successors and assigns, the
full performance and observance of all the covenants, conditions and
agreements, therein provided, to be performed and observed by Lessee,
without requiring any notice of non-payment, non-performance, or non-
observance, or proof, or notice, or demand, whereby to charge the
undersigned therefor, all of which the undersigned hereby expressly wai~es
and expressly agrees that the validity of this Guaranty and the obligations
of the guarantor hereunder shall in no way be terminated, affected or
impaired by reason of the assertion by Lessor against Lessee of any of the
rights or remedies reserved to Lessor pursuant to the provisions of <the
Lease Agreement. The undersigned further covenant and agree that this
Guaranty shall remain and continue in full force and effect as to'any
renewal, modification or extension of the Lease Agreement and during any
period when Lessee is occupying the Premises as a "month-to-month or
holdover tenant" or otherwise.
IN WITNESS WHEREOF, the undersigned have signed this Guaranty.
ely
STATE OF COLORADO
:ss
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me this d(O~ day of
AUgust,1985 by Lil Lively and Dan Arrow.
My commission expires: trf:- /.5' /'1)>1
WITNESS my hand and off' ~al se&l.
Monarch
Colorado 81611
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