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Home My WebLink About2014-02-18 Agenda and Support Documentation Town Council Evening SessionVAIL TOWN COUNCIL EVENING SESSION AGENDA VAIL TOWN COUNCIL CHAMBERS 75 S. Frontage Road W. Vail, CO 81657 6:00 P.M., FEBRUARY 18, 2014 NOTE: Times of items are approximate, subject to change, and cannot be relied upon to determine at what time Council will consider an item. 1. ITEM/TOPIC: Town of Vail Fire Department Emergency Respondants Recognition. (5 min. ) 2. ITEM/TOPIC: Citizen Participation (15 min.) 3. ITEM/TOPIC: Consent Agenda: 1) Award of contract to Old Castle SW Group dba United Companies of Mesa County for the Frontage Roads Shoulder - Chad Sali (5 min. ) 4. ITEM/TOPIC: Town Managers Report (5 min. ) 5. ITEM/TOPIC: I-70 Vail Underpass Update (45 Minutes) PRESENTER(S): Tom Kassmel ACTION REQUESTED OF COUNCIL: Listen to the project update, solicit additional public comment, and provide input on any additional information needed to endorse a preferred location at the March 4th Town Council, so preliminary design may begin. BACKGROUND: Staff presented a review of the I-70 Underpass Project and its progress along with ten possible locations for the underpass at the 1/21/14 Council meeting. Staff indicated that the preferred location was location 5b, a skewed alignment which located the north roundabout between the Simba Run Condominiums and the Savoy Villas along the North Frontage Road, and located the south roundabout west of the Glen Lyon Office building along the South Frontage Road; similar to the location that previous transportation master plans had identified. Based on public input and discussion with the Town Council, the design team has now refined location 5b and included two additional locations for review; one just east and one just west of the preferred location. STAFF RECOMMENDATION: Listen to the project update, solicit additional public comment, and provide input on any additional information needed to endorse a preferred location at the March 4th Town Council, so preliminary design may begin. 6. ITEM/TOPIC: An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the final decision of the Town of Vail Design Review Board on December 18, 2013, approving, with conditions, a commercial addition and exterior alterations to the façade of the Wall Street Building, located at 225 Wall Street/Lots B&C, Block 5C, Vail Village Filing 1, and setting forth details 2/18/2014 in regard thereto. (DRB130552) (25 min. ) PRESENTER(S): Warren Campbell and Michael Suman ACTION REQUESTED OF COUNCIL: Pursuant to Section 12-3-3, Appeals, Vail Town Code, the Vail Town Council shall uphold, uphold with modifications, or overturn the Design Review Board's December 18, 2013, decision. BACKGROUND: On December 18, 2013 the Design Review Board approved, with conditions, a request to allow for the construction a commercial addition and exterior alterations to the façade of the Wall Street Building. On Janaury 7, 2014, the Vail Town Council appealed (called-up) the approval of DRB130552. STAFF RECOMMENDATION: The Design Review Board recommends the Vail Town Council upholds their decision of Decemebr 18, 2013. 7. ITEM/TOPIC: Ordinance No. 6, Series 2014, an ordinance enacting Title 5, Chapter 12, Vail Town Code, "Recycling Requirements". (30 min) PRESENTER(S): Kristen Bertuglia ACTION REQUESTED OF COUNCIL: The Vail Town Council shall approve, approve with modifications, or deny Ordinance No. 6, Series of 2014, upon first reading. BACKGROUND: At the conclusion of the Town Council work session held January 7, 2014, Council directed staff to finalize the draft Community Wide Recycling ordinance in order to facilitate commercial and residential recycling, based upon recommendations provided by the Vail Recycling Advisory Committee and community feedback. STAFF RECOMMENDATION: Staff recommends that the Vail Town Council approve Ordinance No. 6, Series 2014, upon first reading. 8. ITEM/TOPIC: A request for nullification and vacation of a declaration of covenant encumbering 100 Vail Road, Lot 35, Block 7, Vail Village First Filing, and setting forth details in regard thereto. (15 minutes) PRESENTER(S): George Ruther, Director, Community Development ACTION REQUESTED OF COUNCIL: The Vail Town Council is being asked to remove and vacate the Declaration of Covenant recorded at the Eagle County Clerk and Recorder’s Office at Reception No. 172727. BACKGROUND: The applicant, James Wear, representing Mr. Alejandro Rojas, is requesting the nullification and vacation of a declaration of covenant encumbering the property located at 100 Vail Road. The reason for the request is to facilitate a remodel of the existing residential dwelling unit on the property. Mr. Rojas currently has the property under contract for purchase contingent upon the resolution of the declaration of covenant matter. A letter dated January 30, 2014, from James R. Wear to Mr. George Ruther, setting forth the reasons for making the request, has been attached for reference. 2/18/2014 STAFF RECOMMENDATION: The Community Development Department recommends the Vail Town Council removes the declaration of covenant. Staff's recommendation is based upon the following considerations: 1. According to the Official Zoning Map of the Town of Vail, the Lot is zoned Two-Family Primary Secondary Residential District. 2. The size of the Lot conforms to the minimum lot size requirements established for the District. 3. The Gross Residential Floor Area regulations have been amended since the single family residence was completed on the Lot in 1982. 4. Chapter 18 of the Zoning Regulations of the Town of Vail provides policy direction for addressing non-conforming structures. The policy of the Town is to permit non-conforming structures to be maintained but encourages non- conformities to be discontinued, or minimized, when possible. 5. A remodel of the existing structure into a two family dwelling unit further reduces any existing non-conformities with regard to density controls 6. The fears of creating “crash pads” in Vail and over population are no longer warranted. 7. A remodel of the existing structure on the Lot further facilitates the Towns use of its right of way for the continuation of a pedestrian sidewalk along Vail Road. 9. ITEM/TOPIC: Commercial Ski Storage and Private Ski Clubs (20 min. ) PRESENTER(S): Jonathan Spence and George Ruther ACTION REQUESTED OF COUNCIL: To update the Town Council on Commercial Ski Storage and Private Ski Clubs following an initial presentation before the Planning and Environmental Commission. BACKGROUND: The storage of skis and skiing related gear has evolved from the storage of equipment to a personal service desired and often expected by our guests. As this land use has evolved, the Town of Vail Municipal Code has remained static, choosing instead to characterize the new uses as variants of other uses. As a result of this inaction, the town code is unable to provide the necessary regulatory framework to effectively and fairly uphold the intent of the Lionshead and Vail Village Master Plans and the Town Zoning Code itself STAFF RECOMMENDATION: None 10. ITEM/TOPIC: Resolution No. 4, Series of 2014, A Resolution Approving the Ground Lease and Deed Restriction for the Timber Ridge Property. (30 min. ) PRESENTER(S): George Ruther ACTION REQUESTED OF COUNCIL: Approve, Approve with modifications, or deny Resolution No. 4, Series of 2014 BACKGROUND: The Town of Vail is interested in redeveloping the eastern 5.24 acres of the Timber Ridge property in Vail. The proposed ground lease and deed restriction documents are necessary to successfully carry out the redevelopment project. With the ground lease and deed restrictions in place, the project will remain on schedule for a Spring 2014 start. Completion of the project is expected by the Fall of 2015. STAFF RECOMMENDATION: The Town staff recommends the Vail Town Council approves the ground lease and deed restriction as presented. 2/18/2014 11. ITEM/TOPIC: First reading of Ordinance No. 5, Series of 2014, An Ordinance Amending Section 6-3C-6 of the Vail Town Code to Reconcile the Town Code with C.R.S.§ 18-18-406 Concerning Penalties for the Possession of Marijuana. (5 min. ) PRESENTER(S): Matt Mire ACTION REQUESTED OF COUNCIL: Approve, approve with amendments or deny Ordinance No. 5, Series of 2014 upon first reading. BACKGROUND: In 2012, Colorado voters passed Amendment 64, which amended Article XVIII of the Colorado Constitution by the addition of a new § 16 regarding the personal use and regulation of marijuana. Amendment 64 permits the possession, use, display, purchase or transportation of marijuana accessories and one ounce or less of marijuana by persons twenty-one (21) years of age and older. In light of Amendment 64, the Colorado General Assembly repealed and reenacted C.R.S. § 18-18-406, which establishes the maximum penalties for the possession and open and public display or consumption of marijuana, and such changes became effective in October 2013. Ordinance No. 5 reconciles the Vail Town Code with C.R.S. § 18-18- 406 and to clarifies the Town's penalty provisions concerning the possession and open and public display and consumption of marijuana. STAFF RECOMMENDATION: Approve, approve with amendments or deny Ordinance No. 5, Series of 2014 upon first reading. 12. ITEM/TOPIC: Adjournment (9:15 p.m.) 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: Town of Vail Fire Department Emergency Respondants Recognition. 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: Citizen Participation 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: Consent Agenda: 1) Award of contract to Old Castle SW Group dba United Companies of Mesa County for the Frontage Roads Shoulder - Chad Sali ATTACHMENTS: Frontage Roads Shoulder Improvement Memorandum 2/18/2014 Memorandum To: Vail Town Council From: Chad Salli, PE Project Engineer ITEM/TOPIC: Frontage Roads Shoulder Improvements Project ACTION REQUESTED OF COUNCIL: Authorize the Town Manager to enter into an agreement with Oldcastle SW Group, Inc. to complete the South Frontage Road Bike Lane Improvements Project. BACKGROUND: Bids were received on January 31, 2014 from 4 construction firms, with Oldcastle SW Group, Inc. the low bidder. Staff recommends contracting with Oldcastle SW Group, Inc. for their construction services for the bid amount. This project is fully budgeted. Staff is requesting the Town Council to authorize the Town Manager to enter into an agreement with to complete the Frontage Roads Shoulder Improvements Project in the amount not to exceed $662,352.00. The project continues adding bike lanes/widened shoulders to the Frontage Roads in the Town of Vail. The past three years, the Town has added approximately 4 miles of bike lanes/widened shoulders to the Frontage Roads. This year’s project includes construction of 4’-6’ shoulders to the North Frontage Road from City Market to the Main Vail roundabout and the South Frontage Road from Donovan Park to Cascade. The project is scheduled to be completed no later than June 27, 2014. STAFF RECOMMENDATION: Authorize the Town Manager to enter into an agreement with Oldcastle SW Group, Inc. to complete the Frontage Roads Shoulder Improvement Project in the amount not to exceed $662.352.00. 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: Town Managers Report 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: I-70 Vail Underpass Update PRESENTER(S): Tom Kassmel ACTION REQUESTED OF COUNCIL: Listen to the project update, solicit additional public comment, and provide input on any additional information needed to endorse a preferred location at the March 4th Town Council, so preliminary design may begin. BACKGROUND: Staff presented a review of the I-70 Underpass Project and its progress along with ten possible locations for the underpass at the 1/21/14 Council meeting. Staff indicated that the preferred location was location 5b, a skewed alignment which located the north roundabout between the Simba Run Condominiums and the Savoy Villas along the North Frontage Road, and located the south roundabout west of the Glen Lyon Office building along the South Frontage Road; similar to the location that previous transportation master plans had identified. Based on public input and discussion with the Town Council, the design team has now refined location 5b and included two additional locations for review; one just east and one just west of the preferred location. STAFF RECOMMENDATION: Listen to the project update, solicit additional public comment, and provide input on any additional information needed to endorse a preferred location at the March 4th Town Council, so preliminary design may begin. ATTACHMENTS: Memo Presentation 2/18/2014 To: Town Council From: Public Works Department Date: 2-18-14 Subject: I-70 Vail Underpass Project Update I. SUMMARY & BACKGROUND The I-70 Vail Underpass is a proposed new multimodal pedestrian and vehicular connection that is midway between Main Vail and West Vail exits, passing under I-70. This underpass has been identified in the Vail Transportation Master Plan and the CDOT I-70 Programmatic Environmental Impact Statement (PEIS) as a critical link between the North and South Frontage Road. The Town and CDOT have recently entered into a Letter of Commitment to jointly fund the design and construction of this project with an expected completion date of December of 2017. CDOT, the Town of Vail, and the selected design consultant, Felsburg, Holt & Ullevig (FHU), have recently begun the design process and will provide an update to Town Council based on the comments received at and since the Town Council meeting on 1/21/14. Staff presented a review of the I-70 Underpass Project and its progress along with ten possible locations for the underpass at the 1/21/14 Council meeting. Staff indicated that the preferred location was location 5b, a skewed alignment which located the north roundabout between the Simba Run Condominiums and the Savoy Villas along the North Frontage Road, and located the south roundabout west of the Glen Lyon Office building along the South Frontage Road; similar to the location that previous transportation master plans had identified. Based on public input and discussion with the Town Council, the design team has now refined location 5b and included two additional locations for review; one just east and one just west of the preferred location. The refined location 5b has evolved into location 5c, and the two additional locations have been identified as locations 4b and 5d respectively. Based on the design team’s review of the three refined locations, the preferred location is 5c. II. LOCATION ANALYSIS The three locations which have been refined and added to the initial Location Verification Report include 4b, 5c, 5d-1 & 5d-2. Each location includes roundabouts on both the north and south sides of the interstate in order to accommodate the traffic at the proposed new intersections. Roundabouts have been identified as the 2/18/2014 Town of Vail Page 2 recommended traffic solution for each intersection because typical and modified ‘T’ intersection fail operationally during existing and future expected traffic conditions. Each of these locations have been refined to show the most updated proposed lane configurations of the roundabouts along with conceptual sidewalks/bike paths and retaining walls. Plan and profile views of each are attached for review. Location 4b is located between the previous locations 4 and 5, at the eastern end of the Timber Ridge affordable housing project on the north side, and approximately 100’ east of the Liftside Condominiums on the south side. Location 5c is a refinement to location 5b, and adjusts the north and south roundabouts slightly to the east. Location 5d-1 is located east of location 5c, straddling the eastern end of the Simba Run Condominiums property and the adjacent Vail Run Condominiums property along the north side and just west of the Glen Lyon Office Building property on the south side. Location 5d-2 is the same as 5d-1 but moves the south roundabout further west to avoid the future planned Ever Vail buildings. The following summarizes the pros and cons of each alternative in relation to the revised preferred location 5c. General Benefits of each of these Locations • Locations provide an area where both the north and south frontage roads are below I-70. • Locations are roughly halfway between Main Vail and West Vail interchanges. • Locations provide good connectivity to both the North and South sides of I-70. • Locations provide good multi-modal service to transit activity centers. Location 4b: East Cascade Village This is not recommended to advance for the following reasons: • Similar aesthetic, visual, noise, air quality, lighting impacts as in locations 5c & 5d effecting adjacent residents; however in this location the impact occurs on both the South and the North sides of I-70 at Timber Ridge and the Liftside Condominiums. • Requires lowering the north frontage road by 17 feet and the south frontage road by 15 feet. • Requires a substantial 25’-35’ retaining walls on the south side of the crossing impacting the Gore Valley regional/ski trail, the existing trail’s bridge over Gore Creek, and Gore Creek • Significant impacts to the approved redevelopment of the Timber Ridge affordable housing apartments set to start construction this spring; requiring acquisition of Timber Ridge property, redesign of the approved redevelopment, and a potential loss of 12-24 units and therefore not compatible with the Town of Vail's 20/20 Strategic Plan’s goal of increasing affordable/workforce housing within Vail. 2/18/2014 Town of Vail Page 3 • Impacts to the Timber Ridge apartments as an affordable housing complex may require a Federal Environmental Justice (EJ) Analysis. This Federal order sets forth steps to prevent disproportionately high and adverse effects to minority or low-income populations through Title VI analyses and environmental justice analysis conducted as part of the Federal transportation planning and NEPA provisions. Location 5c: Simba West Skewed Alignment This location is recommended to advance for the following reasons: • Even though this is the recommended location, this location will have similar aesthetic, visual, noise, air quality, lighting impacts as in location 4b & 5d that will have to be analyzed and potentially mitigated. These potentially impact the adjacent properties at the Savoy Villas and the Simba Run Condominiums. • This location minimizes the need for retaining walls (if any) on the south side, and has the potential for the least height of retaining walls on the north side. • Minimal to no private property impacts on the south side. • No impacts to any existing or planned buildings or parking; however it does require acquisition of Simba Run property on north side of I-70 in an area that is currently green space. • North frontage road must be lowered 14 feet and south frontage road must be lowered 11 feet, the least of the remaining locations. Location 5d-1: Simba East Skewed Alignment This is not recommended to advance for the following reasons: • Similar aesthetic, visual, noise, air quality, lighting impacts as in location 5c effecting the adjacent residents along the North Frontage road, however the impact is moved further east; and it will also have similar impacts to existing commercial properties on the south side now and residential properties in the future if the Ever Vail redevelopment occurs. • This location requires the acquisition Simba Run property and Vail Run property on the north side, and the Vail Professional Building property on the south side. • North frontage road must be lowered 20 feet and south frontage road must be lowered 8-9 feet • Requires substantial 30’ retaining walls on the north side of the North Frontage Road. • This location requires lowering the frontage road on the north side. The new profile of the north frontage road requires unacceptable steep grades to match the access to the Vail Run condominiums and Lions Ridge Loop. • The reverse skew orientation is in the opposite direction of the major traffic movement from the West Vail Commercial area to Lions Head and back. • Truck turning movements are tight for the major movement. • The roundabout on the south side is incompatible with the future Ever Vail plans and the future south frontage road relocation to be parallel to I-70. 2/18/2014 Town of Vail Page 4 Bu i l d i n g s I m p a c t e d (Di r e c t l y ) Bu i l d i n g s < 1 2 0 ' A w a y (M o s t A e s t h e t i c , N o i s e , L i g h t , A i r I m p a c t ) Pr o p e r t y A c q u i s i t i o n (M a j o r ) N. F r o n t a g e R d . (L o w e r i n g ) S. F r o n t a g e R d . (L o w e r i n g ) N. & S . F r o n t a g e R d . St e e p e s t G r a d e ( % ) * * N. R e t a i n i n g W a l l (A p p r o x . m a x i m u m * ) S. R e t a i n i n g W a l l (A p p r o x . m a x i m u m * ) Go r e C r e e k I m p a c t 4b 1 Timber Ridge, Lifside Condos Timber Ridge 17'15'5%13'25'-35'Yes YES. Impact to approved redevelopment of Timber Ridge Affordable Housing effecting both buildings/units & parking, Impact to south steep slope(25'-35' walls) & Gore Creek 5c0 Savoy Villas, Simba Run Simba Run 14'11'5%10'4'No NO (Not at this time) 5d-1 Ever Vail Simba Run, Vail Prof. Bldg., Glen Lyon Bldg. Simba Run, Vail Run, Vail Prof. Bldg. 20'8'>7.5%30'4'No YES. Inability to match grade along North Frontage Road, 30' walls on North side, Causes redesign of future Ever Vail plans 5d-2 0 Simba Run Simba Run, Vail Run 20'9'>7.5%30'4'No YES. Inability to match grade along North Frontage Road, 30' walls on North side, significant reverse skew opposite to major traffic flow, restricts trucks & buses in major turn movement X Worst X Average X Best *Retaining wall heights are approximiate and are representative of the retaining walls along the North side of the north roundabout and the South side of the south roundabout, NOT the retaining walls against I-70 which will be similar in each option. **For comparison the existing steepest section along the North Frontage Road just west of the Post Office is ~5.5% The existing steepest section along the South Frontage Road is just east of Donovan Park and it is at 6% MAJOR DIRECT IMPACTS L o c a t i o n Major Design Flaws I-70 Vail Underpass Location Refinement Summary • Moves pedestrian crossing ~500’ further east, further from the I-70 at grade worn pedestrian crossing path. Location 5d-2: Simba East Skewed Alignment This is not recommended to advance for the following reasons: • This location has the same reasons to not advance as 5d-1 except the south roundabout is located further east to avoid the future Ever Vail buildings, however this shift causes additional issues; • Due to the significant reverse skew the truck turning and bus movements are severely restricted for the major movement and even more so if the South Frontage Rd is relocated with the Ever Vail redevelopment. This not only restricts large trucks from this movement, it also creates problems with ECO and TOV bus routes, potentially restricting this necessary major movement. 2/18/2014 Town of Vail Page 5 III. Next Steps After soliciting and responding to Public Stakeholders input on these three refined locations, the design team will move forward into preliminary design and environmental analysis with a preferred location. Once preliminary design is well under way, a 3D interactive rendering will be prepared and presented to the public at a future Town Council meeting. This model will allow the public to visualize the underpass and how impacts may be mitigated. As the project progresses public input will be taken continuously thru the project website at www.vailgov.com/underpass and thru specific stakeholders meetings and correspondence. The following is a list of key design milestones and more formal public input opportunities anticipated to occur during the design process. As this process is dynamic these dates will fluctuate as the project develops; February 18, 2014 Design Update to Town Council (3 refined Locations) March 4, 2014 Final Conceptual Location to Town Council, along with; NEPA Process & Uniform Act (Property acquisition process) March – October 2014 Preliminary Design & Preliminary Environmental Clearance March 2014 Open House at Town of Vail Community Meeting April 2014 Town Council Update July 2014 Town Council Update (30%-50% Design) October 2014 Town Council Update (Environmental Clearance) January 2015 Town Council Update (95% Design) January 2015 Open House (95% Design) January-December 2015 Right of Way plans and property acquisition process January 2016 Final Environmental Clearance (FHWA) January-April 2016 Construction Documents (100% Design), Bid & Award, Open House Spring 2016-Fall 2016 Construction IV. RECOMMENDED ACTION Listen to the project update, solicit additional public comment, and provide input on any additional information needed to endorse a preferred location at the March 4th Town Council, so preliminary design may begin. V. ATTACHMENTS I-70 Vail Underpass Project Update Presentation 2/18/2014 I- 7 0 V a i l U n d e r p a s s Pu b l i c W o r k s Fe b r u a r y 1 8 , 2 0 1 4 Photo by Jack Affleck 2/18/2014 I- 7 0 V a i l U n d e r p a s s Su m m a r y o f T o w n C o u n c i l o n 1 / 2 1 / 1 4 2 To w n of Va i l | Pu b l i c Wo r k s | 2/ 1 8 / 1 4 • Re v i e w of Pr e s e n t a t i o n on 1/ 2 1 / 1 4 • Pr o j e c t Hi s t o r y • Pr o j e c t Pr o c e s s & Sc h e d u l e • Re v i e w e d 10 po s s i b l e lo c a t i o n s fo r un d e r p a s s • Re v i e w e d pr e v i o u s pu b l i c In p u t he a r d • Re v i e w of Co u n c i l & Pu b l i c In p u t & Di s c u s s i o n • Re c o g n i z e d th e be n e f i t s of th e Pr o j e c t • Di s c u s s e d th e be n e f i t s an d im p a c t s of th e pr e f e r r e d lo c a t i o n of 5b • So m e me m b e r s of th e pu b l i c su g ge s ted lo o k i n g at tw o ad d i t i o n a l lo c a t i o n s ju s t ea s t an d we s t of 5b to mi n i m i z e im p a c t s on north side • Di s c u s s e d th a t th e lo c a t i o n to th e ea s t wi l l im p a c t th e ap p r o v e d Ti m b e r Ri d g e af f o r d a b l e ho u s i n g pr o j e c t wh i c h wa s de e m e d un d e s i r a b l e ; an d th e lo c a t i o n to we s t ma y im p a c t th e fu t u r e Ev e r Va i l pr oj e c t 2/18/2014 I- 7 0 V a i l U n d e r p a s s Pr o j e c t U p d a t e 3 To w n of Va i l | Pu b l i c Wo r k s | 2/ 1 8 / 1 4 Pr e s e n t a t i o n To d a y • Re v i e w Pr e f e r r e d Lo c a t i o n 5b fr o m 1/ 2 1 / 1 4 • Re v i e w T‐In t e r s e c t i o n s vs R o u n d a b o u t s at th i s lo c a t i o n • Re v i e w Re f i n e d Lo c a t i o n s : • 4b : Ne w lo c a t i o n ju s t we s t of lo c a t i o n 5b • 5c : Ne w re f i n e d ve r s i o n of 5b • 5d 1 & 2 : Ne w lo c a t i o n ju s t ea s t of lo c a t i o n 5b • Co m p a r e 4b , 5c , 5d ‐1, 5d ‐2 • Re v i e w Pr o j e c t Sc h e d u l e • Re c e i v e Co u n c i l & Pu b l i c In p u t 2/18/2014 2/18/2014 8150 8100 8050 0 100 200 300 400500 8200 Savoy Villas Cross Section B DOT DEPARTMENT OF TRANSPORTATION COLORADO FELSBURG HOLT& ULLEVIG Existing Proposed Section B 8150 8100 8050 0 100 200 300 400500 8200 8 8 8 881008100 82008200 888811155550 Savoy Villas Roundabout sidewalk Underpass COLORADOFHU1984 sidewwa 8 8 8 881008100 8200 g 8200 888811155550 Westbound I-70 Eastbound I-70 Savoy Villas Existing Sidewalk Existing North Frontage Road COLORADOFHU1984 COLORADOFHU1984 Westbound I-70I-70I-70I 2/18/2014 2/18/2014 2/18/2014 Tr a d i t i o n a l T e e - U n d e r p a s s : S t o p - C o n t r o l l e d DO T DE P A R T M E N T O F T R A N S P O R T A T I O N CO L O R A D O FELSBURG HOLT&ULLEVIG Va i l I n t e r c h a n g e P E L , 1 3 - 1 6 4 , 2 / 1 0 / 1 4 = M o v e m e n t F a i l s LE G E N D NO T E : A l t e r n a t i v e s w e r e a n a l y z e d a s s u m i n g t u r n l a n e a d d i t i o n s 70 70 S T O P S T O P N o r t h F r o n t a g e R o a d S o u t h F r o n t a g e R o a d 2/18/2014 Tr a d i t i o n a l T e e - U n d e r p a s s : Ac c o m m o d a t e d M a j o r P a t t e r n DO T DE P A R T M E N T O F T R A N S P O R T A T I O N CO L O R A D O FELSBURG HOLT&ULLEVIG Va i l I n t e r c h a n g e P E L , 1 3 - 1 6 4 , 2 / 1 0 / 1 4 = M o v e m e n t F a i l s LE G E N D NO T E : A l t e r n a t i v e s w e r e a n a l y z e d a s s u m i n g t u r n l a n e a d d i t i o n s 70 70 STOP STOP S o u t h F r o n t a g e R o a d N o r t h F r o n t a g e R o a d 2/18/2014 Tr a d i t i o n a l T e e - U n d e r p a s s : A l l - W a y S t o p DO T DE P A R T M E N T O F T R A N S P O R T A T I O N CO L O R A D O FELSBURG HOLT&ULLEVIG Va i l I n t e r c h a n g e P E L , 1 3 - 1 6 4 , 2 / 1 0 / 1 4 = M o v e m e n t F a i l s LE G E N D NO T E : A l t e r n a t i v e s w e r e a n a l y z e d a s s u m i n g t u r n l a n e a d d i t i o n s 70 70 S T O P A L L W A Y S T O P A L L W A Y STOP ALL WAY STOP ALL WAY STOP ALL WAY STOP ALL WAY S o u t h F r o n t a g e R o a d N o r t h F r o n t a g e R o a d 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 2/18/2014 Buildings Impacted (Directly ) Buildings < 120' Away (Most Aesthetic, Noise, Light, Air… Impact) Property Acquisition (Major) N. Frontage Rd. (Lowering) S. Frontage Rd. (Lowering) N. & S. Frontage Rd. Steepest Grade (%)** N. Retaining Wall (Approx. maximum*) S. Retaining Wall (Approx. maximum*) Gore Creek Impact 4b 1 Ti m b e r R i d g e , Li f s i d e C o n d o s Ti m b e r R i d g e 17 ' 15 ' 5 % 1 3 ' 2 5 ' - 3 5 ' Ye s YE S . I m p a c t t o a p p r o v e d r e d e v e l o p m e n t o f T i m b e r Ri d g e Af f o r d a b l e H o u s i n g e f f e c t i n g b o t h bu i l d i n g s / u n i t s & p a r k i n g , I m p a c t t o s o u t h s t e e p sl o p e ( 2 5 ' - 3 5 ' w a l l s ) & G o r e C r e e k 5c 0 Sa v o y V i l l a s , Si m b a R u n Si m b a R u n 14 ' 11 ' 5% 1 0 ' 4' No NO ( N o t a t t h i s t i m e ) 5d - 1 Ev e r V a i l Si m b a R u n , Va i l P r o f . B l d g . , Gl e n L y o n B l d g . Si m b a R u n , V a i l Ru n , V a i l Pr o f . B l d g . 20 ' 8' >7 . 5 % 3 0 ' 4' No YE S . I n a b i l i t y t o m a t c h g r a d e a l o n g N o r t h F r o n t a g e Ro a d , 3 0 ' w a l l s o n N o r t h s i d e , C a u s e s r e d e s i g n o f fu t u r e E v e r V a i l p l a n s 5d - 2 0 Si m b a R u n Si m b a R u n , Va i l R u n 20 ' 9' >7 . 5 % 3 0 ' 4' No YE S . I n a b i l i t y t o m a t c h g r a d e a l o n g N o r t h F r o n t a g e Ro a d , 3 0 ' w a l l s o n N o r t h s i d e , s i g n i f i c a n t r e v e r s e sk e w o p p o s i t e t o m a j o r t r a f f i c f l o w , r e s t r i c t s t r u c k s & bu s e s i n m a j o r t u r n m o v e m e n t X Wo r s t X Av e r a g e X Be s t * R e t a i n i n g w a l l h e i g h t s a r e a p p r o x i m i a t e a n d a r e r e p r e s e n t a t i v e o f t h e r e t a i n i n g w a l l s a l o n g t h e N o r t h s i d e o f t h e n o r t h r o u n d a b o u t a n d t h e S o u t h s i d e o f t h e s o u t h r o u n d a b o u t , N O T t h e r e t a i n i n g w a l l s a g a i n s t I - 7 0 w h i c h w i l l b e s i m i l a r i n e a c h o p t i o n . ** F o r c o m p a r i s o n t h e e x i s t i n g s t e e p e s t s e c t i o n a l o n g t h e N o r t h F r o n t a g e R o a d j u s t w e s t o f t h e P o s t O f f i c e i s ~ 5 . 5 % Th e e x i s t i n g s t e e p e s t s e c t i o n a l o n g t h e S o u t h F r o n t a g e R o a d i s j u s t e a s t o f D o n o v a n P a r k a n d i t i s a t 6 % MA J O R D I R E C T I M P A C T S Location Ma j o r D e s i g n F l a w s I- 7 0 V a i l U n d e r p a s s L o c a t i o n R e f i n e m e n t S u m m a r y 2/18/2014 Pr o j e c t M i l e s t o n e S c h e d u l e Pr o j e c t S c o p i n g Pr e l i m i n a r y D e s i g n Pr e l i m i n a r y En v i r o n m e n t a l C l e a r a n c e Fi n a l D e s i g n Ri g h t o f W a y P l a n s an d A c q u i s i t i o n Fi n a l E n v i r o n m e n t a l Cl e a r a n c e Pr o j e c t A d v e r t i s e m e n t Co n s t r u c t i o n Q1 Q 2 Q 3 Q 4 Q 1 Q 2 Q 3 Q 4 Q 1 Q 2 Q 3 Q 4 20 1 4 20 1 5 2016 Pu b l i c O p e n H o u s e To w n C o u n c i l U p d a t e Spring 2016 - Fall 2017 DO T DE P A R T M E N T O F T R A N S P O R T A T I O N CO L O R A D O FELSBURG HOLT&ULLEVIG 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the final decision of the Town of Vail Design Review Board on December 18, 2013, approving, with conditions, a commercial addition and exterior alterations to the façade of the Wall Street Building, located at 225 Wall Street/Lots B&C, Block 5C, Vail Village Filing 1, and setting forth details in regard thereto. (DRB130552) PRESENTER(S): Warren Campbell and Michael Suman ACTION REQUESTED OF COUNCIL: Pursuant to Section 12-3-3, Appeals, Vail Town Code, the Vail Town Council shall uphold, uphold with modifications, or overturn the Design Review Board's December 18, 2013, decision. BACKGROUND: On December 18, 2013 the Design Review Board approved, with conditions, a request to allow for the construction a commercial addition and exterior alterations to the façade of the Wall Street Building. On Janaury 7, 2014, the Vail Town Council appealed (called-up) the approval of DRB130552. STAFF RECOMMENDATION: The Design Review Board recommends the Vail Town Council upholds their decision of Decemebr 18, 2013. ATTACHMENTS: Memorandum to the Town Council Memorandum From Jeff Winston DRB Approved Plan Set Memorandum From Applicant Updated Plans From Applicant 2/18/2014 TO: Vail Town Council FROM: Community Development Department DATE: February 18, 2014 SUBJECT: An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the final decision of the Town of Vail Design Review Board on December 18, 2013, approving, with conditions, a commercial addition and exterior alterations to the façade to the Wall Street Building, located at 225 Wall Street/Lots B&C, Block 5C, Vail Village Filing 1, and setting forth details in regard thereto. (DRB130552) Appellant: Vail Town Council Planner: Warren Campbell ___________________________________________________________________________ I. SUBJECT PROPERTY The subject property is located at 225 Wall Street/Lot B&C, Block 5C, Vail Village Filing 1. II. VAIL TOWN COUNCIL JURISDICTION Pursuant to Section 12-3-3C-1, Appeal of Design Review Board Decisions; Authority, Vail Town Code, the town council shall have the authority to hear and decide appeals from any decision, determination or interpretation by any the design review board with respect to the provisions of Title 12, Zoning Regulations, Vail Town Code. III. PROCEDURAL CRITERIA FOR APPEALS Pursuant to Sections 12-3-3C-2 and 12-3-3C-3, Appeal of Planning and Environmental Commission Decisions; Initiation and Procedures, Vail Town Code, there are three basic procedural criteria for an appeal: 2/18/2014 Town of Vail Page 2 A) Standing of the Appellants Pursuant to Section 12-3-3, Appeals, Vail Town Code, the appellant, the Vail Town Council has standing as an aggrieved or adversely affected party to appeal the Design Review Board’s December 18, 2013, decision. B) Adequacy of the Notice of the Appeal A copy of the Public Notice of the Vail Town Council, February 18, 2014, Public Hearing was sent to the local newspaper on January 17, 2014, pursuant to Section 12-3-3C-3, Procedures, Vail Town Code. This item was continued at the February 4, 2014, public hearing to the February 18, 2014, public hearing. C) Timeliness of the Notice of Appeal The Administrative Section of the Town’s Zoning Code (12-3-3C-3, Procedures) requires appeals to be filed in twenty (20) days or less. On January 7, 2014, the appellant, Vail Town Council, filed an appeal (called- up) of the Design Review Board’s December 18, 2013, decision in accordance with Section 12-3-3, Appeals, Vail Town Code. IV. SUMMARY The question to be answered by the Vail Town Council regarding this appeal is: Were the requirements of the Vail Village Master Plan and Vail Village Design Considerations properly applied in the decision to allow for a commercial addition and exterior alterations to the façade to the Wall Street Building, located at 225 Wall Street? Pursuant to Section 12-3-3, Appeals, Vail Town Code, the Vail Town Council shall uphold, uphold with modifications, or overturn the Design Review Board’s December 18, 2013, decision. V. BACKGROUND On May 13, 2013, the Planning and Environmental Commission unanimously approved, with conditions, a request to allow for the construction of additions in excess of the prescribed site coverage. By a vote of 3-2-0 (Pierce and Bird opposed) the Planning and Environmental Commission approved with conditions the major exterior alteration 2/18/2014 Town of Vail Page 3 or modification to allow for the construction of additions at the Wall Street Building. This approval was unanimously upheld by the Vail Town Council on July 2, 2013. On December 18, 2013, the Design Review Board approved, with conditions, a commercial addition and exterior alterations to the façade to the Wall Street Building. The conditions applied to the approval are as follows: “1. In conjunction with the building permit submittal, the applicant shall include plans depicting the flower boxes on the third floor balcony railings as presented at the public hearing. 2. In conjunction with the building permit submittal, the applicant shall include plans depicting the incorporation of muntins in the transom windows installed above the balcony doors on the third floor. The muntins shall be designed as to create four equal dimensions panes of glass. 3. In conjunction with the building permit submittal, the applicant shall include plans which incorporate the transom window and knee wall design on the first floor commercial space located on the northeast corner.” On January 7, 2014, the town council appealed, “called-up”, the Design Review Board’s approval. The following specific areas were mentioned. 1. A concern with the height of the panel (knee wall) at the base of the folding door system at the American Ski Exchange space and its compliance with the knee wall recommendations of the Vail Village Design Considerations. 2. A concern with the absence of an exterior deck on the third floor condominium unit on the southeast corner above the Jewels of the West commercial space. 3. A concern that the existing second floor office windows on the southeast corner should match the new office windows on the east façade above the new arcade commercial expansion. VI. APPLICABLE DOCUMENTS VAIL VILLAGE MASTER PLAN GOAL #1 ENCOURAGE HIGH QUALITY, REDEVELOPMENT WHILE PRESERVING UNIQUE ARCHITECTURAL SCALE OF THE VILLAGE IN ORDER TO SUSTAIN ITS SENSE OF COMMUNITY AND IDENTITY. Objective 1.1: Implement a consistent development review process to reinforce the character of the Village. 2/18/2014 Town of Vail Page 4 Policy 1.1.1: Development and improvement projects approved in the Village shall be consistent with the goals, objectives, policies and design considerations as outlined in the Vail Village Master Plan and Urban Design Guide Plan. Objective 1.4: Recognize the “historic” importance of the architecture, structures, landmarks, plazas and features in preserving the character of Vail Village. Policy 1.4.1: The historical importance of structures, landmarks, plazas and other similar features shall be taken into consideration in the development review process. VAIL VILLAGE DESIGN CONSIDERATIONS INTRODUCTION BACKGROUND These Design Considerations are an integral part of the Vail Village Urban Design Plan. The Plan as a whole is the culmination of many month’s effort by residents, merchants, Town staff, and consultants to develop a mechanism to manage physical change in the Village. It is an attempt to identify aspects of the physical character of the Village and to assure as far as possible that future changes will be consistent with the established character, and will make positive contributions to the quality of life. Vail was originally conceived as a mountain resort in the pattern of quaint European alpine village. It remains fairly faithful to that image today, because of the commitment of its early founders to that concept. However, recent rapid growth, both in size and popularity, has introduced new pressures for development, which many feel threaten the unique qualities from which that success has been derived. There are rapidly increasing land values and resulting pressures to expand existing buildings, infill parcels, and even totally redevelop parcels less than 15 years old. This pressure for growth has brought with it the potential for significant change. New materials, new architectural styles, the premium on land usage, and sheer numbers of people and cars all have potentially major impacts on the character and function of Vail. That is not to imply that all growth and change in Vail is negative. There are many areas that are underdeveloped. The actual area of Vail that gives it its unique character is but a small area of the Village. There are definitely opportunities to extend the character of the Core beyond its current limits. 2/18/2014 Town of Vail Page 5 These Design Considerations, and the Urban Design Plan as a whole, are intended to guide growth and change in ways that will enhance and preserve the essential qualities of Vail Village. This character, while inspired to a degree by European models, has evolved into a distinctly local interpretation. Any standards, in the end, must be based upon Vail’s own unique characteristics, and potential now. To preserve this character, care must be taken to avoid both new architectural prototypes, and historical ones, local or foreign, which do not share the same design vocabulary. These Design Considerations are a recognition that there is a distinctive design character to the Village and that this character is important to preserve. THE DESIGN CONSIDERATIONS The characteristics identified herein, are first of all, descriptions of the primary form- giving physical features of the Village. They are not exhaustive. They are a description of those key elements without which the image of Vail would be noticeably different. They are divided into two major categories: URBAN DESIGN CONSIDERATIONS General, large-scale land use planning issues, as well as form considerations which affect more than one property (or even whole areas). These considerations are primarily the purview of the Planning and Environmental Commission. This Commission also has review responsibilities for additional zoning code compliance such as density control, parking, etc. ARCHITECTURE/LANDSCAPE CONSIDERATIONS Detail, details, style and overall appropriateness of a design for a given site. These considerations are reviewed primarily by the Design Review Board (DRB). Secondly, the design considerations are intended to serve as guideline design parameters. They are not seen as rigid rules, or “cookbook design elements” to bring about a homogeneous appearance in Vail. Rather, they are a statement of interpretation, subscribed to by the Town Planning/Environmental Commission and Review Board, as to the present physical character and objectives of the Village. They are intended to enable the Town staff and citizen review boards to more clearly communicate to property owners planning and design objectives, and allow property owners in town to respond in general conformance or to clearly demonstrate why departures are warranted. Finally, these guidelines are intended to help influence the form and design of buildings, not to establish minimum building volumes. Often more than one criteria applies to a given situation e.g. Building Height, Enclosure, Views and Sun/Shade - all are concerns applicable to building height and massing - and they may be mutually conflicting if 2/18/2014 Town of Vail Page 6 judged on equal terms. It is the role of the review boards, together with the applicant, to determine the relative importance of each consideration for a given situation. They then must apply those considerations to assure that a balance is achieved between the rights of the public and private sectors. VII. DISCUSSION ITEMS 1. A concern with the height of the panel (knee wall) at the base of the folding door system at the American Ski Exchange space and its compliance with the knee wall recommendations of the Vail Village Design Considerations. The plans approved by the Design Review Board for the storefront of the American Ski Exchange includes a door system which will fold up allowing for the entirety of the façade to become open to the pedestrian street. This design approach was taken in response to the Planning and Environmental Commission requirement that no outdoor display of goods will be permitted outside of the in-filled commercial arcade due to the negative impacts it would have on pedestrian flows on Wall Street. The bottom panel (knee wall) of this accordion door system is 10 inches in height. The Vail Village Design Considerations states that ground floor display windows are typically raised creating a knee wall of 18 inches. In reviewing this element the Design Review Board took into consideration that the store front was a folding door system which would allow the interior retail space to become fully open to the pedestrian street. The following are excerpts from the Vail Village Design Considerations which speak to this design consideration. WINDOWS In addition to the general degree of transparency, window details are an important source of pedestrian scale-giving elements. The size and shape of windows are often a response to the function of the street adjacent. For close-up, casual pedestrian viewing windows are typically sized to human-sized dimensions and characteristics of human vision. (Large glass-wall storefronts suggest uninterrupted viewing, as from a moving car. The sense of intimate pedestrian scale is diminished.) Ground floor display windows are typically raised slightly 18 inches and do not extend much over 8 feet above the walkway level. Ground floors which are noticeably above or below grade are exceptions. The articulation of the window itself is still another element in giving pedestrian scale (human-related dimensions). Glass areas are usually subdivided to express individual window elements - and are further subdivided by mullions into small panes - which is responsible for much of the old-world charm of the Village. 2/18/2014 Town of Vail Page 7 Similarly, windows are most often clustered in banks, juxtaposed with plain wall surfaces to give a pleasing rhythm. Horizontal repetition of single window elements, especially over long distances, should be avoided. 2/18/2014 Town of Vail Page 8 2. A concern with the absence of an exterior deck on the third floor condominium unit on the southeast corner above the Jewels of the West commercial space. There is currently no deck on the east façade of the third floor condominium unit. All existing decks on the structure are being replaced and will have a consistent wrought iron and planter box design. The Design Review Board, Jeff Winston, design consultant, and staff did not find the elevation above the Jewels of the West commercial space to be in need of an additional design element to contribute to the overall architectural character and design of the structure. 3. A concern that the existing second floor office windows on the southeast corner should match the new office windows on the east façade above the new arcade commercial expansion. The second floor windows above the Jewels of the West commercial space are existing and were not proposed to be replaced. The second floor office windows above the commercial arcade infill have been approved for replacement per the plan. The Design Review Board, Jeff Winston, design consultant, and staff did not find that the office windows above the Jewels of the West commercial space needed to match the new office windows being proposed above the commercial arcade. This decision was made as there was an architectural approach taken with regard to this structure which was to create a design that appears to have been additive over time resulting in appropriate facades appearing different, but architecturally compatible. This architectural approach results in a structure which will appear to have been in place longer than its actual age. 2/18/2014 Town of Vail Page 9 VIII. REQUIRED ACTION Pursuant to Section 12-3-3, Appeals, Vail Town Code, the Vail Town Council shall uphold, uphold with modifications, or overturn the Design Review Board’s December 18, 2013, decision. Should the Vail Town Council choose to uphold the determination of the Town of Vail Design Review Board, the following statement is recommended: “The Vail Town Council finds as follows: The Vail Village Master Plan and Vail Village Design Considerations were properly applied in regard to the December 18, 2013, Design Review Board’s, approval with conditions, of a commercial addition and exterior alterations to the façade to the Wall Street Building, located at 225 Wall Street/Lots B&C, Block 5C, Vail Village Filing 1, and setting forth details in regard thereto. (DRB130552)” IX. ATTACHMENTS A. Memorandum from Jeff Winston dated December 12, 2013 B. Approved plans dated December 19, 2013 C. Memorandum from the applicant dated February 12, 2014 D. Updated plan set from the applicant dated February 12, 2014 2/18/2014 Design Review Memorandum RE: Wall Street Building, DRB Submittal, File: DRB130552 Schematic Designs.pdf DATE: 12 December 2013 TO: Warren Campbell, TOV Community Development FROM: Jeff Winston This memo is to provide input on the DRB review of the Wall Street Building with regard to a determination of consistency of the proposed improvements with the Urban Design Guide Plan (as prescribed in Policy 1.1.1 of the Vail Village Master Plan1). The Wall Street Building is one of the few remaining “pre-guidelines” buildings in Vail Village, at a key intersection near the heart of the Village. This renovation is an opportunity to bring the building into greater consistency with the Village Core character, and in fact, “heal” this important corner. With inexpensive additional modifications, even the unchanged portions of the building can be greatly improved. Relevant Standards Vail Village Master Plan Goal 1: Encourage high quality redevelopment while preserving unique architectural scale of the village in order to sustain its sense of community and identity. Retaining the existing building retains the scale of the Village. Retain the identity of the Village. Some of the proposed improvements (3rd floor balcony railings) give the building a greater “Vail” character, while others do not (see discussion below, beginning with Proposed East View) Vail Village Urban Design Guide Plan--Architectural Considerations Overhangs Specific design consideration should be given to protection of pedestrian ways adjacent to buildings. 1 Policy 1.1.1: Development and improvement projects approved the Village shall be consistent with the goals, objectives, policies and design considerations as outlined in the Vail Village Master Plan and Urban Design Guide Plan. 2/18/2014 Wall Street Building Design Review_DRB Submittal #2 12 December 2013 Page 2 C:\Program Files\neevia.com\docConverterPro\temp\NVDC\CB81BE9D-8488-40BC-B84A- 108BC42225AA\PDFConvert.5104.1.DRB130552_Memorandum_from_Jeff_Winston.docx Overhangs are treated with varying degrees of ornamentation. Structural elements such as roof beans are expressed beneath the overhangs, simply or decoratively carved. The extended canopy arcade, with its heavy timber arced brackets is consistent with this guideline. Materials Stucco, brick, wood, are the primary building materials found in the Village. Of the above materials, stucco is the most consistently used material. The proposed building maintains a majority of the stucco exterior, and the wood siding is retained, and consistent with the guidelines. Color Body colors, both siding and stucco, shall be rich and lively but must be less chromatic shades, which relate to natural colors and can be either light or dark. All stucco shall have a flat finish. Proposed building improvements appear to comply. (The existing textured stucco that is not affected by the expansion is likely to be retained.) Transparency The guidelines prescribe ground floor (commercial) facades that are proportionately more transparent than upper floors. Most characteristic and Vail-like ground floor facades range from 55% to 70% of the total length of the commercial façade. Upper floors are often the converse: 30% to 40% transparent. Glass areas are usually subdivided to express individual elements—and are further subdivided by mullions in to small panes – which is responsible for much of the old-world charm of the Village. Large single pane windows occur in the Village, as long as they are generally consistent in form with other windows. Elements on the ground floor of the East View that appear to be consistent with these guidelines include: • the articulated transom windows above the main windows on ground floor of the East View • the variations in the ground floor window patterns give nice vitality and “evolved over time” character Elements that do not appear to be consistent with these guidelines are the proposed large window expanses on the 2nd story at the north end of the building (see Figure 3 below). In the latest submittal, these windows have been modified from a previous suburban “storefront” style to slightly more articulated square mullion pattern, but presenting a total window-wall, floor to ceiling, adjacent to the key intersection in Vail. If these windows were part of a two-story display area there might be some justification to vary the guidelines, as has been done in at the Gorsuch Building for example. (See Figures 1 & 2 below). 2/18/2014 Wall Street Building Design Review_DRB Submittal #2 12 December 2013 Page 3 C:\Program Files\neevia.com\docConverterPro\temp\NVDC\CB81BE9D-8488-40BC-B84A- 108BC42225AA\PDFConvert.5104.1.DRB130552_Memorandum_from_Jeff_Winston.docx However, this space is intended, and designed, to be and office or conference room. We do not doubt that the applicant has the best of intentions for a well-kept space. However, over time, because of the total glass condition, and as we have seen in other similar second story uses with full visibility, we envision the potential for views of the back of desks, computers and wiring, storage boxes. Finally, the added transom windows above the patio doors seem out of proportion by being too tall and could benefit from having mullions that break them into smaller panes. The proportions of the transom windows on the ground floor could be a good ratio to follow. Recommendation to comply with the guidelines: 1. Replace the large expanse of 2nd floor windows with individual windows, or groups of windows, set into an equal-or-greater amount of wall surface. 2. As an alternative, treat the windows as a two-story composition, but a. Increase the amount of wall surface at each end of the window expanse b. Extend the mullion grid to the ground floor windows 3. Add mullions to the unchanged 2nd and 3rd story windows on the east façade. 4. Reduce the height of the 3rd floor transom windows, similar to the ratio of the ground floor transom windows. Trim Prominent (wide) wood trim is also a unifying feature in the Village. Windows and doors are treated as strong visual features. A number of the new windows and doors appear to comply with this guideline. Some of the existing, unchanged windows are proposed to have wider trim, many are not. Recommendation to comply with the guidelines: 5. Add wide trim around the 3rd story windows and doors. Additional recommendations/suggestions 6. Shutters are a common element in the Village that help bring variety, old- world charm. An inexpensive addition of several shutters to the 2nd story single windows on east façade of the south (stucco) section of the building and the 3rd story single windows would add variety and interest to the building, and give the unchanged parts of the building a more Vail-like character 7. Even though the ground floor northeast entry building layout has been approved by the PEC, we still encourage the applicant to consider an 2/18/2014 Wall Street Building Design Review_DRB Submittal #2 12 December 2013 Page 4 C:\Program Files\neevia.com\docConverterPro\temp\NVDC\CB81BE9D-8488-40BC-B84A- 108BC42225AA\PDFConvert.5104.1.DRB130552_Memorandum_from_Jeff_Winston.docx alternative layout that would a) give a more spacious pass-through, b) provide a more visible doorway, and c) give the applicant additional 25 s.f. of floor area. Figure 1: Gorsuch Building characteristics Large expanse of glass is part of extended “bay” window Note glass is still framed by large solid wall surface Larger vertical and horizontal bands divide glass into bays, with smaller internal mullions Larger vertical columns divide glass into bays, with smaller internal mullions 2/18/2014 Wall Street Building Design Review_DRB Submittal #2 12 December 2013 Page 5 C:\Program Files\neevia.com\docConverterPro\temp\NVDC\CB81BE9D-8488-40BC-B84A- 108BC42225AA\PDFConvert.5104.1.DRB130552_Memorandum_from_Jeff_Winston.docx Figure 2: Gorsuch Building characteristics Large expanse of glass is part of extended “bay” window Note glass is still framed by large solid wall surface 2/18/2014 Wall Street Building Design Review_DRB Submittal #2 12 December 2013 Page 6 C:\Program Files\neevia.com\docConverterPro\temp\NVDC\CB81BE9D-8488-40BC-B84A- 108BC42225AA\PDFConvert.5104.1.DRB130552_Memorandum_from_Jeff_Winston.docx The images below are not intended to be a design, but merely to illustrate how the application of the guidelines could add Vail-character to the north end of the building. Figure 4: Proposed north view Figure 5: Application of design guidelines/recommendations Figure 3: Application of design guidelines/recommendations 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G N O R T H E A S T V I E W 1 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D N O R T H E A S T V I E W 2 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G N O R T H E A S T C O R N E R V I E W 3 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D N O R T H E A S T C O R N E R V I E W 4 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G B U I L D I N G E N T R Y V I E W 5 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D B U I L D I N G E N T R Y V I E W 6 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G E A S T V I E W 7 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D E A S T V I E W 8 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G S O U T H E A S T V I E W 9 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D S O U T H E A S T V I E W 10 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G S O U T H E A S T R E T A I L V I E W 11 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D S O U T H E A S T R E T A I L V I E W 12 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G N O R T H V I E W 13 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D N O R T H V I E W 14 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G N O R T H W E S T V I E W 15 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 12 . 1 9 . 1 3 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D N O R T H W E S T V I E W 16 2/18/2014 michael@sumanarchitects.com 141 East Meadow Drive, Suite 211 o 970.479.7502 Vail, CO 81657 m 970.471.6122 MEMO Date: 2.12.14 To: Vail Town Council c/o Warren Campbell Town of Vail Vail, CO 81657 From: Michael Suman, AIA Project: Wall Street Building Subject: Town Council Appeal of DRB final approval Ladies and Gentlemen: This memo is in response to comments made during the January 7th, 2014 appeal of the Design Review Board final approval for improvements to the Wall Street building. The specific comments provided by the Town Council members at the time were focused on: 1. The bottom panel height of the bi-fold door system proposed at the American Ski Exchange retail space 2. Existing second level office windows in the southeast corner of the building 3. The lack of a third level balcony in the southeast corner of the building American Ski Exchange Bi-fold door system bottom panel The new bi-fold door system infill of the existing east and south colonnade is a creative solution to address both the Town of Vail imposed pedestrian easement and the retail owner’s need to display wares. The door system functions as a transparent enclosure on cold days with the ability to completely open up on warm days as a partial colonnade. Thus, it allows the interior racks of the retail space to be readily accessible to pedestrians. Response: While these type of door systems typically have a 10” or smaller bottom rail, it is possible for it to be 18” to simulate a knee wall as described in the Town of Vail Design Guide plan. The enclosed perspective sheets 2a, 8a, 10a and 12a show this new 18” bottom rail. Existing second level office windows in the southeast corner of the building The comment was for these to be studied for replacement. No modifications were proposed at the interior or the exterior of the building in the area where the designated windows reside. Response: These two windows are relevant as is because they match the existing windows on the west side at the same level. The step back in the east face of the building breaks the relationship of this partial east façade from that to the north. This design condition alleviates the need for these windows to be replaced to match those on the façade around the corner. Therefore, the windows are not proposed to be replaced. Lack of third level balcony in the Southeast corner of the building The comment was for a balcony to be added to the SE corner of the building. Once again, no modifications were proposed at the interior or the exterior of the building in this area mentioned. 2/18/2014 michael@sumanarchitects.com 141 East Meadow Drive, Suite 211 o 970.479.7502 Vail, CO 81657 m 970.471.6122 Therefore, a balcony was never considered to be added nor felt aesthetically necessary to be added. Response: The owner of the subject southeast residential unit has been presented with this idea and is open to adding a continuous wrap around balcony as shown in the enclosed perspective sheets 8a, 10a, and 12a. At this stage, the viability of this balcony has not been studied structurally or economically and is being presented as a potential idea, not a commitment. 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G N O R T H E A S T V I E W 1 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n AP P R O V E D N O R T H E A S T V I E W 2 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D N O R T H E A S T V I E W 2a 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G N O R T H E A S T C O R N E R V I E W 3 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D N O R T H E A S T C O R N E R V I E W 4 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G B U I L D I N G E N T R Y V I E W 5 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D B U I L D I N G E N T R Y V I E W 6 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G E A S T V I E W 7 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D E A S T V I E W 8 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D E A S T V I E W 8a 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G S O U T H E A S T V I E W 9 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n AP P R O V E D S O U T H E A S T V I E W 10 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D S O U T H E A S T V I E W 10a 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G S O U T H E A S T R E T A I L V I E W 11 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n AP P R O V E D S O U T H E A S T R E T A I L V I E W 12 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D S O U T H E A S T R E T A I L V I E W 12a 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G N O R T H V I E W 13 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D N O R T H V I E W 14 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n EX I S T I N G N O R T H W E S T V I E W 15 2/18/2014 14 1 E a s t M e a d o w D r i v e , S u i t e 2 1 1 V a i l , C O 8 1 6 5 7 9 7 0 . 4 7 1 . 6 1 2 2 2. 1 2 . 1 4 Wa l l S t r e e t B u i l d i n g SC H E M A T I C D E S I G N - T o w n o f V a i l D R B F I N A L a p p r o v e d D e s i g n PR O P O S E D N O R T H W E S T V I E W 16 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: Ordinance No. 6, Series 2014, an ordinance enacting Title 5, Chapter 12, Vail Town Code, "Recycling Requirements". PRESENTER(S): Kristen Bertuglia ACTION REQUESTED OF COUNCIL: The Vail Town Council shall approve, approve with modifications, or deny Ordinance No. 6, Series of 2014, upon first reading. BACKGROUND: At the conclusion of the Town Council work session held January 7, 2014, Council directed staff to finalize the draft Community Wide Recycling ordinance in order to facilitate commercial and residential recycling, based upon recommendations provided by the Vail Recycling Advisory Committee and community feedback. STAFF RECOMMENDATION: Staff recommends that the Vail Town Council approve Ordinance No. 6, Series 2014, upon first reading. ATTACHMENTS: Community Wide Recycling Memo Ordinance No. 6, Series of 2014 2/18/2014 TO: Vail Town Council FROM: Community Development Department DATE: February 18, 2014 SUBJECT: First Reading of Ordinance No. 6, Series 2014, an ordinance enacting Title 5, Chapter 12, Vail Town Code, “Recycling Requirements”, establishing regulations regarding recycling of discarded materials by solid waste generators, and solid waste services provided by waste services companies operating in the town of Vail and setting forth details in regards thereto. I. SUMMARY Ordinance No 6, Series 2014 enacts a new chapter in the Vail Town Code requiring recycling in the Town of Vail, and associated measures to ensure policy, infrastructure, economic incentives, and education to ensure the maximum waste diversion rate. II. BACKGROUND Vail Town Council Waste Diversion Goal Environmental Sustainability Strategic Plan Waste Diversion Goal (adopted January, 2009): Reduce the amount of Town of Vail landfill contributions by 10% within 5 years (2013) and 25% within 10 years (2019). At the conclusion of the work session held January 7, 2014, the Vail Town Council directed staff to finalize the draft Community Wide Recycling ordinance in order to facilitate commercial and residential recycling, based upon recommendations provided by the Vail Recycling Advisory Committee and community feedback. III. VAIL COMMUNITY WIDE RECYCLING ORDINANCE COMMUNITY FEEDBACK Since the January 7th work session, staff met with community members, waste haulers, the Vail Economic Advisory Council, the Vail Police Department and business owners to gather additional feedback on the Community Wide Recycling Ordinance language. Questions and results of these meetings follow. Vail Town Council Questions: How can we ensure that any ordinance we pass is enforceable, and enforced? As written, the ordinance is enforceable and will be enforced through complaint, and or spot checks. The Vail Police Department and Code Enforcement are empowered to assess penalties for non-compliance if necessary. Also in response to this concern, the 2/18/2014 Town of Vail Page 2 requirement for “new staff training” has been removed. Staff found that while requiring businesses to educate new employees on how, and where to recycle is a necessary element in any recycling program, that it would not be appropriate to track this data or enforce this action. Because the ordinance requires that each business recycle, the Town will provide tools that businesses may use to educate their staff. How can we ensure that education is a key piece of the Community Wide Recycling effort? Staff will release a Request for Proposals (RFP) in the upcoming months for a pre-and- post education, communications and marketing campaign to ensure that the community has the tools to be successful. To be consistent and prevent having to change the policy in the future, shouldn’t recyclable containers should be wildlife resistant? Yes, this element is now included in the ordinance, Section 5-12-6. Large roll-off recycling containers such as the containers at the Vail Community Drop-Off Center are exempt. We have heard haulers say that costs may increase due to new regulations. Can you provide a cost analysis to determine how much they may increase? Because the Town of Vail is an open subscription market (the Town does not contract with one hauler for trash service), staff was unable to obtain exact pricing. One hauler stated that prices may not increase, and for the residential customer who participates in Save as You Recycle, they may decrease or stay the same. Haulers will educate residents on how to take full advantage of the program. However, because the ordinance requires weekly pickup of recyclables, more labor will be required and prices may reflect this if trash is not decreased by adequate volume. Another hauler stated that prices may increase substantially, due to the variability of the recyclables commodity market, and that it is important that customers understand that recycling is not free. What are the unintended consequences of this regulation? • Requiring weekly pickup of recycling will increase truck traffic on residential streets in Vail (recycling pickup is currently every other week from three different haulers). This may increase the town’s carbon footprint initially, though more recycling will reduce the overall carbon footprint eventually. To avoid this issue and likely decrease costs, the Town may contract for trash and recycling services for residential units (like the towns of Eagle and Minturn), however thus far Council has been supportive of maintaining an open subscription market. • Invariably, one of the first questions municipalities ask about the Save As You Recycle concept (variable prices for different sized trash bins, or pay-as-you-throw) is its impact on the incidence of increased illegal dumping. Overall, PAYT does not lead to increased illegal dumping. A series of surveys and interviews with hundreds of communities conducted over the past two decades by Skumatz Economic Research Associates Inc. (SERA) have found that the vast majority of communities that adopt PAYT do not report increased incidences of illegal dumping. Communities report that illegal dumping is a “perceived” barrier and not an actual barrier. Although many communities report that they thought illegal dumping would increase with PAYT only a small portion actually do see increases. Virtually all of the communities 2/18/2014 Town of Vail Page 3 that report an increase of illegal dumping after implementing PAYT also report that illegal dumping returns to pre-PAYT levels within one to three months1. Community Questions: May 1st might be too soon for an effective date, given the lead time on new containers, and adjustments required to comply, can this be changed? The new effective date of the ordinance is June 1, 2014. The original ordinance required that haulers embed at least 96 gallons of recycling with commercial trash accounts. At a building with common trash service for several businesses, it is too complicated to assign just 96 gallons worth of recycling among all businesses. What if recyclables need to be separated into cardboard, commingled and paper, which is included in the rate and what is extra? In response to this concern, Vail’s ordinance, like Apen’s, now requires that recycling rates be fully embedded in commercial trash bills as well as residential. Haulers are required to provide as much recycling as “necessary to prevent frequent overflow” and not separate trash rates from recycling rates. The Vail Homeowners Association would like the Vail Town Council to support a policy for a “no net increase in truck traffic in the Village and Lionshead” as a result of this ordinance. Can the Town purchase electric carts for use by the business community to transport recyclables to the Vail Resorts loading dock? Trash and recycling trucks currently service properties in Vail Village and Lionshead, but they do not necessarily pick up recyclables from each business. It is the intent of the ordinance that recycling service increase, and trash service decrease, which would eventually result in no net increase. However, additional routes may be required. From the business community’s perspective staff has heard that if recycling is not convenient, they would likely not participate, especially during high seasons, as they cannot spare the staff time. Requiring businesses to transfer recyclable material off-site would not address this issue. I do not have space at my business for recyclables, e.g., I only have one trash enclosure outdoors that is only large enough for a trash dumpster or compactor, what can I do? The volume of “waste”, or overall items thrown away including recycling, is the same regardless of the presence of a recycling program. In many cases trash dumpsters will need to be reduced in sized or changed, or creative solutions employed to separate trash from recyclables. Aren’t bear proof containers are expensive? Doesn’t the current wildlife ordinance require haulers unlock and re-lock containers at the curb? Today, the Town of Vail wildlife ordinance does not require haulers to re-lock the container after dumping. The largest recycling containers (96 gallons) are approximately $150-$200, 64 gallons cost slightly less. 1 Ecoconservation Institute, PAYT Fact Sheet: http://www.paytnow.org/PAYT_FactSheet_IllegalDumping.pdf 2/18/2014 Town of Vail Page 4 Other Ordinance Changes: Hauler Licensing vs. Registration The ordinance now uses the word “registration” rather than “licensing” when referring to solid waste haulers because the Town is not verifying or certifying any qualifications of the companies, but rather, simply requiring compliance with the terms of the ordinance in Sections 5-12-3 and 5-12-4. IV. ACTION REQUESTED The Vail Town Council shall approve, approve with modifications, or deny Ordinance No. 6, Series of 2014, upon first reading. V. ATTACHMENTS A. Ordinance No. 6, Series 2014, Community Wide Recycling Ordinance 2/18/2014 Page 1 ORDINANCE NO. 6 SERIES 2014 AN ORDINANCE ENACTING TITLE 5, CHAPTER 12, VAIL TOWN CODE, “RECYCLING REQUIREMENTS”, ESTABLISHING REGULATIONS REGARDING RECYCLING OF DISCARDED MATERIALS BY SOLID WASTE GENERATORS, AND SERVICES PROVIDED BY SOLID WASTE SERVICES COMPANIES OPERATING IN THE TOWN OF VAIL AND SETTING FORTH DETAILS IN REGARDS THERETO. WHEREAS, the Town of Vail, in the County of Eagle and State of Colorado (the “Town”) is a home rule Town duly existing under the Constitution and laws of the State of Colorado and its home rule charter (the “Charter”); WHEREAS, the members of the Town Council of the Town (the “Council”) have been duly elected and qualified; WHEREAS, Article 5 of the Charter sets forth the procedures for amending the Vail Town Code; WHEREAS, the Town of Vail is committed to environmental protection and stewardship; WHEREAS, through the adoption of the Environmental Sustainability Strategic Plan, the Town of Vail has established a goal of reducing the waste going to the landfill by 25 percent by 2019. Increased participation in recycling programs and maximizing capture rate of recyclables through existing and future programs are necessary to meet and exceed the recycling goal; WHEREAS, the current waste diversion rate in Eagle County is between 17 and 19 percent, and the diversion rate in the Town of Vail is approximately 10 percent in the residential sector and 19 percent in the business sector, below the national average waste diversion rate of 34.5 percent; WHEREAS, The Colorado Department of Public Health and Environment estimates that each person generates approximately 3,150 pounds of waste per year and a large portion of the disposed materials could be reused, recycled or put to other beneficial use, resulting in significant resource, energy, and economic savings; WHEREAS, as the Eagle County landfill reaches permitted capacity, it is becoming more difficult and expensive to site, permit and develop new landfill capacity; WHEREAS, through the adoption of the Environmental Sustainability Strategic Plan, the Town of Vail has also established a goal of reducing community greenhouse gas emissions by 20 percent by 2020, and diverting waste from the landfill is one of the most cost effective and efficient ways of reducing greenhouse gas emissions resulting from landfills and new resource processing; 2/18/2014 Page 2 WHEREAS, municipalities are empowered by C.R.S section 30-15-401(1)(a)(II) to inspect vehicles proposed to operate in the conduct of business of transporting ashes, trash, waste, rubbish, garbage, or industrial waste products or any other discarded materials; and WHEREAS, Ordinance No. 6, Series 2014, shall be known as “The Community Wide Recycling Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. TITLE 5, CHAPTER 12, is hereby enacted as follows: 5-12-1: PURPOSE: The purpose of this Chapter is to establish policy and infrastructure to support recycling in the Town of Vail in order to reduce the town’s impact on the environment and ensure ongoing waste diversion education to residents and guests. 5-12-2: DEFINITIONS: For the purposes of this Chapter, the following definitions shall apply: Base Unit of Refuse: The smallest increment of volume of refuse or solid waste collection which is no larger than 32 gallons of capacity. Commercial Customer: Any premises where a commercial, industrial, or institutional business or enterprise is undertaken, including, without limitation, retail shops and establishments, eating or drinking establishment, healthcare facilities, child daycare centers, public and private schools, professional and business offices, religious institutions, and public buildings and facilities. Discarded Materials: All putrescible and non–putrescible solid waste discarded from any residential, multi-family or commercial source including recyclable material. The term discarded materials shall exclude discarded or abandoned vehicles or parts thereof, sewage sludge, hazardous waste, materials used for fertilizer and recyclable material that have been source separated for collection. Hauler: A registered person or company in the business of collecting, transporting or disposing of discarded materials for a fee, or for no fee except as described in Subsection B. of 5-12-3. Multi-Family Customer: Any residential structure(s) that employs a communal system for solid waste and or recyclable materials collection. Non-Attractant: Any substance which does not attract wildlife, including, not limited to, food products, pet food, feed, compost, grain or salt or materials which formerly contained such items. 2/18/2014 Page 3 Recycling: The process of separating recyclable materials from refuse and placement for collection by a hauler for the purpose of such materials being re-used or reprocessed into new or different materials. Residential Customer: Any residential structure(s) that does not employ a dumpster or communal service for solid waste and or recyclable materials collection. Recyclable Materials: Materials from any commercial, multi-family, or residential source to be collected separately for the purpose of such materials being repurposed or reprocessed into new or different materials. Recycling Facility: A licensed Materials Recovery Facility (MRF) (e.g. the Eagle County MRF) that accepts and sorts, packages, and otherwise prepares recyclable materials to be repurposed or reprocessed into new or different materials. Refuse: As defined in 5-9-2, Vail Town Code. Refuse shall not include recyclable material. Solid Waste: All putrescible and non-putrescible waste or refuse, excluding discarded or abandoned vehicles or parts thereof, sewage sludge, hazardous waste, materials used for fertilizer and recyclable material that have been source separated for collection. Source Separation: The process by which recyclable materials are separated at the point of generation by the generator thereof from solid waste for the purposes of recycling. 5-12-3: HAULER REGISTRATION REQUIREMENT: It shall be unlawful for any person or company to operate or conduct business as a hauler of residential, multi- family, or commercial solid waste or recyclable material without first obtaining a municipal solid waste hauler registration as set forth in this Section. A. Applicability: 5-12-3 applies to any hauler of solid waste or recyclable material operating in the Town of Vail. B. Exceptions: The following persons or entities are not required to obtain a municipal solid waste collection registration: 1. Any person or their designee who transports to the landfill only the refuse that person generates 2. A civic, community, benevolent or charitable nonprofit organization collecting, transporting and marketing recyclables solely for the purpose of raising funds for a civic, community, benevolent, or charitable event 3. A property owner or agent thereof who transports discarded materials left by a tenant upon such owner’s property, so long as such property owner is not provided compensation from tenants on a regular basis 2/18/2014 Page 4 4. Demolition or construction contractors or landscaping companies that produce and transport discarded material produced incidentally to the demolition, construction, or landscaping work 5. Any person who transports only liquid waste (e.g. restaurant grease or portable toilet waste) 6. The Town of Vail municipal organization and employees thereof, who transport solid waste, recyclable materials and compostable materials generated by the municipal organization, public containers, or special events 7. Special event producers, who transport solid waste and recyclable materials for permitted events 8. Companies that provide special event collection services (e.g. electronic waste collection, on-site paper shredding) 9. Companies contracted by registered solid waste haulers C. Registration Process: The Town of Vail Community Development Department shall set forth the standards for the implementation of the municipal solid waste hauler registration process including the amount of the registration fees, the designation of recyclable materials, and the schedule for collecting registration fees. 1. Proof of Insurance: Upon request, registered municipal solid waste haulers shall provide proof of general comprehensive liability / automobile insurance policy protecting the hauler from all claims for damage to property of for bodily injury, including death, which may arise from operations under or in connection with this registration and providing limits of coverage of not less than five hundred thousand dollars ($500,000) for bodily injury and property damage per occurrence or in aggregate. 5-12-4: MUNICIPAL SOLID WASTE HAULER REQUIREMENTS A. Bi-Annual Reporting Required: All registered municipal solid waste haulers (the “registrant”) shall submit twice yearly reports to the Community Development Department on the weight (in tons) of Solid Waste and Recyclable Materials collected within the Town limits of Vail. For loads that contain Solid Waste or Recyclable Materials originating in part from within the Town limits and in part from outside the Town limits the reported quantity may be estimated by the registered hauler but shall use an approved format provided by the Town of Vail which shall include the use of both the scale tickets and customer route sheets, and reported as an estimate. B. Submittal Required: Bi-annual reports shall be submitted on May 1 and October 1, or on the next business day, using a format approved by the Community Development Department. All reports shall be treated as confidential commercial documents under the provisions of the Colorado Open Records Act. C. Recyclable Material Designation: Except for materials that customers have not properly prepared for recycling and so are contaminated 25 percent or 2/18/2014 Page 5 more of non-recyclable refuse, haulers may not dispose of recyclable materials set out by customers by any means other than delivering it to a MRF that sorts, packages, and otherwise prepares recyclable materials to be repurposed or reprocessed into new materials. D. Notice: Haulers of residential, multi-family, or commercial solid waste shall give each of its customers written notice of all available service options and corresponding variable rates upon commencement of service. Written notice of the full range of services including variable rate service, container sizes, and the recycling service options including the materials that may be recycled shall be provided to all new customers upon commencing service and all haulers shall provide notice at least annually to customers on the full range of services, container sizes, variable rates and recycling options including the materials that may be recycled. On or before January 31st each year the hauler shall deliver to the Community Development Department a true and correct copy of the notices sent to each customer type. E. Residential Embedded Rates: On residential customer waste bills, haulers shall combine charges for solid waste and recyclable material collection service and may not itemize them separately. F. Residential Volume Based Rates: Haulers shall offer each of its customers the option to subscribe to different levels of service with different capacities of solid waste containers, such as 32, 64 and 96 gallon containers/carts, and shall charge their customers based on this volume of service. For residential source customers, the base unit of solid waste service shall be no larger than the approximate capacity equivalent of a 32 gallon container or cart. If a customer does not select a level of service, the provider shall establish a default minimum level of service that is not larger than 2 units of service or a single 64 gallon container or cart. 1. Variable Rates: Haulers shall charge variable rates for the corresponding level of service or units of solid waste collection for residential customers. a. Haulers shall structure the increments of their variable rate at a multiple of the base unit of solid waste collection which is no larger than 32 gallons. The second largest increment of solid waste collection shall be no larger than two times the capacity of the base unit or no larger than 64 gallons, and the third largest increment of solid waste collection shall be no larger than two times the capacity of the second largest increment of solid waste collection. Such rate increments shall be equal to 80% or more of the charges for the base unit of collection (e.g, if $10.00 is applied to a 32 gallon container, a minimum of $18.00 shall be applied to a 64 gallon container, and a minimum of $32.40 shall be applied to a 96 gallon container). b. The provisions of this subsection shall not be construed to prohibit any hauler from establishing rules and regulations regarding the 2/18/2014 Page 6 safe maximum weight of containers of solid waste and recyclable material containers. c. Nothing in this section shall be construed as prohibiting any hauler from providing separate pricing for special collection of bulky items, yard waste, contaminated recyclables, unscheduled pick-up or extra volumes of solid waste or recyclable material, or more than what was subscribed for with the hauler. G. Commercial Embedded Rates: On commercial customer account bills, every solid waste hauler shall combine charges for solid waste and recyclable material collection service and may not itemize them separately. Haulers shall provide sufficient recyclable material capacity and frequency service to prevent an overflow of material. H. Auditing: A representative of the Town of Vail may audit a registered municipal solid waste hauler’s subscription, billing and other relevant records to determine whether or not the provider has complied with the provisions of 5-12-4 at the provider’s office located nearest to the Town of Vail during hours that the office is open for business, on at least five day’s written notice. I. Frequency of Residential Recycling Service: Haulers shall offer each of their residential customers curbside recyclables collection service at the same frequency of all other refuse collection, no smaller than 64 gallons capacity of the designated recyclable materials. All containers are subject to the provisions of Section 5-9, Vail Town Code, wherein all attractants shall be stored in wildlife resistant, locked containers. Non-attractants are not required to be stored in wildlife resistant, locked containers provided they are not mixed with attractants. J. Container Labels: Haulers shall provide labels or label all solid waste and recycling material containers indicating what materials are accepted in each container. The labels shall include pictures and words of the acceptable materials and be in both English and Spanish. 5-12-5: DESIGNATED RECYCLABLES LIST A. Designated Recyclables (Collection): The recyclable materials that haulers are required to pick up shall be set forth in the Town’s ‘Recyclable Materials List’ which shall be prepared and may be amended as conditions change. The Recyclable Materials List shall be available for review on the Town’s website. B. Designated Recyclables (Generators): The recyclable materials that generators are required to source separate from their solid waste shall be set forth in the Town’s ‘Recyclable Material List’ which shall be prepared and amended as conditions change. The Recyclable Materials List shall be available for review on the Town’s website. 2/18/2014 Page 7 5-12-6: RECYCLING REQUIREMENTS A. Placement of Recyclable Materials and Solid Waste for Pick Up: 1. All recyclable materials accumulated on any premises shall be placed in a container or containers separate from solid waste. 2. Recyclable materials shall not be placed in solid waste containers. 3. No refuse, solid waste, or compost shall be placed in any recycling container. 4. Nothing in this section is intended to prevent any person from donating or selling recyclable materials generated on their premises. B. Requirement for Recycling Service: 1. All recyclable material shall be source separated, stored, and presented for collection by a registered municipal solid waste hauler. 2. It shall be the duty of any owner or occupant of any premises to ensure that containers designated for collection or disposal as solid waste do not contain recyclable materials when such containers are offered for solid waste collection. 3. It shall be the duty of any owner or occupant of any premises to ensure that they contract for recycling service or otherwise provide service for the delivery of recycling material to a MRF. The service shall be of an adequate level to prevent the designated recyclable material containers from overflowing on a regular basis. 4. The container(s) shall be wildlife resistant, and handled in accordance with Title 5, Chapter 9, Vail Town Code, employing a latching mechanism on the access door sufficient to defeat attempts by wildlife to enter. a. Exception: Recycling containers greater than 20 cubic yards of capacity. 5. Any owner or occupant of a commercial establishment with solid waste disposal containers available for customers or guests shall make available a container for recyclable materials that is of similar size and located in an equally convenient location. 2/18/2014 Page 8 5-12-7: VIOLATIONS AND ENFORCEMENT A. Violations (Hauler): It shall be unlawful for haulers to: 1. Fail or refuse to follow the requirements for registration of this chapter or; 2. Aid or abet another in any attempt to evade any requirements imposed by this chapter. 3. Violation of provisions of the ordinance shall be subject to penalties according to Section 1-4-1, Vail Town Code. B. Violations (Generator): It shall be unlawful for any owner or occupant of any residential, multi-family, or commercial premises to: 1. Fail or refuse to follow the requirements imposed by this chapter 2. Aid or abet another in any attempt to evade any requirements imposed by this chapter. 3. Violation of provisions of the ordinance shall be subject penalties according to Section 1-4-1, Vail Town Code. C. Enforcement: Town of Vail police and code enforcement officers shall have the authority to issue a warning notice or a summons and complaint to any person in violation of this chapter. D. Penalty Assessment: A resident or owner/occupant of a commercial establishment shall be deemed to have been issued an appropriate notice of violation if it is personally served upon the resident or owner/occupant, placed in the U.S. mail, postage prepaid and addressed to the resident or owner/occupant according to the last known address given by the resident or owner/occupant to any town of Vail or Eagle County government department. If the identity of the resident is not known, the entity responsible for payment of refuse removal services for the subject location will be held responsible for complying with this chapter and for any penalties assessed pursuant to the same. Section 7. Effective Date: Ordinance 6, Series 2014, shall be in effect as of June 1, 2014. Section 8. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 9. The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town of Vail and the inhabitants thereof. 2/18/2014 Page 9 h Section 10. The amendment of any provision of the Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 11. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST AND FINAL READING this 18th day of February, 2014 and a public hearing for second reading of this Ordinance set for the 4th day of March, 2014, in the Council Chambers of the Vail Municipal Building, Vail Colorado. ________________________ Andrew P. Daly, Mayor ATTEST: __________________________ Tammy Nagel, Acting Town Clerk INTRODUCED, READ, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON SECOND AND FINAL READING this __ day of ___, 2014, in the Council Chambers of the Vail Municipal Building, Vail Colorado. ________________________ Andrew P. Daly, Mayor ATTEST: __________________________ Tammy Nagel, Acting Town Clerk 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: A request for nullification and vacation of a declaration of covenant encumbering 100 Vail Road, Lot 35, Block 7, Vail Village First Filing, and setting forth details in regard thereto. PRESENTER(S): George Ruther, Director, Community Development ACTION REQUESTED OF COUNCIL: The Vail Town Council is being asked to remove and vacate the Declaration of Covenant recorded at the Eagle County Clerk and Recorder’s Office at Reception No. 172727. BACKGROUND: The applicant, James Wear, representing Mr. Alejandro Rojas, is requesting the nullification and vacation of a declaration of covenant encumbering the property located at 100 Vail Road. The reason for the request is to facilitate a remodel of the existing residential dwelling unit on the property. Mr. Rojas currently has the property under contract for purchase contingent upon the resolution of the declaration of covenant matter. A letter dated January 30, 2014, from James R. Wear to Mr. George Ruther, setting forth the reasons for making the request, has been attached for reference. STAFF RECOMMENDATION: The Community Development Department recommends the Vail Town Council removes the declaration of covenant. Staff's recommendation is based upon the following considerations: 1. According to the Official Zoning Map of the Town of Vail, the Lot is zoned Two-Family Primary Secondary Residential District. 2. The size of the Lot conforms to the minimum lot size requirements established for the District. 3. The Gross Residential Floor Area regulations have been amended since the single family residence was completed on the Lot in 1982. 4. Chapter 18 of the Zoning Regulations of the Town of Vail provides policy direction for addressing non-conforming structures. The policy of the Town is to permit non-conforming structures to be maintained but encourages non-conformities to be discontinued, or minimized, when possible. 5. A remodel of the existing structure into a two family dwelling unit further reduces any existing non-conformities with regard to density controls 6. The fears of creating “crash pads” in Vail and over population are no longer warranted. 7. A remodel of the existing structure on the Lot further facilitates the Towns use of its right of way for the continuation of a pedestrian sidewalk along Vail Road. ATTACHMENTS: Town Council Memorandum Applicant Letter of Request Letter of Support Letter of Representation Town Council Mintues May 2, 1978 2/18/2014 TO: Vail Town Council FROM: Community Development Department DATE: February 18, 2014 SUBJECT: A request for nullification and vacation of a declaration of covenant encumbering 100 Vail Road, Lot 35, Block 7, Vail Village First Filing, and setting forth details in regard thereto. Applicant: James Wear, on behalf of Alejandro Rojas. Planner: George Ruther I. DESCRIPTION OF REQUEST The applicant, James Wear, representing Mr. Alejandro Rojas, is requesting the nullification and vacation of a declaration of covenant encumbering the property located at 100 Vail Road. The reason for the request is to facilitate a remodel of the existing residential dwelling unit on the property. Mr. Rojas currently has the property under contract for purchase contingent upon the resolution of the declaration of covenant matter. A letter dated January 30, 2014, from James R. Wear to Mr. George Ruther, setting forth the reasons for making the request, has been attached for reference. II. BACKGROUND On April 21, 1978, the Planning and Environmental Commission (PEC) voted unanimously to deny a variance for Gross Residential Floor Area (GRFA) for an additional 2,944 square feet of GRFA and approved a setback variance to allow the structure to encroach in the required setbacks based on the shape and topographical constraints of the lot. On May 2, 1978, the Webster’s appealed the denial of the GRFA variance to the Town Council. Upon review of the appeal, the Town Council found that the PEC misinterpreted what areas of the house should and should not be counted towards GRFA, such as the indoor swimming pool. The Town Council therefore, concluded the GRFA variance was approximately 2,000 square feet less than what the Community Development Department and the Planning and Environmental Commission had determined the GRFA to be. Without finding a clear practical hardship, the Town Council overturned the PEC’s denial of a GRFA variance by a vote of 4-1. 2/18/2014 Town of Vail Page 2 A condition of the Town Council’s decision to overturn the PEC’s earlier denial was that a declaration of covenant be made and executed against the Lot (Lot 35, Block 7, Vail Village First Filing) requiring “any structure erected on said Lot shall be used only as a single family residence with caretaker facilities, unless or until such limitation is modified or removed by subsequent action of the Town Council of the Town of Vail under procedures provided for granting variances under Town Ordinance then in force and effect.” The reason for this declaration of covenant was that the Town Council found that a recent down-zoning, in terms of allowable GRFA, was to control population by being more prohibitive towards multiple dwelling units on a site. The feeling was that too often multiple family dwelling units were being used as “crash pads”, where bedrooms were over loaded with guests, causing undesired parking and traffic problems. The intent of the down-zoning was not to punish those who wished to live in large houses, as interpreted by the Town Council. After hearing this interpretation, Mr. Webster offered the option to deed restrict the property as means of preventing his property from contributing to a potential over population problem. As a result, on May 31, 1978, Mrs. Elisabeth A. Webster signed a Declaration of Covenant which restricted any structure on the property at 100 Vail Road to a single family residence. As executed and recorded, only the Town Council of the Town of Vail can modify or remove the declaration of covenant on this property. In 1982, construction on the single family dwelling unit was completed. According to property records maintained by the Community Development Department, the single family residence is approximately 8,142 square feet in size. Under current zoning regulations, the property would be allowed approximately 7,653 square feet of GRFA. Further analysis is needed to determine if the structure complies with the current GRFA allowance, given the uncertainty of deductible GRFA on site (ie below grade). III. ACTION REQUESTED The Vail Town Council is being asked to remove and vacate the Declaration of Covenant recorded at the Eagle County Clerk and Recorder’s Office at Reception No. 172727. III. RECOMMENDATION The Community Development Department recommends the Vail Town Council removes the declaration of covenant. Staff’s recommendation is based upon the following considerations: 2/18/2014 Town of Vail Page 3 1. According to the Official Zoning Map of the Town of Vail, the Lot is zoned Two-Family Primary Secondary Residential District. 2. The size of the Lot conforms to the minimum lot size requirements established for the District. 3. The Gross Residential Floor Area regulations have been amended since the single family residence was completed on the Lot in 1982. 4. Chapter 18 of the Zoning Regulations of the Town of Vail provides policy direction for addressing non-conforming structures. The policy of the Town is to permit non-conforming structures to be maintained but encourages non- conformities to be discontinued, or minimized, when possible. 5. A remodel of the existing structure into a two family dwelling unit further reduces any existing non-conformities with regard to density controls. 6. The fears of creating “crash pads” in Vail and over population are no longer warranted. 7. A remodel of the existing structure on the Lot further facilitates the Towns use of its right of way for the continuation of a pedestrian sidewalk along Vail Road. Should the Vail Town Council choose to remove and vacate the Declaration of Covenant, Staff recommends the Council pass the following motion: “The Vail Town Council approves the applicant’s request to remove and vacate the Declaration of Covenant, recorded at Reception No. 12772, at the Eagle County Clerk and Recorder’s Office, on Lot 35, Block 7, Vail Village First Filing, based upon the considerations outlined in the staff memorandum, dated February 18, 2014 and instructs the Town Manager to take the legal actions necessary to vacate the Declaration of Covenant on behalf of the Town of Vail.” 2/18/2014 Sherman &Howard L.~,.c. VIA FIRST CLASS MAIL Mr. George Ruther, AICP, Director Community Development Department Town of Vail 75 S. Frontage Rd. Vail, Colorado 81657 ATTORNEYS &COUNSELORS AT LAW [3ROOKSIDE PARK, SUITE 210 37347 High~ray 6 P.O. BoY 5559 AVON, COLORADO 81620 THLEPHONE: (970) 476-76x6 FAX: (970) 476-71 18 W W W.SHGRMANHO WARD.COM January 30, 2014 James R, Near Direct Di,il # (970) 790-1603 L-mail: jwearr~shermanhow~rQ.com Re: Request for Nullification and Vacation of Declaration of Covenant Encumbering 100 Vail Road Vail Colorado Dear Mr. Ruther: As you know, my firm represents Mr. Alejandro Rojas, who is currently under contract to purchase the above-described property (the "PropertX"). The Property is encumbered by the enclosed Declaration of Covenant recorded on October 6, 1978 at Reception No. 172727 in the Eagle County Clerlc and Recorder's Office (the "Covenant"). Per our earlier conversation, Mr, Rojas, for himself and on behalf of the current owner of the Property, William J. Dore, as Trustee of the William J. Dore Living Trust,' is requesting that the Town of Vail (the "Town") nullify and vacate the Covenant. Accordingly, pursuant to your suggestion that I submit this request in writing, I ain asking by this letter that the Vail Town Council (the "Council") add the above request to its February 18, 2014 Council meeting agenda. In addition, the remainder of this letter sets forth our reasons supporting a decision by the Council to approve Mr. Rojas's request. To begin, the Covenant, dated 1978, provides that; [a]ny structure erected on the [Property], pursuant to a variance granted by the Town of Vail under the ordinances pertaining to gross residential floor area shall be used only as a single family residence, with caretaker facilities, unless or until such limitation is modified or removed by subsequent action of the Town Council of the Town of Vail under procedures provided for granting variances under Town Ordinances then in force and effect. ~ William J, Dore, as Trustee of the William J. Dori Living Trust, has authorized Mr. Rojas to make the request to nullify and vacate the Covenant on his behalf pursuant to the enclosed authorization letter•. BUS RE/5099343.1 2/18/2014 Sherman &Howard L.L.c. Mr, George Ruther, AICP, Director January 30, 2014 Page 2 According to the transcript for the Town council meeting of May 2, 1978, the execution and recording of the Covenant was a condition that the Town council placed on a previous owner of the Property in order to receive the Town's approval of GRFA and setback variances. As such, the Covenant is private zoning effectively caused by the Town using a "spot" restrictive covenant, a method which would not comply with the Town's current regulations for rezoning property. (Vail Town Code § 12-5-3) The benefit of the current rezoning procedures can be seen here in that, even though the Property is within aTwo-Family Primary/Secondary Residential (PS) zone district, which allows the building of atwo-family residence without a variance from the Town, a variance is still required under the Covenant to build atwo-family residence. Not only does this conflict with the Town's decision to include the Property and the lots surrounding it within the PS Zoning District, thus encouraging the development of two-family residences, it goes against the Town's intention that land use restrictions affecting properties within the Town be harmonious with the Town's zoning regulations. Furthermore, the density concerns behind the Covenant seem to be out-of-sync with the density concerns of recent Town Councils, in that the Town council iu 1978 sought to discourage the increased density that would be caused by the development of two-family residences in the area where the Property is located. Therefore, because the Covenant discourages development of atwo-family residence on the Property, a purpose that is not in line with the Town's current zoning regulations or density concerns, the Town Council should approve our request to nullify and vacate the Covenant. Please call us at your convenience if you have any questions or would like to discuss the contents of this letter. Very truly yours, SHERMAN &HOWARD, L.L.C. ~'1►-'^""'v James R. Wear 2/18/2014 .. j ~`' DECF,AR}1TION OF; COVENANT THIS D~CLARATiON OF COVENRNT is made and.exeau~ed by Elizabeth M. Webster, the owner of Lot 35 in Block 7:in Vail Village First Filing, in the Town of Vail, Eagl'e'Courity, Colorado; in order to,cr.ea~e;a,covenant,which shall run vrith: - `tke said.descrsbed land, as Follows: Any structure erected on'the said Lot 3S in Block 7,.. Vail Village First`~Filing, pursuant to a variance granted by the Town of Vail under the ordinances pertaining to gross residential floor area shall`be used only as a single-faiaily residence;_with caretaker facilities, unless or'until`such limitation is modified or removed by subsequent :action of the Town Council of .the Town of Vail under procedures provided for granting variances under Town Ordinances then in Force and effect. 1N WITNESS WHEREOFy -the said Elizabeth M. Webster has ` set her hand this ~9 _day of May, 1978. '' Elizabeth M. Webster STATE OF ~'(~Gtl I ss. COUNTY OF ~'" The foregoing instrument was acknowledged before me this ~~5~' day of May, 1978, by Elizabeth M-Webster. ,'~-,`.Witness my hand and official seal, `~~ `" ~ M, CATHIEEN WEISS '~' Nfy~00TtU11Y5SlOri EXp1TeSt ~{GTARY PUBLIC OF NfW IERSEY ~ ~ t ''' ~ t... ~, r ~' Ezpftts November 6, 1978 ~ ~ C ~ C. ). /J7~ (/ ' vv Notar Public 2/18/2014 2/18/2014 ALEJANDRO ROJAS January 30, 2014 George Ruther Community Development Director Town of Vail Re: Nullification of Declaration of Covenant From 100 Vail Road Dear George: I hereby state that I support the permanent nullification of the attached Declaration of Covenant as it pertains to the property located at -~~ad regardless of whether I purchase the property. t Very truly ~ __ Alejandro ~ as cc: James Wear, Esq B US_RE/5099324.1 2/18/2014 ' ~':i .:lGh. r..', f~ ...Fjn1t}~~~• .~:~ `l t ~::%~:i :~P'•i ( ...J~t~'r:iJ.' ~fy°J ~'~S' .•,,~~.~f :: ~.Y` :.t' ~`:S ~%~1;I).'~!i..~ . ,~• ~ ;;i;~1~~~' ~ DIiCI;ARl~~i'TOI~ .OF.,COV~tJAtJT~~•' t-' ~• ~.1 i~ .'C. ' ..r.:.4, ••- ~'k}?; ~'%E ~ `•' 'R1~TTONs~ ~~~F' •CO ~ ~'1r;.•:i .;.:; ~,~ `i ~. ~.~,,~~ ~.~. b ~,n.. ,>~FiTS' D~C1fA 0 V NRN s mdile,;a~d ,87t@duti~e y' ~'i ', ,° .;. •' it ~' ~~ .y.^.,-` •{i,..r.; .: •. n ':~!e,~~ ''Elizabeth M. Webeter;:~'~h~`:owner of;:~ivti~:35 !.n .Blaok'~7:> i ;;t~a'•11 r. •'ra•acC :f ey;{, `~,~~, Vi11~a e ~'ir•s~ F~11n in~.~tihe Town of Va3.1, Ea~~~l"e.`Coun~t`~'~~ ~ ~^ .• ~..; ~R,9'~'L ViiVYY O.i••~••.• ~ s, Y' ~'fl~•y ,fit. .• .~ ~ ~ '!t rl •': b.{.t irt. !rt.i.~. ~t,~; Any ~~i:tS6ture eYea~e'fl'`oti`?+t}ie said Lot' 35 i'ii~'E~l:'oolc;:7,i,•.;~':' •~';'':' . . ,a '? :~'.,~:Va1.J. Village Fi,r's~~;~Fil.ing~ pursuant"to a va~iarioe gran~ecl~•~kij~' =~"~`.• .. . .. ., .. v,th`e ''Potvn` d'f VaiJ. under the ~ord:lnances ps~tainir,q ~o gxo'ss :~`:;' :: °'r"~ %'resid'en~ia], floor area aha'~•1~;•be used onl. ~e~: l' ~" ''~" ~`'Frt~t~`~: y'. }a:;~.ai~i~gle~f~e[rit3~.y~~':;i;*:ti ~•;.;7~,.'~y,,.:::,•, .. ''` residence;;°:faith caretiaker Ea~ilities, unless"ori":~inti•l:~stiioh '• '~`~''~~' r limi~a~iori 3s modified ox•: removed by .sukiaequeriti,,ac~icn;of~•,:the ;•. ~ ~. "` '~`~~"'c'`~'~' Town. Council o~ .the Town off• Vail under roceduxes rav3det~~ ~ ~ 'f~:". " ~`' ~~+~... .•for ,g`"'ran~~ '~cj ;variances under mown Orfl'inances then in force and ~~a'.'; ;;~`; ~•~~'~~ . ~ ~ ITN WZ!1{N~SS WAER~Ok';i>'",tl~e sa1.d ElizaU'~th.,M, Webster 1i~'`5 :: `• ::,, ~~ set her hand ~h;ir~' .• ~3 day o~•~~MaY,.:`~.978. .. '~`` ,:;;,. ~.'' •~ ~ ~ . ~.' :•;;;;1 `..4 ~; ',' ;~fzabeth M.;~,.. g star, ':'. :i: 1' $ r.' :i :+``: ~ STATE Ok" x ~ ~ ~~c +• ~ ~~',il ~':', ti's COUN~Y3 0~' :~ ~; .. :';'•;, ~~' ,~:: .. • Thd Eoregdiag instrumeh~•'~was ~acknoia~~e'dged before. me '". h'•l~~'~l•• ~ `,th~a:`s t~;••,~~~' da of Ma 1978 b Elizabeth ~~`~~~~', '~ ~,,;'.Giitriess my hand >and o~~icial seal.~f,,4 /•; ~ ~'•:t•.~'. j@.,; • M. CATHI.BE `~„_ .,.•' r; ~'•~ Y,~L ~'k}y';ossi~tn~;•ssion expzres3 ;,~{OTARY PUBIIC OF NEW JER E ~~.. s.;$+;t'•.~ ~+ NortmLM~ ;.t : '.~ ;"•'+ :~ U. j y~,r`~ 6,1978 ' ' tf ~/~ ::i:. .'gin _ ~'~•'~`;: ~'~;iS ;..~i'`" ;i,~ `sr!✓ 2/18/2014 30/01 2014 17:16 FAX Jan, 30. 2Q14 2;32PM Sherman d'~ ~Iovsra~d r~,~,,c. Jwma 1R-wc~r b[reec D1~t l~nmLor: (~7A) 790~t603 ~-mellC ~►'o~r~heruxt►I~oWA1rA~tOm VTA E-MAYS, X1002 No, 022 P, 2/2 A~a~NLY'9 dcC;QUN38I»Qli,4 ATt+AW DR04K8lA~ pJ►~4, S Z 10 87347 Ht(3~TWAY 6 ~P_0, BoxjyJ9 AVON, COX~A~7~ 81620 'i~ac~t~t~►ON& ('9YA) 476-y646 FAXi (970)47b~711~ W'9~W'.si~estMnNHOWNtl7 coM ~aIl11ATy ~d, a01Q 'VV'illiam Y, ~a~ Li~ittg Truat, 'VV'il'~t~m r. Y~o~~ Traex~ ~/p Slifer Smith & ~~~mptoa Rawl Lstatc Atha; C~r~oli Tyler ntu~ Georgc X.,abab l5os~r Mr. T3ot~: ~~r ~rau~r acceptance of huts dotter ag g~ide~crd by your signsn,re bclaw you autho~i.~e Ale~a~m ILo~jus end ~~s adrrisora~ sp~ai~ioaliy including me, to rep~ecnt you in requeet3ng tie 'down o~ Vsii to nuYl~fy tha attacbtd Declaration a~ Cov~o~nant ~avhich a~f~at~ y~owr pmgcat~y at 100 V'aiI Road. '~"ou X180 ~Irnar~vledge that you want this X7aalaration of Covenant ~tulli~ied and ~cmovad fi~am ti~a ~ocard tit1~ fa yauY pro~o~ty lnegarcl~~sa of r~uhotficr t~to sale ~f ~'outc property to MY. ~OJaB aCttl~~ OG011tB. V~O~ ti1YI'S►'yOUC~~ T~t~uB ~, ~VV'oa~r rR~I~V'~8t ~ Ao wie end A~ to t ie ay ,2414 `~•, b ~ ~ Willia~on Doi tac of th 'QV'al'lia TSo "~tvat. GCS Glaor,~e Ruthcc. Co~rnccuiity Devolapincut l~~re~tor, Town n ~ V'~tI A1CjQTaC~rO ~A,~~a AU5,,k8/309891U.[ 2/18/2014 ' ~':i .:lGh. r..', f~ ...Fjn1t}~~~• .~:~ `l t ~::%~:i :~P'•i ( ...J~t~'r:iJ.' ~fy°J ~'~S' .•,,~~.~f :: ~.Y` :.t' ~`:S ~%~1;I).'~!i..~ . ,~• ~ ;;i;~1~~~' ~ DIiCI;ARl~~i'TOI~ .OF.,COV~tJAtJT~~•' t-' ~• ~.1 i~ .'C. ' ..r.:.4, ••- ~'k}?; ~'%E ~ `•' 'R1~TTONs~ ~~~F' •CO ~ ~'1r;.•:i .;.:; ~,~ `i ~. ~.~,,~~ ~.~. b ~,n.. ,>~FiTS' D~C1fA 0 V NRN s mdile,;a~d ,87t@duti~e y' ~'i ', ,° .;. •' it ~' ~~ .y.^.,-` •{i,..r.; .: •. n ':~!e,~~ ''Elizabeth M. Webeter;:~'~h~`:owner of;:~ivti~:35 !.n .Blaok'~7:> i ;;t~a'•11 r. •'ra•acC :f ey;{, `~,~~, Vi11~a e ~'ir•s~ F~11n in~.~tihe Town of Va3.1, Ea~~~l"e.`Coun~t`~'~~ ~ ~^ .• ~..; ~R,9'~'L ViiVYY O.i••~••.• ~ s, Y' ~'fl~•y ,fit. .• .~ ~ ~ '!t rl •': b.{.t irt. !rt.i.~. ~t,~; Any ~~i:tS6ture eYea~e'fl'`oti`?+t}ie said Lot' 35 i'ii~'E~l:'oolc;:7,i,•.;~':' •~';'':' . . ,a '? :~'.,~:Va1.J. Village Fi,r's~~;~Fil.ing~ pursuant"to a va~iarioe gran~ecl~•~kij~' =~"~`.• .. . .. ., .. v,th`e ''Potvn` d'f VaiJ. under the ~ord:lnances ps~tainir,q ~o gxo'ss :~`:;' :: °'r"~ %'resid'en~ia], floor area aha'~•1~;•be used onl. ~e~: l' ~" ''~" ~`'Frt~t~`~: y'. }a:;~.ai~i~gle~f~e[rit3~.y~~':;i;*:ti ~•;.;7~,.'~y,,.:::,•, .. ''` residence;;°:faith caretiaker Ea~ilities, unless"ori":~inti•l:~stiioh '• '~`~''~~' r limi~a~iori 3s modified ox•: removed by .sukiaequeriti,,ac~icn;of~•,:the ;•. ~ ~. "` '~`~~"'c'`~'~' Town. Council o~ .the Town off• Vail under roceduxes rav3det~~ ~ ~ 'f~:". " ~`' ~~+~... .•for ,g`"'ran~~ '~cj ;variances under mown Orfl'inances then in force and ~~a'.'; ;;~`; ~•~~'~~ . ~ ~ ITN WZ!1{N~SS WAER~Ok';i>'",tl~e sa1.d ElizaU'~th.,M, Webster 1i~'`5 :: `• ::,, ~~ set her hand ~h;ir~' .• ~3 day o~•~~MaY,.:`~.978. .. '~`` ,:;;,. ~.'' •~ ~ ~ . ~.' :•;;;;1 `..4 ~; ',' ;~fzabeth M.;~,.. g star, ':'. :i: 1' $ r.' :i :+``: ~ STATE Ok" x ~ ~ ~~c +• ~ ~~',il ~':', ti's COUN~Y3 0~' :~ ~; .. :';'•;, ~~' ,~:: .. • Thd Eoregdiag instrumeh~•'~was ~acknoia~~e'dged before. me '". h'•l~~'~l•• ~ `,th~a:`s t~;••,~~~' da of Ma 1978 b Elizabeth ~~`~~~~', '~ ~,,;'.Giitriess my hand >and o~~icial seal.~f,,4 /•; ~ ~'•:t•.~'. j@.,; • M. CATHI.BE `~„_ .,.•' r; ~'•~ Y,~L ~'k}y';ossi~tn~;•ssion expzres3 ;,~{OTARY PUBIIC OF NEW JER E ~~.. s.;$+;t'•.~ ~+ NortmLM~ ;.t : '.~ ;"•'+ :~ U. j y~,r`~ 6,1978 ' ' tf ~/~ ::i:. .'gin _ ~'~•'~`;: ~'~;iS ;..~i'`" ;i,~ `sr!✓ 2/18/2014 TRANSCRIPT , , TOWN COUNCIL MEETING OF MaY 2, 1978 Agenda item No. 7 - Webster Residence - request for GRFA and setback variances for Lot 35, Block 7, YaiL Village First Filing. Slifer: The next item is the lfebster Residence a request for GRTA and Setback Variances for Lot 35, Block 7 Vail Village 1st Filing. A. Gerstenberger: I{ebster has applications for two variances GRFA and Setback Variance for Lot 35,, Block 7 vil village first Filing. I won't go into the numbers that are involved because BiIl I believe has the latest update of what numbers are appticable. Bill why don't you go ahead and explain the proposal and then I will (not able to hear) Bill Ruoff: Thanks Allen, I feel that a little bit of background is necessary to understand what Allen is referring to' In view of the report that you have that was prepared a couple of weeks ago by the staff, is a 1itt1e mislead,ing, w€ feel the figures in it - - we don't feel they change, but we've reconciled the difference in opinion. It was based on the faot that there is a strip 'of land next door to the lot which George has always owned that has been unoccupied, he did not own j-t, we determined that if he did own it it would help the area that are necessary in running zoning checks. without going into a long story I am sure that some of you know a little background on this. It was determined that that is one of the o1d livestock runs by which ranchers in this area used to cross other rancher's territory to get their livestock onto the mountains to graze. It turns out that this is one that got tost somewhere, came out that v.A. owned it, much to their surprise. I believe the Town was surprised to when we started looking into it. These things take a 1itt1e time they were pursued diligence with as much ooo00€ as we could, anyway, George Webster, felt the sensible thing to do would be to acquire the land from v.A. George has been out of town for the past three weeks. At the time that the report was made, technically George did not own the land. We had asked the Planning Commission to consider it as though George owned it because he was in the process of acquiring it. However, they chose to take the position. Is Ed Drager here? He had said he would be here tonight to explain this. Slifer:He was at our work session this afternoon. 2/18/2014 TRANSCRIPT - COUNCIL MEETING 5-2-78 Page 2, Yfebster Residence request for GRFA and Setback Variance for Lot 35, Block 7, VV lst Bill Ruoff: Oh, all right, all right. Unknown: But we didn't talk about thls.at the work session. Slifer: So you explain their position and why they did not consider the additional land because it was their feeling it was not owned at the time they were reviewing it, it was under negotiation. Bill Ruoff: That's right it was, George has gotten back j-n town. As you can see has received the paper, we have it here, and would like to give you copies if anyone doubts that it is now George's. Therefore, we would tike you to consider the figures that we have used from the beginning that we feel are the right ones. And I am sorry that they it would have been much simpler had they agreed the to have faith that George would be back and finish up D0 purchase of the 1and. A11 right, they had an agenda that went seven hours last week and they didn't want to get into this, lets be frank about it. They knew it had to come to you and they . . . to you, and here we are. There are two varj-ances that are required for George's property. I would like to speak first briefly about what we consider probably the simpler one because there is much precedent for it and they have been routinely granted under similar circumstances and in fact encouraged by Planning Commission, DRB is even gotten into the act and Council. It is as we know of course on tr'orest Road where the present Zoning Ordinance doesn't fit. Forest Road was built long before it and there are conditions, the road is narrow, and steep and there isn't enough parking and so forth. The present house would be replaced by George's proposed new house as we can show if any of you can see from back there, the new house will be almost exactly, by that I mean, within fi-fteen inches, dependant upon a final survey that is bei.ng made now, of the setback that the existing house has. There will in effect, be no change on setback' The present one does not meet current setback requirements, if it did, it would be pushed out into the air and the usual thing of the steep hill- side site, the very thing that you have addressed in the steep slopes area of tlne Hazard Ordinance that you had at first reading tonight. This is the perfect example of it, of why it makes sense on these lots to make a variance. The second point is that technically we coutd go back and meet it, we could tear down a young forest, a young 2/18/2014 TRANSCRIPT - COUNCIL MEETING 5-2-78 page 3 lvebster Residence request for GRFA and Setback variance Ruoff continued: no a very o1d forest of mature 62 ft. Spruce trees. We don't think this is the route to take. Secondly it will eliminate all parking on Forest Road, which we feel is a very strong plus. It is directly across the street from the Hobart (sp?) house at a narrow steep part, and if you have every had to travel, j-n winter especially, and Pete Burnett probabty more than anyone else knows the problems. We propose to eliminate a big chunk of that by turning the new project arognd and entering it from the other road since it also fases on vail Road. ltle will show you that in a minute. so the setback variance is a request to place the south face of the proposed house the same place where the old house is but elimlnate all parking on that side, there won't even be an entrance into the house on that side. A11 right, that basically brings us to the other one. I{hich is, request for a variance on GRFA under the brand new approximate, in this case it is about a 4o7o reduction from what formerly was allowed, until last Thanksgiving time. on the rider to the down-zoning bill that was passed at that time which now, as I am sure some of you rea]-ize, has placed a de facto limit of approximately 5,25O ft. on GRTA for al1 three classes of residences in the Town of Vail. A11 right. lfe are requesting a vari.ance under the provisions in the zoning ordj.nance which were put there according to the preamble of the ordinance to take care of those situations which have special features, are unique, or are different from the norm. We feel that there are a couple of features that are quite different and I would like to spend a tittle time discussing them because we think they are the most important. Things that make the situation of George and Lisa lfebster's 1ot and their new house, or proposed house quite different from most residential lots in the Town of Vail and things we feel are important to an understanding of what they wish to do' I believe that even you 8i11, and Bob back there the farthest away' can probably make out this chart, this map of a section of the Town, this is vail Road, follow my pointer, we go past the Lodge, check-Point- Charlie, Bank, Chapel, Kiandra, ok. This is George and Lisa Websterrs 1and. This is the location of their present house, the location of the proposed new house. To understand the two points that we belleve 2/18/2014 TRANSCBIPT Page 4 o . TOWN COT]NCIL MEETING 5-2-78 Webster Residence request for GRFA and Setback Variance Ruoff continued: are very key to this, consider a line along Beaver Dam Road and Vail Road, right through here, everything on this side of it is residential , aI1 the way to the end of the Town. Everything on this side of it is either Public Accommodation, High Density Multi-tr'amily, CC1 all right, the point that we feel is important is that the design of George's house, the individual project that we are talking about now, which we think is displayed in a number of pictures over here, its a hillside house. Probably from way back there you can at least see differences in these drawings. This you dontt see very much house, this is the south side, it faces the residential area, this is the west side, which also faces - the residential area, in other words, we feel that the impact upon, or the interface with, the neighboring communities,the actual neighbors then of who surround a given site or what it should be judged under, and in this case there arenrt many doubts about the future because every single lot in this entire area has already been developed, so there is no wondering what if someone puts one here, and here, and here - can't happen. The die is cast, this part of town is set. A11 right, on the residential side, the impact of the house is the dast. On the downhill side, and this is true of any steep hillside house, the view from below, or down the hill, Vou always see much more of the house than you do from the top of the hilI. The large parts of the house which naturally face downhill, as you can see in this picture, face the town. I believe that even again from the end you can see this is what they face, the largest, densest buildings in Vail. We feel that this is a very important point because it is again - what is the impact upon the community? Is the larger side of this house going to overwhelm its neighborhood? ![e feel no, that one house isolated over here facing this 8 story building at the Lodge, Biva North, the Wil1ows, the Eidelweiss, Talisman, Kiandra on down to the Holiday House; this is a I20 degree sweep of pictures, its everything you see, the pictures were taken from the Webster's present living room window, same view as they will have. These the most massive and densest buildings in Vail are the immediately adjacent neighbors of the larger side, the downhill side of the proposed Webster residence. 2/18/2014 TRANSCRIPT - TOIYN COUNCIL MEETING 5-2-78 Page 5 IYebster Residence request for GRtr'A and Setback Variance Ruoff continued: Therefore, while it is something, again, that is its very point of uniqueDess' we feel . The . I don't know of any other lot in town, a residential 1ot, where this would app1y. ITe do feel it applies here. Stepping back to the other side, the residential side of the line, another unusual feature, different from all but a very few residential neighborhoods in town, and we ask you to consider those that aren't built up yet as they soon will be because shortly there won't be any lots 1eft. The distances, the closest neighbor is perhaps an average distance between houses in Vail, its the Hobart (sp?) house, directly above the Websters. In these pictures you can see it rather plainly above the house on the high side of the road. It is enough higher than the house, both the present house and the proposed new one, that neither the existing house nor the new one impede their view. We have purposely made the ridge line the highest point of the new house exactly the same height as the ridgeline of the existing house. In addition, we are cleari-ng out the parking iumble between the two houses so that the impact on the close neighbor, the one directly aeross the street up the hill, the Hobart (sp?) house, we feel is a positive one a good one. visuatlv, we are not changing, or impacting them at a1t they see over it the same as they always have for the past seventeen y.ears since both houses were bui1t. Oh to be technically correct, I should say this ridge does come out fifteen ft' farther toward the east, no higher, we plotted it on this map to see what it did and it means from the bedroom end of the Hobarts (sp?) it will block their view of the garbage cans and kitchen at the Kiandra, we don't think that this is necessarily a bad thing, its the only impact on their view. A11 right, after that this house at the bottom of the hi1l, the closest neighbor on the lfebster side, is 165 ft. away. Thatts almost three times the average distance, under the ordinance, 30 is the minimum between adjoining houses, they can be that c1ose. In many of the more successful neighborhoods of the town, like some of the areas around the golf sourse, and some others, average distances are often as short as 5O to 60 feet, and in many cases they are close as 40. Here we have the closest neighbor at 150 feet, in addition to which it is on Beaver Dam Road at the bottom of the hill and separated by a dense forest of 50 to 60 foot mature Spruces and Pines, in 2/18/2014 TRANSCRIPT Page 6. SLIEER: RUOFF: Ruoff Continued:other words they can't see each other. So we consj-der 0 impact there, if you cantt see each other then there is no visual impact. The Merchison (sp?) house up here is the second closest one. Its all the way up on Rock Ledge Road again separated by the natural forest and it is 250 feet away. The nearest neighbor on tr'orest Road is 310 feet away even deeper in the woods. Ok, we feel that there is virtually no i-mpact upon the residential side of the lot, and we don't know how any single house can overwhelm, or adversely impact this aray of the most urban, the most dense, highest buildings in Vail; and they are the immediate neighbors on that side. A11 right, those are the highlights of what we feel are the most important points, there are many others concerning this, there are alot of statistics and so forth, I would rather pause and ask you members of the Council what other points you would like us to address. HEIMBACH: How large is the variance you are requesting now with the condition of the new lot? RUOFF:943 sq. ft. HEIMBACH: I'm sorry, I didn't see that chart there. RUOtr'F:For comparison, i-ts so new that those of us who have to understanding work with it find that we are 9gE999eAAgAg it pretty well, we are finding many people in town who don't and we get asked often, what's the change? So we put down the new and the o1d here, cause I know that some of you are familiar with what the ground rules have been in Vail for many years, until you changed them a few weeks ago- It was 1394 around 14OO feet under the allowance until Thanksgiving, it is now 943 over on GRFA count. Yes Rod? TOWN COUNCTL 5-2-78 IYebster Residence request for GRFA and Setback Varian6e I{hat's the ?609 is 257o of the square footage, correct? That's right. SLIIER: lYhat's the reduction down to 5272, is that slope? RUOFF: No, no, no, that is the new amendment that was passed - r .[\ tffiffiiN: we set a GRFA up to rb,000 sq. rt., and then from 15,000 sq. ft. up on the 1ot we get a l%, so we calculate up now instead of down. BUOFF: In effect at 3o,ooo ft. which just happens to be almost exactly the area of Georgets, from there on you get almost no credit, you get 1000 ft. to get 50, that's why we have worked these things in town just in the back of our heads, now we say de facto 5200 ft. ceiling. 2/18/2014 TRANSCRIPT - TOWN COUNCIL MEETING 5-2-78 Page 7.Webster Residence request for GRFA and Setback Variance Ruoff continued:Beyond which it is now required that a variance be requested and the Planning Commission and the Council take a Iook at a1t projectsShat want to be bigger than that. Paula? PALMATEER: Bill, Vou subtracted out the 1327 pool deck to get the 62L5, right? RUOFF: Yes, and I apologize, I skipped it and its important. PALMATEER: The Planning Department does not as I understand it or did not. is that correct A11en? RUOFF:No, they do it both ways; and therefore, we are asking that we be considered the way favorable to George, because we feel that he is giving some things in return which are more valuab1e. Let me explain that. The proposed Webster house w111 include a swirnning poo1. The Websters would prefer to have the swimming pool buried under the house so it doesn't stick out and have a great big building around it. We feel this is good architecturally because it minimizes the amount of construction that needs to be put on the 1and, it makes it much more compact. Unfortunately, under the way that it has been interpreted, and this is an interpretation, the zoning ordinance is silent on this matter, therefore, when the first one came up the decision had to be made if the swimming pool is in the house is it or is it not GRFA. WeIL I guess there are three possibilities, it i-s or it isn't or we find a way to split it. So, on the three or four previous to this that have come up in the Town where they are inside, can't remember where they all are, they said ok, we'l1 split it, wer11 take the deck area and walkways around' and say they are GRFA, we will say that the water area is not if you put it in the house or connect it to the house. If you separate it from the house so that you have to walk outdoors, even though it may be only three or four feet through the snow or sun depending on the time of year, go back in a door, then we don't count any of it. There is room on the Webster's land for us to do that, we eould slide the house over into the trees, take them down, and then there is plenty of room to build a swimmi.ng pool in its own building out here on the point, and where we would rea1ly like to preserve the nature of the land that is there, we are not touching it at all now. I{e think that it is strongly against or counter to the spirit of the zoning ordi-nance and what we want to accomplish by it in vail 2/18/2014 TRANSCRIPT - TQWN COUNCIL MEETING 5-2-78 Page 8. lfebster Residence request for GRFA and Setback Varianbe Ruoff continued:to go that route. If I may momentarily switch hats, if a project like this came before Design Review Board and there was an option each way, we would make a very strong protest against j-t on aesthetic grounds. Therefore, we are asking that in this case the Websters not be penalized for doing what we feel is a better approach, bury the thing, even though it is more expensive. Put it under the house, make it compact instead of putting it outside in a new building. The impact on the Town of putting another building there, I think would be totally unwarranted. So, as part of the variance request we are asking that the entire pool area not be included in the GRFA, the same as though it were set outside in a new building. Our feeling reatly is that probably it has never made much difference before and therefore was never questioned, but when you really look at it, we don't think that its in the best interest, or necessarily within the spirit or intent of our zoning ordinance. That is what that second line says, less pool deck. Which we are asklng not be counted in the GRFA. We real1y feel that in any case like this it probably shouldn't be if it is being included in the building- The usual objection is that, oh my heavens what if it turns into a crash pad, how many sleeping bags can you put around. Come on nobody is going to sleep around the edge, somebody might, but you can't get any rent from it. And some of us really think that the way to control the abuses in town is to chastise the abuser, not go change the rule that he just broke. ok, I think that I have belabored too much the swimming pool thing, what other points.Bobby. RIJDER:8i11, I have a couple of questions in that, is the house a duplex? RUOFI': Yes technically it is. The zone is two-family residential vd, I have been usir€ the term because again all of us have worked with thi-s regularly, the regulations for all three classes of houses are almost essentially the same, but this one is a duplex as most are in Vail. The design for the Webster's house is basically a three bedroom house plus 628 sq. ft. one bedroom, small caretakers-type apartment. George and Lisa are away from town a good deal of the time and they probably would like to have the use of this little one bed- room apartment as, we all know what they'll do, dozens of houses in town have ..(can't hear) The house itself is essentially a 2/18/2014 TRANSCRIPT - TOYfN COUNTIL MEETING 5-2_78 Page 9.Webster Residence request for GRFA and Setback Variance Buoff Continued: three bedroom house. The reason it is bigger than alot of three bedroom houses, I think, is simply because like alot of people, me included, I know some of you come from other parts of the country where we lived in older houses that were built years ago, they were bigger. They had what has come to be sort of a rarity in our living space today, space itself. Little things like stairways where two people can pass each other without doing this, which is the usual Vail experj-ence going downstairs and you meet somebody in a residential situation. That, the swimming poo1, alot of sma11 amenities that eat up space. You know the fact that it is a very , steep hillside, does some things that are j-nteresting, it was touched on in the discussion on the b.azatd area earlier. A well designed house on a steep hilt doesn't need as much land coverage, the reduction that you've included there, both of us architects and others in town who are interested in these things, feel it is very reasonable. Proper hillside designed house need never occupy as much land. This one doesn't. However, a corallary is, that to make it work on the steep hi1lside, sometimes it is necessary to include a 1itt1e more space insi.de of it, simply because it is farther from top to bottom and you have to eat up space with vertical things to get up and dowu. That does increase GRFA even though it may not increase the normal living space, number of rooms or their function at all. It adds to the expense of it to the owner, but I don't think that j-s a concern, if someone loves a hillside house and wants to spend more money to get all the neat dramatic views available from it, that should be his perogative. L. RIDER: Mr. Ruoff. what's the nature of the interest i-n the stock drive?(Mr. Websterrs attorney?) UNKOWN: Its an option only and if you were to grant the variance I would suggest that you make it contingent upon acquisition and title' L. RIDER: So he has not bought the property yet? TJNKNOIfN:No. (Webster's attorney?) L. RIDER: What are the conditions in the option? I]NKNOWN:Its all on one page. (IYebster's attorney?) L. RIDEB: A couple of things that perhaps Mr. Williams can confirm. Looking at the plat for VaiI Village First Filing it appears that this stock dri.ve is an extension of Vail Road. and if it is an extension 2/18/2014 TBANSCRIPT - TOWN COUNCIL MEETING 5-2_78 page 10. lfebster Residence request for GRFA and Setback Variance Rider Continued: of Vail Road then Vail Associates can't grant you an option. ITNKNOWN: I think that could be true, however, You've looked at that closer than I, could you make a response to that? IJNKNOWN: Larry, as I discussed with you outside, on the original plat the stock drlve lies on the section line between the first two sheets of the first fj,ling. tsetween these tots is undesignated as to anything, its left as a gap, because V.A. at that time could not convey ( can't hear) . to a cattle dr|ve. Therefore at that time they retained 20 feet on the edge of each p1at, subse- quently, about '68, that V.A. conveyed the roads to the Town of Vai1, it was done by the name of the road and VaiI road as existed at that time and as it is set on the plat clearly turns to the left immediately prior to the bridge, goes across the bridge and moves back toward the 1odge. L.;IRIDER: Where the Vail Road begins to the north, it runs almost to the section line isn't that correct? North and South along the section Iine? RUOFF: Yes. L. RIDER: And the stock drive continued right along, the supposed stock drive runs right along that section line does it not? UNKNOWN: Its not a supposed stock drive L. RIDER: Is there anything on the plat designating it as a stock dri.ve? IJNKNOWN: No there is not. L. RIDER: Is there anything on the plat designating it as an ease- ment? UNKNOIIN: No, there is there is reservation of previously granted easements of drives and rights-of-way (can't hear) There is no specific granting of any extensions for ancillary parts of Vail Road to the Town of Vail. L. RIDER: Is there any condition in the opti.on that Vail Assocj-ates cleared up title. see my concern My concern is that if the Town of Vail owns it what you're buying from Vail Associates can . sould be consj-dered the Brooklyn Bridge. And that you shouLd be deallng wi.th the Town and not with vail Associates. And looking at the plat it appears that Vail Road that this that 2/18/2014 TRANSCRIPT - TQIIN COUNCIL MEETING 5-2-78 Page 11.Webster Resid.ence request for GRFA and Setback Variance, Rider continued: has been ca11ed a stock drive easement is a logical extension to Vail Road whether it was ever built or not built. I am just concerned with rvhat in fact is being bought and what in fact is being consi.dered part of the land area in determining GBI'A' UNKNOWN (IVebster's Attorney?) 11e11, I don't know Mr. Rider, I am not schooled enough in the precise history of that title, nor have I examined the plats well enough, and I sure don't want to get into a question of whether the Town should own that 40 feet, or Vail Associates, all I know is that they felt they owned it and they granted an option and therefore, they agreed in that option, I think quote, to give good and perfect titIe. And consequen'tly it was on that we were relying and then wait for the title insurance company to tel1 us. L. RIDER: Two concerns, the first concern being that apparently Vail Assoclates, from what lt{r, Ruoff says, was surprised to learn they had any interest, and the second concern being that if the Town Council is going to consider that as part of the land by which to grant the GRFA, there seems to me to be a number of questions that need to be answered. They, of course, fr&V not agree but that was the only reason I was asking the question, to make sure that you are getting what you are buying and the Town was getting what it was buying a1so. UNKNOWN:Larry, the option negotiation with V.A. is based on that they convey good title to that and their position is based on my examination (can't hear) And although we do have some disagreement on exactly who owns what ;. that if they cannot convey good title (unclear . . we don't have to pay for it.) L. RIDER: l{e don't have to grant the option I mean grant the variance. Second question Mr. Ruoff, the ordinance requires proof of unnecessary physical hardship, what is the unnecessary physical hardship for the granting of this GRFA variance? RUOFF:Where are you looking Mr. Rider? L. RIDER: This is Section 18.62 under "Purpose". It says, "in order to prevent or lessen such practical difficulties unnecessary physical hardship variances may be granted." I was wondering what the unnecessary physical hardship is for the GRtr'A variance? I understand the Setback, I think that is approprlate. But I am wond.ering what it would be under the GRFA. 2/18/2014 TRANSCRIPT - TOWN CO Page 12.Webster UNKNOI,IN: o uNc Re IL MEETING 5-2-78 sidence request for GRFA and Setback Variande B0ao99goQ99aeca9 RUOFF: I was looking under Section 19.6 where it says what Findings would have to be made before a variance would be granted. L. RIDER: Look at that first secti-on in that called "Purpose". for the granting of variances. In that it spells out what the purpose is of granting variances. Look at the first, the first section in the chapter of the part dealing with variances, ca1led rrPurposesr'. And it is number a. under that. And if you look at the section that you were reading under ca11ed "Criteria and Findings", it says there must be a finding that there was a practical hardship. My question 1s what is the practical hardship? Neeessary for this GRFA. UNKNOWN:Irm not reading the same thing you are. BREAK UNKNOM: You think it is absolutely necessary that they find arr ,rrlrrn€c€Ssary physical hardship? 1{e11 then I don't think the ordinance should say define one of three things. BREAK I canrt conceive rea11y of what physical hardship is when you won't permit a building to be built in a certain fashion. And, therefore I don't know what the physical hardship is. I was relying on Section 19.6 rvhere it says that before granting a varlance you must define certain thlngs, and under sub 3 it says under that section you have to find one or more of the following reasons. Physical hardship j.s mentioned in one of them. Another alternative is that there are exceptional or extraordinary cireumstances or conditions applicable to the site of the variance, and that was wbat Mr. Ruoff was addressing. L. RIDER: Ok, the question that I was rephrasing, what is it, what is the particular peculiar characteristic of the site that would d.ictate to the Council that they approve a GRFA variance that would a1low for a bigger house than what other people in the area couLd build? RUOFF: Well ah ha. Not that other people have built, only und.er a new and drastic reduction. Other people for a long time have built big houses, there are alot of big houses in vai1. This isn't the first one, this is only the first one to come up since this recent reduction in the GRFA figures. (TAPE CHANGE) 2/18/2014 TRANSCRIPT - TOI{N COUNCIL }METING 5-2-78 Page 13. IVebster Residence request for GRtr'A and Setback Variance (AFTER TAPE CHANGE) a9DBB999 99 999EC9Qee9990e9oe9 Ruoff Continued: Question? To control some abuses or what was it for? We have been told many things.. L. RIDER: The question was, what is the peculiar Mr. Mayor I'm sorry . understand SLItr'ER: No, I what you are saying. L. RIDER: What was the peculiar thing in the property that would justify the approval of a GRFA variance that would a1low this applicant to build a house larger than other people could build under the ordinance. I am not talking about what hhppened under an old ordi.nance that was BUOI'F: But under it, as we understand it Larry, under the ordinance j-f someone else had a situation where he felt that the impact was not bad, he could ask, and you can build under the ordinance with variance because, as we understand it, variances are part of the ordinance. L. RIDER: That is correct. But the purpose of the variance is a recognition of the fact that when you try to apply a strict interpretation of the zoning ordinance to unusual and oddly shaped located, whatever pieces of property, you are going to have problems. So i-n order to get a variance, in order for you to show that the strict interpretation of the ordj-nance should not be applled, you're going to have to show that there is something peculiar about the piece of property- That (can't hear) UNKNOWN: (IYebster's Attorney?) That's rea1ly what he had been addressing the whole time he was talking. I thought he was talking about the fact that the north and east face of this property is abutting the cormercial , or it may not be what you call commercial in your ordinanse, but the commercial area. And that the unique tbing about the lot is that you can build on it without having any impact on the residentia1- area which is south across Forest Road and west along Forest Road I think that would be extraordinary circumstances or conditions that are applicable here, if they were applieable to another lot, which I don't know where that would be, and I think you should consider a variance there. RUOFF: The same circumstances would never apply to another ]ot, it would be a whole different ballgame. They might or might not 2/18/2014 TRANSCBIPT _ TQIVTI COUNCIL MEETING 5-2-78 Pg. L4 T{ebster Residence request for GRFA and Setback Variance, Ruoff Continued: warrant it. RUDER: I have a couple comments, I look at the new zoni-ng regulation and I was a part of drafting and adopting it and I think it is a good one, and I think the reasons that came about are good reasons. And it all started, as I think about it, down-zoning, and down-zoning is people in Vail Valley. And the reason that we got into primary/secondary and that we got into single-family duplex is besause \{/e were starting to get enormously large duplexes that were huge GRFA's and have the capacity to sleep 20 people and we didn't in my mind, I didn't feel that that was appropriate and at the same time we would down-zone the other zones. But we leave the variance process because I don't think we should draw lines and say that people shouldn't be allowed to come in get a varj-ance because they like a bigger house, but we did say that when thats going to happen we urould like to be abte to take a look at it. It just can't get rubber-stamped as many of the large, mostly duplexes have happened in the past. I remember the discussions of down-zoning single-family duplex and primary/secondary, and the new zoned primary/secondary which also was talking about people, forcing people out of houses and out of zones, trying to cut down our population. So I think that if we talk about physical hardships, maybe that is pulling something out of the ordinance and I don't think that necessarily because a person cares to live in a big house that we are forcing something on them, in my mind. In my mind, I - saw the ordinance as a down-zone and the down-zone was to reduce thousand people. If George's house of however many/square feet had 10 bedrooms, I would look pretty unfavora.bly upon it, if George's house was a same amount of square footage and was two large duplexes I would also look unfavorably upon it. But I think in this case I think we are picking on somebody because they like to live in a big house. And I think 1n this case and I have iust seen this thing recently, that Bill Ruoffhas done quite a nice iob of trying to put the house on the 1ot, trying to hide things like swimming pools, rather than put them out in separate bulldings on the Iot which would impact our town even more, And I also think, looking at that colored elevation on the far left si.de, that you could take that exact exterior she1l and by stepping the house down the hill, you could come up with any mind of square footage in that shell that you wanted to. 2/18/2014 TRANSCRIPT . TOWN COUNCIL MEETING 5-2-78 Page 15.Y{ebster Residence request for GRFA and Setback Varj.ance Ruder Continued:In their case, they went back and theyrve got to have some enormous cuts inside the house and it caused some more square footage. But you could generate that exact interior or exterior and do 1t over 4O0O sq. ft. I think we are plcking on that a little bit because they didn't want to. The stock drive- way is a brand new thlng, to me its like asking George Webster to join the club and pay a fee to buy the property next door so he can have his house. I would rather that we as a town, and the stock driveway by the way goes on by Murchison's until it hits the tr'orest Service line; f would rather say that we I hate to use the word force, but I will use the word force George to put together what is ever necessary with Vail Associates, or whoever ovms it, to see that the Town ends up with clear title to the stock driveway all the way from the bridge or wherever its at to the Forest Service line, and we take the doubt out of it and we put it in the town. But, that we don't penalize him and ask him to see how many dollars he can spring for it, coming up with the abutting property to see if he can make his house work. I think it is the wrong reason that we down-zone single-family duplex and primary/secondary, we did it for population, not because somebody shouldn't have a big house and we did say that we would like to look at them, and we think it is important that the guy goes about it in the right way and hires an architect, a competent architect to try to design a nice situation for that particular thing. And our big duplexes that we have in this town were designed in New York, they were designed in California, they weren't desi-gned in Vail Colorado by a local architect. I don't have any problem with it. And I am convinced as a builder that you could take that exact she11 and put 4000 sq. ft. under it, the way we calculate GRFA. And all we would do by doing that is cut his bedroom in half, take hi-s swimming pool out, and I don't think it is fair. I think we are looking at the ordinance in the wrong way, it is not why I down- zoned single-family andprimary/secondary. UNKNOWN: (Webster?) I just wanted to add the statement that as you remember we bought the house in '69, it had bunks in it, and it had sleeping accommodations for 10. You people handled 2/18/2014 TRANSCRIPT - TOI{N COUNCIL MEETING 5-2_74 pg. 16 webster Residence request Jor GRFA and Setback variance webster? continued: the rental 0f it and Marvel Barnes had to kick a party of 25 out of it? Who had rented it, they had sleeplng bags. The present plans are for a maximum of 8 be<is plus one crib.. . no,grandchildren. UNKNOWN:And Bob, addressing your point, we would like to see the town end up with this property, we would phrase in the alternative that either the Town have the property dedicated to them, or George acquires it. That would be highly suitable because v.A. has accepted the idea of dedicating what they own of the property to the town.. In many ways they would prefer to do that. Any other connnents? Bobby, I don't understand your reasoning for wanting acquire the stock drive waY, I If we take, we iust as well own it, its a nothing its not something we have to take care of because it 1s just covered with trees and there is another one, the one that continues above it. Lets take it out I don't know wbether it has legal problems or whether or not we should have already owned it or whatever. And so, I just say we just as well solve those things right now and lets just put in public ownership' There is no reason to ask George Webster to pay the taxes on it for the rest ofhislife,thelifeoftheproperty,whenitisjustastripup a mountain hillside with mature Spruce on it ' SLIFER:If I were George and I owned that 1ot, I think I would rather own it myself than have the public own it. I think youwouldhavemoreinsuranceofpeaceandquiet.Andlthink that if he wants to buy it, I would rather have it go that way' Idon'tthinktheTownoughttoownit.IthinktheTownshould own lands that can be utitized and it can't be utilized' RUDER: I think that they should if they're paying money for them, I don't think the Town should be out buying land that they can't use, or that their people can't use' I don't think Vail Associ-ates is going to give it to us' Then I think that George should give it to us' SLIFER: Sli fer? UNKNOWN: the Town to RI]DER: SLIFER: RUDER: 2/18/2014 TRANSCRIPT - TOIVN COUNCIL !,IEETING 5-2-78pg. 17 Webster Residence - request for GRFA and Setback Yariance SLIFER:Any other questions? SANDY MILLS: Rod, I arrived a little late, so I am not quite certain how much you have talked about relative to the discussions as far as this additional land goes. But in Planning Commission the things that we considered, and I think you have copies of the memo; were one, excess GRFA that would constitute a grant of special privilege to the Websters in this particular zotre. Another thought that we had, and I disagree with Bob in this' Bill is saying that is a three bedroom house now, but we have to look to the future to some extent and if the rooms are very large maybe the next person would come along and increase the sleeping capacity and thereforethe body count in the house, and that was one of our concerns in terms of down-zoning and terms of growth management in the valley, I think the concern of over-population and also the granting of a special privilege in this particular zone was what we based our thinking on. RUDER:So it is your thinking at this time, Sandy, that if someone decides they would like to have 1O0O sq. ft. in their living room because they entertain alot, they shouldn't be given that privilege. Because of the possibility of taking the looo sq. ft. and turning it into a two bedroom, two bath apartment within a house. And that we should not a1low our permanent residents of vail to enjoy that pleasure if that is what they would lj-ke to do. I donrt agree with that at all. S. MILLS: RUDER: It is because the request for excess GRFA was too excessive. Where do you draw the line, what's too excessive 945 sq. ft.? Is that the number you were looking at? or are you looking at the other number? S. MILLS:No, we were considering only the house without the additional (can't hear) because that . you know RIJDER: And the pool deck was that straightened at the time? IYas the pool deck considered GR!'A? IYas the swimming pool deck con- si.dered GRFA? BUOFF: The Planning Commission there was no presentation to the Planning Commission. RUDER: You never gave the Planning Commission a presentation? 2/18/2014 o TRAI{SCRIPT . TOIW COI]NCIL MEETING 5-2-78 Pg. 18 lfebster Residence - Request for GRFA and Setback Variance RUOFF: No. We were there we didnrt even (interruptions) for Planning Commission SLIFER: Can you 1et me ansrver his questions, Bil1. The Planning Commission did add in the pool deck area to their GRFA. calculation. S. MILLS: Yes, vye didn't look at the p1ans, but Bill did give us a presentation and we considered . . we took out the actual square surface footage of the water,/but the deck area of I think, 13OO sq. ft. was considered. And the 600 sq, ft. work room was considered, So, we looked at the total project which I think came to 2950 sq. ft. in excess of the GBFA. RUOI"F: And that is the GRFA figure without the strip of land that we were diseussing previously. RUDER: Ifhat is the 600 sq. ft, workroom? RUOFF: That was not included, its talked about in the report, I don't know why the report dwealt on it so long becauee it is not included it has always been excluded from GRI'A. SLIFER: I think his question is what is the purpose of it' RUDER: Ya, well that is why I was asking. RUOFI': George's wood worklng shop that is up at the ranch now in Lake Creek, and he would like to move down here and bury it under the hill where he can get at it and do things in the winter which he can't do now RUDER: I was asking Rod, because a shop area to me j-s no different than storage and storage has never been GRFA. RUOFF: Nor have garages and this is the same . RUDER: Nor have garages used as shops RUOFF: We were discussing itl:with Diana a month before she could remember or something whether it should or shouldntt and I said good Lord, you put a gara,ge door on it and its a garage and there's or us no question. The rest/included, you and me and some others I know have our tools in our garages. WEBSIER: In response to Sandy's objections, Lisa and I are willing to covenant that the house will never be broken down in any reasonable period of time., into any extra bedrooms or anything of the sort. 2/18/2014 TRANSCRIPT - TOWN COUNCIL MEETING 5-2-78 Pg. 19 Webster Residence - Bequest for GRIA and Webster Continued: IVe have never rented and we never 8eA999gtsee9flC9gee-e99COCgpgets99flg?4C49994CC99999 . and an estate problem it becomes an estate problem. Setback Vari'ance , intend to if it becomes RUOFF:I would like to add one litt1e thing on that. I think that all of you, we all in Vail are somewhat familiar with land values and what real estate goes for, there is only one possible motive for anyone ever doing these bad things that happen which is buy a house, cut it up and turn it into a crash pad; its because he wants to make money. I don't think any of us have ever seen it done for fun, kicks or for a persons glory, it is always done for money. If we can accept that, and if we look at George's proposed house, the si-ze and so forth. I don't know what its market value will be after its done, but I think each of you can run it through his own head and come with a pretty darn good guess. The point is that the market value of that house will be so high that the most that anyone who wanted to buy it and chop it up into a little illegal lodge could ever hope to realize on it is maybe, if he was real lucky, his real estate tax. You cannot, it just doesn't work out. YIhat happens about 100 years from now I donrt know, but in the foreseeable future it is economically impossible. The existing house on the other hand is a better example, more bedrooms, more economical , the whole thing. We just think it could never happen. PALMATEER: I talked to Allen about the pool area and I have a real problem in the way apparently we have been looking at the pool deck- I don't really consider them to be a hazard to GR!'A. Bodies sleeping a long pool side as far as that goes, 9a98gC9999E99099A9a8C9ECA9CA, etA999nAge999€eA9pOOp9C999CepgEg90A the Westwind garage is enclosed and heated and I have found people sleeping there many times. That might be something that you should look at so that it is clearer, Allen, the ordinance does outline garages and that kind of thing perhaps pools should be more clearly defined. I had asked you that if he built the pool outside, you know, in a separate building, would you count it as GBFA and there is some question as to whether you would or woudntt, I think that should be very clear because apparently more and more homes will be including them in some shape or form. so I have a problem with counting the 1327 in the total GRFA even though apparently it has been done previously in some other homes. 2/18/2014 TRANSCRIPT - TOT{N COUNCIL MEETING 5_2-78 Pg. 20 ![ebster Residence - Request for GRFA and Setback Variance Palmateer Continued: Is that correct? That is an interpretation and its not in the ordinance? SLIFER: No. I would agree with your I don't think it should be counted toward residential floor area, I agree with Paula. Any other comments? A, GERI'ISTENBERGER: Could I read the Planning Commission report? Just for the record, according to the Ordinance 18.62.060, the Planning Commission shall make the following findings: First 9999Ee999BA99gg9g99e99O9geAB€ is that the granting of a variance will not constitute a grant of special privilege inconsistent with the limitations of other properties classified into the same district. On that the Planning Commission found that they thought that this would result in a grant of special privilege because the GRFA would exceed that which is allowed. You know whether the numbers.. they go anywhere from 18% up to 64%, I don't think we should get into that argument. The second issue that the granting of the variance would not be detrimental to the public health, safety, welfare, etc., they found no problem with that. The third one is that the variance is warranted for one or more of the following reasons: 1. ) That the strict or literal interpretation and enforcement of the regulation would not deprive the applicant of privileges enjoyed by the owners of other properties. The Planning Commission felt that tbe variance does not warrant it and would not deprive the applicant of privileges that other people in the same district have. So their vote on the GRFA was unanimously opposed to it. On the Setback, they agreed, I believe the vote was 5 to I in favor of the Setback Variance, that that was a legitimate thing to consider whether or not the GRFA variance was granted, PALI{ATEER: Allen, if this was a single-fami-Iy residence as it now, that is correct, it is single-family? Ifhat would be the allowable GRI'A. lfould that be the same - - exactly the same. RUOFF: Yes, the limits for all three classes of residenee, single-famity, two-family and primary/secondary are essentially the same. PALMATEER: Ok, looking at it in that 1ight, the 943 extra sq. ft. if you eonsider 685 as being the second residence, and to me this is providing the very thing we wanted to establish with primary/secondary which is a housing unit, and also r think it wirl prevent the kind of 2/18/2014 TBANSCRIPT - TOWN COUNCIL MEETING 5^2-78pg. 21 Webster Residence - Request for GRIA and Setback Variance Palmateer Continued: thing from happening that we are a little bit afraid of, and that is crash pad kind of thing. GEBSTENBERGER: I think the Planning Commission's position was that he could do the primary/secondary unit either way and just is the matter of how the numbers work out and that they felt that based on the ordinance that there wasn't sufficient grounds for the variance. SLIFER:Bill Heimbach has a couple comments. HEIMBACH: tr'irst of all, I don't think the process was good here' I don't think the Town Council should be looking at different criteria than the Pl,annlng Commission looked at. I think it is a bad thing to do regardless of who's involved here. ltle should a1l be looking at the same thing. Secondly, I think the real nut to crack here is will the granting of the variance constitute a grant of special privilege. That is rea11y the nut that we need to crack and that I think needs to be addressed. To do that I think we need some perspective. Has there for instance, has there ever been a 945 foot GRFA variance granted ? If so, how many? If we want to do it by percentage, whatever the percentage, we don't have that information. At least I havenrt heard that yet tonight. RUOFF:I might be able to I don't have the records available. I have discussed this with Diana who is more familiar with these things than anyone e1se, and I have been around working with these things in the town myself for a long time. I don't think there ever has been because until this rather large, it was a big cut- back in the limit of the size of a. house that was passed last November; until then it has never come up. Now, I think the more valid question, ever is, has anyone/buil-t big houses in the town before, and what is the reason for the need for this drastic reduction in limlts? 999949Ok (can't understand) .I like your like your point.that eveyybody ought to be in the same track, and if I may editorialize for a minute, I think the thing has come up and not everyone is, there are different understandings apparently for the purpose of this in different parts of the town. The Planning commission, the council and the staff. I{e have had an awful time trylng to find out what the intent really was. HEIMBACH : Well, to continue , you know, what I was going to say' I just thlnk it would be , again regardless of whose involved tonight' 2/18/2014 TRANSCRIPT - TOWN CQUNCIL MEETING 5-2-78 Pe. 22 l{ebster Besj,dence - Request for GRFA and Setback Variance Heimbach Continued: a bad precedent for us to start considering cases on different criteria than what the Planning Commission has looked at. And I for one, would like this to go back to the Planning Commission.before we make a decision on it. The Plannlng Commission is basing its decision on a 3O0O sq. ft. variance, and now we are asked to base a decision on a 943 ft., sq. ft. variance. I think that if the same thing happened in Design Review Board on a sign for instance, you would want us to be back in Design Review Board, if you had your other hat on. RUOFF: Ya, h€y, I am with you all the way Bi1l, its a good analogy. You the Council sometimes need to spread the word to we your servant boards about what you rea1ly intend when you pass some of these ordinances and how you want us to administer it. Cause occasionally in the rush of business, oh I don't know, I guess we are all human, we overlook some of these things. But it happens and it can cause quite a bit of consternation. hasn't rea11y been fotlowed and we are considering different things than the Planning Corrmission has, and it might seem like over- forrnality, but I think it should be sent back to the Planning Commission. SLIFER: ( would assume that there are two variances being requested, one is the Setback Variance, and the Planning Commission did recommend approval of that, so I would assume you could consider that, or you could send the entire matter back and then consider both variances again at a later point in time. You could do it either way. SLIFER: UNKNOl[N RTJDEB: WEBSTER: RIIDER: Are there any other conments from the Council? I kind of agree with Bill Heimbach, that the process I{hat is that going to do to your building schedule? It will terminate it for another year. The only reason I ask is that I am not sure who is at fault here. IYhether the applicant is at fault, or we're at fault because our staff or whoever didn't put the thing together right or that there was a 1itt1e bit of I don't know who's iudgment it was as to whether or not to pul1 the deck count, or workshop count. Somebody made an arbitrary decision that said when it went to the Planning Commj.ssion pull decks count and work shop count, and now rre are getting one that says that they don't count. lfhat I am saying 2/18/2014 o TRANSCRIPT - Town Council Meeting 5^2^78pg. 23 Webster Residence - Request for GRFA and Setback Variance Ruder Continued: I don't know whether werre being fair to the applicant under the whole if it is going to take the house and kick it back SLIFER: WEBSTER: I would assume that we could hear it in two weeks. Well Rod, this is lined up, (can't hear) . subs they are ready on schedule and I assume that this will throw the schedule into a cocked hat. Possibly, maybe not, but, I couldn't be I had to be in New York for another meeting for the Planning Commission but, the Planning Commission didn't give us much courtesy or consideration or anything e1se. Simply threw it to the Council. Now we are trying to present everything possible, every piece of i-nformati.on we can. lfe've gone into great detail. I agree with Bi11, it is really not Council's business, it should have been done before this. We're trying, werre on a schedule and there we go, I don't know. SLIFER: Pam. PAM GARTON: I wanted to respond to a couple of things, for one thing it would be quite a delay if you sent it back to us, we do not have a quorum in town next week for Planning Commission, it has been announsed for three weeks that Planning Commission would not meet again until the 23rd of May. So it would be your first June meeting before you could hear it again if you sent it back to us. As far as the information, Bob, to respond to your conrments at our meeting. I don't think it was, I don't think the decisions were very arbitrary, Diana treated the pool situation as she has every other pool, she whole discussed this with us. Indoor pools maybe the/question of how it has been treated has been valid, but she was trying to be consistent. Indoor pools have been treated exactly the same way the deck area has been counted as part of GRf'A if it is enclosed within the residential structure. The pool surface has not. If the pool is in a separate building you can read that section in the primary/secondary zone, then it is considered a separate recreational amenity and its not counted as in Fj-tz's pool. The shop, that, whereas garages and storage is spelled out, there is no specific thing as to a shop, that was a matter of interpreta.tion and it was agreed upon that it should not be counted, that it was in the same category as garage or storage. So I feel that those were consistent 2/18/2014 .t, TRANSCRIPT - Town Council Meeting 5-2-78 Pg. 24 lfebster Residence - Request for GRFA and Setback Variance Garton Continued: 8999€t9999999A9 interpretations and without either of those items being specifically spelled out in the ordinance. And as far as us making a decision at the time, we can't make a conditional sort of vote, at that time the status of thj-s other strip of land was still quite in 1imbo, and if we were going to take a vote, we had to take a vote on how it existed at that point 1n time a week ago. And, we couldn't . . . we canlt make these condltional votes and there seemed to be, at that point, a grea"t question of the ownership and the outcome on this extra strip of 1and. lfe had to take our vote on that basj-s or put it off for four weeks RUDER: I have a question as to why you can't make it conditional upon something kind of vote, we do it all the time and we do it to force some things that have to happen. And we make condition upon kinds of votes all the time and they are part of a public record and I donrt understand why the Planning Commission can't make a recommendatj-on of for or against, conditional upon such and such. Its probably never come up before. PAM GARTON: \,Ye've done some thi.ngs that the final things have been conditional on the applicant agreeing to some conditions upon something, or stipulations, frankly, Dj-ana felt and her comment to us wasn I t was, that at that point in time, and I am sorry I OAOO0 here earli-er, to hear what the status is on this 1and, I had to be elsewhere, but, there seemed to be a great question as to whether V.A. realIy owned this land or whether it went back to a Forest Service Deed, or whatever, she didn't feel there was going to be a very rapid resolution of it, and so she was very hesitant to have us do something conditional on that piece of land where she felt it would be a long time before it was resolved. And she felt it was better for us to go ahead and vote on a situation that was firm. SLIFER: Any other comments before we call .. GARTON: Rod, I'm sorry, one other thing too, as far as I'm sorry that George wasn't there and that he feels he didnrt get sufficient courtesy or consideration from the Planning Commission. 2/18/2014 TRANSCRIPT - TOWN COUNCIL MEETING 5-2^78Pg. 25 IVebster Residence - Request for GR"FA and Setback variance Garton continued: Ife were waiting to be shown a hardship which is our basis, our technical basis for granting a variance, and much as r might personally believe a person should be able to build. the size house that they desire, we have had to treat people by the same rules, and within the last nine months r think we have turned down oh probably, three or four GR3A variances of just a couple hund.red sq. ft., or less because we did not have a technical basis for granting that, and it would apparently be a grant of special privilege. That is why we did not go into great length over floor p1ans. RUOFF:Pam look . very early on in the meeting last week, and Gerry lfhite made the Motion, remember? rt was. And he stated r don't have the record, but r remember very c1ear1y, that in view of the faet, that George did not own the land, that on that basishis reason foradn he made it clear that that was the personal point of/making the Motion, that it should not be considered because the figures were too far out of line, and r can't quote him any farther. r talked on for quite awhile without exactly being invited, until r reallzed that others were . . oh come on because we are in a hurry to get out. You did not want to hear the rest of my presentation. r was not invited you were the only one who even asked to look at that drawing. The others were . . come on lets sweep it on up, some of the remarks that were made at the meeting that are on the record, point in this direction, the fact that the sp1it, Votr're right, the polnts that r have made to council tonight which we feel are impor- tant to show under the conditlons of the zoning ordinance, why this is a unique situation, r did not go into. r sensed strong lack of interest in hearing it. You wanted to get on with the rest of your agenda and sweep this one up to Council, I'm sorry thats And, r have had an apology personally from three members on the thing afterwards for doing it. I[ho've agreed that i-f we need them, they would be willing to say so public1y. There is a definite split in Planning Commission on what we've heard tonight and what I have heard from other members on it and what I have witnessed mysetf. GART0N: Iltell, r am sorry j.t carne across that way at the meeting, it certainly wasnrt the intent. And r think we were, r at teast as r s&Y, although personally r understand George's position, we have as you know, we have had a number of similar, tllffilr 2/18/2014 TBANSCRIPT . TQW CQUNCIL MEETING 5-2.?8 .Pg. 26 T{ebster Residence - Request for GRI,A and getback Variance, Garton continued: not si.ruilar, but a number of requests for GRIA variance in the last six to 12 months, and it becomes crifficult to find the fine line under d.ifferentiations. RUOFF:I know, and thats probably why some of the discussion tonight has veered into this very thing, about whether or not some of the Boards' your planning commissioo, oy DBB and others, arways get some of the direction that wourd help us very much in interpreting Council's intent on these things. SLIFEB: I think we have had enough discussion, at the risk of cutting it off, but, r think that we should ca1r. the issue and in thi-nki.ng about i.t, r thlnk that we should address, rets separate them, and lets the setback and then lets address the GRFA. r thlnk that coutd we have a Motion in regard to the request for the setback Variance as requested by the Websters? ITILTO )i:f move that we grant the Setback Variance as requested by the Websters.. HEIMBACH: SLIFER: Second. BillOk, Motion by/Wilto, seconded by Bill Heimbach. No further discussi.on. Al1 in favor vote by saying aye. Ok, the next request for variance is for the GBFA, the square footage increase is either 943 sq. ft., aecordj-ng to the car_curations in the presentation, or somewhat higher in accordance with the planning commission memorandum, depending on what froor area ure count ancl r think everybody understand.s that. RIJDER:I move that we approve the GRFA variance for the Ifebster residence as outlined by Mr. Buoff. SLTFER: we have a Motion that it be approved, do we have a second? lfrlTo: r second that based on the reasoning that the pool deck be excl-uded from the GRFA and would ask that maybe in your llotion Bob, you night include something in the order of a Deed restriction on the usage of the house for future RUDER: How could we do that Larry? I would also like to add to the Motion that the necessary work be done to get the . weill, r don't know, about the center stock driveway, but r think that it should be discussed. r'm not sure of the best way, whether r don't thlnk we should be spending town monies for 1t, but r think 2/18/2014 I o TRANSCRIPT-TOWN COIJNCIL I'TEETING 5-2.78 Pe. 27 Webstel Residence - Request for GRFA and Setback Variance SLIFER: As I understand your Motion, you would not RIJDER: IlIy Motion was just for the GRFA, but . SLIFER: IYhether or not they acquire the land next to them or not, you are saying they don't need to acquire it, is that correct? RIIDER: I am saying In my one mind I am really saying that I don't think they need to because I really think that it is tike forcing somebody to gobble up a little piece of land around their house so that they can build something. If it makes the thing more palatable, then I think we should have it conditional upon their purchasing the property next door.. address SLIFER: I{e11, I think you should COOOOB it one way or another in the trlotion so its clear, I think you should say' you should say it should be added or it should not be added, and then the conditi-on that Bill mentioned. RIIDER: Ok, then because we are basing the GRFA on the 945 sq. ft., that we SLIFER: Could you iust restate the Motion? RIJDER: Yes, I move that we approve the GRFA variance for the Webster residence contingent upon the transfer of clear title to the stock driveway adjoining the property and that a (what would you call thls thing?) Deed restriction be put on the house so that any structure erected under the authority granted by this variance shall be used only as a single-family residence with care- taker facilities, unless or until such limitations as modified or removed by subsequent action of the Town Council under proeedures provided for granting a variance under the town ordinance then in force and effect. SLIFER: Do you sti11 second that Motion Mr. Wilto. VfILTO: Yes, I still second it. SLIFER: Ok, we have a Motion and a second, do you understand the Motion and the second. Any further discussion? I{ILTO: Just, that if wedid delay it after hearing what Pam just said, it would create an undue hardship. SLIFER: I do think its co::rect to address the issues this evening sj-nce it would delay it a month. If it were two weeks I would say we should kick it back to planning Commission. 2/18/2014 TRANSCRIPT - TOIYN COUNCIL MEETING 5^2^78 Pg. 28 Webster Residence - Request for GRFA and Setback Variance Slifer Continued: But I think a month is an undue hardship. Ok, if there is no further discussion,all in favor of the Motion vote by saying aye. So the vote is 4 to 1. PALMATEER: May I make a comment, I can see the confusion here and I know that the Planning Commission must be perplexed because of all these things you have seen Pam, and I have sat out there and watched them be turned down. This is a new ordinance, this is the first time that the change in the ordinance has been addressed, so therefore we are all sort of unclear as to how we may look at it, and I think pints made by Bob are valid. And the second thing is that I personally. don't have a problem with the kind of GRFA on a single-family duplex, or, primary/secondary, and we may look at them a different way and I think it is unfair not to talk to DEO the Planning Commission about that. SLIFER: Yes? UNKNOM: I eertainly very much approve of the action you have taken. But it seems to me that it points up that maybe the ordinance ought to be reviewed. I was very interested in what Bob Ruder had to say concerning the philosophy in back of the ordinance and so long as Bob is here to explain that, thats fine, and I think it enables Council to make these individual decisions, but, if Bob someday isn't on the Council to give that philosophy, I think the ordinance itself ls too restrictive with respect to that IO% in the last whatever - square foot, and I would like to suggest that the Council try to modify that oridnance to stitl accomplish the philosophy that Bob expressed without restrlcting so much the size of primary/secondary houses.on good size 1ots, because in fact I think it is too restrictive. So long as it doesn't come into a ten bedroom house thats suddenly divided up with separate entrances. SLIFER: Good. L. RIDER: Mr. Mayor, I think that I would iust iump into the conversation and state that I think the ordinance is clear in what can be done and what can't be done and the purposes of Variances, adn I think what we may need to do, maybe at the next study session, would be to discuss it, and if the Council wishes to proceed with these kinds of actions, that what they'l] have to do is provide a Section in the zoning ordinance called "Exceptions", because this kind of 2/18/2014 , I +' ,+ 'j TRANSCRIPT - T{}IYN COT'NCIL UEETING 5-'2:78 Ps, 29 Werst6i R.estdenc€ - Request fqr GBFA and Sethack Yarfance. Rider Continued: OtBSrti&Bfg action was reaL1y not a varlance, Its an exception, and if that is what the CouncLl wants to do tbats great, we can do it, but I think that it needs to be, maybe some of the nisunderstandlngs between PLanning.Comlsslon and Councll , could be wrapped up with a general discusslon ln a rork session. I would think that night be appropriate as soon as poseible. StIFtsR: Any further discusslon? END THIS SEGMENT. 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: Commercial Ski Storage and Private Ski Clubs PRESENTER(S): Jonathan Spence and George Ruther ACTION REQUESTED OF COUNCIL: To update the Town Council on Commercial Ski Storage and Private Ski Clubs following an initial presentation before the Planning and Environmental Commission. BACKGROUND: The storage of skis and skiing related gear has evolved from the storage of equipment to a personal service desired and often expected by our guests. As this land use has evolved, the Town of Vail Municipal Code has remained static, choosing instead to characterize the new uses as variants of other uses. As a result of this inaction, the town code is unable to provide the necessary regulatory framework to effectively and fairly uphold the intent of the Lionshead and Vail Village Master Plans and the Town Zoning Code itself STAFF RECOMMENDATION: None ATTACHMENTS: Ski Storage/Ski Clubs Update 2/18/2014 TO: Vail Town Council FROM: Community Development Department DATE: February 18, 2014 SUBJECT: Ski Storage/Ski Clubs Update I. INTRODUCTION At the conclusion of the February 4, 2014 Town Council Public Hearing on ski storage/private ski clubs, the Council requested that staff return on February 18, 2014 with an update. This is an update of the Planning and Environmental Commission worksession on this item that occurred on February 10th. Please find attached to this memo the PEC Staff report with attachments, a letter to the Town Council from Dominic Mauriello dated February 10, 2014 and the draft minutes from the worksession. II. SUMMARY Following a presentation by staff, the Planning and Environmental Commission engaged in a dialogue with staff and interested members of the community in attendance. The question and answer format below is an attempt to convey the major ideas, themes and concerns of the meeting in a clear, concise fashion. Q1. Why is the Commission seeing this item at this time and why are changes to the horizontal zoning scheme being considered? A1. A request to consider a ski storage/ski club operation on the second floor of the Vista Bahn building was received by the Community Development Department. A moratorium was placed on the acceptance of any formal applications concerning this type of use to give the town and the community an opportunity to gain a better understanding of the use, its opportunities and challenges. The Town Council has directed staff to explore with the PEC and the community the possibility of allowing ski storage/ski clubs in locations other than the basement or garden level, namely the second floor and above of structures in Vail and Lionshead Villages. Q2. Is the displacement of other uses (office) resulting from an expansion of allowable locations for ski storage/ski clubs a concern? 2/18/2014 Town of Vail Page 2 A2. With the assistance of area commercial real estate brokers, staff has concluded that the likelihood of ski storage/ski clubs displacing office uses is minimal because of the locational and financial characteristics that factor into office uses in the villages. Q3. What are the opportunities that an expansion in the allowable locations for these uses affords? A3. Members of the community expressed the benefits of getting skiers out of their gear so as to utilize the shops and restaurants of the villages. Also expressed was the benefit of allowing the market sufficient latitude to innovate to meet guests’ evolving needs. Q4. What are the challenges of expanding allowable locations for these uses? A4. Concerns expressed include: • Privatization of business operations. • Changing land use regulations to address expectations of 300 people as opposed to tens of thousands. • No benefits of changes in regulations to non-skiers. • Considering rule changes for a specific business in a specific location as opposed to looking at ski storage/ski clubs holistically. • Dark spaces/seasonality • Oversaturation of use. • Drop off and pick up of ski equipment • Drop off and pick up of guests utilizing ski storage/ski clubs • Diminution in attractiveness of the villages to local residents. Q5. Can the Town of Vail collect a tax or user fee on ski storage/ski clubs to offset possible losses in direct sales tax generation? A5. The Town of Vail can explore different fee and taxing possibilities. Q6. What guests are we targeting with the proposed changes? What exactly are we trying to achieve? A6. Ski storage/ski clubs range tremendously in their target clientele. Unless regulated through use or development standards, new ski storage/ski clubs could operate in a number of different ways. If a particular set of users or guests is considered underserved or deserving of special attention, the code language can be written to target specific user groups. It is important to always consider the multitudes of guests attracted to Vail and to use caution when tailoring regulations to meet the actual or perceived needs of a small subset. The maintenance and enhancement of the Vail brand and experience for visitors and local residents must be considered with any changes to land use regulations. 2/18/2014 Town of Vail Page 3 Q7. There is a need for a balanced approach to this issue. Can this be achieved? A7. The balancing of the specific interests of property owners and user groups with the more general interests of Vail residents and guests is challenging. Staff encourages the decision makers to be thoughtful and deliberate in reviewing the enhanced opportunities and additional challenges posed by allowing ski storage/ski clubs in locations other than the basement or garden level. Q8. What about the enforcement of existing and possible future regulations? A8. The code’s inability to evolve concurrently with the changes in the land use has created challenges for enforcement. One goal of this project is to have regulations that are easily understood and that can be equitably enforced. All new proposed regulations will require careful review to ensure their practicality as it relates to enforcement in addition to their effectiveness in achieving desired results. Q9. In some instances ski storage/ski clubs appear to be accessory to other operations, including retail shops, ski repair/rental and more generally, hotel operations. How can this be addressed? A9. Allowing ski storage/ski clubs as an accessory use to other permitted uses may be possible and may help to address some of the concerns outlined. This is an avenue that may be worth exploring in greater detail. Q10. Can the use chart prepared by staff be narrowed by grouping some of these categories? A10. Yes, the categories can be reduced and staff will return on February 24th with draft language concerning use definitions. Q11. Are there any drawbacks to a trial run approach to changing allowable locations? A11. Staff explained the situation that arises when regulations are changed and discussed the effects of nonconforming uses on land use regulations, utilizing real estate office uses as an example. Q12. What if the Planning and Environmental Commission requires additional time to fully understand and confidently make recommendations to the Town Council concerning ski storage/ski clubs? A12. Staff outlined the timeframe and schedule established with Town Council to meet the moratorium imposed deadline. Staff clearly established their intent to return to the Town Council with a recommendation from the Planning and Environmental Commission within the established timeframe. Members of the 2/18/2014 Town of Vail Page 4 Commission recognized the need to move deliberately with this item and take the time necessary to provide the council with thoughtful, fully vetted, recommendations. III. NEXT STEPS Staff will be returning to the Planning and Environmental Commission on February 24, 2014 to continue the conversation on ski storage/ski clubs with draft language concerning new use definitions and ideas on how to mitigate possible negative impacts resulting from an increase in ski storage/ski club locations. Staff intends to return to the Town Council on March 4, 2014 with a recommendation and preferred alternative from the Planning and Environmental Commission. 2/18/2014 Town of Vail TO: Planning and Environmental Commission FROM: Community Development Department DATE: February 10, 2014 SUBJECT: A worksession with the Planning and Environmental Commission to explore regulatory options resulting from a change in policy related to ski storage and ski clubs. (PEC140003) Applicant: Town of Vail Planner: Jonathan Spence I. INTRODUCTION In the Spring of 2013 the Department of Community Development received a written request for a use determination concerning ski storage/ski club type uses on the second floor of the Vista Bahn Building, formerly occupied by the Tap Room bar and restaurant. This request was utilizing for its basis the 2006 determination by Town Council that a ski club with ski storage where the storage did not utilize in excess of 30% of the floor area was, for the purposes of zoning, the same as a “cocktail lounge and bar,” a defined use in the Town Code. This determination allowed the Cordillera Gondola Club to operate out of the third floor of the Vista Bahn Building since that time. On June 18, 2013, the Vail Town Council enacted a moratorium on the acceptance and processing of land use applications involving ski storage/ski clubs to December 17, 2013. The purpose of the moratorium is to enable the community to study their effects, with consideration for the Town’s existing land use regulations and master plans. This moratorium has been extended to March 19, 2014 to allow additional time to complete the necessary analysis and review. The Community Development Department presented a historical background on the Commercial Ski Storage use at the January 7, 2014 work session before the Town Council. At this meeting the council requested additional information concerning sales tax generation, the varieties of ski storage/ski clubs in operation and about the possible impacts ski storage/ski clubs on existing or future business/professional office uses Staff returned to the Town Council on February 4, 2014 with the information requested to build upon the previous conversation and for a determination on what changes, if any, to the policy on Commercial Ski Storage and private ski clubs may be appropriate. The direction provided for staff is included in Section II below. 2/18/2014 Town of Vail Page 2 II. PURPOSE This worksession before the Planning and Environmental Commission is intended to familiarize the commission with the issue and begin to explore regulatory mechanisms that reflect the Town Council’s policy direction. It is the intent of the Community Development Department to return to the Planning and Environmental Commission on February 24, 2014 with draft language for a recommendation to the Town Council. The following problem statement, goal, objectives and council direction provide a summary of the issues that are to be addressed: Problem Statement The storage of skis and skiing related gear has evolved from the storage of equipment to a personal service desired and often expected by our guests. As this land use has evolved, the Town of Vail Town Code has remained static, choosing instead to characterize the new uses as variants of other uses. As a result of this inaction, the town code is unable to provide the necessary regulatory framework to effectively and fairly uphold the intent of the Lionshead and Vail Village Master Plans and the Town Zoning Code itself. Goal To adopt language that accurately defines existing ski storage and ski club type uses; provides a regulatory framework that promotes guest service and the Vail brand; implements a revised policy on ski clubs/ski storage and that allows for the fair and consistent enforcement of these uses in the Town of Vail. Objectives • Clearly define all new terms. • Balance the intended benefits with foreseen and unforeseen challenges. • Use language that is unambiguous. • Create regulations that allow for fair, consistent and practical enforcement. Council Direction On February 4, 2014 the Vail Town Council directed staff to engage the Planning and Environment Commission and the community on revisions to the Vail Town Code to reflect the variety of ski storage type uses in existence and to address a revision to the policy on the allowable locations for these uses. Specifically, the Town Council instructed staff to explore locating ski storage and ski club type uses above the first floor or street level of a building. 2/18/2014 Town of Vail Page 3 III. BACKGROUND On September 26, 1989, the Planning and Environmental Commission (PEC) unanimously approved a request to amend the Commercial Core I zone district to include commercial ski storage as a permitted use in the basement or garden levels of a structure. Many requests were being made at that time to locate commercial ski storage operations on the first floor or street level, which was the impetus for the creation of the new use. Prior to this, ski storage facilities were being permitted as accessory to a ski shop or a personal service business if located in the basement or garden level. The use was restricted to basement or garden levels with the recognition that personal service uses did not provide the dynamic retail storefronts that are essential to the pedestrian character of Lionshead and Vail Village. This was done in keeping with the purpose of the horizontal zoning regulations passed by the Vail Town Council fourteen years prior. This approval became effective with the passage of Ordinance 26, Series of 1989. The definition reads as follows: COMMERCIAL SKI STORAGE: Storage for equipment (skis, snowboards, boots and poles) and/or clothing used in skiing related sports, which is available to the public or members, operated by a business, club or government organization, and where a fee is charged for hourly, daily, monthly, seasonal or annual usage. Ski storage that is part of a lodge, or dwelling unit, in which a fee is not charged, is not considered commercial ski storage. IV. CONSIDERATIONS Existing Policy on Commercial Ski Storage The existing policy on ski storage stems largely from the characteristics of its use at its inception in 1989. At that time, the use could be characterized as warehousing and was best suited for areas least accessible and visually discrete to the guest. As a use with minimal vitality and no direct sales tax generation, Commercial Ski Storage joined other uses including barber shops and professional offices that were considered appropriate on the basement and garden levels but not on the first floor or street level of a structure. Horizontal Zoning In the early to mid 1970’s, an imbalance of land uses was identified as a threat to the character of Vail Village, resulting in a concerted effort to encourage a more desirable mix of land uses.1 In 1975, the Vail Town Council passed Ordinance No. 16, which established horizontal zoning within the Commercial Core I zone district — part of the purpose of which was “to promote a variety of retail shops at the pedestrian level.” Since then, the Vail Town Code has been amended to further refine horizontal zoning. 1 Town Council minutes from September 2, 1975; memorandum from Community Development to the PEC dated February 13, 1975; memorandum from the PEC to Council dated July 11, 1974. 2/18/2014 Town of Vail Page 4 In 1978, the horizontal zoning concept was applied to Lionshead with Ordinance No. 50. With Ordinance No. 39, Series of 2007, the terms basement or garden level, and first floor or street level were clarified. In that ordinance, it is stated, The intent of this “horizontal zoning” technique is to encourage a vibrant retail environment adjacent to the pedestrian areas of both Vail Village and Lionshead; while also facilitating mixed use developments composed of office, residential and commercial uses. The concept of horizontal zoning has been embraced within the Town’s master plans. In the Vail Village Master Plan, horizontal zoning is cited as a means of achieving Goal #2, which is: TO FOSTER A STRONG TOURIST INDUSTRY AND PROMOTE YEAR- AROUND ECONOMIC HEALTH AND VIABILITY FOR THE VILLAGE AND FOR THE COMMUNITY AS A WHOLE. The Planning and Environmental Commission has advocated for horizontal zoning since its inception, preferring retail at first floor or street level locations because the use fosters street life, provides vitality and generates more tax revenue than service related uses.2 Evolution of Use Commercial Ski Storage, as codified and defined in 1989, was largely a back-of-house operation where skis were accepted from guests, at slopeside or other locations, placed on carts and then stored. Another iteration of the use common at that time was the individual for-rent ski locker. This use enabled individuals to keep their equipment in close proximity to the ski slopes, which was also located largely away from public view in the basement or garden level. Since that time, the use has been refined significantly. The ski storage/concierge service use has become an expected guest service. Skis are still accepted slopeside and are stored below grade but additional guest services are offered in a club setting including food and beverage, upscale lockers and socializing areas. Club membership availability is limited with extensive waiting lists occurring at many of these social establishments. Examples of this type of use include the Vail Mountain Club, located in Mountain Plaza, and the Passport Club, located at Golden Peak. Several lodging properties, including the Sebastian, Sonnenalp and the Four Seasons Resorts, have opened up operations near the ski slopes to offer their guests similar services. The Four Seasons provides individual lockers on the second floor of the “Hong Kong Café” building that store helmets, gloves etc. while the skis and snowboards 2 PEC minutes: September 26, 1978 (Benchmark Real Estate Offices); October 24, 1978 (Brandess/Cadmus Real Estate Offices); June 23, 1997 (Vail Associates Commercial Ski Storage); January 9, 2012 (Treetops Commercial Space) 2/18/2014 Town of Vail Page 5 are carted and stored in the basement. Other services offered in addition to the lockers are socializing areas and limited food and drink. These operations function similar to the established ski clubs. Since the January 7, 2014 worksession with Town Council, staff has met with many of the operators of ski storage/ski clubs. As anticipated, the use has evolved considerably and can be separated into five (5) distinct classifications. Each classification has its own attributes and impacts. The seasonality of use and its impacts on the guest experience, commercial vibrancy, village vitality and sales tax collections was recognized as a concern by Town Council at the January 7th meeting. The chart below is an attempt to illustrate the five (5) classifications, their seasonality and their similarities and differences with the shaded cells indicating a general departure from the historic Commercial Ski Storage use. Sales Tax Generation As requested at the January 7, 2014 Town Council Worksession, the Community Development Department with the assistance of the Finance Department has put together average sales tax generations per square foot based on an analysis of seven (7) restaurants located in either Vail or Lionshead Village. The average sales tax generation per square foot on a yearly basis is $17.00. For a restaurant of 2,300 square feet, the yearly generated sales tax would be $39,100.00. Staff also analyzed the sales tax generation numbers for three (3) ski storage/ski club establishments also located in Vail or Lionshead Village. The average sales tax generation per foot on a yearly basis is $2.29. For an operation of 2,300 square feet, the yearly generated sales tax would be $5,267.00 For contextual purposes it is important to remember that the above numbers are direct sales tax only and do not include indirect sales tax generated as a result of a particular use or business. In addition, the direct sales tax numbers do not account for an increase in lodging tax revenues as a result of a rise in lodging rates attributable in part to the level of guest service facilitated by a slopeside ski storage/ski concierge presence. Seasonality and Retail Challenges The locating of uses other than restaurant or retail on the second level pose challenges to Vail’s stated goals and policies. Goal #2 of the Vail Village Master Plan, identified previously, includes the following policy statement: Policy 2.4.1: Commercial infill development consistent with established horizontal zoning regulations shall be encouraged to provide activity generators, accessible greenspaces, public plazas, and streetscape improvements to the pedestrian network throughout the Village. 2/18/2014 Town of Vail Page 6 The potential challenges to locating uses other than retail or restaurant, ski storage and ski clubs uses, are more clearly enumerated in Section V below. All mountain resorts struggle with the seasonality of their economies. The Town of Vail, through significant resource expenditure, has attempted to diminish this seasonality. Any enactment of policy must remain cognizant of the potential dangers of seasonality and its direct and indirect effects on the sales tax generation, vitality and the guest experience. It should be noted that the existence of non-direct sales tax generating uses as permitted uses in the Town Code above the street level or first floor (office, residential and personal services) does not in itself support adding additional uses as permitted or conditional. All uses must be evaluated on their merits in determining allowable locations and operating characteristics within the goals and purposes of the code. The importance of moving forward consciously in a deliberate and well thought out manner can not be understated. The allowance of uses in locations previously not permitted can have far reaching, unanticipated consequences. Although new code language may be repealed or changed if problems arise, the effects can be long term. The existence of nonconforming uses can be an encumbrance on the realization of the Town of Vail’s adopted goals. 2/18/2014 Town of Vail Page 7 Classifications of Commercial Ski Storage/Private Ski Clubs Traditional Ski Storage Private Ski Club Concierge Hotel Service Overnight Slopeside Ski Storage Remote Community Ski Club Customer Base seasonal renters members guests & owners walk-ins members Level of Staffing low high high moderate low Storage Location below grade below grade varied below grade varied Affiliations none varied hotels & condos none private out of town groups Valet none slopeside racks slopeside racks slopeside racks none Seasonality winter mostly year round year round winter only winter only Demand available capacity full capacity varied available capacity available capacity Additional Amenities none food & drink, lounge varied none food & drink, lounge Fee Structure seasonal initiation plus yearly fee room rates & HOA dues nightly initiation plus yearly fee Examples Double Diamond Ski Valet Mountain Club Golden Peak Club Game Creek Club Base Camp (Sebastian) Gorsuch (Four Seasons) Ski Haus (Sonnenalp) Troy’s Ski Shop (Austria Haus) SSV Cordillera Vail Club 2/18/2014 Town of Vail It is the intent of these use distinctions and their corresponding characteristics to assist in the policy discussion and ultimately in the direction staff receives from Council. It is important to remember that revised zoning regulations and development standards resulting from any change in policy will have impacts on the villages’ horizontal zoning schemes. V. CHALLENGES AND OPPORTUNITTIES The Vail Town Council has instructed staff to work with the Planning and Environmental Commission to explore the regulatory framework necessary to actualize the benefits resulting from a revised policy on ski storage/ski club that permits locations other than the basement or garden levels. It is essential for the decision makers to understand and address not only the perceived benefits but also the challenges resulting from this change in policy direction. To do this effectively, staff has created lists of use attributes, both opportunities and challenges, to assist in ensuring that the result of any changes to the code result in a net benefit to the community. To put it in the simplest of terms, we must not create regulations whose unintended consequences result in the diminution, on the whole, of the Vail brand, guest experience, village vibrancy or sales tax collections. Opportunities • Enhance guest experience by increasing the availability of ski storage locations. • Meet guest expectations by increasing the variety and presence of ski storage/ski club options • Increase indirect sales tax generation by encouraging post-skiing expenditures in the villages as a result of being unencumbered of equipment. • Maintain and increase Average Daily Rates (ADR) for area lodging through continued and expanded concierge ski services. An increase in ADR has a direct effect on tax generation through an increase in the amount of lodging tax collected. Challenges • Non-optimal level of direct sales tax generation • Potential seasonality of operation • Restricted hours of operation (no evening activity) • Privatization of guest options and experiences • Outdoor storage of skis and accessories • Transportation by operators of ski equipment between hotel and condominium developments and the ski storage/ski club operation (loading and delivery) • Oversaturation of use within a building or area 2/18/2014 Town of Vail Page 9 VI. QUESTIONS In recognition of the abbreviated time frame as a result of the moratorium and to assist in maximizing the productivity of the worksession, staff has prepared the following questions/requests. This list is not all encompassing and staff encourages the Commission to bring forth additional questions that may assist in the facilitation of the meeting. 1. Should the identified differences in types of ski storage/ski clubs result in a differentiation in allowable use locations? 2. The Council has instructed staff to implement the revision to the policy of ski storage/private ski clubs which may permit these uses to operate in locations other than the basement or garden levels of a structure. What type of use does the Commission recommend is most appropriate? (Conditional, Use by Right, Accessory) 3. Does the Planning and Environmental Commission wish to add to the opportunities and challenges presented in Section V? 4. Staff requests the Commission discuss each opportunity and concern and any code provisions that are to be most effective in response. VII. NEXT STEPS It is staff’s intent to explore the ideas and alternatives presented by the Planning and Environmental Commission and return on February 24, 2014 with draft regulations that attempt to address both the opportunities available through the change in policy and the unintended consequences resulting from the expansion of allowable use locations. VIII. ATTACHMENTS A. Letter to Council from Mauriello Planning Group, 02-03-2014 2/18/2014 !!!! February 3, 2014!! Vail Town Council! ℅ Jonathan Spence! Planner! Town of Vail ! 75 South Frontage Road! Vail, Colorado 81631!!! Re:!Ski Club Uses on Second Floor!! Dear Town Council:!! Mauriello Planning Group has been working closely the with owner of the second ﬂoor of the Vista Bahn Building, Remonov and Company, Inc., which is located within the Commercial Core 1 zone district. This letter is intended to provide some justiﬁcation for allowing ski club uses with ski lockers and equipment storage on the second ﬂoor of this building and potentially throughout the CC1 zone district subject to a conditional use permit (CUP) approval. We agree with many of the conclusions of the Town staff, primarily that the use has changed and the Town Code does not address the different types of ski locker facilities very well.!! Guest Demands and Location As you are undoubtedly aware, locals and guests within Vail and throughout the region demand the convenience of having quality ski locker facilities in very close proximity to the base of Vail Mountain. Many skiers and riders today want to limit how far they have to walk in ski boots, and to a lesser degree snowboard boots, and with skis, poles, helmets. Those with kids also understand the difﬁculty of transporting the family with all of the equipment great distances through Vail Village. Additionally, as the skier population starts to age, the demand for convenience and limited stress become paramount and the demand for such locker facilities will only increase. Clearly, in Vail it is quite evident that the demand for the use exists and therefore the Town should make reasonable accommodation to the market demands.!! Community Beneﬁt of the Use The beneﬁts to visitors and guests are obvious. Locker facilities located near the Gondola reduce stress, enhance the entire ski experience, and improve the shopping and dining experience. The business and retail community beneﬁt from the secondary affects of having skiers, boarders, and guests walking around the core retail and dining areas in comfortable clothing and without having to worry about the security of their expensive equipment. Skis, boards, gloves, boots, helmets, and poles are all secured and ready for the next visit. When guests are able to walk through or around the Village without these encumbrances, they are far more likely to spend money in the local shops versus the alternative. Many are also more likely to remain parked in the local parking structures thus generating additional parking fees to the Town. One additional beneﬁt is that those storing their equipment in Vail helps to ensure they Mauriello Planning Group MPGVail.com P.O. Box 4777 dominic@mpgvail.com Eagle, CO 81631 970-‐376-‐3318 2/18/2014 will return to Vail to ski versus skiing in Beaver Creek which for many is a more proximate option (46.7% of our locker users are located in outside of Vail but in Eagle County). To some degree, ski lockers help to create Vail loyalty.!! Remonov conducted a survey of its ski club locker users located in the basement of the Vista Bahn Building (survey attached) and found that in fact the users do spend more time and money in Vail Village due to the ski locker amenity. While the survey is not intended to be an overly scientiﬁc study, it does demonstrate that those using lockers are more likely to be spending more money in local shops and restaurants then those that are either walking directly back to lodging facilities or to their cars. Of the respondents, 71% (there were 100 respondents to survey in total) indicated that without the locker they would be more likely to bypass shopping and dining opportunities.!! Revenue Impacts The staff memo provided sales tax generation analysis of ski locker facilities and restaurants. They found that locker/club facilities were a relatively low generator of direct sale tax collections with an average facility at $2.29 per sq. ft. whereas a restaurant facility generates more on the order of $17.00 per sq. ft. in direct sale tax collections. However, the analysis is missing what other uses that are uses permitted by right in basement and second ﬂoor locations and the related secondary impacts (i.e., the spending of those guests using locker facilities).!! Professional ofﬁces were not analyzed as part of the staff study. Ofﬁces have a limited average sales tax collection (probably close to $0 per sq. ft.). Personal services (beauty shops, nail salons, etc.) also have limited sale tax collections. However, these uses have other beneﬁts as a service and amenity including the generation secondary revenue impacts. Ski locker facilities have similar secondary sale tax generation impacts. !! In 2013, the Vista Bahn Building ski locker facility had an estimated 33,000 visits (average of two people per visit or 66,000 total people) and based on the survey results at least half of these people/couples are spending $51 or more ($51 average based upon the survey results) or $1,683,000 in total spending (this number is intended as an order of magnitude). Compare that to a professional ofﬁce with 4 principals and 6 support staff and maybe 4 daily visits by clients. For the sake of argument that’s 14 people per day coming to the ofﬁce and working 300 days per year; that’s 4,200 people coming to Vail Village per year (compared to 66,000 visiting the ski lockers). What are these folks spending per day on average in Town? Again let’s estimate they spend $25 per day each, that’s $105,000 per year. Clearly that number is high but it gives one an idea of the relative revenue impacts compared to a ski locker facility even as exaggerated as it may be. !! Displacement of Other Uses Its been stated that one of the concerns with allowing this guest amenity on the second ﬂoor within the CC1 district is the displacement of other desirable uses on the second ﬂoor in Vail Village. We spent some time examining the existing uses located on second ﬂoors throughout the core area. Most uses on the second ﬂoor are residential condominiums. There are also some hotel rooms located on the second ﬂoor. There are a couple of examples of retail spaces on the second ﬂoor, all of which are connected to a retail use located on the ﬁrst ﬂoor (Pepi’s Sports and Gorsuch are examples of this). There is one example of a restaurant use on a second ﬂoor, Los Amigos. A few real estate ofﬁces exist on the second ﬂoor including Ron Byrne’s ofﬁce and some small ofﬁce spaces in the Wall Street Building, as examples. The Ritz Club space in the Rucksack Building is in the process of being converted to a residential condo, a use by right on the second ﬂoor in the CC1 District. !! As these examples point out, there is a low likelihood that the ofﬁce and retail spaces would be consumed by ski club or locker uses. Even with the extreme demand for residential uses in the 2000s, none of these retail and ofﬁce spaces were converted to a residential.!! The idea that this use is so attractive that it would displace all other uses is not supported by history. All of the restaurants, night clubs, and bars that exist today throughout Vail Village at the basement level (Vendettas, Shakedown Bar, Loaded Joe’s, Samana Lounge, and Whiskey Jacks) remain as active commercial uses and yet these are locations where a ski club or locker facility could be located today as a use by right for the last 30 years. This displacement fear is not supported by the experience in Vail Village.!! Proposed Code Language We agree that protecting the ﬁrst ﬂoor uses is important and are not suggesting any changes to the current protections. We believe that it is reasonable to allow ski lockers and club-like facilities as a Conditional Use Permit (or as a permitted use) on the second ﬂoor and above. This requires review and approval by the PEC with the usual call-up provision afforded to the Town Council. The PEC must apply all of the review criteria and ﬁndings typical of a conditional use permit request. These review criteria include:!! 1.Relationship and impact of the use on development objectives of the town.! 2.Effect of the use on light and air, distribution of population, transportation facilities, utilities, schools, parks and recreation facilities, and other public facilities and public facilities needs.! 3.Effect upon trafﬁc, with particular reference to congestion, automotive and pedestrian safety and convenience, trafﬁc ﬂow and control, access, maneuverability, and removal of snow from the streets and parking areas.! 4.Effect upon the character of the area in which the proposed use is to be located, including the scale and bulk of the proposed use in relation to surrounding uses.! 5.Such other factors and criteria as the commission deems applicable to the proposed use.! 6.The environmental impact report concerning the proposed use, if an environmental impact report is required by chapter 12 of this title.!! The PEC also must make the following ﬁndings to approve any conditional use permit:!! 1.That the proposed location of the use is in accordance with the purposes of this title and the purposes of the zone district in which the site is located.! 2.That the proposed location of the use and the conditions under which it would be operated or maintained will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity.! 3.That the proposed use will comply with each of the applicable provisions of this title.!! We believe this review process and the criteria gives the Town an opportunity to review such a use critically. However, if the Town desired “use speciﬁc criteria” to provide additional protection to the Town, Section 12-16-7: Use Speciﬁc Criteria and Standards could also be amended to add criteria speciﬁc for this use. For instance, the location of the use and its proximity to the gondola might be a relevant criteria and might prevent such uses in more remote areas of the CC1 zone district.! ! Conclusion It is apparent that ski lockers and clubs provide an important amenity to locals and guests of Vail Village and that there are ﬁnancial beneﬁts to the business community and the Town’s coffers by allowing for the use. Allowing these ski clubs and locker facilities on the second ﬂoor are not likely to negatively affect the vibrancy of the retail core of the village and in fact will likely add to the vitality of the Town. !! We encourage you to make this code amendment and allow our client to move forward with reasonable economic use of his property before another season passes by. Come April, my client will have been delayed a year by this process. !! We appreciate your consideration. !! Sincerely,! Dominic F. Mauriello, AICP! Principal!!! Ski Locker Room Survey Results 2013-‐ 2014 Ski Season Vista Bahn Building – 333 Bridge St. Vail, CO. Survey conducted January 6 – February 2, 2014 100 Surveys Completed (200 total lockers/176 leased) 1. I am a Returning Guest 95% New Guest 2.5% Hotel Guest 2.5% 2. My residence is in Town of Vail 33.3% Eagle County 46.7% Out of Eagle County 20% 3. How many people in your party use this locker? 1 17% 2 56% 3 20% 4+ 7% 4. How many days per year do you expect to use the locker (i.e., days you or someone in your family come to ski/ride)? 1-‐7 2% 8-‐14 6% 15-‐24 15% 25 – 34 13% 35 -‐ 44 4% more than 44 days 60% 5. If you did not have a convenient ski locker, would you be more likely to by-‐pass shopping and dining opportunities in Vail (i.e., walk straight to your car, home, condo, hotel room without shopping/dining)? Yes 71% No 11% or 18% maybe but definitely less than without my ski gear 6. On average how often do you frequent Vail restaurants, bars and stores before, during, or after skiing during the ski season? Never 0% 1-‐2 shops/restaurants each time 6% 3-‐4 56% 5+ 38% 7. On average, how much do you spend in the restaurants, bars and stores before or after skiing each time that you use your locker? $0-‐$20 13% $21-‐$50 31% $51-‐$100 29% More than $100 27% Thanks for taking the time to answer our survey. The Remonov Team 2/18/2014 From: Dominic Mauriello [mailto:dominic@mpgvail.com] Sent: Monday, February 10, 2014 8:38 AM To: Council Dist List Cc: Jonathan Spence Subject: Ski Club/Storage Follow-up Dear Towncouncil Members: I wanted to follow-up with you on two items from the meeting last week. Since this is a legislative item, it is proper for me to contact you directly. First, there was a lot of rhetoric about the impacts of allowing ski clubs on the second floor and how that would displace Los Amigos restaurant. The space that Los Amigos occupies, because of its orientation to grade on the south side of the building, is considered a first floor space so it would be unaffected by allowing ski club uses on the second floor. Ski clubs and commercial ski storage are not allowed on the first floor. I verified this information with Town staff. I thought it was important to correct statements made by several people at the hearing in this regard. Second, I wanted to follow-up on a question from Jenn regarding the types of leases envisioned in the proposed Vista Bahn ski club. Most of the lockers would be leased on a more seasonal basis. The number of lockers available for short terms guests will be directly related to the number of lockers leased by hotels or condominium projects for use by their guests. Other than hotel and condo guests, there would not be daily locker rental available. Thank you again for taking up this issue and providing direction to the PEC and staff to move forward with allowing ski club locker use on the second floor subject to a conditional use permit with appropriate safeguards. Sincerely, Dominic F. Mauriello, AICP Mauriello Planning Group, LLC PO Box 4777 2205 Eagle Ranch Road Eagle, Colorado 81631 970-376-3318 cell www.mpgvail.com 2/18/2014 Page 1 PLANNING AND ENVIRONMENTAL COMMISSION February 10, 2014 at 1:00pm TOWN COUNCIL CHAMBERS / PUBLIC WELCOME 75 S. Frontage Road - Vail, Colorado, 81657 MEMBERS PRESENT MEMBERS ABSENT Bill Pierce Luke Cartin Henry Pratt Susan Bird Michael Kurz John Rediker departed at 3:05 prior to the start of the 3rd item Pam Hopkins Site Visit: 1. Medley Residence – 4444A Streamside Circle 15 minutes 1. A request for a final review of a variance, from Section 12-14-17, Setback From Water Course, Vail Town Code, pursuant to Chapter 12-17, Variances, Vail Town Code, to allow for additional gross residential floor area within the stream tract setback, located at 4444A Streamside Circle/Lot 11, Bighorn Subdivision 4th Addition, and setting forth details in regard thereto. (PEC140001) Applicant: Mark Medley, represented by Steven James Riden Architect Planner: Joe Batcheller ACTION: Tabled to February 24, 2014 MOTION: Hopkins SECOND: Bird VOTE: 5-1-0 (Kurz opposed) Joe Batcheller gave a presentation per the staff memorandum. Commissioner Kurz asked if the Environmental Sustainable Coordinator had been consulted with regard to the application. Joe Batcheller stated he had not spoken with the Environmental Sustainability Coordinator. He added that he had spoken to the adjacent duplex owner who asked that the trees to be relocated on the west elevation be ensured to survive. Commissioner Pierce asked about the age of the trees planted on the west elevation and the finished floor elevation of the basement and the high water elevation. Steven Riden spoken to the trees having been planted 4 or 5 years ago. He then spoke to the difference between the floor elevation and high water elevation. Commissioner Hopkins inquired how the sub-pumps would be powered. Steven Riden stated they would be you typical electric pumps with floats to trigger the power. Commissioner Hopkins also asked how the high water mark was determine. Steven Riden did not know; it was on the survey. Commissioner Bird asked how the limit of disturbance fence works. Steven Riden said that it was a construction fence with a silt fence attached. There was no public comment. 2/18/2014 Page 2 Commissioner Pratt asked if it were relevant to the request that the property has changed ownership since the adoption of the stream setback regulations. Commissioner Rediker asked two questions. How does staff’s recommendation jive the Town trying to eliminate encroachments into the Streamtract? Are there any studies regarding impacts of concrete walls so close to the creek? Joe Batcheller stated he had no information on the second question; and that the condition with the approval is an attempt to mitigate any potential impacts to the steam. Warren Campbell clarified the difference between efforts to improve town owned stream tracts and private property that fronts streams. Steven Riden responded that the owner intends to do some work to protect the bank and with regard to native vegetation. He spoke to the depth of the existing foundation being nine feet on the south side and it steps up on the west side. The foundation will need to be extended down to a deeper depth. Commissioner Rediker asked about the Army Corps of Engineers having been consulted or was their involvement needed. Joe Batcheller spoke to the application not needing the Corps review. Commissioner Kurz asked George Ruther, Director of Community Development, if there was anything precluding the Environmental Sustainability Coordinator from reviewing applications such as this. He added that he struggles to evaluate a request such as this which may have impacts on stream health when the Water Quality Improvement Plan doesn’t allude to cause and therefore solutions to solve the problem. George Ruther stated there wasn’t; however, the town staff has been enforcing encroachments onto publicly owned property and not improvements on private property. Commissioner Bird inquired as to the methods used to construct the improvements and how materials and equipment will be prevented from causing negative impacts to the creek. Steven Riden elaborated on the ability to construct the improvements. Commissioner Pratt asked if the path around the house was critical to the design. Steven Riden stated that his owner desired the path. Commissioner Pierce asked how the dirt would be removed from the crawlspace. Steven Riden spoke to the soil being removed from the west side window wells. Jim Lamont, Vail Homeowners Association, spoke to his group’s goal of have fair and equitable treatment. The salient issue is that there are criteria to be used in evaluating this request. He added that he does not believe there are clear, enforceable standards for what can occur within the stream setback with regard to landscaping. He highlighted that he has spoken to plant specialists and it is his belief that a plan for streambank vegetation needs to be developed. He believes there needs to clearer ordinances with regard to the stream setbacks. George Ruther spoke to breaking the application into two questions. First does the application comply with the criteria. Second apply any conditions necessary to address the concerns, if any. 2/18/2014 Page 3 Commissioner Pratt stated that the basement excavation was in compliance, however, the walkout was not in compliance. Commissioner Kurz stated that he voted in opposition to the tabling as he did not feel a hardship had been proven. 30 minutes 2. A request for a recommendation to the Vail Town Council for a zone district boundary amendment, pursuant to Section 12-3-7, Amendment, Vail Town Code, to allow for a rezoning from the High Density Multiple-Family District to the Vail Village Townhouse District, located at 303 (Vail Rowhouses 7-13) and 483 Gore Creek Drive (Texas Townhomes)/ Lots 7-13, A Resubdivision of Block 5 and a part of Gore Creek Drive, Vail Village Filing 1, and Lots 1 – 9 Vail Village Filing 4, and setting forth details in regard thereto. (PEC140002) Applicant: Town of Vail Planner: Jonathan Spence ACTION: Recommendation of approval MOTION: Kurz SECOND: Hopkins VOTE: 6-0-0 Jonathan Spence gave a presentation per the staff memorandum. Commissioner Pratt asked for clarification regarding the creation of the zone district and the fact that no properties were currently in that zoning. He then asked why the Town was making the application. He followed up with a question regarding whether or not this would be “spot zoning”. Jonathan Spence responded with a brief history of the VVT District and why the town was the applicant. Spence also explained spot zoning and why this effort, supported by the Vail Village Master Plan, is no considered spot zoning. Commissioner Kurz asked for precedence with regard to zoning a property in the face of opposition or have properties been allowed to opt out? George Ruther spoke to the rezoning of Lionshead as a result of the Lionshead Redevelopment Master Plan. John Dunn, attorney for Dolph Bridgewater, stated his clients were neutral with regard to this request. Dominic Mauriello, spoke to the history of the application which included the town taking over the concept of the VVTH district which landed the responsibility for applying the district with the town. Several properties are just not comfortable with opting in to the application to rezoning, much as the Vail International was not comfortable with being rezoned Lionshead Mixed Use-1 district when the opportunity presented itself. 90 minutes 3. A request for a recommendation to the Vail Town Council for prescribed regulation amendments, pursuant to Section 12-3-7, Amendment, Vail Town Code, to amend Titles 12 & 14, Zoning Regulations and Development Standards, pertaining to the definitions, use restrictions and development standards for Commercial Ski Storage and Private Ski Clubs, and setting forth details in regard thereto. (PEC140003) Applicant: Town of Vail Planner: Jonathan Spence ACTION: Tabled to February 24, 2014 MOTION: Kurz SECOND: Bird VOTE: 5-0-0 2/18/2014 Page 4 Jonathan Spence gave a presentation per the staff memorandum. Commissioner Pierce asked what was creating the urgency with this request. Jonathan Spence spoke to the moratorium that expires in March. Commissioner Kurz asked what has changed that would cause the town to not utilize horizontal zoning. Jonathan Spence spoke to how the use has changed and that it may be appropriate to included it as a permitted or conditional uses in certain zone districts. Commissioner Pierce inquired as to what land uses would be displaced if a change was made to include a new land use such as was being discussed. Jonathan Spence spoke to his conversation with several commercial real estate brokers that provided insight on the demands for office and what makes a particular use occur in a location or not. Commissioner Bird stated that she sees a distinction between ownership and leasing of this type of use. Jonathan Spence spoke to how land use regulations do not take into consideration the ownership. There was discussion regarding how the zoning code lists multiple uses, both permitted and conditional, on the various floors of structures in Vail Village and Lionshead. What was being discussed with this request was not the creation of a singular allowed use. Dominic Mauriello, representing Rick Mueller, owner of the Vista Bahn Building. He pointed to the document he provided that is attached to the staff memorandum. He added that the prevailing policy direction given by the Council was to allow the use as a conditional use while providing protection against any unwanted consequences. He spoke to how once a property becomes residential it is unlikely it will ever become a different use. He concluded by stating that this new use will not displace desired land uses which is exhibited by the multiple below grade clubs and restaurants which have not become ski storage/clubs over the past few years. Commissioner Pierce spoke to the Los Amigos as being first floor on the ski yard and second floor along Bridge Street. He added that he sees this as a conditional use. He spoke to the need to understand where clients and guests will expect to be dropped off. Tom Neyens, owner of Ski Valet, operator of ski storage since 1991, stated that this use has become more privatized and is looked to be marketed to groups largely from outside Vail. He does not see an immense need for the use and he has availability. He understands people want to be in the Vail Village, however, do we want this use at the top of Bridge Street? The top of Bridge Street was blighted with the absence of the Tap Room this past summer. He believes this use at the top of Bridge Street will create blight and a dead zone as there will be no draw to the general public. He suggested that the Commission be very careful about making this change. Many of the clubs in existence currently offer free beer and food, which results in no greater generation of tax dollars. 2/18/2014 Page 5 Rick Mueller, owner of the Tap Room Building, spoke to his club concept which would be open to everyone. He spoke to the generation of parking revenue by his users as they parking in the town structures. He highlighted a survey he did of his users and the majority stated that they are more likely to stay in town to enjoy shopping and dining because of this available use. He spoke to a comparison of an office use and the proposed use in terms of the increased flow of people to and from an identical space. His proposal is a part of the ski culture. The market is going to dictate how many spaces go to this land use. All second floor spaces are not going to become ski clubs/storage. What is the town trying to control? The town is constantly trying to bring more people into town and this just continues that goal. Chris Creamer, manager of Ski Haus for Intrawest, spoke to need to figure out who the target market is in this conversation. He believes a retail and rental element is needed to accompany the land use. He has available ski lockers, so he doesn’t see the need. People come to his store and Vail because of convenience. The next great thing is to provide convenience. Commissioner Bird asked what Mr. Creamer uses his space for in the summer. Chris Creamer stated that the below grade storage space is mostly being used for back stock and storage in the summer. Commissioner Pierce spoke to a need for balance. Every space cannot become ski lockers as it would not be attractive to guests. How much space do we have now that could be potential ski lockers? Tommy Neyens stated he gets $1,250 for basic locker service and few amenities. He spoke to cost of locker and club memberships increasing as you go up Bridge Street. Is there anyway to do something at the parking structure? There is no lodge or storage provided at the base of the mountain. He believes the Cordillera Club was a mistake and continuing that would be a mistake. The use should be pushed to the base of Bridge street in close proximity to the parking structures. Jonathan Spence spoke to a need to focus on the policy in this discussion not the specific second floor of the Vista Bahn Building. He used the example of real estate offices having once been permitted on the first floor and then prohibited has made the spaces more valuable (scarcity of allowed spaces) and are likely never to be a different land use. Commissioner Kurz stated that having experience in brand and business development he cannot find any opportunities that outweigh the concerns. He believes this use belongs in the basement and maybe on upper floors like the fourth floor. Jonathan Spence spoke to staff’s desire to provide any information it can to help make the decision. Some data is not possible to find. It would be possible to quantify the amount of space on the lowest level or garden level. George Ruther asked that we open the conversation up as this is a work session. We have already heard about loading and delivery concerns and that it may be more appropriate at the parking structures. Seasonality is an issue that has come up. The need for convenience for the guest. Commissioner Bird suggested there may be issues with public verses private and how does that work. 2/18/2014 Page 6 George Ruther spoke to previous conversations which including a ski storage use as a part of a ski rental shop which has retail. Jeff Babb, representing Vail resorts, stated he is still having difficulty understanding what is trying to be addressed. Each of these is a different animal. The skier guest is looking for these services. Basic overnight ski storage does not make money, it pays for itself. There are waiting lists for some clubs and there is availability in other clubs. He does not believe we want to be in the business of limiting the various markets individuals want to take advantage. Guests want proximity. A family does not want to dress their family in the parking structure but at the base of the mountain. What are we trying to do? Are we looking at ski clubs holistically or a specific space for a business opportunity? Dominic Mauriello suggested that the conversation should not involve available capacity. He believes a need can be demonstrated. Location is what this is all about. As an example the number of open tables at the town’s restaurants is not used as an evaluation tool for whether or not there are enough restaurants or if more are needed. This is a conversation he believes has been going on since he was a planner with the town which was how do we get people out of their skis to spend more time in the villages. A ski locker creates loyalty to a particular resort by the renter of the locker. Commissioner Bird spoke to the possibility to collect tax on initiation fees and a monthly use tax. Commissioner Kurz stated that people who do not ski do not see a benefit from the change of available uses in a proposal such as this. Are we making a change to address 300 people or 10s of thousands? And is that change positive? This is a challenge that is not listed. The extension of the club to include summer activities makes this more appropriate. Commissioner Pratt believes the biggest challenge is to not interfere with market forces. Sees the clubs are a necessary amenity but they limit opportunities. A village full of ski storage is not desired. Office is not likely to rent at the top of Bridge Street. Feels like we are rewriting the code to address a single instance. We need to spend our time anticipating the market instead of trying to control it. A good chef can make a restaurant successful anywhere in a town of this size. He does not believe it is appropriate for him to make these decisions. Jonathan Spence clarified that he believes the Commission is the appropriate authority to make these decisions. Rick Mueller spoke to the past 8 months of lost opportunity. He has spoken to a dozen restaurateurs that have looked at the space and the second floor is of concern. Commissioner Hopkins spoke to her experience with her office in town and when they were permitted to be converted to residential. She continued by explaining the degradation of the community through the loss of office throughout the village. Not a place for locals anymore. Tommy Neyen spoke to the 2006 determination of similar use which was flawed as the Cordillera Club has not operated as a cocktail lounge and bar as it was determined to be the same as. We need to get this down to a manageable discussion. If we want to get people here we need to do daily basket storage, not private lockers. Private lockers and clubs will result in the situation where residences on Forest and Beaver Dam Roads are occupied for a minimal amount of time each year and dark and inactive most of the year. 2/18/2014 Page 7 Commissioner Pierce stated that he does not believe we need to have the amount of basement floor quantified as there is a significant amount of below grade space currently in place. Why haven’t the permitted spaces for commercial ski storage been converted thus far. Commissioner Kurz spoke to a need simplify the chart. It would be important to add value to the brand by making a use year round. Commissioner Pratt stated he believes there needs to be more time to think about this proposal. Tommy Neyens spoke to comments by Councilman Kurz comments about taking the time necessary. Commissioner Pierce spoke to the location of drop off and parking for ski clubs and ski storage being no better than other lodges. 4. A request for a recommendation to the Vail Town Council on a major amendment to a Special Development District No. 6, Vail Village Inn, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow for an increase in gross residential floor area to facilitate additions to existing dwelling units, located at 100 East Meadow Units 501 and 502 (Vail Village Inn Phase 3) /Lot O, Block 5D, Vail Village Filing 1, and setting forth details in regard thereto. (PEC130046) Applicant: Deltec Bank and Trust, represented by Eggers Architect Planner: Jonathan Spence ACTION: Table February 24, 2014 MOTION: Kurz SECOND: Hopkins VOTE: 5-0-0 5. Approval of January 27, 2014 minutes MOTION: Pratt SECOND: Bird VOTE: 5-0-0 6. Information Update 7. Adjournment MOTION: Kurz SECOND: Bird VOTE: 5-0-0 The applications and information about the proposals are available for public inspection during regular office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are approximate, subject to change, and cannot be relied upon to determine at what time the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional information. Sign language interpretation is available upon request with 24-hour notification. Please call (970) 479-2356, Telephone for the Hearing Impaired, for information. Community Development Department Published February 7, 2014 in the Vail Daily. 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: Resolution No. 4, Series of 2014, A Resolution Approving the Ground Lease and Deed Restriction for the Timber Ridge Property. PRESENTER(S): George Ruther ACTION REQUESTED OF COUNCIL: Approve, Approve with modifications, or deny Resolution No. 4, Series of 2014 BACKGROUND: The Town of Vail is interested in redeveloping the eastern 5.24 acres of the Timber Ridge property in Vail. The proposed ground lease and deed restriction documents are necessary to successfully carry out the redevelopment project. With the ground lease and deed restrictions in place, the project will remain on schedule for a Spring 2014 start. Completion of the project is expected by the Fall of 2015. STAFF RECOMMENDATION: The Town staff recommends the Vail Town Council approves the ground lease and deed restriction as presented. ATTACHMENTS: Resolution No. 4 Series of 2014 2/18/2014 1 Resolution No. 4, Series of 2014 RESOLUTION NO. 4 SERIES OF 2014 A RESOLUTION APPROVING THE GROUND LEASE AND DEED RESTRICTION FOR THE TIMBER RIDGE PROPERTY WHEREAS, the Town of Vail is planning a redevelopment project for the Timber Ridge property WHEREAS, the purpose of the redevelopment project is to provide employee housing; WHEREAS, to accommodate the redevelopment project, the Town will be entering into a long-term Ground Lease with the developer of the property, Lion's Ridge Apartment Homes, LLC; WHEREAS, the Ground Lease will be subject to a Deed Restriction governing the use of the property; and WHEREAS, the Town Council wishes to approve the Ground Lease and Deed Restriction in substantially the form attached hereto, and to authorize the Town Manager to execute the Ground Lease and the Deed Restriction at closing. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. The Town hereby approves the Ground Lease for the Timber Ridge property in substantially the form attached hereto and incorporated herein by this reference, subject to final approval by the Town Attorney. Section 2. The Town hereby approves the Deed Restriction for Lion's Ridge Apartment Homes on the Timber Ridge property in substantially the form attached hereto and incorporated herein by this reference, subject to final approval by the Town Attorney. Section 3. The Town Council hereby authorizes the Town Manager to execute the Ground Lease and the Deed Restriction at closing. INTRODUCED, PASSED AND ADOPTED this 18th day of February, 2014. _______________________________ Andy P. Daly, Mayor ATTEST: _____________________________ Tammy Nagel, Acting Town Clerk 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 1 DEED RESTRICTION FOR THE OCCUPANCY OF RESTRICTED UNITS AT LION'S RIDGE APARTMENT HOMES THIS DEED RESTRICTION FOR THE OCCUPANCY OF RESTRICTED UNITS AT LION'S RIDGE APARTMENT HOMES (the "Deed Restriction") is made and entered into this ___ day of ______________, 2014 (the "Effective Date"), by and between the Town of Vail, a Colorado home rule municipality (the "Town"), and Lion's Ridge Apartment Homes, LLC, a Wisconsin limited liability company ("Master Lessee") (individually a "Party" and collectively the "Parties"). WHEREAS, the Town is the owner of certain real property generally described as the eastern half of the Timber Ridge property and more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, the Parties desire to redevelop the Property for employee housing; WHEREAS, the Town, as landlord, and Master Lessee as tenant, have entered into a Ground Lease for the Property dated _______________ (the "Ground Lease"); and NOW, THEREFORE, in consideration of the promises and covenants hereinafter set for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Defined Terms. For purposes of this Deed Restriction, the following terms shall have the following meanings: "Principal place of residence" means the dwelling in which one's habitation is fixed and to which a person, whenever he or she is absent, has a present intention of returning after an absence therefrom. In determining what is a principal place of residence, the Town and Master Lessee may consider, without limitation: location of business pursuits; employment and income sources; residence for tax purposes; residence of parents, spouse and children, if any; location of personal property; motor vehicle registration; and voter registration. "Qualified Household" means one Qualified Resident or a group of persons that contains at least one Qualified Resident (who must sign the Unit lease as a tenant). A Qualified Household may have occupants that are not Qualified Residents (and who may also sign the Unit lease as tenants) as long as at least one occupant who has signed the lease is a Qualified Resident. "Qualified Resident" means a natural person who works an average of 30 hours or more per week at a business in Eagle County, Colorado that holds a valid and current business license, or pays sales taxes, or is otherwise generally recognized as a legitimate business. For example, if a person worked 60 hours per week for one half of the year at such a business in Eagle County, Colorado, and worked elsewhere for the other half of the year, such person would constitute a Qualified Resident. 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 2 "Rental Guidelines" means the guidelines attached as Exhibit B hereto and incorporated herein by this reference. "Restricted Unit" means a Unit that is rented to a Qualified Household pursuant to the terms of this Deed Restriction. "Unit" means each of the residential dwelling units constructed on the Property. 2. Binding Effect. This Deed Restriction shall constitute a covenant running with the Property as a burden thereon, for the benefit of, and enforceable by the Town and the Master Lessee. This Deed Restriction shall bind the Master Lessee and all occupants of the Restricted Units. Each and every occupant of a Restricted Unit shall be personally obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein that are applicable to such occupant during such occupant's respective period of occupancy of a Restricted Unit. Each and every conveyance of the Property or a portion thereof, or interest therein, for all purposes, shall be deemed to include and incorporate by this reference, the covenants contained in this Deed Restriction, even without reference to this Deed Restriction in any document of conveyance. 3. Occupancy. a. The Master Lessee covenants that at least 70% of the total Units in the Property shall be Restricted Units. The Parties acknowledge that the Restricted Units are not fixed and may float so long as at least 70% of the total Units are Restricted Units. For example, assume that the Property contains 100 Units. If 75 of the Units are rented to Qualified Households, and one of such Units becomes vacant, such Unit may thereafter be rented to occupants who are not a Qualified Household, because at least 70 of the Units remain occupied by Qualified Households. b. The Property may contain two additional common areas that shall not qualify as Units, one area to be used by property management personnel, maintenance personnel or security personnel, and one area to be used as a leasing or marketing office. Because such common areas are not considered Units under this Deed Restriction, they shall not be included in the calculation of Restricted Units; provided however, that if such common areas are ever converted into Units, they shall be included in the calculation of Restricted Units. c. A Qualified Resident must occupy the Restricted Unit as his or her principal place of residence. If other occupants of the Restricted Unit are not Qualified Residents, the Restricted Unit need not be their principal place of residence. d. At any time that the number of Restricted Units falls below 70% of the total Units, Master Lessee shall promptly take commercially reasonable efforts in accordance with applicable law and the Rental Guidelines to lease the next Units coming available for rent to Qualified Households in accordance with this Deed Restriction and the Rental Guidelines, until at least 70% of the total Units are Restricted Units. 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 3 4. Unit Lease. No Unit shall be leased or occupied without a Unit lease. Each Unit shall have only one Unit lease at any one time. Each Restricted Unit lease shall include a clear reference to this Deed Restriction and a brief summary of this Deed Restriction, including the remedies upon a violation or breach of the terms of this Deed Restriction, and shall incorporate the terms and conditions of this Deed Restriction. 5. Right To Terminate Lease. Nothing herein shall prevent the Master Lessee from terminating the lease of a Qualified Household, or taking any other legal action against the Qualified Household based upon any tenant's breach of the terms of the lease; provided that if a tenant misrepresents his or her status as a Qualified Resident, Master Lessee shall terminate the Unit lease in addition to any other available remedies. 6. Inspection. In a non-emergency situation, if the Town or Master Lessee has reasonable cause to believe that an occupant of a Restricted Unit is violating any provision of this Deed Restriction, the Town or Master Lessee may inspect the Restricted Unit between the hours of 8:00 am and 5:00 pm, Monday through Friday, after providing the occupant with no less than 24 hours written notice, which notice to tenant may be given by posting on the front door of the applicable Restricted Unit. Nothing herein shall preclude the Town or Master Lessee from accessing a Restricted Unit in an emergency situation where there is an imminent threat to person(s) or property. 7. Annual Verification. No later than February 1st of each year, beginning in the year following the first year of occupancy of the Property, Master Lessee shall submit a written statement to the Town including the following information and stating that such information is true and correct to the best of Master Lessee's knowledge and belief: a. Evidence to establish that 70% of the Units were Restricted Units (i.e., occupied by Qualified Households) during the prior calendar year; b. A list of tenants who occupied the Restricted Units in the prior calendar year and the evidence submitted by such tenants to establish that they were Qualified Residents and/or Qualified Households; c. A copy of the lease form currently used for the Restricted Units; and d. Copies (which may be electronic) of all application information submitted by Qualified Residents actually occupying Restricted Units; provided that such copies will only be provided for one Qualified Resident per Restricted Unit, even if more than one Qualified Resident occupies such Restricted Unit. 8. Violations. a. If Master Lessee discovers a violation of this Deed Restriction by an occupant, or if the Town notifies Master Lessee in writing that there is a violation of this Deed Restriction by an occupant, Master Lessee shall send a notice of violation to the occupant detailing the nature of the violation and allowing the occupant 10 days from the date of the notice to cure said violation to the reasonable satisfaction of Master Lessee and the Town. Notice may be given by posting on the front door of the applicable Unit 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 4 or by other lawful means. If the violation is not cured within such time, the violation shall be considered a violation of this Deed Restriction by the Unit occupant. b. If the Town discovers a violation of this Deed Restriction by Master Lessee, the Town shall send a notice of the violation to Master Lessee, detailing the nature of the violation and allowing Master Lessee 30 days from the date the notice is given to cure said violation to the reasonable satisfaction of the Town. If a forcible entry and detainer is necessary to resolve the violation, the forcible entry and detainer shall be commenced within such 30-day period and diligently prosecuted to completion. If the violation if not cured within such time, the violation shall be considered a violation of this Deed Restriction by Master Lessee. 9. Remedies. a. The Town and Master Lessee shall have any and all remedies provided by law and in equity for a violation of this Deed Restriction, including without limitation: (i) damages, including but not limited to damages resulting from the leasing of a Restricted Unit in violation of this Deed Restriction; (ii) specific performance; and (iii) injunction, including but not limited to an injunction requiring eviction of the occupant(s) and an injunction to prohibit the occupancy of a Restricted Unit in violation of this Deed Restriction. All remedies shall be cumulative. b. In addition to any other available remedies, if Master Lessee is found to be in violation this Deed Restriction (after expiration of any cure period), Master Lessee shall be subject to a penalty of $100 per violation as determined by the Town in each instance. Each occurrence is hereby deemed to be a separate violation of this Deed Restriction, and the penalty may be imposed for each and every day during any portion of which a violation is found to have been committed, continued or permitted by Master Lessee. This penalty shall not apply if it is discovered that an occupant provided false information to Master Lessee, Master Lessee reasonably relied on such false information, and the false information caused the violation. c. If addition to any other available remedies, if an occupant of a Restricted Unit is found to be in violation of this Deed Restriction (after expiration of any cure period), the occupant shall be subject to a penalty of $100 per violation as determined by the Town in each instance. Each occurrence is hereby deemed to be a separate violation of this Deed Restriction, and the penalty may be imposed for each and every day during any portion of which a violation is found to have been committed or continued by an occupant. d. The cost to the Town of any activity taken in response to any violation of this Deed Restriction by the Master Lessee, including reasonable attorney fees, shall be paid promptly by Master Lessee; provided that, if the Town or a court of competent jurisdiction finds that Master Lessee was not in violation of this Deed Restriction, Master Lessee shall not be liable for such payment. 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 5 10. Term. This Deed Restriction shall commence on the Effective Date and shall terminate upon the expiration or termination of the Ground Lease. 11. Modification. This Deed Restriction may only be modified by subsequent written agreement of the Parties. 12. Assignment. Neither this Deed Restriction nor any of the rights or obligations of the Parties hereto shall be assigned by either Party without the written consent of the other. 13. Severability. If any provision of this Deed Restriction is determined to be void by a court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. 14. Governing Law and Venue. This Deed Restriction shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. 15. Third Parties. There are no intended third-party beneficiaries to this Deed Restriction. 16. No Joint Venture. Notwithstanding any provision hereof, the Town shall never be in a joint venture with the Master Lessee, and the Town shall never be liable or responsible for any debt or obligation of the Master Lessee. 17. No Indemnity. Nothing herein shall be construed to require the Town to protect or indemnify Master Lessee against any losses attributable to the rental of a Restricted Unit, nor to require the Town to locate a Qualified Resident for any Restricted Unit. 18. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Deed Restriction, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town or its officers, attorneys or employees. IN WITNESS WHEREOF, the Parties have executed this Deed Restriction on the Effective Date. TOWN OF VAIL, COLORADO ____________________________________ Stan Zemler, Town Manager ATTEST: _________________________________ Tammy Nagel, Interim Town Clerk 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 6 MASTER LESSEE LION'S RIDGE APARTMENT HOMES, LLC BY GORMAN EMPLOYEE GROUP LION'S RIDGE, LLC, Manager BY GORMAN & COMPANY, INC., Manager BY__________________________ Gary J. Gorman, President STATE OF _____________ ) ) ss. COUNTY OF _______________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of ________________________, 2014, by Gary J. Gorman, the President of Gorman & Company, Inc., the Manager of Gorman Employee Group Lion's Ridge, LLC, the Manager of Lion's Ridge Apartment Homes, LLC. My commission expires: (S E A L) ____________________________________ Notary Public 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 7 EXHIBIT A LEGAL DESCRIPTION Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision, Block C, A Resubdivision of Lots 1, 2, 3, 4 & 5, Town of Vail, County of Eagle, State of Colorado 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 8 EXHIBIT B RENTAL GUIDELINES 1. Purpose. The purpose of these Rental Guidelines is to set forth the occupancy eligibility requirements for the employee housing rental units (the "Restricted Units") located in Lion's Ridge Apartment Homes, pursuant to the Deed Restriction dated _________________. 2. Definitions. All capitalized terms herein shall have the meanings set forth in the Deed Restriction. 3. Administration. In accordance with the Deed Restriction, Master Lessee shall administer these Rental Guidelines, including but not limited to, making determinations regarding the eligibility of applicants to rent and occupy a Restricted Unit as a Qualified Resident as set forth herein. Prior to leasing or renewing a lease for a Restricted Unit, the occupant must sign an individual acknowledgement of acceptance of the terms of these Rental Guidelines and the Deed Restriction. 4. Qualified Households and Residents. Except as otherwise provided herein or in the Deed Restriction, to be eligible for consideration to rent a Restricted Unit, the occupants must first be certified as a Qualified Household. Notwithstanding anything herein to the contrary, Master Lessee shall not be obligated to rent any Unit to a tenant that does not meet Master Lessee's rental guidelines, which rental guidelines shall be subject to review and approval by the Town, in its reasonable discretion. 5. Application. To become a Qualified Resident, a person must first provide the following information on an application to be provided by Master Lessee, and applications and all accompanying documentation shall become the property of the Master Lessee and will not be returned to the applicant: a. Verification (e.g., wage stubs, employer name, address, telephone number and other appropriate documentation as requested by Master Lessee) of applicant's current employment with a business in Eagle County that holds a valid and current business license, or pays sales taxes, or is otherwise generally recognized as a legitimate business; b. Evidence that the applicant has worked, or will work, an average of 30 hours per week or more per year for one or more of such businesses and that such level of employment is expected to be maintained for as long as the applicant lives in the Restricted Unit; c. A valid form of identification, such as a driver's license, state-issued identification, passport or military identification. d. Any other documentation which the Master Lessee deems necessary to make a determination of eligibility; and e. A signed statement certifying and acknowledging: that all information submitted in such application is true to applicant's best knowledge; that the applicant 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 9 understands that he/she may not sublet the Restricted Unit; that the applicant authorizes Master Lessee to verify any and all past or present employment and residency information and all other information submitted by an applicant; and that applicant understands that, as set forth in the Deed Restriction, the Master Lessee reserves the right to review any applications and take any appropriate action regarding such application. 6. Lease Term. The Restricted Units shall be leased to Qualified Households, and may be renewed to Qualified Households, on a month-to-month basis or for periods no greater than 12 months in duration. 7. Interpretation. In evaluating a potential application to lease a Restricted Unit, the Master Lessee shall be guided by the following: a. An applicant's physical place of employment is controlling, not the mailing address of such place. b. Claims of employment by an applicant that are unable to be verified by Master Lessee will not be utilized in determining an applicant's eligibility. c. Seasonal work and part time work alone may not be adequate to meet the minimum 30 hours per week average annual requirement, but may augment other employment to meet the minimum eligibility requirements. 8. Leasing of Units to Non-Qualified Households. a. If at least 70% of the Units in the Property are Restricted Units, other Units may be freely leased by Master Lessee to occupants who are not Qualified Residents or Qualified Households. b. If there are no eligible Qualified Households available to rent a particular Unit, Master Lessee may rent such Unit to occupants other than a Qualified Household. However, at any time that the number of Restricted Units falls below 70% of the total Units, Master Lessee shall thereafter use commercially reasonable efforts to lease the next available Unit(s) to Qualified Households until the 70% threshold is again met. c. In no event may Master Lessee lease a Restricted Unit to a Qualified Resident who will not occupy the Restricted Unit as his or her principal place of residence, unless first expressly approved in writing by the Town after making findings that extraordinary circumstances and hardship exist to justify such arrangement. Such tenancy shall be on a month-to-month basis only. 9. Misrepresentation. Any misrepresentation by an applicant in any submittal shall disqualify such applicant from being eligible to lease a Restricted Unit, and shall be grounds for eviction if such misrepresentation is revealed after such applicant's occupancy. 10. Inspection of Documents. The Town may inspect any documents submitted with any application for Qualified Resident status pursuant to Section 5 hereof, at any time during normal business hours, upon reasonable notice. In addition, upon inspection, if the Town 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 10 reasonably determines that additional documents are necessary to verify Qualified Resident or Qualified Household status, the Town may request additional documents. Notwithstanding the foregoing, Master Lessee shall not be required to retain any documents submitted by applicants who do not sign leases with Master Lessee; provided, however, that if the number of Restricted Units falls below 70% of the total Units, then Master Lessee shall retain documents submitted by applicants to verify its commercially reasonable efforts to lease the next Unit becoming available for rent to a Qualified Household in accordance with the requirements of the Deed Restriction and the Rental Guidelines, until at least 70% of the total Units are once again Restricted Units. 2/18/2014 1 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX GROUND LEASE This GROUND LEASE (the "Lease") is entered into as of ________________, 2014 (the Effective Date") by and between the Town of Vail , a Colorado home rule municipality (the "Town"), and Lion's Ridge Apartment Homes, LLC, a Wisconsin limited liability company ("Tenant") (each individually a "Party" and collectively the "Parties"). WHEREAS, the Town is the owner of certain real property more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, the Parties desire to redevelop the Property for employee housing; WHEREAS, to accomplish the redevelopment of the Property for employee housing, the Town will retain fee ownership of the Property, but the Town will provide Tenant with a long- term ground lease of the Property; and WHEREAS, the Parties wish to establish terms of the long-term ground lease. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows: 1. Lease. The Town , in consideration of the rents, covenants, agreements, and conditions herein set forth which Tenant hereby agrees shall be paid, kept, and performed, does hereby lease unto Tenant, and Tenant does hereby lease from the Town, the Property together with all of the Town's rights, interests, estates, and appurtenances thereto. 2. Term. This Lease shall commence on the Effective Date and unless earlier terminated as provided herein, shall terminate on December 31, 2049. 3. Rent and Security Deposit. The annual rent shall be $1.00 per year. There shall be no security deposit. 4. Permitted Uses. Subject to the terms and provisions hereof, Tenant shall use and enjoy the Property to construct and operate 112 dwelling units, at least 70% of which shall be employee housing units in full compliance with the deed restriction attached hereto as Exhibit B and incorporated herein (the "Deed Restriction"), the Development Agreement between the Parties dated ________________, and applicable law, including without limitation the Vail Town Code, as amended. Tenant will not do, or permit to be done, anything on the Property which is contrary to any legal or insurable requirement or which constitutes a nuisance. 5. Taxation. a. The Parties acknowledge their intent that the Property is to be exempt from ad valorem property taxes pursuant to C.R.S. § 29-4-227, by virtue of a 0.01% ownership interest in Tenant held by the Vail Local Housing Authority, a Colorado statutory housing authority. 2/18/2014 2 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX b. Tenant may, at its sole cost and expense, contest the validity or amount of any taxes imposed against the Property. c. To the extent the Property is not tax-exempt, the Town shall refund 100% of any property taxes, net of the Eagle County Treasurer's fee, collected by the Town on the Property or Improvements, within 60 days of collection. 6. Utilities. Tenant shall pay all charges for gas, electricity, telephone and other communication services, and all other utilities and similar services rendered or supplied to the Property, and all water, sewer and other similar charges levied or charged against, or in connection with, the Property. 7. Net Lease. This Lease shall be a net lease, and throughout the Term, all payments and other obligations or liabilities of any kind regarding the Property shall be solely the responsibility of Tenant, and not the responsibility of the Town. 8. Existing Conditions. As of the Effective Date, Tenant has inspected the physical condition of the Property and receives the Property in "as is" condition, with all faults. The Town makes no representations or warranties with respect to the condition of the Property or its fitness or availability for any particular use, and the Town shall not be liable to Lessee for any latent or patent defect on the Property. The Town owns all the improvements existing on the Property as of the date of the Lease, which existing improvements may be removed by Tenant prior to the construction of any new Improvements. 9. Hazardous Materials. a. Though the Town has no actual knowledge of the presence of any hazardous materials or other adverse environmental conditions on the Property, the Town makes no warranty regarding such materials or conditions. b. Tenant shall keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of, any federal, state, or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions ("Hazardous Materials Laws") on, under, about, or affecting the Property. Tenant shall not use, generate, manufacture, store, or dispose of on, under or about the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous wastes, asbestos, lead- based paints, toxic substances, or related materials, including without limitation any substances defined as or included in the definition of hazardous substances, hazardous wastes, hazardous materials, or toxic substances under any applicable federal or state laws or regulations (collectively referred to hereinafter as "Hazardous Materials"). c. Notwithstanding the above, the Parties understand and agree that Tenant, in the course of construction of the Improvements, may generate biohazardous waste materials due to procedures performed within the primary structure. Tenant shall be solely responsible for the proper storage and removal of these biohazardous waste materials from the property. Tenant shall be solely responsible for, and shall indemnify and hold harmless the Town, its directors, officers, employees, agents, successors, and assigns from and against, any loss, damage, cost, expense, or liability directly or indirectly arising out of or attributable to Tenant's use, 2/18/2014 3 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX generation, storage, release, threatened release, discharge, disposal, or presence of biohazardous Materials on, under or about the Property. 10. Construction of Improvements. The Improvements shall be constructed in accordance with the Development Agreement. 11. Ownership of Improvements. a. During the Term, all Improvements shall be solely the property of Tenant, and Tenant shall be entitled to take tax depreciation thereon, to the extent permitted by law. b. Upon termination of this Lease, Tenant shall surrender to the Town, free and clear of all debt and other encumbrances, all improvements, inclusions, fixtures, equipment and other appurtenances on the Property in good condition and repair. During the Term, the Town shall have a right to inspect the Property on an annual basis to review the condition of the improvements. 12. Maintenance and Repairs. a. Tenant agrees to maintain the Property throughout the Term of this Lease, at Tenant's own expense, in good working order, in a clean and safe manner consistent with similar projects in the Town. Such maintenance shall include all repairs necessary to maintain the Property in the condition in which it was constructed, including interior and exterior and structural and non-structural repairs, subject to ordinary wear and tear. b. Throughout the Term of this Lease, Tenant shall, at its own expense, provide all janitorial, landscaping, trash removal, snow removal and other services required for the proper maintenance of the Property. c. Should Tenant fail to perform the required maintenance or repairs after 30 days written notice from the Town, the Town may, but has no obligation to, perform such maintenance or repairs and invoice Tenant for the costs of such maintenance, plus 8% interest. Tenant shall pay such invoice within 30 days of receipt thereof, and Tenant's failure to do so shall constitute a Tenant Default. 13. Property Management. Throughout the Term of this Lease, Tenant shall provide for professional management of the ongoing use and operation of the Property (either through an independent third party or an affiliate or agent of Tenant). 14. Insurance. Tenant shall maintain the following insurance, and certificates of such insurance shall be furnished to the Town prior to the commencement of this Lease and at each subsequent policy renewal date: a. Commercial general liability insurance, including contractual liability, with limits of not less than $2,000,000 per occurrence for bodily injury, personal injury and property damage, naming the Town as an additional insured. 2/18/2014 4 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX b. Fire and extended coverage insurance covering the Property for injury or damage by the elements, or through any other cause, in an amount not less than the full actual replacement cost of the Property, common areas, and appurtenances, and sufficient to prevent the Town or Tenant from becoming a co-insurer of any partial loss. c. During the course of any construction or repair of Improvements, Builders' Risk Insurance. 15. Indemnification. Tenant agrees to indemnify, defend, and hold the Town and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns harmless from and against any and all claims, liability, damages, losses, expenses and demands, including reasonable attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Lease or Tenant's use of the Property; provided however, that Tenant shall not indemnify, defend or hold the Town harmless for the Town's own negligence or willful acts or omissions. 16. Restoration. Should any Improvements be wholly or partially destroyed or damaged by fire or other casualty, Tenant shall promptly repair, replace, restore, and reconstruct the same, all in compliance with the provisions of this Lease. 17. Condemnation. a. Full taking. Should the entire Property be taken by eminent domain, condemnation or similar proceedings or conveyed in avoidance or settlement of eminent domain, condemnation, or other similar proceedings, then Tenant's right of possession under this Lease shall terminate as of the date of taking possession by the condemnor, and the award therefor will be distributed as follows: first, to the payment of all reasonable fees and expenses incurred in collecting the award; and next, the balance of the award shall be equitably apportioned between the Town and Tenant based on the then respective fair market values of the Town's interest in the Property and Tenant's interest in the Property. b. Partial Taking. Should a portion of the Property be taken by eminent domain, condemnation or similar proceedings, this Lease shall continue in effect as to the remainder of the Property unless, in Tenant's reasonable judgment, the taking makes it economically unsound to use the remainder, whereupon this Lease shall terminate as of the date of taking of possession by the condemnor in the same manner as if the whole of the Property had been taken, and the award therefor shall be distributed as provided in subsection a hereof. c. Temporary Taking. If any portion of the Property is taken for temporary use or occupancy, the Term shall not be reduced or affected. Except to the extent Tenant is prevented from so doing pursuant to the terms of the order of the condemning authority, Tenant shall continue to perform and observe all of the other covenants, agreements, terms, and provisions of this Lease. If Tenant continues to perform its obligations under this Lease throughout the term of the temporary taking, Tenant shall be entitled to the full award for a temporary taking. 18. Assignment. With prior written approval of the Town, Tenant may assign its rights under this Lease, if the new tenant assumes in writing all covenants and obligations of Tenant under 2/18/2014 5 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX this Lease, including without limitation all obligations of Tenant under the Deed Restriction. Tenant shall thereupon be released and discharged from all obligations under this Lease, but such obligations shall be binding upon the new tenant. Notwithstanding the foregoing, Tenant may not assign its rights hereunder prior to completion of the Improvements, unless such assignee shall be qualified to construct and operate the Property, as determined in the Town's reasonable discretion. Notwithstanding the foregoing, Tenant may convey equity interests in its limited liability company entity without the Town's consent. 19. Subleasing. a. Tenant may freely execute subleases in compliance with this Lease, the Deed Restriction and applicable law, provided that the term of each such sublease (including all renewal and extension rights) shall not extend past the expiration date of the Term. b. Each sublease shall specifically provide that the sublessee's rights are subject to the Town's rights under this Lease and the Deed Restriction, and shall provide that upon a termination of this Lease or of Tenant's right to possession of the Property such sublease, at the Town's option, shall continue in effect as a lease directly between the Town and the sublessee thereunder, provided that the sublessee attorns to the Town, the Town shall not be responsible for the return or repayment of any security or other deposits made by such sublessee with Tenant unless Tenant has turned the same over to the Town, and the Town shall not be liable or responsible for the cure or remedy of any breach, violation, or default on the part of Tenant under subleases occurring prior to termination of this Lease or of Tenant's right to possession of the Property. Tenant shall give a copy of each sublease to the Town upon request. 20. Tenant's Right to Encumber. a. Leasehold. Tenant may, at any time, without the Town's consent or joinder, encumber its interest in this Lease and the leasehold estate hereby created with one or more deeds of trust, mortgages, or other lien instruments to secure any borrowings or obligations of Tenant. No lien of Tenant upon its interest in this Lease and the leasehold estate hereby created shall encumber or affect in any way the interest of the Town in the Property. b. Fee Simple. If any of Tenant's lenders requires the Town to subordinate its fee interest in the Property to the lender's mortgage, the Town shall approve such encumbrance provided that: at all times the Deed Restriction is first and prior to the mortgage; and the Town has a first and prior right to cure any deficiency to protect its fee interest in the Property. The Town shall have the right to review and approve all documents associated with such encumbrance prior to execution by Tenant, and any encumbrance made without the Town's prior review and approval shall be void. c. No Merger. In no event shall the leasehold interest, estate, or rights of Tenant hereunder, or of the holder of any mortgage upon the Lease, merge with any interest, estate, or rights of the Town in or to the Property, it being understood that such leasehold interest, estate, and rights of Tenant hereunder, and of the holder of any mortgage upon this Lease, shall be deemed to be separate and distinct from the Town's interest, estate, and rights in or to the 2/18/2014 6 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX Property, notwithstanding that any such interests, estates, or rights shall at any time or times be held by or vested in the same person, corporation, or other entity. 21. Quiet Enjoyment. The Town covenants that Tenant, on paying the Rent and performing and observing the obligations of this Lease, shall peaceably and quietly have, hold, occupy, use, and enjoy the Property during the Term, and may exercise all of its rights hereunder, subject only to the provisions of this Lease, the Deed Restriction and applicable law. 22. Access. a. The Town shall have access to the Property at all times following reasonable prior notice to Tenant to inspect the Property, provided that the Town shall use reasonable efforts not to disturb Tenant's use of the Property or the occupants of the Improvements. b. At no time shall Tenant eliminate access to or the ability to safely occupy or operate the Timber Ridge housing units currently existing on the real property adjacent to the Property, as more particularly described on Exhibit B, attached hereto and incorporated herein by this reference (the "Adjacent Property"). The Town shall have unrestricted access to the Adjacent Property at all times. 23. Tenant Default and Remedies. a. Each of the following is a Tenant default of this Lease: i. If Tenant fails to perform any of its obligations under this Lease or the Deed Restriction and Tenant fails to commence and take such steps as are necessary to remedy the same within 30 days after Tenant is given a written notice specifying the same; provided, however, that if the violation is a violation of this Lease and not a violation of the Deed Restriction, and the nature of the violation is such that it cannot reasonably be remedied within 30 days, and Tenant provides evidence to the Town that the violation cannot reasonably be remedied within 30 days, then the violation shall be remedied as soon as reasonably practicable, but in any case, within 180 days of the original notice of violation. ii. If an involuntary petition is filed against Tenant under a bankruptcy or insolvency law or under the reorganization provisions of any law, or when a receiver of Tenant, or of all or substantially all of the property of Tenant, is appointed without acquiescence, and such petition or appointment is not discharged or stayed within 120 days after the happening of such event. iii. If Tenant makes an assignment of its property for the benefit of creditors or files a voluntary petition under a bankruptcy or insolvency law, or seeks relief under any other law for the benefit of debtors. b. If a Tenant default occurs, the Town may, without waiving any other rights hereunder or available to the Town at law or in equity (the Town's rights being cumulative), terminate this Lease, in which event this Lease and the leasehold estate hereby created and all interest of Tenant and all parties claiming by, through, or under Tenant shall automatically 2/18/2014 7 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX terminate upon the effective date of such notice; and the Town, its agents or representatives, may, without further demand or notice, reenter and take possession of the Property and remove all persons and property from the Property with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for existing breaches hereof. c. In addition to the specific remedies set forth herein, the Town shall have all other remedies available at law or equity, and the exercise of one remedy shall not preclude the exercise of any other remedy. 24. Town Default and Remedies. a. The following is a Town default of this Lease: if the Town fails perform any of its covenants or obligations under this Lease and fails to commence and take such steps as are necessary to remedy the same within 30 days after written notice is given specifying the same; provided, however, that if the nature of the violation is such that it cannot reasonably be remedied within 30 days, and the Town provides evidence to Tenant that the violation cannot reasonably be remedied within 30 days, then the violation shall be remedied as soon as reasonably practicable, but in any case, within 180 days of the original notice of violation. b. If a Town default occurs, Tenant may terminate this Lease. c. In addition to the specific remedy set forth herein, Tenant shall have all other remedies available at law or equity, and the exercise of one remedy shall not preclude the exercise of any other remedy. 25. Notices. Any notice under this Lease shall be in writing and may be given by United States Mail, postage prepaid, addressed as set forth herein; or hand-delivery. Notice shall be effective three days after mailing or immediately upon hand-delivery. The addresses of the Parties shall, unless changed in writing, be as follows: The Town: Town Manager Town of Vail 75 South Frontage Road Vail, CO 81657 Tenant: Lion's Ridge Apartment Homes, LLC 200 North Main Street Oregon, WI 53575 Attn: Gary J. Gorman With a copy to: Jen Wright Wright and Company, Inc. P.O. Box 7270 Avon, CO 81620 2/18/2014 8 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX 26. Surrender. On the last day of the term of this Lease or upon any termination of this Lease, Tenant shall surrender the Property, with the Improvements then located thereon, into the possession and use of the Town, without fraud or delay and in good order, condition, and repair, free and clear of all occupancies, liens and encumbrances, without any payment or allowance whatever by the Town for any buildings or improvements erected or maintained on the Property at the time of the surrender, or for the contents thereof or appurtenances thereto. 27. Miscellaneous. a. Modification. This Lease may only be modified by subsequent written agreement of the Parties. b. Integration. This Lease and any attached exhibits constitute the entire agreement between Tenant and the Town, superseding all prior oral or written communications. c. Binding Effect. This Lease shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assigns. d. Severability. If any provision of this Lease is determined to be void by a court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. e. Governing Law and Venue. This Lease shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. f. Third Parties. There are no intended third-party beneficiaries to this Lease. g. Contingency; No Debt. Pursuant to Article X, § 20 of the Colorado Constitution, any financial obligations of the Town under this Lease are specifically contingent upon annual appropriation of funds sufficient to perform such obligations. This Lease shall never constitute a debt or obligation of the Town within any statutory or constitutional provision. h. No Joint Venture. Notwithstanding any provision hereof, the Town shall never be a joint venture in any private entity or activity which participates in this Lease, and the Town shall never be liable or responsible for any debt or obligation of any participant in this Lease. i. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Lease, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town or its officers, attorneys or employees. 2/18/2014 9 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX WHEREFORE, the Parties have executed this Lease on the Effective Date. TOWN OF VAIL, COLORADO ____________________________________ Stan Zemler, Town Manager ATTEST: _________________________________ Tammy Nagel, Interim Town Clerk TENANT By: Name: Its: STATE OF COLORADO ) ) ss. COUNTY OF _______________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of ________________________, 2014, by _________________________ as the _______________________ of _______________. My commission expires: (S E A L) _____________________________________ Notary Public 2/18/2014 10 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX EXHIBIT A LEGAL DESCRIPTION Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion’s Ridge Subdivision, Block C, A Resubdivision of Lots 1, 2, 3, 4 & 5, Town of Vail, County of Eagle, State of Colorado 2/18/2014 11 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX EXHIBIT B DEED RESTRICTION FOR THE OCCUPANCY OF RESTRICTED UNITS AT LION'S RIDGE APARTMENT HOMES THIS DEED RESTRICTION FOR THE OCCUPANCY OF RESTRICTED UNITS AT LION'S RIDGE APARTMENT HOMES (the "Deed Restriction") is made and entered into this ___ day of ______________, 2014 (the "Effective Date"), by and between the Town of Vail, a Colorado home rule municipality (the "Town"), and Lion's Ridge Apartment Homes, LLC, a Wisconsin limited liability company ("Master Lessee") (individually a "Party" and collectively the "Parties"). WHEREAS, the Town is the owner of certain real property generally described as the eastern half of the Timber Ridge property and more particularly described in Exhibit 1 attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, the Parties desire to redevelop the Property for employee housing; WHEREAS, the Town, as landlord, and Master Lessee as tenant, have entered into a Ground Lease for the Property dated _______________ (the "Ground Lease"); and NOW, THEREFORE, in consideration of the promises and covenants hereinafter set for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Defined Terms. For purposes of this Deed Restriction, the following terms shall have the following meanings: "Principal place of residence" means the dwelling in which one's habitation is fixed and to which a person, whenever he or she is absent, has a present intention of returning after an absence therefrom. In determining what is a principal place of residence, the Town and Master Lessee may consider, without limitation: location of business pursuits; employment and income sources; residence for tax purposes; residence of parents, spouse and children, if any; location of personal property; motor vehicle registration; and voter registration. "Qualified Household" means one Qualified Resident or a group of persons that contains at least one Qualified Resident (who must sign the Unit lease as a tenant). A Qualified Household may have occupants that are not Qualified Residents (and who may also sign the Unit lease as tenants) as long as at least one occupant who has signed the lease is a Qualified Resident. "Qualified Resident" means a natural person who works an average of 30 hours or more per week at a business in Eagle County, Colorado that holds a valid and current business license, or pays sales taxes, or is otherwise generally recognized as a legitimate business. For example, if a person worked 60 hours per week for one half of the year at 2/18/2014 12 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX such a business in Eagle County, Colorado, and worked elsewhere for the other half of the year, such person would constitute a Qualified Resident. "Rental Guidelines" means the guidelines attached as Exhibit 2 hereto and incorporated herein by this reference. "Restricted Unit" means a Unit that is rented to a Qualified Household pursuant to the terms of this Deed Restriction. "Unit" means each of the residential dwelling units constructed on the Property. 2. Binding Effect. This Deed Restriction shall constitute a covenant running with the Property as a burden thereon, for the benefit of, and enforceable by the Town and the Master Lessee. This Deed Restriction shall bind the Master Lessee and all occupants of the Restricted Units. Each and every occupant of a Restricted Unit shall be personally obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein that are applicable to such occupant during such occupant's respective period of occupancy of a Restricted Unit. Each and every conveyance of the Property or a portion thereof, or interest therein, for all purposes, shall be deemed to include and incorporate by this reference, the covenants contained in this Deed Restriction, even without reference to this Deed Restriction in any document of conveyance. 3. Occupancy. a. The Master Lessee covenants that at least 70% of the total Units in the Property shall be Restricted Units. The Parties acknowledge that the Restricted Units are not fixed and may float so long as at least 70% of the total Units are Restricted Units. For example, assume that the Property contains 100 Units. If 75 of the Units are rented to Qualified Households, and one of such Units becomes vacant, such Unit may thereafter be rented to occupants who are not a Qualified Household, because at least 70 of the Units remain occupied by Qualified Households. b. The Property may contain two additional common areas that shall not qualify as Units, one area to be used by property management personnel, maintenance personnel or security personnel, and one area to be used as a leasing or marketing office. Because such common areas are not considered Units under this Deed Restriction, they shall not be included in the calculation of Restricted Units; provided however, that if such common areas are ever converted into Units, they shall be included in the calculation of Restricted Units. c. A Qualified Resident must occupy the Restricted Unit as his or her principal place of residence. If other occupants of the Restricted Unit are not Qualified Residents, the Restricted Unit need not be their principal place of residence. d. At any time that the number of Restricted Units falls below 70% of the total Units, Master Lessee shall promptly take commercially reasonable efforts in accordance with applicable law and the Rental Guidelines to lease the next Units coming 2/18/2014 13 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX available for rent to Qualified Households in accordance with this Deed Restriction and the Rental Guidelines, until at least 70% of the total Units are Restricted Units. 4. Unit Lease. No Unit shall be leased or occupied without a Unit lease. Each Unit shall have only one Unit lease at any one time. Each Restricted Unit lease shall include a clear reference to this Deed Restriction and a brief summary of this Deed Restriction, including the remedies upon a violation or breach of the terms of this Deed Restriction, and shall incorporate the terms and conditions of this Deed Restriction. 5. Right To Terminate Lease. Nothing herein shall prevent the Master Lessee from terminating the lease of a Qualified Household, or taking any other legal action against the Qualified Household based upon any tenant's breach of the terms of the lease; provided that if a tenant misrepresents his or her status as a Qualified Resident, Master Lessee shall terminate the Unit lease in addition to any other available remedies. 6. Inspection. In a non-emergency situation, if the Town or Master Lessee has reasonable cause to believe that an occupant of a Restricted Unit is violating any provision of this Deed Restriction, the Town or Master Lessee may inspect the Restricted Unit between the hours of 8:00 am and 5:00 pm, Monday through Friday, after providing the occupant with no less than 24 hours written notice, which notice to tenant may be given by posting on the front door of the applicable Restricted Unit. Nothing herein shall preclude the Town or Master Lessee from accessing a Restricted Unit in an emergency situation where there is an imminent threat to person(s) or property. 7. Annual Verification. No later than February 1st of each year, beginning in the year following the first year of occupancy of the Property, Master Lessee shall submit a written statement to the Town including the following information and stating that such information is true and correct to the best of Master Lessee's knowledge and belief: a. Evidence to establish that 70% of the Units were Restricted Units (i.e., occupied by Qualified Households) during the prior calendar year; b. A list of tenants who occupied the Restricted Units in the prior calendar year and the evidence submitted by such tenants to establish that they were Qualified Residents and/or Qualified Households; c. A copy of the lease form currently used for the Restricted Units; and d. Copies (which may be electronic) of all application information submitted by Qualified Residents actually occupying Restricted Units; provided that such copies will only be provided for one Qualified Resident per Restricted Unit, even if more than one Qualified Resident occupies such Restricted Unit. 8. Violations. a. If Master Lessee discovers a violation of this Deed Restriction by an occupant, or if the Town notifies Master Lessee in writing that there is a violation of this Deed Restriction by an occupant, Master Lessee shall send a notice of violation to the 2/18/2014 14 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX occupant detailing the nature of the violation and allowing the occupant 10 days from the date of the notice to cure said violation to the reasonable satisfaction of Master Lessee and the Town. Notice may be given by posting on the front door of the applicable Unit or by other lawful means. If the violation is not cured within such time, the violation shall be considered a violation of this Deed Restriction by the Unit occupant. b. If the Town discovers a violation of this Deed Restriction by Master Lessee, the Town shall send a notice of the violation to Master Lessee, detailing the nature of the violation and allowing Master Lessee 30 days from the date the notice is given to cure said violation to the reasonable satisfaction of the Town. If a forcible entry and detainer is necessary to resolve the violation, the forcible entry and detainer shall be commenced within such 30-day period and diligently prosecuted to completion. If the violation if not cured within such time, the violation shall be considered a violation of this Deed Restriction by Master Lessee. 9. Remedies. a. The Town and Master Lessee shall have any and all remedies provided by law and in equity for a violation of this Deed Restriction, including without limitation: (i) damages, including but not limited to damages resulting from the leasing of a Restricted Unit in violation of this Deed Restriction; (ii) specific performance; and (iii) injunction, including but not limited to an injunction requiring eviction of the occupant(s) and an injunction to prohibit the occupancy of a Restricted Unit in violation of this Deed Restriction. All remedies shall be cumulative. b. In addition to any other available remedies, if Master Lessee is found to be in violation this Deed Restriction (after expiration of any cure period), Master Lessee shall be subject to a penalty of $100 per violation as determined by the Town in each instance. Each occurrence is hereby deemed to be a separate violation of this Deed Restriction, and the penalty may be imposed for each and every day during any portion of which a violation is found to have been committed, continued or permitted by Master Lessee. This penalty shall not apply if it is discovered that an occupant provided false information to Master Lessee, Master Lessee reasonably relied on such false information, and the false information caused the violation. c. If addition to any other available remedies, if an occupant of a Restricted Unit is found to be in violation of this Deed Restriction (after expiration of any cure period), the occupant shall be subject to a penalty of $100 per violation as determined by the Town in each instance. Each occurrence is hereby deemed to be a separate violation of this Deed Restriction, and the penalty may be imposed for each and every day during any portion of which a violation is found to have been committed or continued by an occupant. d. The cost to the Town of any activity taken in response to any violation of this Deed Restriction by the Master Lessee, including reasonable attorney fees, shall be paid promptly by Master Lessee; provided that, if the Town or a court of competent 2/18/2014 15 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX jurisdiction finds that Master Lessee was not in violation of this Deed Restriction, Master Lessee shall not be liable for such payment. 10. Term. This Deed Restriction shall commence on the Effective Date and shall terminate upon the expiration or termination of the Ground Lease. 11. Modification. This Deed Restriction may only be modified by subsequent written agreement of the Parties. 12. Assignment. Neither this Deed Restriction nor any of the rights or obligations of the Parties hereto shall be assigned by either Party without the written consent of the other. 13. Severability. If any provision of this Deed Restriction is determined to be void by a court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. 14. Governing Law and Venue. This Deed Restriction shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. 15. Third Parties. There are no intended third-party beneficiaries to this Deed Restriction. 16. No Joint Venture. Notwithstanding any provision hereof, the Town shall never be in a joint venture with the Master Lessee, and the Town shall never be liable or responsible for any debt or obligation of the Master Lessee. 17. No Indemnity. Nothing herein shall be construed to require the Town to protect or indemnify Master Lessee against any losses attributable to the rental of a Restricted Unit, nor to require the Town to locate a Qualified Resident for any Restricted Unit. 18. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Deed Restriction, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town or its officers, attorneys or employees. IN WITNESS WHEREOF, the Parties have executed this Deed Restriction on the Effective Date. TOWN OF VAIL, COLORADO ____________________________________ Stan Zemler, Town Manager ATTEST: _________________________________ Tammy Nagel, Interim Town Clerk 2/18/2014 16 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX MASTER LESSEE LION'S RIDGE APARTMENT HOMES, LLC BY GORMAN EMPLOYEE GROUP LION'S RIDGE, LLC, Manager BY GORMAN & COMPANY, INC., Manager BY__________________________ Gary J. Gorman, President STATE OF _____________ ) ) ss. COUNTY OF _______________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of ________________________, 2014, by Gary J. Gorman, the President of Gorman & Company, Inc., the Manager of Gorman Employee Group Lion's Ridge, LLC, the Manager of Lion's Ridge Apartment Homes, LLC. My commission expires: (S E A L) ____________________________________ Notary Public 2/18/2014 17 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX EXHIBIT 1 LEGAL DESCRIPTION Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision, Block C, A Resubdivision of Lots 1, 2, 3, 4 & 5, Town of Vail, County of Eagle, State of Colorado 2/18/2014 18 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX EXHIBIT 2 RENTAL GUIDELINES 1. Purpose. The purpose of these Rental Guidelines is to set forth the occupancy eligibility requirements for the employee housing rental units (the "Restricted Units") located in Lion's Ridge Apartment Homes, pursuant to the Deed Restriction dated _________________. 2. Definitions. All capitalized terms herein shall have the meanings set forth in the Deed Restriction. 3. Administration. In accordance with the Deed Restriction, Master Lessee shall administer these Rental Guidelines, including but not limited to, making determinations regarding the eligibility of applicants to rent and occupy a Restricted Unit as a Qualified Resident as set forth herein. Prior to leasing or renewing a lease for a Restricted Unit, the occupant must sign an individual acknowledgement of acceptance of the terms of these Rental Guidelines and the Deed Restriction. 4. Qualified Households and Residents. Except as otherwise provided herein or in the Deed Restriction, to be eligible for consideration to rent a Restricted Unit, the occupants must first be certified as a Qualified Household. Notwithstanding anything herein to the contrary, Master Lessee shall not be obligated to rent any Unit to a tenant that does not meet Master Lessee's rental guidelines, which rental guidelines shall be subject to review and approval by the Town, in its reasonable discretion. 5. Application. To become a Qualified Resident, a person must first provide the following information on an application to be provided by Master Lessee, and applications and all accompanying documentation shall become the property of the Master Lessee and will not be returned to the applicant: a. Verification (e.g., wage stubs, employer name, address, telephone number and other appropriate documentation as requested by Master Lessee) of applicant's current employment with a business in Eagle County that holds a valid and current business license, or pays sales taxes, or is otherwise generally recognized as a legitimate business; b. Evidence that the applicant has worked, or will work, an average of 30 hours per week or more per year for one or more of such businesses and that such level of employment is expected to be maintained for as long as the applicant lives in the Restricted Unit; c. A valid form of identification, such as a driver's license, state-issued identification, passport or military identification. d. Any other documentation which the Master Lessee deems necessary to make a determination of eligibility; and e. A signed statement certifying and acknowledging: that all information submitted in such application is true to applicant's best knowledge; that the applicant 2/18/2014 19 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX understands that he/she may not sublet the Restricted Unit; that the applicant authorizes Master Lessee to verify any and all past or present employment and residency information and all other information submitted by an applicant; and that applicant understands that, as set forth in the Deed Restriction, the Master Lessee reserves the right to review any applications and take any appropriate action regarding such application. 6. Lease Term. The Restricted Units shall be leased to Qualified Households, and may be renewed to Qualified Households, on a month-to-month basis or for periods no greater than 12 months in duration. 7. Interpretation. In evaluating a potential application to lease a Restricted Unit, the Master Lessee shall be guided by the following: a. An applicant's physical place of employment is controlling, not the mailing address of such place. b. Claims of employment by an applicant that are unable to be verified by Master Lessee will not be utilized in determining an applicant's eligibility. c. Seasonal work and part time work alone may not be adequate to meet the minimum 30 hours per week average annual requirement, but may augment other employment to meet the minimum eligibility requirements. 8. Leasing of Units to Non-Qualified Households. a. If at least 70% of the Units in the Property are Restricted Units, other Units may be freely leased by Master Lessee to occupants who are not Qualified Residents or Qualified Households. b. If there are no eligible Qualified Households available to rent a particular Unit, Master Lessee may rent such Unit to occupants other than a Qualified Household. However, at any time that the number of Restricted Units falls below 70% of the total Units, Master Lessee shall thereafter use commercially reasonable efforts to lease the next available Unit(s) to Qualified Households until the 70% threshold is again met. c. In no event may Master Lessee lease a Restricted Unit to a Qualified Resident who will not occupy the Restricted Unit as his or her principal place of residence, unless first expressly approved in writing by the Town after making findings that extraordinary circumstances and hardship exist to justify such arrangement. Such tenancy shall be on a month-to-month basis only. 9. Misrepresentation. Any misrepresentation by an applicant in any submittal shall disqualify such applicant from being eligible to lease a Restricted Unit, and shall be grounds for eviction if such misrepresentation is revealed after such applicant's occupancy. 10. Inspection of Documents. The Town may inspect any documents submitted with any application for Qualified Resident status pursuant to Section 5 hereof, at any time during normal business hours, upon reasonable notice. In addition, upon inspection, if the Town 2/18/2014 20 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX reasonably determines that additional documents are necessary to verify Qualified Resident or Qualified Household status, the Town may request additional documents. Notwithstanding the foregoing, Master Lessee shall not be required to retain any documents submitted by applicants who do not sign leases with Master Lessee; provided, however, that if the number of Restricted Units falls below 70% of the total Units, then Master Lessee shall retain documents submitted by applicants to verify its commercially reasonable efforts to lease the next Unit becoming available for rent to a Qualified Household in accordance with the requirements of the Deed Restriction and the Rental Guidelines, until at least 70% of the total Units are once again Restricted Units. 2/18/2014 21 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX EXHIBIT C LEGAL DESCRIPTION OF ADJACENT PROPERTY Lot 1, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision, Block C, A Resubdivision of Lots 1, 2, 3, 4 & 5, Town of Vail, County of Eagle, State of Colorado 2/18/2014 1 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX GROUND LEASE This GROUND LEASE (the "Lease") is entered into as of ________________, 2014 (the Effective Date") by and between the Town of Vail , a Colorado home rule municipality (the "Town"), and Lion's Ridge Apartment Homes, LLC, a Wisconsin limited liability company ("Tenant") (each individually a "Party" and collectively the "Parties"). WHEREAS, the Town is the owner of certain real property more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, the Parties desire to redevelop the Property for employee housing; WHEREAS, to accomplish the redevelopment of the Property for employee housing, the Town will retain fee ownership of the Property, but the Town will provide Tenant with a long- term ground lease of the Property; and WHEREAS, the Parties wish to establish terms of the long-term ground lease. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows: 1. Lease. The Town , in consideration of the rents, covenants, agreements, and conditions herein set forth which Tenant hereby agrees shall be paid, kept, and performed, does hereby lease unto Tenant, and Tenant does hereby lease from the Town, the Property together with all of the Town's rights, interests, estates, and appurtenances thereto. 2. Term. This Lease shall commence on the Effective Date and unless earlier terminated as provided herein, shall terminate on December 31, 2049. 3. Rent and Security Deposit. The annual rent shall be $1.00 per year. There shall be no security deposit. 4. Permitted Uses. Subject to the terms and provisions hereof, Tenant shall use and enjoy the Property to construct and operate 112 dwelling units, at least 70% of which shall be employee housing units in full compliance with the deed restriction attached hereto as Exhibit B and incorporated herein (the "Deed Restriction"), the Development Agreement between the Parties dated ________________, and applicable law, including without limitation the Vail Town Code, as amended. Tenant will not do, or permit to be done, anything on the Property which is contrary to any legal or insurable requirement or which constitutes a nuisance. 5. Taxation. a. The Parties acknowledge their intent that the Property is to be exempt from ad valorem property taxes pursuant to C.R.S. § 29-4-227, by virtue of a 0.01% ownership interest in Tenant held by the Vail Local Housing Authority, a Colorado statutory housing authority. 2/18/2014 2 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX b. Tenant may, at its sole cost and expense, contest the validity or amount of any taxes imposed against the Property. c. To the extent the Property is not tax-exempt, the Town shall refund 100% of any property taxes, net of the Eagle County Treasurer's fee, collected by the Town on the Property or Improvements, within 60 days of collection. 6. Utilities. Tenant shall pay all charges for gas, electricity, telephone and other communication services, and all other utilities and similar services rendered or supplied to the Property, and all water, sewer and other similar charges levied or charged against, or in connection with, the Property. 7. Net Lease. This Lease shall be a net lease, and throughout the Term, all payments and other obligations or liabilities of any kind regarding the Property shall be solely the responsibility of Tenant, and not the responsibility of the Town. 8. Existing Conditions. As of the Effective Date, Tenant has inspected the physical condition of the Property and receives the Property in "as is" condition, with all faults. The Town makes no representations or warranties with respect to the condition of the Property or its fitness or availability for any particular use, and the Town shall not be liable to Lessee for any latent or patent defect on the Property. The Town owns all the improvements existing on the Property as of the date of the Lease, which existing improvements may be removed by Tenant prior to the construction of any new Improvements. 9. Hazardous Materials. a. Though the Town has no actual knowledge of the presence of any hazardous materials or other adverse environmental conditions on the Property, the Town makes no warranty regarding such materials or conditions. b. Tenant shall keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of, any federal, state, or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions ("Hazardous Materials Laws") on, under, about, or affecting the Property. Tenant shall not use, generate, manufacture, store, or dispose of on, under or about the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous wastes, asbestos, lead- based paints, toxic substances, or related materials, including without limitation any substances defined as or included in the definition of hazardous substances, hazardous wastes, hazardous materials, or toxic substances under any applicable federal or state laws or regulations (collectively referred to hereinafter as "Hazardous Materials"). c. Notwithstanding the above, the Parties understand and agree that Tenant, in the course of construction of the Improvements, may generate biohazardous waste materials due to procedures performed within the primary structure. Tenant shall be solely responsible for the proper storage and removal of these biohazardous waste materials from the property. Tenant shall be solely responsible for, and shall indemnify and hold harmless the Town, its directors, officers, employees, agents, successors, and assigns from and against, any loss, damage, cost, expense, or liability directly or indirectly arising out of or attributable to Tenant's use, 2/18/2014 3 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX generation, storage, release, threatened release, discharge, disposal, or presence of biohazardous Materials on, under or about the Property. 10. Construction of Improvements. The Improvements shall be constructed in accordance with the Development Agreement. 11. Ownership of Improvements. a. During the Term, all Improvements shall be solely the property of Tenant, and Tenant shall be entitled to take tax depreciation thereon, to the extent permitted by law. b. Upon termination of this Lease, Tenant shall surrender to the Town, free and clear of all debt and other encumbrances, all improvements, inclusions, fixtures, equipment and other appurtenances on the Property in good condition and repair. During the Term, the Town shall have a right to inspect the Property on an annual basis to review the condition of the improvements. 12. Maintenance and Repairs. a. Tenant agrees to maintain the Property throughout the Term of this Lease, at Tenant's own expense, in good working order, in a clean and safe manner consistent with similar projects in the Town. Such maintenance shall include all repairs necessary to maintain the Property in the condition in which it was constructed, including interior and exterior and structural and non-structural repairs, subject to ordinary wear and tear. b. Throughout the Term of this Lease, Tenant shall, at its own expense, provide all janitorial, landscaping, trash removal, snow removal and other services required for the proper maintenance of the Property. c. Should Tenant fail to perform the required maintenance or repairs after 30 days written notice from the Town, the Town may, but has no obligation to, perform such maintenance or repairs and invoice Tenant for the costs of such maintenance, plus 8% interest. Tenant shall pay such invoice within 30 days of receipt thereof, and Tenant's failure to do so shall constitute a Tenant Default. 13. Property Management. Throughout the Term of this Lease, Tenant shall provide for professional management of the ongoing use and operation of the Property (either through an independent third party or an affiliate or agent of Tenant). 14. Insurance. Tenant shall maintain the following insurance, and certificates of such insurance shall be furnished to the Town prior to the commencement of this Lease and at each subsequent policy renewal date: a. Commercial general liability insurance, including contractual liability, with limits of not less than $2,000,000 per occurrence for bodily injury, personal injury and property damage, naming the Town as an additional insured. 2/18/2014 4 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX b. Fire and extended coverage insurance covering the Property for injury or damage by the elements, or through any other cause, in an amount not less than the full actual replacement cost of the Property, common areas, and appurtenances, and sufficient to prevent the Town or Tenant from becoming a co-insurer of any partial loss. c. During the course of any construction or repair of Improvements, Builders' Risk Insurance. 15. Indemnification. Tenant agrees to indemnify, defend, and hold the Town and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns harmless from and against any and all claims, liability, damages, losses, expenses and demands, including reasonable attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Lease or Tenant's use of the Property; provided however, that Tenant shall not indemnify, defend or hold the Town harmless for the Town's own negligence or willful acts or omissions. 16. Restoration. Should any Improvements be wholly or partially destroyed or damaged by fire or other casualty, Tenant shall promptly repair, replace, restore, and reconstruct the same, all in compliance with the provisions of this Lease. 17. Condemnation. a. Full taking. Should the entire Property be taken by eminent domain, condemnation or similar proceedings or conveyed in avoidance or settlement of eminent domain, condemnation, or other similar proceedings, then Tenant's right of possession under this Lease shall terminate as of the date of taking possession by the condemnor, and the award therefor will be distributed as follows: first, to the payment of all reasonable fees and expenses incurred in collecting the award; and next, the balance of the award shall be equitably apportioned between the Town and Tenant based on the then respective fair market values of the Town's interest in the Property and Tenant's interest in the Property. b. Partial Taking. Should a portion of the Property be taken by eminent domain, condemnation or similar proceedings, this Lease shall continue in effect as to the remainder of the Property unless, in Tenant's reasonable judgment, the taking makes it economically unsound to use the remainder, whereupon this Lease shall terminate as of the date of taking of possession by the condemnor in the same manner as if the whole of the Property had been taken, and the award therefor shall be distributed as provided in subsection a hereof. c. Temporary Taking. If any portion of the Property is taken for temporary use or occupancy, the Term shall not be reduced or affected. Except to the extent Tenant is prevented from so doing pursuant to the terms of the order of the condemning authority, Tenant shall continue to perform and observe all of the other covenants, agreements, terms, and provisions of this Lease. If Tenant continues to perform its obligations under this Lease throughout the term of the temporary taking, Tenant shall be entitled to the full award for a temporary taking. 18. Assignment. With prior written approval of the Town, Tenant may assign its rights under this Lease, if the new tenant assumes in writing all covenants and obligations of Tenant under 2/18/2014 5 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX this Lease, including without limitation all obligations of Tenant under the Deed Restriction. Tenant shall thereupon be released and discharged from all obligations under this Lease, but such obligations shall be binding upon the new tenant. Notwithstanding the foregoing, Tenant may not assign its rights hereunder prior to completion of the Improvements, unless such assignee shall be qualified to construct and operate the Property, as determined in the Town's reasonable discretion. Notwithstanding the foregoing, Tenant may convey equity interests in its limited liability company entity without the Town's consent. 19. Subleasing. a. Tenant may freely execute subleases in compliance with this Lease, the Deed Restriction and applicable law, provided that the term of each such sublease (including all renewal and extension rights) shall not extend past the expiration date of the Term. b. Each sublease shall specifically provide that the sublessee's rights are subject to the Town's rights under this Lease and the Deed Restriction, and shall provide that upon a termination of this Lease or of Tenant's right to possession of the Property such sublease, at the Town's option, shall continue in effect as a lease directly between the Town and the sublessee thereunder, provided that the sublessee attorns to the Town, the Town shall not be responsible for the return or repayment of any security or other deposits made by such sublessee with Tenant unless Tenant has turned the same over to the Town, and the Town shall not be liable or responsible for the cure or remedy of any breach, violation, or default on the part of Tenant under subleases occurring prior to termination of this Lease or of Tenant's right to possession of the Property. Tenant shall give a copy of each sublease to the Town upon request. 20. Tenant's Right to Encumber. a. Leasehold. Tenant may, at any time, without the Town's consent or joinder, encumber its interest in this Lease and the leasehold estate hereby created with one or more deeds of trust, mortgages, or other lien instruments to secure any borrowings or obligations of Tenant. No lien of Tenant upon its interest in this Lease and the leasehold estate hereby created shall encumber or affect in any way the interest of the Town in the Property. b. Fee Simple. If any of Tenant's lenders requires the Town to subordinate its fee interest in the Property to the lender's mortgage, the Town shall approve such encumbrance provided that: at all times the Deed Restriction is first and prior to the mortgage; and the Town has a first and prior right to cure any deficiency to protect its fee interest in the Property. The Town shall have the right to review and approve all documents associated with such encumbrance prior to execution by Tenant, and any encumbrance made without the Town's prior review and approval shall be void. c. No Merger. In no event shall the leasehold interest, estate, or rights of Tenant hereunder, or of the holder of any mortgage upon the Lease, merge with any interest, estate, or rights of the Town in or to the Property, it being understood that such leasehold interest, estate, and rights of Tenant hereunder, and of the holder of any mortgage upon this Lease, shall be deemed to be separate and distinct from the Town's interest, estate, and rights in or to the 2/18/2014 6 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX Property, notwithstanding that any such interests, estates, or rights shall at any time or times be held by or vested in the same person, corporation, or other entity. 21. Quiet Enjoyment. The Town covenants that Tenant, on paying the Rent and performing and observing the obligations of this Lease, shall peaceably and quietly have, hold, occupy, use, and enjoy the Property during the Term, and may exercise all of its rights hereunder, subject only to the provisions of this Lease, the Deed Restriction and applicable law. 22. Access. a. The Town shall have access to the Property at all times following reasonable prior notice to Tenant to inspect the Property, provided that the Town shall use reasonable efforts not to disturb Tenant's use of the Property or the occupants of the Improvements. b. At no time shall Tenant eliminate access to or the ability to safely occupy or operate the Timber Ridge housing units currently existing on the real property adjacent to the Property, as more particularly described on Exhibit B, attached hereto and incorporated herein by this reference (the "Adjacent Property"). The Town shall have unrestricted access to the Adjacent Property at all times. 23. Tenant Default and Remedies. a. Each of the following is a Tenant default of this Lease: i. If Tenant fails to perform any of its obligations under this Lease or the Deed Restriction and Tenant fails to commence and take such steps as are necessary to remedy the same within 30 days after Tenant is given a written notice specifying the same; provided, however, that if the violation is a violation of this Lease and not a violation of the Deed Restriction, and the nature of the violation is such that it cannot reasonably be remedied within 30 days, and Tenant provides evidence to the Town that the violation cannot reasonably be remedied within 30 days, then the violation shall be remedied as soon as reasonably practicable, but in any case, within 180 days of the original notice of violation. ii. If an involuntary petition is filed against Tenant under a bankruptcy or insolvency law or under the reorganization provisions of any law, or when a receiver of Tenant, or of all or substantially all of the property of Tenant, is appointed without acquiescence, and such petition or appointment is not discharged or stayed within 120 days after the happening of such event. iii. If Tenant makes an assignment of its property for the benefit of creditors or files a voluntary petition under a bankruptcy or insolvency law, or seeks relief under any other law for the benefit of debtors. b. If a Tenant default occurs, the Town may, without waiving any other rights hereunder or available to the Town at law or in equity (the Town's rights being cumulative), terminate this Lease, in which event this Lease and the leasehold estate hereby created and all interest of Tenant and all parties claiming by, through, or under Tenant shall automatically 2/18/2014 7 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX terminate upon the effective date of such notice; and the Town, its agents or representatives, may, without further demand or notice, reenter and take possession of the Property and remove all persons and property from the Property with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for existing breaches hereof. c. In addition to the specific remedies set forth herein, the Town shall have all other remedies available at law or equity, and the exercise of one remedy shall not preclude the exercise of any other remedy. 24. Town Default and Remedies. a. The following is a Town default of this Lease: if the Town fails perform any of its covenants or obligations under this Lease and fails to commence and take such steps as are necessary to remedy the same within 30 days after written notice is given specifying the same; provided, however, that if the nature of the violation is such that it cannot reasonably be remedied within 30 days, and the Town provides evidence to Tenant that the violation cannot reasonably be remedied within 30 days, then the violation shall be remedied as soon as reasonably practicable, but in any case, within 180 days of the original notice of violation. b. If a Town default occurs, Tenant may terminate this Lease. c. In addition to the specific remedy set forth herein, Tenant shall have all other remedies available at law or equity, and the exercise of one remedy shall not preclude the exercise of any other remedy. 25. Notices. Any notice under this Lease shall be in writing and may be given by United States Mail, postage prepaid, addressed as set forth herein; or hand-delivery. Notice shall be effective three days after mailing or immediately upon hand-delivery. The addresses of the Parties shall, unless changed in writing, be as follows: The Town: Town Manager Town of Vail 75 South Frontage Road Vail, CO 81657 Tenant: Lion's Ridge Apartment Homes, LLC 200 North Main Street Oregon, WI 53575 Attn: Gary J. Gorman With a copy to: Jen Wright Wright and Company, Inc. P.O. Box 7270 Avon, CO 81620 2/18/2014 8 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX 26. Surrender. On the last day of the term of this Lease or upon any termination of this Lease, Tenant shall surrender the Property, with the Improvements then located thereon, into the possession and use of the Town, without fraud or delay and in good order, condition, and repair, free and clear of all occupancies, liens and encumbrances, without any payment or allowance whatever by the Town for any buildings or improvements erected or maintained on the Property at the time of the surrender, or for the contents thereof or appurtenances thereto. 27. Miscellaneous. a. Modification. This Lease may only be modified by subsequent written agreement of the Parties. b. Integration. This Lease and any attached exhibits constitute the entire agreement between Tenant and the Town, superseding all prior oral or written communications. c. Binding Effect. This Lease shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assigns. d. Severability. If any provision of this Lease is determined to be void by a court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. e. Governing Law and Venue. This Lease shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. f. Third Parties. There are no intended third-party beneficiaries to this Lease. g. Contingency; No Debt. Pursuant to Article X, § 20 of the Colorado Constitution, any financial obligations of the Town under this Lease are specifically contingent upon annual appropriation of funds sufficient to perform such obligations. This Lease shall never constitute a debt or obligation of the Town within any statutory or constitutional provision. h. No Joint Venture. Notwithstanding any provision hereof, the Town shall never be a joint venture in any private entity or activity which participates in this Lease, and the Town shall never be liable or responsible for any debt or obligation of any participant in this Lease. i. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Lease, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town or its officers, attorneys or employees. 2/18/2014 9 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX WHEREFORE, the Parties have executed this Lease on the Effective Date. TOWN OF VAIL, COLORADO ____________________________________ Stan Zemler, Town Manager ATTEST: _________________________________ Tammy Nagel, Interim Town Clerk TENANT By: Name: Its: STATE OF COLORADO ) ) ss. COUNTY OF _______________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of ________________________, 2014, by _________________________ as the _______________________ of _______________. My commission expires: (S E A L) _____________________________________ Notary Public 2/18/2014 10 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX EXHIBIT A LEGAL DESCRIPTION Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion’s Ridge Subdivision, Block C, A Resubdivision of Lots 1, 2, 3, 4 & 5, Town of Vail, County of Eagle, State of Colorado 2/18/2014 11 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX EXHIBIT B DEED RESTRICTION FOR THE OCCUPANCY OF RESTRICTED UNITS AT LION'S RIDGE APARTMENT HOMES THIS DEED RESTRICTION FOR THE OCCUPANCY OF RESTRICTED UNITS AT LION'S RIDGE APARTMENT HOMES (the "Deed Restriction") is made and entered into this ___ day of ______________, 2014 (the "Effective Date"), by and between the Town of Vail, a Colorado home rule municipality (the "Town"), and Lion's Ridge Apartment Homes, LLC, a Wisconsin limited liability company ("Master Lessee") (individually a "Party" and collectively the "Parties"). WHEREAS, the Town is the owner of certain real property generally described as the eastern half of the Timber Ridge property and more particularly described in Exhibit 1 attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, the Parties desire to redevelop the Property for employee housing; WHEREAS, the Town, as landlord, and Master Lessee as tenant, have entered into a Ground Lease for the Property dated _______________ (the "Ground Lease"); and NOW, THEREFORE, in consideration of the promises and covenants hereinafter set for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Defined Terms. For purposes of this Deed Restriction, the following terms shall have the following meanings: "Principal place of residence" means the dwelling in which one's habitation is fixed and to which a person, whenever he or she is absent, has a present intention of returning after an absence therefrom. In determining what is a principal place of residence, the Town and Master Lessee may consider, without limitation: location of business pursuits; employment and income sources; residence for tax purposes; residence of parents, spouse and children, if any; location of personal property; motor vehicle registration; and voter registration. "Qualified Household" means one Qualified Resident or a group of persons that contains at least one Qualified Resident (who must sign the Unit lease as a tenant). A Qualified Household may have occupants that are not Qualified Residents (and who may also sign the Unit lease as tenants) as long as at least one occupant who has signed the lease is a Qualified Resident. "Qualified Resident" means a natural person who works an average of 30 hours or more per week at a business in Eagle County, Colorado that holds a valid and current business license, or pays sales taxes, or is otherwise generally recognized as a legitimate business. For example, if a person worked 60 hours per week for one half of the year at 2/18/2014 12 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX such a business in Eagle County, Colorado, and worked elsewhere for the other half of the year, such person would constitute a Qualified Resident. "Rental Guidelines" means the guidelines attached as Exhibit 2 hereto and incorporated herein by this reference. "Restricted Unit" means a Unit that is rented to a Qualified Household pursuant to the terms of this Deed Restriction. "Unit" means each of the residential dwelling units constructed on the Property. 2. Binding Effect. This Deed Restriction shall constitute a covenant running with the Property as a burden thereon, for the benefit of, and enforceable by the Town and the Master Lessee. This Deed Restriction shall bind the Master Lessee and all occupants of the Restricted Units. Each and every occupant of a Restricted Unit shall be personally obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein that are applicable to such occupant during such occupant's respective period of occupancy of a Restricted Unit. Each and every conveyance of the Property or a portion thereof, or interest therein, for all purposes, shall be deemed to include and incorporate by this reference, the covenants contained in this Deed Restriction, even without reference to this Deed Restriction in any document of conveyance. 3. Occupancy. a. The Master Lessee covenants that at least 70% of the total Units in the Property shall be Restricted Units. The Parties acknowledge that the Restricted Units are not fixed and may float so long as at least 70% of the total Units are Restricted Units. For example, assume that the Property contains 100 Units. If 75 of the Units are rented to Qualified Households, and one of such Units becomes vacant, such Unit may thereafter be rented to occupants who are not a Qualified Household, because at least 70 of the Units remain occupied by Qualified Households. b. The Property may contain two additional common areas that shall not qualify as Units, one area to be used by property management personnel, maintenance personnel or security personnel, and one area to be used as a leasing or marketing office. Because such common areas are not considered Units under this Deed Restriction, they shall not be included in the calculation of Restricted Units; provided however, that if such common areas are ever converted into Units, they shall be included in the calculation of Restricted Units. c. A Qualified Resident must occupy the Restricted Unit as his or her principal place of residence. If other occupants of the Restricted Unit are not Qualified Residents, the Restricted Unit need not be their principal place of residence. d. At any time that the number of Restricted Units falls below 70% of the total Units, Master Lessee shall promptly take commercially reasonable efforts in accordance with applicable law and the Rental Guidelines to lease the next Units coming 2/18/2014 13 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX available for rent to Qualified Households in accordance with this Deed Restriction and the Rental Guidelines, until at least 70% of the total Units are Restricted Units. 4. Unit Lease. No Unit shall be leased or occupied without a Unit lease. Each Unit shall have only one Unit lease at any one time. Each Restricted Unit lease shall include a clear reference to this Deed Restriction and a brief summary of this Deed Restriction, including the remedies upon a violation or breach of the terms of this Deed Restriction, and shall incorporate the terms and conditions of this Deed Restriction. 5. Right To Terminate Lease. Nothing herein shall prevent the Master Lessee from terminating the lease of a Qualified Household, or taking any other legal action against the Qualified Household based upon any tenant's breach of the terms of the lease; provided that if a tenant misrepresents his or her status as a Qualified Resident, Master Lessee shall terminate the Unit lease in addition to any other available remedies. 6. Inspection. In a non-emergency situation, if the Town or Master Lessee has reasonable cause to believe that an occupant of a Restricted Unit is violating any provision of this Deed Restriction, the Town or Master Lessee may inspect the Restricted Unit between the hours of 8:00 am and 5:00 pm, Monday through Friday, after providing the occupant with no less than 24 hours written notice, which notice to tenant may be given by posting on the front door of the applicable Restricted Unit. Nothing herein shall preclude the Town or Master Lessee from accessing a Restricted Unit in an emergency situation where there is an imminent threat to person(s) or property. 7. Annual Verification. No later than February 1st of each year, beginning in the year following the first year of occupancy of the Property, Master Lessee shall submit a written statement to the Town including the following information and stating that such information is true and correct to the best of Master Lessee's knowledge and belief: a. Evidence to establish that 70% of the Units were Restricted Units (i.e., occupied by Qualified Households) during the prior calendar year; b. A list of tenants who occupied the Restricted Units in the prior calendar year and the evidence submitted by such tenants to establish that they were Qualified Residents and/or Qualified Households; c. A copy of the lease form currently used for the Restricted Units; and d. Copies (which may be electronic) of all application information submitted by Qualified Residents actually occupying Restricted Units; provided that such copies will only be provided for one Qualified Resident per Restricted Unit, even if more than one Qualified Resident occupies such Restricted Unit. 8. Violations. a. If Master Lessee discovers a violation of this Deed Restriction by an occupant, or if the Town notifies Master Lessee in writing that there is a violation of this Deed Restriction by an occupant, Master Lessee shall send a notice of violation to the 2/18/2014 14 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX occupant detailing the nature of the violation and allowing the occupant 10 days from the date of the notice to cure said violation to the reasonable satisfaction of Master Lessee and the Town. Notice may be given by posting on the front door of the applicable Unit or by other lawful means. If the violation is not cured within such time, the violation shall be considered a violation of this Deed Restriction by the Unit occupant. b. If the Town discovers a violation of this Deed Restriction by Master Lessee, the Town shall send a notice of the violation to Master Lessee, detailing the nature of the violation and allowing Master Lessee 30 days from the date the notice is given to cure said violation to the reasonable satisfaction of the Town. If a forcible entry and detainer is necessary to resolve the violation, the forcible entry and detainer shall be commenced within such 30-day period and diligently prosecuted to completion. If the violation if not cured within such time, the violation shall be considered a violation of this Deed Restriction by Master Lessee. 9. Remedies. a. The Town and Master Lessee shall have any and all remedies provided by law and in equity for a violation of this Deed Restriction, including without limitation: (i) damages, including but not limited to damages resulting from the leasing of a Restricted Unit in violation of this Deed Restriction; (ii) specific performance; and (iii) injunction, including but not limited to an injunction requiring eviction of the occupant(s) and an injunction to prohibit the occupancy of a Restricted Unit in violation of this Deed Restriction. All remedies shall be cumulative. b. In addition to any other available remedies, if Master Lessee is found to be in violation this Deed Restriction (after expiration of any cure period), Master Lessee shall be subject to a penalty of $100 per violation as determined by the Town in each instance. Each occurrence is hereby deemed to be a separate violation of this Deed Restriction, and the penalty may be imposed for each and every day during any portion of which a violation is found to have been committed, continued or permitted by Master Lessee. This penalty shall not apply if it is discovered that an occupant provided false information to Master Lessee, Master Lessee reasonably relied on such false information, and the false information caused the violation. c. If addition to any other available remedies, if an occupant of a Restricted Unit is found to be in violation of this Deed Restriction (after expiration of any cure period), the occupant shall be subject to a penalty of $100 per violation as determined by the Town in each instance. Each occurrence is hereby deemed to be a separate violation of this Deed Restriction, and the penalty may be imposed for each and every day during any portion of which a violation is found to have been committed or continued by an occupant. d. The cost to the Town of any activity taken in response to any violation of this Deed Restriction by the Master Lessee, including reasonable attorney fees, shall be paid promptly by Master Lessee; provided that, if the Town or a court of competent 2/18/2014 15 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX jurisdiction finds that Master Lessee was not in violation of this Deed Restriction, Master Lessee shall not be liable for such payment. 10. Term. This Deed Restriction shall commence on the Effective Date and shall terminate upon the expiration or termination of the Ground Lease. 11. Modification. This Deed Restriction may only be modified by subsequent written agreement of the Parties. 12. Assignment. Neither this Deed Restriction nor any of the rights or obligations of the Parties hereto shall be assigned by either Party without the written consent of the other. 13. Severability. If any provision of this Deed Restriction is determined to be void by a court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. 14. Governing Law and Venue. This Deed Restriction shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. 15. Third Parties. There are no intended third-party beneficiaries to this Deed Restriction. 16. No Joint Venture. Notwithstanding any provision hereof, the Town shall never be in a joint venture with the Master Lessee, and the Town shall never be liable or responsible for any debt or obligation of the Master Lessee. 17. No Indemnity. Nothing herein shall be construed to require the Town to protect or indemnify Master Lessee against any losses attributable to the rental of a Restricted Unit, nor to require the Town to locate a Qualified Resident for any Restricted Unit. 18. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Deed Restriction, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town or its officers, attorneys or employees. IN WITNESS WHEREOF, the Parties have executed this Deed Restriction on the Effective Date. TOWN OF VAIL, COLORADO ____________________________________ Stan Zemler, Town Manager ATTEST: _________________________________ Tammy Nagel, Interim Town Clerk 2/18/2014 16 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX MASTER LESSEE LION'S RIDGE APARTMENT HOMES, LLC BY GORMAN EMPLOYEE GROUP LION'S RIDGE, LLC, Manager BY GORMAN & COMPANY, INC., Manager BY__________________________ Gary J. Gorman, President STATE OF _____________ ) ) ss. COUNTY OF _______________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of ________________________, 2014, by Gary J. Gorman, the President of Gorman & Company, Inc., the Manager of Gorman Employee Group Lion's Ridge, LLC, the Manager of Lion's Ridge Apartment Homes, LLC. My commission expires: (S E A L) ____________________________________ Notary Public 2/18/2014 17 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX EXHIBIT 1 LEGAL DESCRIPTION Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision, Block C, A Resubdivision of Lots 1, 2, 3, 4 & 5, Town of Vail, County of Eagle, State of Colorado 2/18/2014 18 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX EXHIBIT 2 RENTAL GUIDELINES 1. Purpose. The purpose of these Rental Guidelines is to set forth the occupancy eligibility requirements for the employee housing rental units (the "Restricted Units") located in Lion's Ridge Apartment Homes, pursuant to the Deed Restriction dated _________________. 2. Definitions. All capitalized terms herein shall have the meanings set forth in the Deed Restriction. 3. Administration. In accordance with the Deed Restriction, Master Lessee shall administer these Rental Guidelines, including but not limited to, making determinations regarding the eligibility of applicants to rent and occupy a Restricted Unit as a Qualified Resident as set forth herein. Prior to leasing or renewing a lease for a Restricted Unit, the occupant must sign an individual acknowledgement of acceptance of the terms of these Rental Guidelines and the Deed Restriction. 4. Qualified Households and Residents. Except as otherwise provided herein or in the Deed Restriction, to be eligible for consideration to rent a Restricted Unit, the occupants must first be certified as a Qualified Household. Notwithstanding anything herein to the contrary, Master Lessee shall not be obligated to rent any Unit to a tenant that does not meet Master Lessee's rental guidelines, which rental guidelines shall be subject to review and approval by the Town, in its reasonable discretion. 5. Application. To become a Qualified Resident, a person must first provide the following information on an application to be provided by Master Lessee, and applications and all accompanying documentation shall become the property of the Master Lessee and will not be returned to the applicant: a. Verification (e.g., wage stubs, employer name, address, telephone number and other appropriate documentation as requested by Master Lessee) of applicant's current employment with a business in Eagle County that holds a valid and current business license, or pays sales taxes, or is otherwise generally recognized as a legitimate business; b. Evidence that the applicant has worked, or will work, an average of 30 hours per week or more per year for one or more of such businesses and that such level of employment is expected to be maintained for as long as the applicant lives in the Restricted Unit; c. A valid form of identification, such as a driver's license, state-issued identification, passport or military identification. d. Any other documentation which the Master Lessee deems necessary to make a determination of eligibility; and e. A signed statement certifying and acknowledging: that all information submitted in such application is true to applicant's best knowledge; that the applicant 2/18/2014 19 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX understands that he/she may not sublet the Restricted Unit; that the applicant authorizes Master Lessee to verify any and all past or present employment and residency information and all other information submitted by an applicant; and that applicant understands that, as set forth in the Deed Restriction, the Master Lessee reserves the right to review any applications and take any appropriate action regarding such application. 6. Lease Term. The Restricted Units shall be leased to Qualified Households, and may be renewed to Qualified Households, on a month-to-month basis or for periods no greater than 12 months in duration. 7. Interpretation. In evaluating a potential application to lease a Restricted Unit, the Master Lessee shall be guided by the following: a. An applicant's physical place of employment is controlling, not the mailing address of such place. b. Claims of employment by an applicant that are unable to be verified by Master Lessee will not be utilized in determining an applicant's eligibility. c. Seasonal work and part time work alone may not be adequate to meet the minimum 30 hours per week average annual requirement, but may augment other employment to meet the minimum eligibility requirements. 8. Leasing of Units to Non-Qualified Households. a. If at least 70% of the Units in the Property are Restricted Units, other Units may be freely leased by Master Lessee to occupants who are not Qualified Residents or Qualified Households. b. If there are no eligible Qualified Households available to rent a particular Unit, Master Lessee may rent such Unit to occupants other than a Qualified Household. However, at any time that the number of Restricted Units falls below 70% of the total Units, Master Lessee shall thereafter use commercially reasonable efforts to lease the next available Unit(s) to Qualified Households until the 70% threshold is again met. c. In no event may Master Lessee lease a Restricted Unit to a Qualified Resident who will not occupy the Restricted Unit as his or her principal place of residence, unless first expressly approved in writing by the Town after making findings that extraordinary circumstances and hardship exist to justify such arrangement. Such tenancy shall be on a month-to-month basis only. 9. Misrepresentation. Any misrepresentation by an applicant in any submittal shall disqualify such applicant from being eligible to lease a Restricted Unit, and shall be grounds for eviction if such misrepresentation is revealed after such applicant's occupancy. 10. Inspection of Documents. The Town may inspect any documents submitted with any application for Qualified Resident status pursuant to Section 5 hereof, at any time during normal business hours, upon reasonable notice. In addition, upon inspection, if the Town 2/18/2014 20 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX reasonably determines that additional documents are necessary to verify Qualified Resident or Qualified Household status, the Town may request additional documents. Notwithstanding the foregoing, Master Lessee shall not be required to retain any documents submitted by applicants who do not sign leases with Master Lessee; provided, however, that if the number of Restricted Units falls below 70% of the total Units, then Master Lessee shall retain documents submitted by applicants to verify its commercially reasonable efforts to lease the next Unit becoming available for rent to a Qualified Household in accordance with the requirements of the Deed Restriction and the Rental Guidelines, until at least 70% of the total Units are once again Restricted Units. 2/18/2014 21 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\GROUND LEASE-3.DOCX EXHIBIT C LEGAL DESCRIPTION OF ADJACENT PROPERTY Lot 1, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision, Block C, A Resubdivision of Lots 1, 2, 3, 4 & 5, Town of Vail, County of Eagle, State of Colorado 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 1 DEED RESTRICTION FOR THE OCCUPANCY OF RESTRICTED UNITS AT LION'S RIDGE APARTMENT HOMES THIS DEED RESTRICTION FOR THE OCCUPANCY OF RESTRICTED UNITS AT LION'S RIDGE APARTMENT HOMES (the "Deed Restriction") is made and entered into this ___ day of ______________, 2014 (the "Effective Date"), by and between the Town of Vail, a Colorado home rule municipality (the "Town"), and Lion's Ridge Apartment Homes, LLC, a Wisconsin limited liability company ("Master Lessee") (individually a "Party" and collectively the "Parties"). WHEREAS, the Town is the owner of certain real property generally described as the eastern half of the Timber Ridge property and more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, the Parties desire to redevelop the Property for employee housing; WHEREAS, the Town, as landlord, and Master Lessee as tenant, have entered into a Ground Lease for the Property dated _______________ (the "Ground Lease"); and NOW, THEREFORE, in consideration of the promises and covenants hereinafter set for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Defined Terms. For purposes of this Deed Restriction, the following terms shall have the following meanings: "Principal place of residence" means the dwelling in which one's habitation is fixed and to which a person, whenever he or she is absent, has a present intention of returning after an absence therefrom. In determining what is a principal place of residence, the Town and Master Lessee may consider, without limitation: location of business pursuits; employment and income sources; residence for tax purposes; residence of parents, spouse and children, if any; location of personal property; motor vehicle registration; and voter registration. "Qualified Household" means one Qualified Resident or a group of persons that contains at least one Qualified Resident (who must sign the Unit lease as a tenant). A Qualified Household may have occupants that are not Qualified Residents (and who may also sign the Unit lease as tenants) as long as at least one occupant who has signed the lease is a Qualified Resident. "Qualified Resident" means a natural person who works an average of 30 hours or more per week at a business in Eagle County, Colorado that holds a valid and current business license, or pays sales taxes, or is otherwise generally recognized as a legitimate business. For example, if a person worked 60 hours per week for one half of the year at such a business in Eagle County, Colorado, and worked elsewhere for the other half of the year, such person would constitute a Qualified Resident. 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 2 "Rental Guidelines" means the guidelines attached as Exhibit B hereto and incorporated herein by this reference. "Restricted Unit" means a Unit that is rented to a Qualified Household pursuant to the terms of this Deed Restriction. "Unit" means each of the residential dwelling units constructed on the Property. 2. Binding Effect. This Deed Restriction shall constitute a covenant running with the Property as a burden thereon, for the benefit of, and enforceable by the Town and the Master Lessee. This Deed Restriction shall bind the Master Lessee and all occupants of the Restricted Units. Each and every occupant of a Restricted Unit shall be personally obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein that are applicable to such occupant during such occupant's respective period of occupancy of a Restricted Unit. Each and every conveyance of the Property or a portion thereof, or interest therein, for all purposes, shall be deemed to include and incorporate by this reference, the covenants contained in this Deed Restriction, even without reference to this Deed Restriction in any document of conveyance. 3. Occupancy. a. The Master Lessee covenants that at least 70% of the total Units in the Property shall be Restricted Units. The Parties acknowledge that the Restricted Units are not fixed and may float so long as at least 70% of the total Units are Restricted Units. For example, assume that the Property contains 100 Units. If 75 of the Units are rented to Qualified Households, and one of such Units becomes vacant, such Unit may thereafter be rented to occupants who are not a Qualified Household, because at least 70 of the Units remain occupied by Qualified Households. b. The Property may contain two additional common areas that shall not qualify as Units, one area to be used by property management personnel, maintenance personnel or security personnel, and one area to be used as a leasing or marketing office. Because such common areas are not considered Units under this Deed Restriction, they shall not be included in the calculation of Restricted Units; provided however, that if such common areas are ever converted into Units, they shall be included in the calculation of Restricted Units. c. A Qualified Resident must occupy the Restricted Unit as his or her principal place of residence. If other occupants of the Restricted Unit are not Qualified Residents, the Restricted Unit need not be their principal place of residence. d. At any time that the number of Restricted Units falls below 70% of the total Units, Master Lessee shall promptly take commercially reasonable efforts in accordance with applicable law and the Rental Guidelines to lease the next Units coming available for rent to Qualified Households in accordance with this Deed Restriction and the Rental Guidelines, until at least 70% of the total Units are Restricted Units. 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 3 4. Unit Lease. No Unit shall be leased or occupied without a Unit lease. Each Unit shall have only one Unit lease at any one time. Each Restricted Unit lease shall include a clear reference to this Deed Restriction and a brief summary of this Deed Restriction, including the remedies upon a violation or breach of the terms of this Deed Restriction, and shall incorporate the terms and conditions of this Deed Restriction. 5. Right To Terminate Lease. Nothing herein shall prevent the Master Lessee from terminating the lease of a Qualified Household, or taking any other legal action against the Qualified Household based upon any tenant's breach of the terms of the lease; provided that if a tenant misrepresents his or her status as a Qualified Resident, Master Lessee shall terminate the Unit lease in addition to any other available remedies. 6. Inspection. In a non-emergency situation, if the Town or Master Lessee has reasonable cause to believe that an occupant of a Restricted Unit is violating any provision of this Deed Restriction, the Town or Master Lessee may inspect the Restricted Unit between the hours of 8:00 am and 5:00 pm, Monday through Friday, after providing the occupant with no less than 24 hours written notice, which notice to tenant may be given by posting on the front door of the applicable Restricted Unit. Nothing herein shall preclude the Town or Master Lessee from accessing a Restricted Unit in an emergency situation where there is an imminent threat to person(s) or property. 7. Annual Verification. No later than February 1st of each year, beginning in the year following the first year of occupancy of the Property, Master Lessee shall submit a written statement to the Town including the following information and stating that such information is true and correct to the best of Master Lessee's knowledge and belief: a. Evidence to establish that 70% of the Units were Restricted Units (i.e., occupied by Qualified Households) during the prior calendar year; b. A list of tenants who occupied the Restricted Units in the prior calendar year and the evidence submitted by such tenants to establish that they were Qualified Residents and/or Qualified Households; c. A copy of the lease form currently used for the Restricted Units; and d. Copies (which may be electronic) of all application information submitted by Qualified Residents actually occupying Restricted Units; provided that such copies will only be provided for one Qualified Resident per Restricted Unit, even if more than one Qualified Resident occupies such Restricted Unit. 8. Violations. a. If Master Lessee discovers a violation of this Deed Restriction by an occupant, or if the Town notifies Master Lessee in writing that there is a violation of this Deed Restriction by an occupant, Master Lessee shall send a notice of violation to the occupant detailing the nature of the violation and allowing the occupant 10 days from the date of the notice to cure said violation to the reasonable satisfaction of Master Lessee and the Town. Notice may be given by posting on the front door of the applicable Unit 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 4 or by other lawful means. If the violation is not cured within such time, the violation shall be considered a violation of this Deed Restriction by the Unit occupant. b. If the Town discovers a violation of this Deed Restriction by Master Lessee, the Town shall send a notice of the violation to Master Lessee, detailing the nature of the violation and allowing Master Lessee 30 days from the date the notice is given to cure said violation to the reasonable satisfaction of the Town. If a forcible entry and detainer is necessary to resolve the violation, the forcible entry and detainer shall be commenced within such 30-day period and diligently prosecuted to completion. If the violation if not cured within such time, the violation shall be considered a violation of this Deed Restriction by Master Lessee. 9. Remedies. a. The Town and Master Lessee shall have any and all remedies provided by law and in equity for a violation of this Deed Restriction, including without limitation: (i) damages, including but not limited to damages resulting from the leasing of a Restricted Unit in violation of this Deed Restriction; (ii) specific performance; and (iii) injunction, including but not limited to an injunction requiring eviction of the occupant(s) and an injunction to prohibit the occupancy of a Restricted Unit in violation of this Deed Restriction. All remedies shall be cumulative. b. In addition to any other available remedies, if Master Lessee is found to be in violation this Deed Restriction (after expiration of any cure period), Master Lessee shall be subject to a penalty of $100 per violation as determined by the Town in each instance. Each occurrence is hereby deemed to be a separate violation of this Deed Restriction, and the penalty may be imposed for each and every day during any portion of which a violation is found to have been committed, continued or permitted by Master Lessee. This penalty shall not apply if it is discovered that an occupant provided false information to Master Lessee, Master Lessee reasonably relied on such false information, and the false information caused the violation. c. If addition to any other available remedies, if an occupant of a Restricted Unit is found to be in violation of this Deed Restriction (after expiration of any cure period), the occupant shall be subject to a penalty of $100 per violation as determined by the Town in each instance. Each occurrence is hereby deemed to be a separate violation of this Deed Restriction, and the penalty may be imposed for each and every day during any portion of which a violation is found to have been committed or continued by an occupant. d. The cost to the Town of any activity taken in response to any violation of this Deed Restriction by the Master Lessee, including reasonable attorney fees, shall be paid promptly by Master Lessee; provided that, if the Town or a court of competent jurisdiction finds that Master Lessee was not in violation of this Deed Restriction, Master Lessee shall not be liable for such payment. 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 5 10. Term. This Deed Restriction shall commence on the Effective Date and shall terminate upon the expiration or termination of the Ground Lease. 11. Modification. This Deed Restriction may only be modified by subsequent written agreement of the Parties. 12. Assignment. Neither this Deed Restriction nor any of the rights or obligations of the Parties hereto shall be assigned by either Party without the written consent of the other. 13. Severability. If any provision of this Deed Restriction is determined to be void by a court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. 14. Governing Law and Venue. This Deed Restriction shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. 15. Third Parties. There are no intended third-party beneficiaries to this Deed Restriction. 16. No Joint Venture. Notwithstanding any provision hereof, the Town shall never be in a joint venture with the Master Lessee, and the Town shall never be liable or responsible for any debt or obligation of the Master Lessee. 17. No Indemnity. Nothing herein shall be construed to require the Town to protect or indemnify Master Lessee against any losses attributable to the rental of a Restricted Unit, nor to require the Town to locate a Qualified Resident for any Restricted Unit. 18. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Deed Restriction, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town or its officers, attorneys or employees. IN WITNESS WHEREOF, the Parties have executed this Deed Restriction on the Effective Date. TOWN OF VAIL, COLORADO ____________________________________ Stan Zemler, Town Manager ATTEST: _________________________________ Tammy Nagel, Interim Town Clerk 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 6 MASTER LESSEE LION'S RIDGE APARTMENT HOMES, LLC BY GORMAN EMPLOYEE GROUP LION'S RIDGE, LLC, Manager BY GORMAN & COMPANY, INC., Manager BY__________________________ Gary J. Gorman, President STATE OF _____________ ) ) ss. COUNTY OF _______________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of ________________________, 2014, by Gary J. Gorman, the President of Gorman & Company, Inc., the Manager of Gorman Employee Group Lion's Ridge, LLC, the Manager of Lion's Ridge Apartment Homes, LLC. My commission expires: (S E A L) ____________________________________ Notary Public 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 7 EXHIBIT A LEGAL DESCRIPTION Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision, Block C, A Resubdivision of Lots 1, 2, 3, 4 & 5, Town of Vail, County of Eagle, State of Colorado 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 8 EXHIBIT B RENTAL GUIDELINES 1. Purpose. The purpose of these Rental Guidelines is to set forth the occupancy eligibility requirements for the employee housing rental units (the "Restricted Units") located in Lion's Ridge Apartment Homes, pursuant to the Deed Restriction dated _________________. 2. Definitions. All capitalized terms herein shall have the meanings set forth in the Deed Restriction. 3. Administration. In accordance with the Deed Restriction, Master Lessee shall administer these Rental Guidelines, including but not limited to, making determinations regarding the eligibility of applicants to rent and occupy a Restricted Unit as a Qualified Resident as set forth herein. Prior to leasing or renewing a lease for a Restricted Unit, the occupant must sign an individual acknowledgement of acceptance of the terms of these Rental Guidelines and the Deed Restriction. 4. Qualified Households and Residents. Except as otherwise provided herein or in the Deed Restriction, to be eligible for consideration to rent a Restricted Unit, the occupants must first be certified as a Qualified Household. Notwithstanding anything herein to the contrary, Master Lessee shall not be obligated to rent any Unit to a tenant that does not meet Master Lessee's rental guidelines, which rental guidelines shall be subject to review and approval by the Town, in its reasonable discretion. 5. Application. To become a Qualified Resident, a person must first provide the following information on an application to be provided by Master Lessee, and applications and all accompanying documentation shall become the property of the Master Lessee and will not be returned to the applicant: a. Verification (e.g., wage stubs, employer name, address, telephone number and other appropriate documentation as requested by Master Lessee) of applicant's current employment with a business in Eagle County that holds a valid and current business license, or pays sales taxes, or is otherwise generally recognized as a legitimate business; b. Evidence that the applicant has worked, or will work, an average of 30 hours per week or more per year for one or more of such businesses and that such level of employment is expected to be maintained for as long as the applicant lives in the Restricted Unit; c. A valid form of identification, such as a driver's license, state-issued identification, passport or military identification. d. Any other documentation which the Master Lessee deems necessary to make a determination of eligibility; and e. A signed statement certifying and acknowledging: that all information submitted in such application is true to applicant's best knowledge; that the applicant 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 9 understands that he/she may not sublet the Restricted Unit; that the applicant authorizes Master Lessee to verify any and all past or present employment and residency information and all other information submitted by an applicant; and that applicant understands that, as set forth in the Deed Restriction, the Master Lessee reserves the right to review any applications and take any appropriate action regarding such application. 6. Lease Term. The Restricted Units shall be leased to Qualified Households, and may be renewed to Qualified Households, on a month-to-month basis or for periods no greater than 12 months in duration. 7. Interpretation. In evaluating a potential application to lease a Restricted Unit, the Master Lessee shall be guided by the following: a. An applicant's physical place of employment is controlling, not the mailing address of such place. b. Claims of employment by an applicant that are unable to be verified by Master Lessee will not be utilized in determining an applicant's eligibility. c. Seasonal work and part time work alone may not be adequate to meet the minimum 30 hours per week average annual requirement, but may augment other employment to meet the minimum eligibility requirements. 8. Leasing of Units to Non-Qualified Households. a. If at least 70% of the Units in the Property are Restricted Units, other Units may be freely leased by Master Lessee to occupants who are not Qualified Residents or Qualified Households. b. If there are no eligible Qualified Households available to rent a particular Unit, Master Lessee may rent such Unit to occupants other than a Qualified Household. However, at any time that the number of Restricted Units falls below 70% of the total Units, Master Lessee shall thereafter use commercially reasonable efforts to lease the next available Unit(s) to Qualified Households until the 70% threshold is again met. c. In no event may Master Lessee lease a Restricted Unit to a Qualified Resident who will not occupy the Restricted Unit as his or her principal place of residence, unless first expressly approved in writing by the Town after making findings that extraordinary circumstances and hardship exist to justify such arrangement. Such tenancy shall be on a month-to-month basis only. 9. Misrepresentation. Any misrepresentation by an applicant in any submittal shall disqualify such applicant from being eligible to lease a Restricted Unit, and shall be grounds for eviction if such misrepresentation is revealed after such applicant's occupancy. 10. Inspection of Documents. The Town may inspect any documents submitted with any application for Qualified Resident status pursuant to Section 5 hereof, at any time during normal business hours, upon reasonable notice. In addition, upon inspection, if the Town 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 10 reasonably determines that additional documents are necessary to verify Qualified Resident or Qualified Household status, the Town may request additional documents. Notwithstanding the foregoing, Master Lessee shall not be required to retain any documents submitted by applicants who do not sign leases with Master Lessee; provided, however, that if the number of Restricted Units falls below 70% of the total Units, then Master Lessee shall retain documents submitted by applicants to verify its commercially reasonable efforts to lease the next Unit becoming available for rent to a Qualified Household in accordance with the requirements of the Deed Restriction and the Rental Guidelines, until at least 70% of the total Units are once again Restricted Units. 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: First reading of Ordinance No. 5, Series of 2014, An Ordinance Amending Section 6-3C-6 of the Vail Town Code to Reconcile the Town Code with C.R.S.§ 18-18-406 Concerning Penalties for the Possession of Marijuana. PRESENTER(S): Matt Mire ACTION REQUESTED OF COUNCIL: Approve, approve with amendments or deny Ordinance No. 5, Series of 2014 upon first reading. BACKGROUND: In 2012, Colorado voters passed Amendment 64, which amended Article XVIII of the Colorado Constitution by the addition of a new § 16 regarding the personal use and regulation of marijuana. Amendment 64 permits the possession, use, display, purchase or transportation of marijuana accessories and one ounce or less of marijuana by persons twenty-one (21) years of age and older. In light of Amendment 64, the Colorado General Assembly repealed and reenacted C.R.S. § 18-18-406, which establishes the maximum penalties for the possession and open and public display or consumption of marijuana, and such changes became effective in October 2013. Ordinance No. 5 reconciles the Vail Town Code with C.R.S. § 18-18-406 and to clarifies the Town's penalty provisions concerning the possession and open and public display and consumption of marijuana. STAFF RECOMMENDATION: Approve, approve with amendments or deny Ordinance No. 5, Series of 2014 upon first reading. ATTACHMENTS: Ordinance No. 5 Series of 2014 2/18/2014 Ordinance No. 5, Series of 2014 1 ORDINANCE NO. 5 SERIES 2014 AN ORDINANCE AMENDING SECTION 6-3C-6 OF THE VAIL TOWN CODE TO RECONCILE THE TOWN CODE WITH C.R.S. § 18-18-406 CONCERNING PENALTIES FOR THE POSSESSION OF MARIJUANA WHEREAS, in 2012, Colorado voters passed Amendment 64, which amended Article XVIII of the Colorado Constitution by the addition of a new § 16 regarding the personal use and regulation of marijuana; WHEREAS, Amendment 64 permits the possession, use, display, purchase or transportation of marijuana accessories and one ounce or less of marijuana by persons twenty-one (21) years of age and older; WHEREAS, in light of Amendment 64, the Colorado General Assembly repealed and reenacted C.R.S. § 18-18-406, which establishes the maximum penalties for the possession of marijuana, and such changes became effective in October 2013; and WHEREAS, it is the desire of the Vail Town Council to pass legislation reconciling the Vail Town Code with C.R.S. § 18-18-406 concerning the penalties for possession of marijuana. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Subsection C of Section 6-3C-6 of the Vail Town Code is hereby amended to read as follows: 6-3C-6: Possession of Marijuana, Marijuana Products and Marijuana Accessories: . . . C. Penalty: 1. Violations of this Section shall be punishable as set forth in Title 1, Chapter 4 of this Code, except that a person who possesses not more than two (2) ounces of marijuana in violation of this Section shall be punished by a fine of not more than one hundred dollars ($100.00); and 2. It shall be an affirmative defense to a prosecution under this Section that a person is in possession of a valid registry identification card authorizing the medicinal use of marijuana issued by the state health agency, so long as consumption or use does not occur in a public place. Section 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity 2/18/2014 Ordinance No. 5, Series of 2014 2 of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town of Vail and the inhabitants thereof. Section 4. The amendment of any provision of the Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 18th day of February, 2014 and a public hearing for second reading of this Ordinance set for the 4th day of March, 2014, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. _____________________________ Andy P. Daly, Mayor ATTEST: ____________________________ Tammy Nagel, Interim Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 4th day of March, 2014. _____________________________ Andy P. Daly, Mayor ATTEST: ____________________________ Tammy Nagel, Interim Town Clerk 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: Adjournment (9:15 p.m.) 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 7 EXHIBIT A LEGAL DESCRIPTION Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision, Block C, A Resubdivision of Lots 1, 2, 3, 4 & 5, Town of Vail, County of Eagle, State of Colorado 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 8 EXHIBIT B RENTAL GUIDELINES 1. Purpose. The purpose of these Rental Guidelines is to set forth the occupancy eligibility requirements for the employee housing rental units (the "Restricted Units") located in Lion's Ridge Apartment Homes, pursuant to the Deed Restriction dated _________________. 2. Definitions. All capitalized terms herein shall have the meanings set forth in the Deed Restriction. 3. Administration. In accordance with the Deed Restriction, Master Lessee shall administer these Rental Guidelines, including but not limited to, making determinations regarding the eligibility of applicants to rent and occupy a Restricted Unit as a Qualified Resident as set forth herein. Prior to leasing or renewing a lease for a Restricted Unit, the occupant must sign an individual acknowledgement of acceptance of the terms of these Rental Guidelines and the Deed Restriction. 4. Qualified Households and Residents. Except as otherwise provided herein or in the Deed Restriction, to be eligible for consideration to rent a Restricted Unit, the occupants must first be certified as a Qualified Household. Notwithstanding anything herein to the contrary, Master Lessee shall not be obligated to rent any Unit to a tenant that does not meet Master Lessee's rental guidelines, which rental guidelines shall be subject to review and approval by the Town, in its reasonable discretion. 5. Application. To become a Qualified Resident, a person must first provide the following information on an application to be provided by Master Lessee, and applications and all accompanying documentation shall become the property of the Master Lessee and will not be returned to the applicant: a. Verification (e.g., wage stubs, employer name, address, telephone number and other appropriate documentation as requested by Master Lessee) of applicant's current employment with a business in Eagle County that holds a valid and current business license, or pays sales taxes, or is otherwise generally recognized as a legitimate business; b. Evidence that the applicant has worked, or will work, an average of 30 hours per week or more per year for one or more of such businesses and that such level of employment is expected to be maintained for as long as the applicant lives in the Restricted Unit; c. A valid form of identification, such as a driver's license, state-issued identification, passport or military identification. d. Any other documentation which the Master Lessee deems necessary to make a determination of eligibility; and e. A signed statement certifying and acknowledging: that all information submitted in such application is true to applicant's best knowledge; that the applicant 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 9 understands that he/she may not sublet the Restricted Unit; that the applicant authorizes Master Lessee to verify any and all past or present employment and residency information and all other information submitted by an applicant; and that applicant understands that, as set forth in the Deed Restriction, the Master Lessee reserves the right to review any applications and take any appropriate action regarding such application. 6. Lease Term. The Restricted Units shall be leased to Qualified Households, and may be renewed to Qualified Households, on a month-to-month basis or for periods no greater than 12 months in duration. 7. Interpretation. In evaluating a potential application to lease a Restricted Unit, the Master Lessee shall be guided by the following: a. An applicant's physical place of employment is controlling, not the mailing address of such place. b. Claims of employment by an applicant that are unable to be verified by Master Lessee will not be utilized in determining an applicant's eligibility. c. Seasonal work and part time work alone may not be adequate to meet the minimum 30 hours per week average annual requirement, but may augment other employment to meet the minimum eligibility requirements. 8. Leasing of Units to Non-Qualified Households. a. If at least 70% of the Units in the Property are Restricted Units, other Units may be freely leased by Master Lessee to occupants who are not Qualified Residents or Qualified Households. b. If there are no eligible Qualified Households available to rent a particular Unit, Master Lessee may rent such Unit to occupants other than a Qualified Household. However, at any time that the number of Restricted Units falls below 70% of the total Units, Master Lessee shall thereafter use commercially reasonable efforts to lease the next available Unit(s) to Qualified Households until the 70% threshold is again met. c. In no event may Master Lessee lease a Restricted Unit to a Qualified Resident who will not occupy the Restricted Unit as his or her principal place of residence, unless first expressly approved in writing by the Town after making findings that extraordinary circumstances and hardship exist to justify such arrangement. Such tenancy shall be on a month-to-month basis only. 9. Misrepresentation. Any misrepresentation by an applicant in any submittal shall disqualify such applicant from being eligible to lease a Restricted Unit, and shall be grounds for eviction if such misrepresentation is revealed after such applicant's occupancy. 10. Inspection of Documents. The Town may inspect any documents submitted with any application for Qualified Resident status pursuant to Section 5 hereof, at any time during normal business hours, upon reasonable notice. In addition, upon inspection, if the Town 2/18/2014 2/13/2014 Q:\USERS\VAIL\TIMBER RIDGE-NEW\AGR\DEED RESTRICTION-6.DOC 10 reasonably determines that additional documents are necessary to verify Qualified Resident or Qualified Household status, the Town may request additional documents. Notwithstanding the foregoing, Master Lessee shall not be required to retain any documents submitted by applicants who do not sign leases with Master Lessee; provided, however, that if the number of Restricted Units falls below 70% of the total Units, then Master Lessee shall retain documents submitted by applicants to verify its commercially reasonable efforts to lease the next Unit becoming available for rent to a Qualified Household in accordance with the requirements of the Deed Restriction and the Rental Guidelines, until at least 70% of the total Units are once again Restricted Units. 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: First reading of Ordinance No. 5, Series of 2014, An Ordinance Amending Section 6-3C-6 of the Vail Town Code to Reconcile the Town Code with C.R.S.§ 18-18-406 Concerning Penalties for the Possession of Marijuana. PRESENTER(S): Matt Mire ACTION REQUESTED OF COUNCIL: Approve, approve with amendments or deny Ordinance No. 5, Series of 2014 upon first reading. BACKGROUND: In 2012, Colorado voters passed Amendment 64, which amended Article XVIII of the Colorado Constitution by the addition of a new § 16 regarding the personal use and regulation of marijuana. Amendment 64 permits the possession, use, display, purchase or transportation of marijuana accessories and one ounce or less of marijuana by persons twenty-one (21) years of age and older. In light of Amendment 64, the Colorado General Assembly repealed and reenacted C.R.S. § 18-18-406, which establishes the maximum penalties for the possession and open and public display or consumption of marijuana, and such changes became effective in October 2013. Ordinance No. 5 reconciles the Vail Town Code with C.R.S. § 18-18-406 and to clarifies the Town's penalty provisions concerning the possession and open and public display and consumption of marijuana. STAFF RECOMMENDATION: Approve, approve with amendments or deny Ordinance No. 5, Series of 2014 upon first reading. ATTACHMENTS: Ordinance No. 5 Series of 2014 2/18/2014 Ordinance No. 5, Series of 2014 1 ORDINANCE NO. 5 SERIES 2014 AN ORDINANCE AMENDING SECTION 6-3C-6 OF THE VAIL TOWN CODE TO RECONCILE THE TOWN CODE WITH C.R.S. § 18-18-406 CONCERNING PENALTIES FOR THE POSSESSION OF MARIJUANA WHEREAS, in 2012, Colorado voters passed Amendment 64, which amended Article XVIII of the Colorado Constitution by the addition of a new § 16 regarding the personal use and regulation of marijuana; WHEREAS, Amendment 64 permits the possession, use, display, purchase or transportation of marijuana accessories and one ounce or less of marijuana by persons twenty-one (21) years of age and older; WHEREAS, in light of Amendment 64, the Colorado General Assembly repealed and reenacted C.R.S. § 18-18-406, which establishes the maximum penalties for the possession of marijuana, and such changes became effective in October 2013; and WHEREAS, it is the desire of the Vail Town Council to pass legislation reconciling the Vail Town Code with C.R.S. § 18-18-406 concerning the penalties for possession of marijuana. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Subsection C of Section 6-3C-6 of the Vail Town Code is hereby amended to read as follows: 6-3C-6: Possession of Marijuana, Marijuana Products and Marijuana Accessories: . . . C. Penalty: 1. Violations of this Section shall be punishable as set forth in Title 1, Chapter 4 of this Code, except that a person who possesses not more than two (2) ounces of marijuana in violation of this Section shall be punished by a fine of not more than one hundred dollars ($100.00); and 2. It shall be an affirmative defense to a prosecution under this Section that a person is in possession of a valid registry identification card authorizing the medicinal use of marijuana issued by the state health agency, so long as consumption or use does not occur in a public place. Section 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity 2/18/2014 Ordinance No. 5, Series of 2014 2 of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town of Vail and the inhabitants thereof. Section 4. The amendment of any provision of the Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 18th day of February, 2014 and a public hearing for second reading of this Ordinance set for the 4th day of March, 2014, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. _____________________________ Andy P. Daly, Mayor ATTEST: ____________________________ Tammy Nagel, Interim Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 4th day of March, 2014. _____________________________ Andy P. Daly, Mayor ATTEST: ____________________________ Tammy Nagel, Interim Town Clerk 2/18/2014 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: February 18, 2014 ITEM/TOPIC: Adjournment (9:15 p.m.) 2/18/2014