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HomeMy WebLinkAbout3.0 CorrespondenceDavid Pesnichak From: David H. McConaughy <dmcconaughy@garfieldhecht.com> Sent: Wednesday, January 07, 2015 12:45 PM To: David Pesnichak Cc: Davis Farrar; Kevin Kiernan; Jan Shute; Jeff Hecksel; Karl J. Hanlon Subject: Fed Ex Application David, Without prejudice to the applicant's existing rights under Resolution No. 2014-50, we would like to withdraw the current application to amend the conditions of that Resolution, which is set for the continued hearing on January 20, 2015. As you know, my client has found another potential site, and we have determined to focus our efforts on that application for the time being. Please call with any questions or if you need anything further. Thank you. David H. McConaughy GARFIELD & HECHT, P.C. 420 Seventh Street #100 Glenwood Springs, CO 81601 dmcconaughy@garfieldhecht.com (970) 947-1936 Tax Advice Disclosure: Any U.S. Federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used or relied upon, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending any entity, investment plan or other transaction 1 GLENWOOD SPRINGS OFFICE The Denver Center 420 Seventh Street, Suite 100 Glenwood Springs, Colorado 81601 Telephone (970) 947-1936 Facsimile (970) 947-1937 GARFIELD & HECHT, P.C. ATTORNEYS AT LAW Since 1975 www.garfieldhecht.com December 5, 2034 VIA US MAIL AND EMAIL David Pesnichak, Senior Planner Garfield County Planning Division 108 8th Street, Suite 401 Glenwood Springs, CO 81601 dpesnichak(agarfield-county.com Re: FedEx Facility Dear David: David McConaughy dmcconaughy@garfieldhecht.com We met with representatives of the City of Glenwood Springs this morning as encouraged by the County Commissioners., The persons in attendance were myself, Davis Farrar, and our client Kevin Kiernan. Mayor Leo McKinney attended for the City along with City Manager Jeff Hecksei and City Attorney Jan Shute. The City has not changed its position The City would accept a traffic fee contribution of approximately $1,681,000 as presented at the last BOCC hearing. The representatives who met with us stated they had no authority to compromise that number. The City also has not changed its position about receiving the right-of-way for the South Bridge without any compensation to offset the conflict with the septic system. At the present time, the City remains unwilling to consider extension of sewer service to solve that conflict or to extend water service to reduce project costs. From the applicant's side, Mr. Kiernan told the City that FedEx intends to offer the $585,000 to the City regardless of whether the BOCC keeps that as a condition of approval or not. However, given the size of the project and the overall costs of construction and development, there is simply lib room in the budget to increase that contribution without making the project economically urivia.hle In any event, it would appear that neither party is in a position to close the gap of more than $1 Million, and no compromise was reached. The City representatives expressed appreciation for my client's offer to pay the 8585,000 voluntarily, but they had no authority to agree to any figure other than the $1.681 Million. Aspen • Avon • Basalt • Glenwood Springs • Rifle ® Printed on recycled paper GARFIELD & HECHT, P.C. David Pesnichek Garfield County Building & Planning December 5, 2014 Page 2 of 2 At this point, my client and the City appear to agree that the County needs to render its decision one way or the other. Regardless of what the County decides, we advised the City that we would remain open to working with them to mitigate the impacts of the project or to improve the design by, for example, extending sewer service at ilie applicant's expense to avoid the need to construct ISDS that may conflict with the South Bridge alignment. The City made no commitment that any future agreement could be reached, but they also said they would be open to further discussions after the County makes its decision on December 15. The meeting was cordial and professional. I believe everyone present agreed that it was a good use of time and that both the applicant and the City are proceeding in good faith based on the direction from the County Commissioners. Nevertheless, at this point we simply need a decision from the County. Feel free to contact me with any questions. Thank you. Very truly yours, GARF ECHT, P.C. David . Mc 'onaugh cc: Jeff Hecksel (via e-mail only jeff.hecksel@cogs.us) Jan Shute (via e-mail only jan.shute@cogs.us) 1145274 Printed on recycled paper GLENWOOD SPRINGS OFFICE The Denver Center 420 Seventh Street, Suite 100 Glenwood Springs, Colorado 81601 Telephone (970) 947-1936 Facsimile (970) 947-1937 GARFIELD & HECHT, P.C. Via E -Mail Jeff Hecksel, City Manager Jan Shute, City Attorney City of Glenwood Springs 101 West 8th Street Glenwood Springs, CO 81601 Re: FedEx Facility Dear Mr. Hecksel and Ms. Shute: ATTORNEYS AT LAW Since 1975 www.garfieldhecht.com October 9, 2014 David H. McConaughy dmcconaughy(aagadieldhecht. cnm Thank you for meeting with us on October 8, 2014. This letter is to follow-up on that meeting and to provide comments on Ms. Shute's revised draft of the proposed agreement sent on October 7. The comments below will track the paragraph numbers and comments included in Ms. Shute's redline version. A revised version in both clean and redline format is enclosed. Paragraph 2: The agreement should be contingent on Developer's purchase of the subject property, and we have suggested a deadline of 6 months from the date of execution for that to be accomplished. Otherwise, either party would have the option to terminate by written notice. Paragraph 3: Developer proposes making the payment to the City within five business days after issuance of the County Land Use Permit. Paragraph 4 (previously 5): Developer would like to discuss the South Bridge dedication issues with City Council. The primary challenge relates to the fact that the proposed bridge alignment would interfere with the leach field and septic system. A proposed revision by the City would require the Developer to avoid locating improvements within the bridge alignment area, but this may not be possible from an engineering and practical standpoint. The Developer had originally requested reimbursement for the fair market value of the parcel plus the cost of relocating the septic system and leach field. Staff is suggesting dedication at no cost to the City. The issue of compensation could be avoided altogether if the City would allow the Developer to extend City sewer and water service to the property at its own expense and thereby eliminate the septic system and leach field. Not only would this avoid unnecessary construction expense, but it would also provide a permanent solution and benefit the City by extending services and providing system improvement fees. Enlarging the existing water service would eliminate the need for the on-site storage tank. We understand from City Staff that the City Code currently prohibits extension of water service without annexation, but that code provision does 1124953_1 Aspen • Avon • Basalt • Glenwood Springs • Rifle ® Printed on recycled paper GARFIELD & HECHT, P.C. Jeff Hecksel and Jan Shute October 9, 2014 Page 2 of 2 not apply to sewer service. Given that water service already exists, would enlargement of the line be permitted under the City Code? We would like the opportunity to discuss this approach with City Council at the upcoming meeting. If Council is receptive to the idea, then we would propose a revised version of the agreement for consideration at the following meeting. In response to Ms. Shute's marginal comments in her draft, the Developer would propose dedicating the parcel within 6 months after written notice from the City in order to allow time to address replacement utilities, if necessary. We have also suggested an edit to clarify that any changes to the site plan would be subject to the terms of the County Land Use Permit. Other than the paragraph addressing County Condition No. 21, we are largely in agreement with the suggested edits to the agreement from City Staff. Ms. Shute has also provided a draft deed for the fisherman's easement to be dedicated to the City, which only needs a signature line for the City and is acceptable to the Developer. We look forward to further discussion and feedback from City Council. Thank you. Very truly yours, E HT, P/ Davi H. l cCona cc: David Pesnichak 1124953_1 ® Printed on recycled paper GLENWOOD SPRINGS OFFICE The Denver Center 420 Seventh Street, Suite 100 Glenwood Springs, Colorado 81601 Telephone (970) 947-1936 Facsimile (970) 947-1937 Via U.S. Mail Jeff Hecksel, City Manager Jan Shute, City Attorney City of Glenwood Springs 101 West 8th Street Glenwood Springs, CO 81601 Re: FedEx Facility GARFIELD & HECHT, P.C. Dear Mr. Hecksel and Ms. Shute: ATTORNEYS AT LAW Since 1975 www.garfieldhecht.com September 12, 2014 David H. McConaughy dmcconaughy@gadieldhecht.com As you know, the Garfield County Board of County Commissioners ("BOCC") approved an application for a Land Use Change Permit for a proposed FedEx facility near the Glenwood Springs Airport on Monday, September 8, 2014, despite the City's objections. We expect the BOCC to confirm the wording of its resolution of approval at the next meeting, which is September 15, 2014. The conditions of approval are summarized in the attached letter from the County dated September 8, 2014. Conditions 20 and 21 require the Applicant to meet with you to address two issues. Condition 20. This condition requires the Applicant either to contribute $585,000 for road improvements to the City or come to an agreement and plan for specific improvements to Airport Road and Airport Center Road. Based on the City's prior comments, we understand the proposed improvements to include the following: 1. Airport Road (from intersection with Midland Avenue to future South Bridge intersection — 2253 linear feet): - Full width improvements including sidewalk, curb, and gutter (estimated cost $583,951 per City) 2. Airport Road (from South Bridge to South Bridge —1,520 linear feet) - 2" asphalt overlay (estimated cost $45,600 per City) 3. Airport Center Road (from South Bridge to Site Entrance — 1,055 linear feet) - 2" asphalt overlay (estimated cost $31,650 per City) 1112906_2.DOC Aspen • Avon • Basalt • Glenwood Springs • Rifle Printed on recycled paper GARFIELD &HECHT, P.C. Jeff Hecksel and Jan Shute September 12, 2014 Page 2 of 3 The Applicant's position at the hearing was that its proportionate impact to road segment #1 was only 18.7%, which would equate to a contribution of $109,200. However, the Applicant will not quibble with the impact fee of $585,000 imposed by the County for all three segments combined. Option 1, therefore, would be to cut a check to the City for $585,000 with no strings attached, for the City to use as it sees fit. It may be worth noting this week's article in the Post Independent indicating that the Pitkin County Commissioners were balking at a request for them to contribute $500,000 towards the Grand Avenue Bridge project. We would of course prefer to see any contribution be applied directly to address the traffic impacts of the project itself, which we believe was the intent behind the condition, but that would be for the City to decide. At a minimum, we would hope to see some all-weather surface applied to the roads immediately adjacent to the project. Option 2 would be an agreement whereby the City would commit to completion of the improvements described above by a date certain in the Spring of 2015. The $585,000 would be escrowed and would be released to the City upon certification of completion and acceptance of improvements by the City. Given economies of scale, mobilization costs, and City bargaining power we would expect that the City could accomplish the improvements in a more economical manner than the Applicant itself. Nevertheless, if the City had not completed the improvements by May 1, 2015, then the Applicant would be permitted to draw upon the funds to complete as much of the improvements as the remaining funds would allow. The Applicant would start at the site entrance and proceed with the two less expensive projects first and then proceed with as much of Segment #1 as the budget would allow. The Applicant is certainly open to other options as well, provided that the issuance of the Land Use Change Permit by the County is not delayed, as we need to commence construction this Fall. Condition 21. This condition requires the Applicant and the City to agree on a plan for dedication of South Bridge right of way. The challenge, of course, is that neither the City nor the County has firmly established the scope, size, location, or timing of this project. Option 1: The Applicant is prepared to grant the City a 10 -year option to acquire a parcel on the southerly tip of the project in a location and size to be determined in the future; provided that the landowner receives fair compensation for the actual market value of the dedication parcel at the time of its conveyance, including the cost of replacing or relocating any utilities or other improvements that would interfere with the dedication. For example, one proposal for the bridge would be in the approximate location of the leach field for the ISDS serving the project, and we would request that reasonable compensation include the cost to abandon and reclaim the leach field and then to connect the project to City sewer service. This may or may not be an 1112906 ® Printed on recycled paper GARFIELD &HECHT, P.C. Jeff Hecksel and Jan Shute September 12, 2014 Page 3 of 3 issue depending on the final alignment. If the parties cannot agree on the amount of compensation informally, then the procedures set forth in C.R.S. § 38-1-121 would apply. Option 2: If the City can identify the scope, size and location of the dedication parcel now, then the Applicant would be prepared to dedicate it immediately, subject to a reserved right (if applicable) to use and maintain the ISDS until such time as the project moves forward and City sewer service is available. We could also negotiate the value of the parcel now, or follow the statutory procedures. We understand and acknowledge that the City does not support the project in light of the current traffic issues, and we are not asking City Council to change its position. However, given that the BOCC holds land use authority over this parcel, we hope that the City will take the opportunity to accept cash and other benefits from the Applicant that will help mitigate traffic concerns and benefit the City generally. We are committed to working with City Council and Staff in good faith. Nevertheless, the Applicant needs resolution of this issue within the next 30 days to move forward with the project. Therefore, if we are unable to reach any agreement, the Applicant is prepared to report the results of our negotiations to the BOCC and request either waiver or amendment of the conditions. You may receive a public hearing notice during our negotiations simply because of timing issues to keep the project moving forward. In that spirit, can we establish a date now to be on a City Council agenda for a decision one way or the other? We look forward to meeting with Staff and/or City Council for discussions. Thank you. 1112906 Printed on recycled paper