HomeMy WebLinkAboutagenda.council.regular.20091123CITY COUNCIL AGENDA
November 23, 2009
5:00 P.M.
I) 4 pm Executive Session
II) 5 pm Call to Order
III) Roll Call
IV) Scheduled Public Appearances
V) Citizens Comments 8~ Petitions (Time for any citizen to address Council on issues NOT on
the agenda. Please limit your comments to 3 minutes)
VI) Special Orders of the Day
a) Councilmembers' and Mayor's Comments
b) Agenda Deletions and Additions
c) City Manager's Comments
d) Board Reports
VII) Consent Calendar (These matters maybe adopted together by a single motion)
a) Appointment to Kids' First Board
b) Resolution #98, 2009 -Gymnastics Agreement
c) Resolution #99, 2009 -Amendments to Burlingame Covenants
d) Minutes -November 9, 2009
VIII) First Reading of Ordinances
a) Ordinance #26, 2009 - 630 E. Hyman Landmark Ordinance 48 Negotiation P.H. 12/7
IX) Public Hearings
a) Ordinance #25, 2009 -Supplemental Appropriations
b) Resolution #94, 2009 -Adoption of 2010 Budget
c) Resolution # 95, 2009 -Mill Levy 2010
d) Ordinance #24, 2009 -Sales Tax Revenue Bonds
e) Resolution #52, 2009 -Lift One Lodge Conceptual PUD
X) Action Items
a) Resolution #100, 2009 - 980 Gibson Code Interpretation Appeal
XI) Adjournment
Next Regular Meeting December 7, 2009
COUNCIL'S ADOPTED GUIDELINES
/ Stick to top priorities
/ Foster a safe, supportive, innovative work environment that encourages creativity and acceptable
risk-taking
/ Create structure and allow adequate time & resources for citizen processes
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
a.
MEMORANDUM
TO: Mayor and City Council
FROM: Kathryn Koch, City Clerk
DATE: November 16, 2009
RE: Board Appointment/Boazd Interviews
Child Care Advisory Committee
I have attached Richard Nedlin's application for the Child Care Advisory
Committee. Council generally makes these appointments without interview. If you
would prefer to interview Nedlin, let me know.
Board openings
We have advertised the following openings:
Planning & Zoning Commission -1 regular member
Wheeler Opera House Board of Directors - 2 regular members
Commercial Core & Lodging Commission - 1 regular member
And we have 9 applications. Please let the city clerk's office know if you would like to
schedule these interviews before the new year.
By adopting the consent calendar, Council is appointing Richazd Nedlin to the child Caze
Advisory Committee.
APPLICATION FOR APPOINTMENT
CIT(Y~ OF~A1SPE^N BOARD OR COMMISSIONS
NAME-c.~n~-•X I `~CC~.~I l1
STREET ADDRESS 1~\2 ~ Lc~o R~a.n ~~I-~ T~ 5`
MAILING ADDRESS ~,.~~
HOME PHONE /FAX q~'JO -?jpy. 9181 WORK PHONE /FAX
BOARD OR COMMISSION FOR WHICH APPLICATION IS MADE:
Child Care Advisory Committee -Kids First Advisory Board
EMPLOYMENT PREVphOUS TWO YEARS:
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STREET ADDRESS PREVIOUS TWO YEARS:
INVEST,M`ENTS AND/OR LAND HOLDINGS IN PITKIN COUNTY:
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I DESIRE THE APPOINTMENT FOR THE FOLLOWING REASONS:
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SIGNA ~_ DATE: j ~.- (p _ ~ q
Please. return to City ofAspen -Kids First Phone: 920-5363, Fax: 920-5407
215 North Garmisch, Suite I, Aspen, CO 81611
RESOLUTION #
(Series of 200
b.
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO, AND ASPEN GYMNASTICS LLC SETTING FORTH
THE TERMS AND CONDITIONS REGARDING THE OPERATION OF THE
RED BRICK GYM GYMNASTIC PROGRAM AND AUTHORIZING THE
CITY MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen, Colorado, and Aspen Gymnastics LLC, a copy of
which contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that contract
between the City of Aspen, Colorado, and Aspen Gymnastics LLC regarding the
operation of the Red Brick Gym Gymnastic Program a copy of which is annexed
hereto and incorporated herein, and does hereby authorize the City Manager of the
City of Aspen to execute said contract on behalf of the City of Aspen.
Dated:
Michael C. Ireland, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held November 23, 2009.
Kathryn S. Koch, City Clerk
MEMORANDUM
TO: MAYOR & CITY COUNCIL
FROM: TIM ANDERSON, RECREATION DIRECTOR
MEETING DATE: NOVEMBER 23, 2009
RE: AMENDMENT TO THE GYMNASTICS AGREEMENT
Summary:
Council will find attached the agreement by and between the City of Aspen and Aspen
Gymnastics for the operation of a gymnastics program in the Red Brick Gym. In the past the
City has contracted with Aspen Gymnastics to operate the program and to be compensated on
a percentage basis. In other words, the Recreation Division collected all revenues, tracked
classes, answered question and took care of administrative necessities for the operations of the
program. Aspen Gymnastics was responsible for the hiring and payment of instructors. For that
service the City returned 85% of all revenues collected to Aspen Gymnastics.
Under this new agreement Aspen Gymnastics is responsible for all administrative components
of the operation of a gymnastics program in the Red Brick Gym. The City now charges Aspen
Gymnastics $25.00/hr. for the use of the gym. By turning over all operations to Aspen
Gymnastics the Recreation Division was able to reduce operational costs by more than $60,000.
This was accomplished by reducing part time and full time labor who were administering the
registrations, answering phones, and producing information and payment applications for the
Gymnastics program. Part labor was reduced at the Red Brick and %: of a full time position was
moved to the ARC where part time labor was further reduced.
Under the new agreement Aspen Gymnastics must charge fees comparable to the cost of doing
business. While this agreement works for both the City and Aspen Gymnastics there remains
one concern for which Council asked staff and Aspen Gymnastics to come back with language
that addressed the concern. How can Aspen Gymnastics adjust its fees such that it can keep up
with rising costs of doing business and at the same time the City be satisfied that there are
checks and balances to ensure the program remains affordable and accessible to the more than
200 participants.
Council will find on page 11 of the Service Agreement under "Description of Amount, Method
or manner of compensation', new language which defines the allowable fee increases without
going before Council and at what point Council must be included in the approval process.
Both staff and Aspen Gymnastics feel this is fair and equitable in keeping the gymnastics
program healthy and self sufficient into the future.
Staff Recommendation: Staff is recommending the approval of such language. John
Bakken and Aspen Gymnastics realize the price points of doing business and don't wish to lose
participants due to costs above and beyond such price point.
Financial Impact: None to the City of Aspen.
Attachments: Aspen Gymnastics Service Agreement
EXHIBIT "A"
CITY OF ASPEN
GENERAL CONDITIONS
FOR
SERVICE AGREEMENTS
These General Conditions have been prepared by the City of Aspen to be incorporated by
reference into Service Agreements entered into between service providers ("Contractor") and the
City of Aspen ("City"). The provisions herein may be interrelated with standard provisions of the
Service Agreement customarily used by the City of Aspen to contract for services. A change in one
document may necessitate a change in the other.
Any amendments to the following terms and conditions mutually agreed to by the
Contractor and the City shall be specifically noted on the Service Agreement.
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1. Completion. Contractor shall commence the provision of services as described
in the Service Agreement in a timely manner. Upon request of the City, Contractor shall
submit, for the City's approval, a schedule for the performance of Contractor's services
which shall be adjusted as required. This schedule, when approved by the City, shall not,
except for reasonable cause, be altered by the Contractor.
2. Payment. In consideration of the services provided, Contractor shall pay the
amounts set forth in the Service Agreement.
3. Non-Assignability. Both parties recognize that this contrail is one for personal
services and cannot be transferred, assigned, or sublet by either party without prior
written consent of the other. Sub-Contracting, if authorized, shall not relieve the
Contractor of any of the responsibilities or obligations under this agreement. Contractor
shall be and remain solely responsible to the City for the ads, errors, omissions or neglect
of any subcontractor's officers, agents and employees, each of whom shall, for this
purpose be deemed to be an agent or employee of the Contractor to the extent of the
subcontrail. The City shall not be obligated to pay or be liable for payment of any sums
due which may be due to any subcontractor unless agreed to in writing beforehand by the
City.
4. Termination. The Contractor or the City may terminate this Agreement upon
thirty (30) days notice, without specifying the reason therefore, by giving notice, in writing,
addressed to the other party, specifying the effective date of the termination.
The City shall have the right to terminate the Service Agreement upon three (3) days notice
if Contractor fails to comply with the terms and conditions set forth in Sections 1, 3, 5, 6, 7,
10, 13, 14, 16, 19 or 21. For breach of any other term and condition of the Service Agree-
ment, City may terminate the Service Agreement with ten (10) days prior notice to cure
and failure by Contractor to so cure.
No compensation shall be earned after the effective date of the termination. Notwith-
standingthe above, Contractor shall not be relieved of any liability to the City for damages
sustained by the City by virtue of any breach of this Agreement by the Contrailor, and the
City may withhold any payments to the Contractor for the purposes of set-off until such
time as the exact amount of damages due the City from the Contractor may be
determined.
5. Covenant Against Contingent Fees. The Contractor warrants that s/he has not
been employed or retained any company or person, other than a bona fide employee
working for the Contractor, to solicit or secure this contract, that s/he has not paid or
agreed to pay any cbmpany or person, other than a bona fide employee, any fee,
commission, percentage, brokerage fee, gifts or any other consideration contingent
upon or resulting from the award or making of this contract.
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6. Eouipment, Materials and Supplies. Unless otherwise agreed to by the City,
Contractor shall acquire, provide, maintain, and repair at Contractor's expense such
equipment, materials, supplies, etc., as necessary for the proper conduct of the services to
be provided in accordance with the Service Agreement. (The City agrees to provide and
maintain the equipment identified in attachment "A"under this contract)
7. Contract Monitoring. Contractor agrees to allow City to reasonably monitor the
services to be provided in accordance with the Service Agreement.
8. Independent Contractor Status. It is expressly acknowledged and understood by
the parties that nothing contained in this agreement shall result in, or be construed as
establishing an employment relationship. Contractor shall be, and shall perform as, an
independent contractor who agrees to use his or her best efforts to provide the said
services on behalf of the City. No agent, employee, or servant of Contractor shall be, or
shall be deemed to be, the employee, agent or servant of the City. City is interested only in
the results obtained under this contract. The manner and means of conducting the work
are under the sole control of Contractor. None of the benefits provided by City to its
employees including, but not limited to, workers' compensation insurance and
unemployment insurance, are available from City to the employees, agents or servants of
Contractor. Contractor shall be solely and entirely responsible for its acts and for the acts
of Contractor's agents, employees, servants and subcontractors during the performance of
this contract. Contractor shall indemnify City against all liability and loss in connection
with, and shall assume full responsibility for payment of all federal, state and local taxes or
contributions imposed or required under unemployment insurance, social security and
income tax law, with respect to Contractor and/or Contractor's employees engaged in the
performance of the services agreed to herein.
9. Indemnification. Contractor agrees to indemnify and hold harmless the City, its
officers, employees, insurers, and self-insurance pool, from and against all liability, claims,
and demands, 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 Service Agreement, if such injury, loss, or damage is caused in whole or
in part by, or is claimed to be caused in whole or in part by, the act, omission, error, profes-
sionalerror, mistake, negligence, or other fault of the Contractor, any subcontractor of the
Contractor, or any officer, employee, representative, or agent of the Contractor or of any
subcontractor of the Contractor, or which arises out of any workmen's compensation claim
of any employee of the Contractor or of any employee of any subcontractor of the
Contractor. The Contractor agrees to investigate, handle, respond to, and to provide
defense for and defend against, any such liability, claims or demands at the sole expense of
the Contractor, or at the option of the City, agrees to pay the City or reimburse the City for
the defense costs incurred by the City in connection with, any such liability, claims, or
demands. The Contractor also agrees to bear all other costs and expenses related thereto,
including court costs and attorney fees, whether or not any such liability, claims, or
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demands alleged are groundless, false, or fraudulent. If it is determined by the final
judgment of a court of competent jurisdiction that such injury, loss, or damage was caused
in whole or in part by the act, omission, or other fault of the City, its officers, or its
employees, the City shall reimburse the Contractor for the portion of the judgment
attributable to such act, omission, or other fault of the City, its officers, or employees.
10. Contractor's Insurance. (a) Contractor agrees to procure and maintain, at its
own expense, a policy or policies of insurance sufficient to insure against all liability, claims,
demands, and other obligations assumed by the Contractor pursuant to Section 9 above.
Such insurance shall be in addition to any other insurance requirements imposed by the
Service Agreement or by law. The Contractor shall not be relieved of any liability, claims,
demands, or other obligations assumed pursuant to Section 9 above by reason of its failure
to procure or maintain insurance, or by reason of its failure to procure or maintain
insurance in sufficient amounts, duration, or types.
(b) Contractor shall procure and maintain Workmen's Compensation insurance
to cover obligations imposed by applicable laws for any employee engaged in the
performance of work under the Service Agreement, and Employers' Liability insurance with
minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident,
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -policy limit, and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) disease -each employee. Evidence of
qualified self-insured status may be substituted for the Workmen's Compensation
requirements of this paragraph.
(c) If the Service Agreement requires any insurance in addition to that referenced
above at subsections (a) and (b), or a particular type of coverage, Contractor shall procure
and maintain, and shall cause any subcontractor of the Contractor to procure and
maintain, the minimum insurance coverage referenced in the Service Agreement. All
insurance coverage shall be procured and maintained with forms and insurance acceptable
to the City. All coverage shall be continuously maintained to cover all liability, claims,
demands, and other obligations assumed by the Contractor pursuant to Section 9 above. In
the case of any claims-made policy, the necessary retroactive dates and extended
reporting periods shall be procured to maintain such continuous coverage.
(d) The policy or policies required above shall be endorsed to include the City and
the City's officers and employees as additional insureds. Every policy required above shall
be primary insurance, and any insurance carried by the City, its officers or employees, or
carried by or provided through any insurance pool of the City, shall be excess and not
contributory insurance to that provided by Contractor. No additional insured endorsement
to the policies required above shall contain any exclusion for bodily injury or property
damage arising from completed operations. The Contractor shall be solely responsible for
any deductible losses under any policy required above.
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(e) The certificate of insurance provided by the City shall be completed by the
Contractor's insurance agent as evidence that policies providing the required coverage,
conditions, and minimum limits are in full force and effect, and shall be reviewed and
approved by the City prior to commencement of the contract. No other form of certificate
shall be used. The certificate shall identify the Service Agreement and shall provide that the
coverage afforded under the. policies shall not be canceled, terminated or materially
changed until at least thirty (30) days prior written notice has been given to the City.
(f) Failure on the part of the Contractor to procure or maintain policies providing
the required coverage, conditions, and minimum limits shall constitute a material breach
of contrail upon which City may terminate the Service Agreement as provided by Section 4
above, or at its discretion City may procure or renew any such policy or any extended
reporting period thereto and may pay any and all premiums in connection therewith, and
all monies so paid by City shall be repaid by Contractor to City upon demand, or City may
offset the cost of the premiums against monies due to Contractor from City.
(g) City reserves the right to request and receive a certified copy of any policy and
any endorsement thereto.
(h) The parties hereto understand and agree that City is relying on, and does not
waive or intend to waive by any provision of this contrail, the monetary limitations
(presently $150,000.00 per person and $600,000 per occurrence) or any other rights,
immunities, and protection provided by the Colorado Governmental Immunity Act, Section
24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its
officers, or its employees.
11. City's Insurance. The parties hereto understand that the City is a member of
the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in
the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the
City of Aspen Finance Department and are available to Contractor for inspection during
normal business hours. City makes no representations whatsoever with respect to specific
coverage offered by CIRSA. City shall provide Contractor reasonable notice of any changes
in its membership or participation in CIRSA.
12. Waiver of Presumption. The Service Agreement was negotiated and reviewed
through the mutual efforts of the parties hereto and the parties agree that no construction
shall be made or presumption shall arise for or against either party based on any alleged
unequal status of the parties in the negotiation, review or drafting of the Service
Agreement.
13. Certification Re>;ardin>? Debarment, Suspension. Ineligibility, and Voluntary
Exclusion. Contractor certifies, by acceptance of the Service Agreement, that neither it nor.
its principals is presently debarred, suspended, proposed for debarment, declared
ineligible or voluntarily excluded from participation in any transaction with a Federal or
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State department or agency. It further certifies that prior to submitting its Bid that it did
include this clause without modification in all lower tier transactions, solicitations,
proposals, contracts and subcontracts. In the event that vendor or any lower tier
participant was unable to certify to this statement, an explanation was attached to the Bid
and was determined by the City to be satisfactory to the City.
14. Warranties Against Continent Fees, Gratuities, Kickbacks and Conflicts of
Interest. Contractor warrants that no person or selling agency has been employed or
retained to solicit or secure this Contract upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee, excepting bona fide employees or
bona fide established commercial or selling agencies maintained by the Contractor for the
purpose of securing business.
Contractor agrees not to give any employee or former employee of the City a
gratuity or any offer of employment in connection with any decision, approval,
disapproval, recommendation, preparation of any part of a program requirement or a
purchase request, influencing the content of any specification or procurement standard,
rendering advice, investigation, auditing, or in any other advisory capacity in any
proceeding or application, request for ruling, determination, claim or controversy, or other
particular matter, pertaining to this Agreement, or to any solicitation or proposal
therefore.
Contractor represents that no official, officer, employee or representative of the
City during the term of the Service Agreement has or one (1) year thereafter shall have any
interest, direct or indirect, in the Service Agreement or the proceeds thereof, except those
that may have been disclosed at the time City Council approved the execution of the
Service Agreement.
In addition to other remedies it any have for breach of the prohibitions against
contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right
to:
1. Cancel the Service Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a Contractor,
vendor, orsub-contractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise
recover, the value of anything transferred or received by the
Contractor; and
4. Recover such value from the offending parties.
15. Termination for Default or for Convenience of City. The services contemplated
by the Service Agreement may be canceled by the City prior to acceptance by the City
whenever for any reason and in its sole discretion the City shall determine that such
cancellation is in its best interests and convenience.
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16. Fund Availability. Financial obligations of the City payable after the current
fiscal year are contingent upon funds for that purpose being appropriated, budgeted and
otherwise made available. If the Service Agreement contemplates the City utilizing state or
federal funds to meet its obligations herein, the Service Agreement shall be contingent
upon the availability of those funds for payment pursuant to the terms of the Service
Agreement.
17. City Council Approval. If the Service Agreement requires the City to pay an
amount of money in excess of $25,000.00 it shall not be deemed valid until it has been
approved by the City Council of the City of Aspen.
18. Notices. Any written notices as called for herein may be hand delivered or
mailed by certified mail, return receipt requested to the respective person or address listed
for the Contractor in the Service Agreement.
19. Non-Discrimination; penalty. No discrimination because of race, color, creed,
sex, marital status, affectional or sexual orientation, family responsibility, national origin,
ancestry, handicap, or religion shall be made in the employment of persons to perform
services under this contract. Contractor agrees to meet all of the requirements of City's
municipal code, Section 13-98, pertaining to non-discrimination in employment.
20. City of Aspen Procurement Code. Notwithstanding anything to the contrary
contained herein or in the Contract Documents, the Service Agreement shall be subject to
the City of Aspen Procurement Code, Chapter 3 of the Aspen Municipal Code.
21. Compliance With All Laws and Regulations. Contractor shall give all notices and
comply with all laws, regulations, and ordinances applicable to the provision of the services
contemplated by the Service Agreement. Contractor shall obtain all necessary business
licenses and permits, and shall pay all requisite occupation taxes levied by the City of Aspen
upon persons engaged in business within the City limits.
22. Waiver. The waiver by the City of any term, covenant, or condition hereof shall
not operate as a waiver of any subsequent breach of the same or any other term. No term,
covenant, or condition of the Service Agreement can be waived except by the written
consent of the City, and forbearance or indulgence by the City in any regard whatsoever
shall not constitute a waiver of any term, covenant, or condition to be performed by
Contractor to which the same may apply and, until complete performance by Contractor of
said term, covenant or condition, the City shall be entitled to invoke any remedy available
to it under the Service Agreement or by law despite any such forbearance or indulgence.
23. Execution of Service Aereement by City. The Service Agreement shall be
binding upon all parties hereto and their respective heirs, executors, administrators,
successors, and assigns. Notwithstanding anything to the contrary contained herein, the
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Service Agreement shall not be binding upon the City unless duly executed by the City
Manager of the City of Aspen (or a duly authorized official in his or her absence).
24. Illegal Aliens -CRS 8-17.5-101 & 24-76.5-101.
a. Purpose. During the 2006 Colorado legislative session, the Legislature
passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that
added new statutes relating to the employment of and contracting with illegal aliens.
These new laws prohibit all state agencies and political subdivisions, including the
Owner, from knowingly hiring an illegal alien to perform work under a contract, or to
knowingly contract with a Contractor who knowingly hires with an illegal alien to
perform work under the contract. The new laws also require that all contracts for services
include certain specific language as set forth in the statutes. The following terms and
conditions have been designed to comply with the requirements of this new law.
b. Definitions. The following terms are defined in the new law and by this
reference are incorporated herein and in any contract for services entered into with the
Owner.
1. "E-derify program" means the electronic employment verification
program created in Public Law 208, 104th Congress, as amended, and expanded
in Public Law 156, 108th Congress, as amended, that is jointly administered by
the United States Department of Homeland Security and the social security
Administration, or its successor program.
2. "Department program" means the employment verification program
established pursuant to Section 8-17.5-102(5)(c).
3. "Public Contract for Services" means this Agreement.
time:
4. "Services" means the furnishing of labor, time, or effort by a
Contractor or a subcontractor not involving the delivery of a specific end product
other than reports that are merely incidental to the required performance.
c. By signing this document, Contractor certifies and represents that at this
1. Contractor shall confirm the employment eligibility of all
employees who are newly hired for employment to perform work under the public
contract for services; and
2. Contractor has participated or attempted to participate in either the
ewerify program or the department program in order to verify that new employees
are not illegal aliens.
d. Contractor hereby confirms that:
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1. Contractor shall not knowingly employ or contract with an illegal
alien to perform work under the Public Contract for Services.
2. Contractor shall not enter into a contract with a subcontractor that
fails to certify to the Contractor that the subcontractor shall not knowingly employ
or contract with an illegal alien to perform work under the Public Contract for
Services.
3. Contractor has confirmed the employment eligibility of all
employees who are newly hired for employment to perform work under the public
contract for services through participation in either the e-verify program or the
department program.
4. Contractor shall not use the either the e-verify program or the
department program procedures to undertake pre-employment screening of job
applicants while the Public Contract for Services is being performed.
5. If Contractor obtains actual knowledge that a subcontractor
performing work under the Public Contract for Services knowingly employs or
contracts with an illegal alien, Contractor shall:
i. Notify such subcontractor and the Owner within three days
that Contractor has actual knowledge that the subcontractor is employing
or subcontracting with an illegal alien; and
ii. Terminate the subcontract with the subcontractor if within
three days of receiving the notice required pursuant to this section the
subcontractor does not stop employing or contracting with the illegal
alien; except that Contractor shall not terminate the Public Contract for
Services with the subcontractor if during such three days the subcontractor
provides information to establish that the subcontractor has not knowingly
employed or contracted with an illegal alien.
6. Contractor shall comply with any reasonable request by the
Colorado Department of Labor and Employment made in the course of an
investigation that the Colorado Department of Labor and Employment undertakes
or is undertaking pursuant to the authority established in Subsection 8-17.5-102
(5), C.R.S.
7. If Contractor violates any provision of the Public Contract for
Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the
Owner may terminate this Agreement. If this Agreement is so terminated,
Contractor shall be liable for actual damages to the Owner arising out of
Contractor's violation of Subsection 8-17.5-102, C.R.S.
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25. General Terms.
(a) It is agreed that neither the Service Agreement nor any of its terms,
provisions, conditions, representations or covenants can be modified, changed, terminated
or amended, waived, superseded or extended except by appropriate written instrument
fully executed by the parties.
(b) If any of the provisions of the Service Agreement shall be held
invalid, illegal or unenforceable it shall not affect or impair the validity, legality or
enforceability of any other provision.
(c) The parties acknowledge and understand that there are no
conditions or limitations to this understanding except those as contained herein at the
time of the execution hereof and that after execution no alteration, change or modification
shall be made except upon a writing signed by the parties.
(d) The Service Agreement shall be governed by the laws of the State of
Colorado as from time to time in effect.
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SERVICE AGREEMENT
THIS AGREEMENT made this 23rd day of November , 2009, by and between the
City of Aspen ("City")and the Contractor identified hereinbelow.
WITNESSETH, that whereas the City wishes to purchase the services described
hereinbelow and Contractor wishes to provide said services to the City as specified herein.
NOW THEREFORE, in consideration of the following covenants, the parties agree as
follows:
NAME: Aspen Gymnastics, LLC,
ADDRESS: P 0 Box 12064 Aspen, CO 81612
CONTRACTOR
CONTACT PERSON: John Bakken
PHONE NUMBERS: HOME: 970-544-0487 WORK: 970-309-4855
SOCIAL SECURITY NUMBER OR FEDERAL I.D. NUMBER: OS-0598331
DESCRIPTION OF SERVICE
Recreational Gymnastics Program to include but not limited to: instructional classes, team workouts,
accompanying of teams to meets, recommendations of new equipment purchases, proper use and
maintenance of equipment, hiring of additional Instructors as needed and appropriate training as needed.
Responsible for all necessary affiliations and certifications needed to safely maintain a gymnastics program.
DURATION OF AGREEMENT AND SCHEDULE OF SERVICES TO BE PROVIDED
This agreement shall run consecutive years beginning September 1, 2009. The agreement shall
automatically renew annually unless changes are in writing, dated, and signed by each party. This
agreement may be terminated in writing with 60 days prior written notice to the other party. The schedule
of services may be flexible to accommodate demand.
DESCRIPTION OF AMOUNT, METHOD OR MANNER OF COMPENSATION
Aspen Gymnastics, LLC shall be responsible for the operation of the Gymnastics program located at the Red
Brick Arts and Recreation Center. This includes registration, collection of monies, and payment to
instructors. Fees for services will be established by Aspen Gymnastics, LLC. Registration will be approved by
the City of Aspen Recreation Division. All changes to the fees charged by Aspen Gymnastics LLC shall be
allowable up to 69~ or according to the percentage change in the Consumer Price Index -Urban ("CPI"),
Council shall not unreasonably wit old its approval of any increase proposed by Aspen Gymnastics above
and beyond the S% or CPI calculation if it can be shown to the satisfaction of the Aspen City Council, in its
sole discretion, that the changes in fees are warranted due to an increase in operational costs of providing
gymnastics programming as set forth in this Agreement. The City of Aspen will charge Aspen Gymnastics,
LLC $25.00 per hour for use of the gym to be reevaluated annually and subject to CPI increase (See Exhibit
"A"). The City of Aspen shall provide the Gymnastics program space and supply and maintain the
equipment.
H:\Red-Vellow Brick\Red Brick\Gymnastics service Agreement dd~.~oc
SCHEDULING OF RED BRICK GYM
Aspen Gymnastics, LLC and the City of Aspen will schedule the use of the Red Brick Gym on a monthly basis.
All schedule changes must be approved the Red Brick staff five days prior to the change, including private
lessons. Gymnastics clinics and gymnastics meets must be scheduled and approved by the Red Brick staff
two months prior to the events.
Additional Gym time: The City agrees to make available to Aspen Gymnastics, if they request, any
additional time that is not scheduled for any other activities. The same rates will apply. The City reserves
the right, no matter who has rented or contracted for the gym, to use the gym for what the City determines
is the highest and best use. If Aspen Gymnastics gym time is allocated to others, the City may offer
alternative gym time or compensation. Reasonable notice will be provided regarding changes in gym
allocations.
Aspen Gymnastics will notify the City for any gym time that they will not need for the following Monday
through Sunday by Thursday at noon of every week. If the City is able to rent the gym to another user
group, Aspen Gymnastics will not be charged for that gym time. If both the City and Aspen Gymnastics
determine that the gym time cannot be utilized due to circumstances beyond the control of either entity,
then the gym time will not be charged to Aspen Gymnastics.
H:\Red-Yellow Brick\Red Brick\Gymnastics Service Agreement daF.Qoc
Please invoice usinz Citv's Purchase Order Number:
AMENDMENTS TO GENERAL CONDITIONS
Exhibit "A"
Gymnastics Equipment
1 - Stratum Floor Exercise system and carpet
1 - Power Trak Trampline
1 - Standard Trampoline
1 - All Elite Uneven Bars
1 - AAI Uneven Bars
1 - AAI Elite Beam
3 - AAI Standard Beams
2 - Low Beams
1 - AAI Vault Table
5 - 16 inch Carolina Resi Mats
1 - Sx16 Resi Mat (extra large)
2 - 5x10 Resi Mats
9 - 5x10x8 landing mats
4 - 7x16 Beam Mats
5 - 7x12 Bar Mats
4 - 5x8 Mini Bar Mats
10- Panel Mats
5 - Sting Mats
1 - New Vault Board
3 - Old Vault Boards
1 - Set Norbert Spotting Blocks
1 - Vault Runway
1 - Vault Zone Safety Mat
1 - Power Trak Vault
2 - Sets of Rings/webbing/cables
1 - Old Poma Horse
1 - Old Gym Master Parallel bars
1 - Training Bar
1 - Mini Trampoline
Variety of shaped mats for tots
H:\Red-Yellow Brick\Red Brick\Gymnastics Service Agreement dd~.~oc
The parties acknowledge and understand that this Service Agreement is, except as
specifically amended hereinabove, subject to all of the terms and conditions set forth in
the City of Aspen General Conditions for Service Agreements, a copy of which is appended
hereto as Appendix "A" and by this reference made a part hereof.
Having agreed to the above and foregoing, the parties hereto do affix their signatures.
City of Aspen:
By:
Serv-981.doc
By: !( r z ~ l
fit ner, Operator, Aspen Gymnastics, LLC
H:\Red-Yellow Brick\Red Brick\Gymnastics Service Agreement d6~t}oc
EXHIBIT "A"
CALCULATION OF CHANGES IN URBAN INDEX
The term "Urban Index' used herein shall refer to the consumer Price Index -All
Urban Consumers (CPI-U), U.S. City Average, All Items (1967 = 100) compiled by the
United States Department of Labor, Bureau of Labor Statistics. By way of identification,
the parties agree that the CPI-U index number for July 1993 = 432.6. If at the time of
computation of rental increases as provided below the Urban Index as defined is not
then being currently published, the parties shall mutually select a substitute index which
has historically approximated the Urban Index as defined. The parties further agree that
the methodology they will use for calculating index changes in the Urban Index is that
described in the instruction sheet from the Bureau of Labor Statistics, U.S. Department
of Labor. which reads as follows:
CALCULATING INDEX CHANGES
Movements of the indexes from one month to another are usually expressed as
percent changes rather than changes in index points, because index point
changes are affected by the level of the index in relation to its base period while
percent changes are not. The example in the accompanying box illustrates the
computation of index point and percent changes.
Percent changes for 3-month and 6-month period are expressed as annual rates
and are computed according to the standard formula for compound growth
rates. These data indicate what the percent change would be if the current rate
were maintained fora 12-month period.
INDEX POINT CHANGE
CPI
Less previous index
Equals index point change
PERCENT CHANGE
Index Point difference
Divided by the previous index
Equals
Results multiplied by one hundred
Equals percent change
315.5
303.5
12.0
12.0
303.5
0.040
0.040 x 100
4.0
H:\Red-Yellow Brick\Red Brick\Gymnastics Service Agreement da~.9bc
~C <. ~
THE CITY OF ASPEN
MEMORANDUM
TO: Mayor and City Council
FROM: R. Barry Crook, Assistant City Manager
DATE: November 6, 2009
MEETING DATE: November 23, 2009
RE: Accepting an Amendment to the Declarations of
Covenants, Conditions and Restrictions of the
Burlingame Ranch Affordable Housing Subdivision
Back round:
We have been in negotiation with the Burlingame Condominium I HOA board since January
over a proposal to increase the unit count. At a meeting of the homeowner's association on
October 28, 2009, the Boazd of Directors of both the Condo 1 Association and the Master Condo
Association recommended the adoption of an amendment to Article I, Section 32 to increase the
number of units that may be created from two-hundred thirty-six (236) to two-hundred fifty-eight
(258) Units, including within this total thirteen single family homes. This vote of homeowners
passed.
Council Action Requested:
The Declazations of Covenants, Conditions and Restrictions of the Burlingame Ranch Affordable
Housing Subdivision were part of the governing documents approved by the City Council in
creating Burlingame Ranch. Under Article XII, Section 6(a), any amendments to the Declazations
must be approved by the City of Aspen and recorded within the real property records of Pitkin
County. As part of the approval vote, an Exhibit was approved that outlines the City's agreements
with the Homeowners and the City's commitments. That Exhibit "A" is attached and is part of the
Resolution to be approved by the City Council.
Discussion•
The final step in getting homeowner approval of the agreement to raise the total unit count to 258
units (13 of which would be single family homes), was this vote and the Council's approval of the
changes in the Declazations. Also included are the City's commitments to the homeowners and our
agreement with the HOA. Those are outlined in Exhibit "A" (attached).
Article I, Section 32, is hereby amended to read as follows:
"Units that May be Created" means two-hundred fifty-eight (258) Units,
including within this total thirteen single family homes, which shall be the
maximum number of Units that may be subject to this Declaration.
At a meeting on October 28, 2009, eighty-nine (89) unit owners voted in favor of the
amendment, one (1) unit owner opposed the amendment. Consistent with the Colorado Common
Interest Ownershipr:Act, the City's cast its votes in favor of the amendment. However, sixty-
seven percent of the Unit owners, not including the Units owned by the City, were required to
pass the amendment. Thus, pursuant to Article XII, Section 6, of the Declazation, as amended
and CCIOA, this amendment passed.
In accordance with Article XII, Section 6(a) of the Declarations, such amendment must be
approved by the City of Aspen; and the amendment must be recorded within the real property
records of the County of Pitkin, State of Colorado. A copy of the amendment for recording is
attached hereto as Exhibit "B".
Council should approve the attached Resolution in order to follow the procedures for recording
the vote, amending the Declarations and outlining the City's agreement with the Burlingame
homeowners.
Recommended Action:
Staff recommends approval of the Resolution so we can file it with Pitkin County and the planning
for the 258 total units at Burlingame can proceed. Changes to the PUD will be prepazed and
submitted for approval.
Proposed Motion:
"I move to approve Resolution ~~ ,approving the amendments to the Declarations of
Covenants, Conditions and Restrictions of the Burlingame Ranch Affordable Housing
Subdivision Article I, Section 32; and direct staff to file the appropriate documents with Pitkin
County."
City Manaeer Comments:
2
RESOLUTION NO.
(Series of 2009)
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, ACCEPTING AN
AMENDMENT TO THE DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS OF BURLINGAME RANCH AFFORDABLE
HOUSING SUBDIVISION
WHEREAS, at a duly called meeting of the homeowners' association convened on
October 28, 2009, at which a quorum was present, the Board of Directors
recommended the adoption of an amendment to the Declaration Of Covenants,
Conditions and Restrictions of Burlingame Ranch Affordable Housing
Subdivision (hereinafter "Declarations"); and
WHEREAS, the amendment proposed to amend Article I, Section 32 to increase
the number of units that may be created from two-hundred thirty-six (236) to two-
hundred fifty-eight (258) Units, including within this total thirteen single family
homes; and
WHEREAS, the proposed amendment was presented to the Homeowners for
vote pursuant to Article XII, Section 6, as amended; and
WHEREAS, the amendment proposed was subject to and conditioned upon
certain obligations on the part of the City of Aspen outlined in Exhibit "A",
attached hereto; and
WHEREAS, pursuant to such vote, eighty-nine (89) unit owners voted in favor of
the amendment, one (1) unit owner opposed the amendment. Consistent with the
Colorado Common Interest Ownership Act, the City's cast its votes in favor of the
amendment. However, sixty-seven percent of the Unit owners, not including the
Units owned by the City, were required to pass the amendment. Thus, pursuant to
Article XII, Section 6, of the Declaration, as amended and CCIOA, this
amendment passed; and
WHEREAS, pursuant to Article XII, Section 6(a) of the Declarations, such
amendment must be approved by the City of Aspen; and
WHEREAS, pursuant to Article XII, Section 6(c) of the Declarations, such
amendment must be recorded within the real property records of the County of
Pitkin, State of Colorado. A copy of the amendment for recording is attached
hereto as Exhibit "B".
NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Section One
That the City Council of the City of Aspen hereby accepts and approves the
amendment to Article I, Section 32, of the Declaration of Covenants, Conditions
and Restrictions of Burlingame Ranch Affordable Housing Subdivision set forth
below, as approved by the unit owners of Burlingame Ranch Affordable Housing
Subdivision at a duly called meeting of the unit owners held on October 28, 2009:
Article I, Section 32, is hereby amended to read as follows:
"Units that May be Created" means two-hundred fifty-eight
(258) Units, including within this total thirteen single
family homes, which shall be the maximum number of
Units that may be subject to this Declaration.
Dated: November 23, 2009.
Michael C. Ireland, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council
of the City of Aspen, Colorado, at a meeting held
2009.
Kathryn S. Koch, City Clerk
Ver 5 Sept. I, 2009 Exhibit A
Burlingame Ranch Affordable Housing Association, Inc.
Agreement/Understanding with the City of Aspen
Shall Article I, Section 32 of the Burlingame Ranch Affordable Housing Subdivision Declaration
be amended to allow for a density increase from 236/13 to 258/13. The vote to increase density
is conditioned upon the adoption by Council Resolution within 90 days of the vote on the
increase in density of the following terms and conditions, and are part of an agreement to
amend this section of the declarations. If such resolution is not adopted by Council as set forth
herein this vote shall become null and void. Furthermore if any unit owner successfully
challenges the validity of this vote, the validity of the increase in the maximum number of units
that may be created or the validity of any expansion resulting from this action, then this
agreement shall become null and void and any obligations or commitments on the part of the
City shall be terminated ab initio.
1.258 total units (245 multi-family units and 13 single-family lots). The location of the 6
additional SF home sites shall be agreed upon by city and owner representatives.
Z. Eliminate the $60 per month per unit mobility fee and amend the PUD accordingly.
(The Burlingame home owners realize that bus service may increase or decrease according to
transportation budgeu and demand.)
3. Retroactively forgive the Burlingame Ranch I Condominium Association, Inc. and the
Burlingame Ranch Affordable Housing Association, Inc. all unpaid mobility fees.
4. Amend the PUD to add additional parking to the development that would increase
the parking ratio from 1.67 to 2.0 (excluding the 26 "bandit" parking spaces behind
current tuck-in parking spaces from the calculation) and include visitor, loading zones
and handicapped spaces (as required by code).The City would retain the right to add
as many as 3 additional parking spots to the project total, dedicated to the CarShare
program -and not count those spots towards the new 2.0 ratio. (The funding for
additional parking is contingent on voter approval for phase IUIII. The additional parking would be one
of the 1st projects sought in phase II/III. The siting and design of the additional parking will be
developed in conjunction with homeowner representatives. The COA will commit to spending up to
$IOK on temporary parking solutions on Mining Stock Pkwy Rd. to be completed by the end of June
2010. This includes moving sprinkler heads and boulders, grading the shoulder, pack the dirt and spread
gravel on the area.)
5. The COA will contribute $25,000.00 toward the completion of the commons bldg.
(This money is not associated with the bond vote and so the city can contribute the funds whenever needed
for completion of finish work to commons building.)
6. Construct a staircaselsidewalk from Mining Stock Pkwy. to Callahan Court Parking
lot. (The funding for this project is contingent on voter approval for phase II/III and will be done in
conjunction with the additional parking to be provided in Phase I - as one of the I n projects undertaken in
Phase 2/3.)
7. Emphasize open space in Phase II /III, in particular buildings clustered around
courtyards with "usable open space" and sidewalks similar to the courtyard located
on Molly and Lindvig Courts, and create a minimum of 100 square feet of Usable
Open Space for every 1000 square feet of living space that is created in the design of
phase II/III. "Usable Open Space" refers to areas that are sodded with grass, not
native seeded areas and not all drainage basins, which are frequently inundated with
Page I of 5
Ver 5 Sept. I, 2009 Exhibit A
water and are unusable. (The City noted that after meeting with the O'Callaghans and reviewing our
budget for landscape maintenance that we likely do not have enough to cover our expenses currently. If we
would be willing to allow two of the SF homesites to stay in phase I then they could build another city park
at the NW corner of the phase II. This would be in addition to the 100 square ft of usable open space per
1000 square ft of livable space built in phase II. The city asks us to consider this carefully because our
budget will also go up. We should keep in mind that the city will maintain the 2^a city park at their
expense.)
$. Allow Owner Representatives or such other committee established by the Owner
Representatives to have input in all phases of design review.
9. Follow all design review guidelines and green building standards as required in Phase I.
~. Eliminate the requirement for the Master or Condominium Association to pay the
$75 per space rental income to the City and will amend the Mobility Plan and PUD to
reflect this. If any spaces continue to be available for rental, the funds for such spaces
shall remain the property of the Master or Condominium Association, as applicable.
~. Complete its (COA) planned connector trail improvements from Burlingame
Ranch to the Airport Business Center and shall pursue its plans to provide a direct
route to the Roaring Fork River and the Rio Grande Trail and Bridge off the Airport
Business Center connector trail. (THE DESIGN OF A NARROW DIRT TRAIL IS CONTINUING
WHICH WILL CONNECT THE NORTH END OF BURLINGAME RANCH TO THE BUSINESS CENTER.
THE CITY HAS CONTACTED PARKS DEPT. AND CONSTRUCTION MAY BEGIN AS EARLY AS THIS
FALL)
Z. No additional units will be built in Burlingame Ranch Phase I or Phase Il/lll in the
future, other than the number the owners approve in this vote or agree to under the
applicable standards of approval at whatever point in the future such changes will be
proposed.
3. Sign at entrance posting "No Dogs, Fines Imposed". (Will be part of a series of
"insubstantial amendmenu" to the PUD.)
4. Speed limit reduction to 15 mph. (traffic study is complete and signs have ordered)
S. Audit of Association books prior to transfer of control to owner Board not
completed. (The COA has authorized the contras)
6. Provide Legal Corrections to Association governing documents (both
Condominium and Master Association) mandated by SB 89 and SB 100 and
recommendations or supporting language for policies that need to be adopted. (The
COA is working with the law firm, Ballard, Sparhr, Andrews and Ingersoll, LLP in Denver to complete all
revisions.)
7. Confirm all common areas have been properly conveyed to each association or
follow through and convey them.
$. Drainage: including safety grates on drainage culverts and correction of improperly
draining drainage detention areas. (DRAINAGE OF THE DETENTION AREAS HAVE
BEEN CORRECTED, POND 2 BEHIND 19 LINDVIG COURT HAS CONCRETE
FLOW CHANNELS AND ENGINEERING DEPARTMENT IS WORKING WITH
STREETS DEPARTMENT TO OBTAIN OR FABRICATE GRATING FOR
CULVERTS. COA is not satisfied with the drainage of Pond 2 across from Transit 1. They have brought
this to Shaw's attention numerous times. If the city takes over this repair then it will have to go through a
public bid process. The COA is committed to resolving this problem.)
Page 2 of 5
Ver 5 Sept. I, 2009 Exhibit A
9. Erosion on path connecting Transit I to Roch Place. (The COA is planning to rebuild most
of this portion of the trail/walking path.)
Z~. Address water rights -provision of ditch water and lease from City for provision of
water for irrigation from City's ditch rights (at no cost to HOA). (The COA is working with
Ballard, Sporhr, Andrews and Ingersoll, LLP in Denver to complete a lease agreement.)
Z ~ . Address landscaping: weeds issues, and properly complete seeded areas and
planting beds. (The COA has completed all reseeding; we will have to wait for next summer to observe
the successful germination and growth or lack thereof.)
22. The Condo I Board is requesting the installation of boulders to help prevent the
irrigation from being damaged by cars. (The city is willing to help with this. The city also notes
that the sprinkler heads that are being damaged are of 18 from the side of the road and therefore can
only be damaged by individuals deliberately driving off the road.)
23. Address and repair all issues raised by third party roof commissioner and address
hazardous areas identified by O'Callaghan. (ROOF WORK HAS BEEN COMPLETED
TO THE SATISFACTION OF THE ROOF COMMISSIONING AGENT AND THE
SNOW DROP AREAS IDENTIFIED WILL RECEIVE SNOW FENCING. )
24. Address all Phase I punch list and warranty issues presented by Board and
O'Callaghan Prop Mgt. Phase I punchlist and warranty issues include:
O~ The fire system has more than the average trouble codes, error codes, dact, and
communication errors. Progaurd is aware of the buildings that have chronic
problems and have been meeting with Seimens to find a solution. The system is
going to require slot of Technical work to get the problems fixed. The buildings
involved include, but are not limited to: 42 Mining Stock Place ("MSP"), 99 MSP,
129 MSP, 44 Callahan Court ("CC"), 45 CC, 185 Forge Road ("FR"), 19 Lindvig
Court ("LC"). (PROGUARD IS WORKING TO RESOLVE ALL ISSUES AND 7HE CITY
IS WAITING ON THEIR REPORT OF CONDITIONS. SEIMENS IS SENDING A NEW
PANEL FOR INSTALLATION AND TESTING. IF THIS PANEL SOLVES THE ISSUES
THEN THEY WILL REPLACE TROUBLESOME. IF THIS PANEL DOES NOT RESOLVE
THE ISSUES THEN MORE TROUBLESH0071NGMOST BE DONE. THIS IS NOT A
FIRE REPORTING DEFECT THAT WOULD JEPORDIZE THE REPORTING OF A FIRE. )
b~ Fire Sprinkler system commissioning completion. Pro Guard did not complete a
review of storage areas, which are causing system malfunctions. (PROGUARD IS
WORKING 70 RESOLVE ALL ISSUES AND THE CITY IS WAITING ON THEIR REPORT
OF CONDITIONS.)
C~ There are several areas in which the siding is popping out, or cracked, and the
paint is either peeling or the wrong color. Shaw has fixed some of the areas that
were popped out and are in the process of getting the rest replaced. They are in
contact with the manufacturer to find a solution for the peeling and discolored
paint. (SHAW IS ADDRESSING THIS AS A WARRANTY ISSUE AND IS SCHEDULE FOR
CORRECTIVE ACTION IN AUGUST.)
CI~ 163 FR has a small gas leak in the mechanical room. Source Gas confirmed that
the meter was not installed by them and did not belong to them. (THE METER
WAS PART OF THE TESTING PROGRAM BY THE NATIONAL RENEWABLE ENERGY
LABORTORY IN BOULDER. THE METER HAS BEEN REMOVED.)
@~ 124 FR, 170 FR, 99 MSP have had blowers replaced due to a leak or gush of water
coming down from the ceiling onto the boiler. 170 FR was checked in the
Page 3 of 5
Ver 5 Sept. I, 2009 ` Exhibit A
mechanical room by John Y (who?). and he said he didn't see any water at the time
however he did not go into the units above to investigate the bath /shower to see
if this was the source of the water. (SHAW IS ADDRESSING THIS AS A WARRANTY
ISSUE.)
fl The staircase lighting at 34 Molly Court ("MC") has not worked for more than 2
years. The City's Property Manager Terri Kappelli was aware of this issue due to
constantly burning out light fixtures. The electrician came out to look at it but
didn't have time to fix it. His suspicion was that the wiring inside the storage unit
next to the stairs had been damaged. (SHAW HAS ADDRESSED THIS AS A
WARRANTY ISSUE. COMPLETE.)
g~ The common building 2nd bathroom area has the installed but there is no grout.
(THIS BATHROOM WAS NOT TO BE FINISHED AND WAS NOT TO EVEN BE TILED
THEREFORE THE TILE THAT WAS INSTALL WAS NOT GROUTED.)
~'1~There are some circulating pumps that are not wired, including but not limited to
42 MSP. (SHAW IS ADDRESSING THIS AS A WARRANTY ISSUE.)
1~ 124 FR common entrance door to the storage units is missing the lock. (SHAW IS
ADDRESSING THIS AS A WARRANTY ISSUE; MATERIALS HAVE BEEN ORDERED.)
~~ 170 FR is missing the common entrance storage door, the entire door! (SHAW IS
ADDRESSING THIS AS A WARRANTY ISSUE; MATERIALS HAVE BEEN ORDERED.)
k~ 55 MSP unit 102 and 129 MSP unit 102 have uncompleted landscaping dirt areas
underneath the bedroom windows. The neighborhood cats have made these areas
into litter boxes. (SHAW HAS ADDRESSED THIS AS A WARRANTY ISSUE AND IT IS
COMPLETE.)
~~ 67 MC dirt area between the parking lot and sidewalk is not landscaped per the
City's plans and specifications.. (COA DESIGNING PLAN. NO SHRUBS WILL BE
PLANTED BECAUSE THEY WOULD BE DESTOYED BY SNOW REMOVAL.)
lil~ 170 FR, 129 MSP, and 44 CC -snow slides either from upper roof or solar
panels onto the stairs or the side walk. Steve Bossart is aware of the issues and
will be contacting Roof Tech. (SHAW IS ADDRESSING THIS AS A WARRANTY ISSUE;
MATERIALS HAVE BEEN ORDERED.)
Il~The entrance doors to the trash /recycling areas at transit 2 & 3 do not close
properly. Rick Wilson had worked on them but as soon as they were unhooked for
the trash removal they wouldn't close again. The City shall oversee and pursue
this issue unto completion and to the satisfaction of O'Callaghan and the Owner
Representatives. (SHAW IS ADDRESSING THIS AS A WARRANTY ISSUE.)
O~There are dead trees that require replacement at the following locations:
Retention Pond behind the single family houses/lots, 123 FR unit 201 parking lot
side, 123 FR unit 206 parking lot side, 185 FR parking lot side between units 102 &
103, 185 FR at the end of the parking lot next to the side street, in between 185 FR
& 163 FR street side, 123 FR between units 202 & 203 street side, MSP big sod area
I st tree closest to the common building, 55 MSP next to unit 201, 161 MSP in front
of unit 204 half dead. (THIS WAS A WARRANTY ITEM AND WORK OF
REPLACEMENT IS COMPLETE.)
p~ Native grass at 185 FR parking lot side is very sparse and unsatisfactory. (SHAW
AND THE CITY HAVE RESEEDED THESE AREAS SEVERAL TIMES.)
Page 4 of 5
Ver S Sept. I, 2009
Exhibit A
q~ 42 MSP all the bushes on the courtyard side at unit 105 died, were removed by
O'Callaghan and require replacement. (SHAW IS ADDRESSING THIS AS A
WARRANTY ISSUE; WORK IS COMPLETE.)
f~ 42 MSP courtyard side in front of unit 106 is not landscaped per the City's plans
and specifications. (SHAW IS ADDRESSINN THIS AS A WARRANTY ISSUE; WORK IS
COMPLETE.)
S~ Parking signage needs to be installed and re-striping requires completion. (We are
aware that City staff is waiting for input for Burlingame Condo 1 Board members. CITY
HAS DEVELOPED A PLAN FOR THE ROAD RIGHT-OF-WAYS AND THE HOA PARKING
AREAS. THE CITY IS WORKING WITH THE STREETS DEPARTMENT TO ORDER AND
INSTALL SIGNS ALONG THE STREETS AND WILL WORK WITH THE HOA WHEN SO
DIRECTED WITHIN THE PARKING LOTS.)
L~ Weed Removal (The type of weeds, the location of those weeds, and the method of removal will be
decided at a meeting on site; at least one board member from the Condo Board and one member of
the Master Association board -must be a homeowner, not city staff -will be present to approve the
conditions of removal. The conditions of removal will be approved in writing; a representative from the
COA Parks department and Asset department must also be present; the weeds will then be removed
by pulling, cutting or spraying, one time only, within two weeks; after this one-time event the City of
Aspen will be relieved of any and all responsibility for removal of weeds.)
Page 5 of 5
Exhibit B
AMENDMENT
TO THE
DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS OF BURLINGAME RANCH AFFORDABLE
HOUSING SUBDIVISION
WHEREAS, Declaration of Covenants, Conditions and Restrictions of
Burlingame Ranch Affordable Housing Subdivision was recorded October 10,
2005 at Reception Number 516002, in the real property records of the County of
Pitkin, State of Colorado; and
WHEREAS, Recordation of Signature Page for Declaration of Covenants,
Conditions and Restrictions of Burlingame Ranch Affordable Housing
Subdivision was recorded April 17, 2006 at Reception Number 523046, in the real
property records of the County of Pitkin, State of Colorado; and
WHEREAS, an Amendment to the Declaration of Covenants, Conditions and
Restrictions of Burlingame Ranch Affordable Housing Subdivision was recorded
October 21, 2009 at Reception Number 563774, in the real property records of the
County of Pitkin, State of Colorado, which amended the requirements for an
amendment to the Declarations regarding the increase in Units that may be
created as set forth in Article I, Section 32; and
WHEREAS, at a duly called meeting of the homeowners' association convened on
October 28, 2009, at which a quorum was present, a motion was presented to adopt
an amendment to the Declaration of Covenants, Conditions and Restrictions of
Burlingame Ranch Affordable Housing Subdivision; and
WHEREAS, the amendment proposed was submitted to a vote of the
Association as follows:
Shall Article I, Section 32, be amended as follows, with text being
removed is delineated with strikethrough, '''°°` `-°=°° -° °°°a
leeks-like-this; and Text being added is bold and underline. Text
being added looks like this:
"Units that May be Created" means *•°° "••°•'-°a ''•~•"° °~°
f?36) two-hundred fifty-ei¢ht (258) Units, includin¢ within
this total thirteen single family homes, which shall be the
maximum number of Units that may be subject to this
Declaration."
and
WHEREAS, the proposed amendment was presented to the Homeowners for
vote pursuant to Article XII, Section 6(a) and 6(d), as amended; and
Exhibit B
WHEREAS, pursuant to such vote, eighty-nine (86) unit owners voted in favor
of the amendment, one (1) unit owner opposed the amendment. Pursuant to
Article XII, Section 6(d) of the Declazations and state statute, this amendment
passed; and
WHEREAS, the City of Aspen by Resolution No. ~, Series of 2009, approved
and consented to this amendment as required by Article XII, Section 6(c) of the
Declaration.
NOW, THEREFORE, the following amendment shall be incorporated into and
become part of the Declaration of Covenants, Conditions and Restrictions of
Burlingame Ranch Affordable Housing Subdivision:
Article I, Section 32, is hereby amended as follows, with text being
removed is delineated with strikethrough, T°°• '~°'°° -° °-•°''
Ieeks--Iike-this and Text being added is bold and underline. Text
beine added looks like this:
"Units that May be Created" means *•°°''••°a-°a''~~~"° °•°''"~` hvo-
hundred fifty-eight (258) Units, including within this tota- thirteen
single family homes, which shall be the maximum number of Units
that may be subject to this Declaration."
Henceforth, Article I, Section 32 of the Declazation of Covenants, Conditions and
Restrictions of Burlingame Ranch Affordable Housing Subdivision shall read as follows:
"Units that May be Created" means two-hundred fifry-eight (258)
Units, including within this total thirteen single family homes, which
shall be the maximum number of Units that may be subject to this
Declaration."
IN WITNESS WEREOF, this Amendment to the Declaration of Covenants,
Conditions and Restrictions of Burlingame Ranch Affordable Housing
Subdivision, is hereby executed by the President of the Subdivision Association
on this day of , 2009, pursuant to a duly conducted vote of the Unit
Owners.
Tom McCabe
President of Burlingame
Ranch Affordable Housing
Association, Inc.
Attest:
John Laatsch
Secretary
(Notarization offollowrng page.)
Exhibit B
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
Subscribed and sworn to before me this day of 2009, by Tom
McCabe, President of Burlingame Ranch Affordable Housing Association, Inc.
WITNESS my hand and official seal.
My commission expires:
Notary Public
v~" q.
MEMORANDUM
TO: Mayor Ireland and City Council
THRU: Chris Bendon, Community Development Director
FROM: Amy Guthrie, Historic Preservation Officer
RE: First Reading of Ordinance #~ ~, Series of 2009, 630 E. Hyman Avenue- Historic
Landmark Designation and Ordinance #48 Negotiation
DATE: November 23, 2009
SUMMARY: 630 E. Hyman Avenue
is a modern commercial building
constructed beginning in 1969. It is
identified on Ordinance #48, Series of
2007 as a "potential historic
resource." This building houses
Sandy's Office Supply and is located
across the street from the Wienerstube
Restaurant.
Owners of property on Ordinance #48
have a few options if they wish to
proceed with work. They can request
staff or HPC approval for their
immediate plans without actually
agreeing to designation, they can
volunteer for designation based on a package of incentives negotiated with City Council, or they
can pass on designation and accept a 90 delay period for the processing of a permit to alter or
demolish the building. 630 E. Hyman Avenue is being brought forward as a voluntary
designation.
The property has recently been purchased from the original owners, Jack and Gesine Crandall.
New owners Greg and Jane Hills plan a refurbishment of the building, including repair and
refinishing of exterior woodwork, replacing all windows, and reconfiguring the primary staircase.
A third floor residential unit is proposed, which will result in the interior courtyard becoming an
enclosed area. Public access will remain and will be enhanced with the addition of artwork and
seating. In addition, the commercial units are to be condominiumized so that several long-term
tenants may purchase their spaces.
On October 28th, HPC held a public hearing and recommended Council approval of Historic
Landmark Designation and Ordinance #48 negotiation, and HPC granted Major Development
1
(Conceptual) and Commercial Design Review (Conceptual). Some conditions For restudy of
design issues were included.
This Council meeting is First Reading of an Ordinance for historic designation, and preservation
benefits requested by the property owner to incentivize their voluntary landmazk application.
Second Reading is scheduled for December 7s' in an effort to complete the negotiation within the
90 day period provided by Ordinance #48.
The project does not increase development rights beyond what could be achieved through
existing code processes, however, Council negotiation could assure the applicant the entitlements
and configuration they aze seeking. Assuming that the City is successful in negotiating landmazk
designation of this site, the applicant will return for Final HPC design review at a future date.
APPLICANT: 630 E. Hyman LLC, represented by Haas Land Planning, LLC and Rowland +
Broughton Architects.
PARCEL ID: 2737-182-12-007.
ADDRESS: 630 E. Hyman Avenue, Lots R and S, Block 99, City and Townsite of Aspen,
Colorado.
ZONING: C-1, Commercial.
HISTORIC DESIGNATION
26.415.030.B. Criteria To be eligible for designation on the Aspen Inventory of Historic
Landmazk Sites and Structures, an individual building, site, structure or object or a collection of
buildings, sites, structures or objects must have a demonstrated quality of significance. The
significance of 20~' century properties like 630 E. Hyman Avenue is evaluated according to the
following criteria:
A property or district is deemed significant as a representation of Aspen's 20th Century
history, was constructed in whole or in part more than thirty (30) yeazs prior to the yeaz in
which the application for designation is being made, possesses sufficient integrity of location,
setting, design, materials, workmanship and association and is related to one (1) or more of
the following:
a. An event, pattern or trend that has made a significant contribution to local, state, regional
or national history,
b. People whose specific contribution to local, state, regional or national history is deemed
important and the specific contribution is identified and documented, or
c. A physical design that embodies the distinctive characteristics of a type, period or method
of construction or represents the technical or aesthetic achievements of a recognized designer,
craftsman or design philosophy that is deemed important.
2
Staff Findin¢: 630 E. Hyman was built beginning in 1969, commissioned by Jack and Gesine
Crandall, and designed by Tom Benton.
Tom Benton was the subject of an exhibit presented by the Aspen Historical Society in 2007, and
is the topic of an upcoming book sponsored by George Stranahan, including associated website
that includes the full collection of his work. From www.bentonbook.com:
Thomas Whelan Benton was born Nov. 16, 1930 in Oakland,
California. Benton attended Glendale High school and Glendale
Junior College before joining the Armed Forces and serving in the
Korean War. After the conflict, he studied at the University of
Southern California, where he earned a degree in architecture. In
the years following his graduation, Benton designed and built a
number of buildings in Southern California.
In his early years, Benton visited Colorado a number of times and
was continually drawn to the area. In 1963, Benton designed and built a building at 521 E.
Hyman in downtown Aspen that would become his home, art studio, and gallery. Benton
became involved in local politics and his gallery soon became the central meeting place for
local intellectuals, artists, and activists. He shifted his focus from architecture to graphic art
and design in the mid-sixties, creating political posters for the Aspen Liberation Front, a
loose-knit group of local activists. From the beginning of his career, Benton was especially
drawn to the impact of symbols and text, working in tandem in his political works to convey
his message.
According to Pitkin County Sheriff Bob Braudis, "Benton was heavily intellectual and
understood the threat that speculators were to our environment before anyone else.
Throughout his career Tom remained steadfastly loyal to rock solid values and committed to
sending his political message through his art. "
During the late 1960s, Benton met Hunter Thompson. His friendship and collaboration with
Thompson spanned more than four decades and created or inspired some of Benton's most
recognized works. The 1970 "hunter s. tompson for sheriff' campaign poster included a
two-thumbed fist and peyote button for his run for Sheriff of Pitkin County. This work also
inspired the famous "Gonzo Fist" logo Benton designed with fellow artist Paul Pascarella.
3
Benton also created the original cover for Thompson's "Fear and Loathing on the Campaign
Trail" and collaborated with Thompson on a series of Aspen Wall Posters that featured
artwork by Benton on one side, and literature by Thompson on the other. On the political
front, he went on to create campaign posters for over 30 candidates including Gary Hart,
George McGovern, and Willie Brown. Tom also created numerous "cause"posters for local
benefits, non profits, and charitable causes.
Benton's artwork continued to evolve throughout his career from political posters to abstract
silkscreen prints, monoprints, and oil paintings. His iconic works, composed of complex,
layered images of bold colors, text and symbols, mesmerized his subjects. Benton drew upon
his early career as an architect, the influence of his time is SE Asia, and from artists such as
Mark Rothko and Katsushika Hokusai, Paul Jenkins, and Morris Lewis. His artwork always
remained original and grew in size throughout his career, creating prints over 3' X 3' and oil
paintings measuring S'X 5'.
"My interest in art is for the organic and poetic. I have great respect for oriental art and do
not deny its influence in my work In a sense, I'm a raku painter. Raku is a way of
approaching art. It's a spontaneous, intuitive sense. You learn to take advantage of what's
happening to your work while it's happening. There's a lot of emotion and intuitive feeling
involved to the point that you almost know when something is going to happen, and
afterwards, you say, I'm not surprised. "
In the 1980's and 90's, Benton worked part time as a jailer for the Pitkin County Sheriffs
Department and continued to create artwork until he died from lymphoma on Apri127, 2007.
Benton was the featured artist in a retrospective at the Aspen Historical Society in 2007.
Perhaps the most remarkable thing about Thomas W. Benton was his fiercely independent
nature, and the enigmatic nature of the man and his work. Though known internationally,
Benton was best-known and most-loved by the regular people. He was prodigiously
productive, and certainly a man considered by peers and collaborators alike as equal parts
dreamer and doer. He was known for creating everything he needed- from his art supplies to
his furniture to his home and art studio--and often his tools and accessories were as
captivating as his works on display. Said friend Jay Cowan, " he could have gotten rich
4
designing buildings, furniture, accessories, almost anything, probably, but he wanted to
produce art and he did. "
Credits to Jay Cowan, Michael Cleverly, Chris Beck
Benton was not specifically profiled in the City's paper "ASPEN'S 20T" CENTURY
ARCHITECTURE:MODERNISM," however he was an influential participant in this movement
as it played out in Aspen from approximately 1945 to 1975. Benton's work as a graphic artist in
the community became more prolific than his azchitectural practice. Staff is only awaze of two
downtown buildings; 630 E. Hyman and Benton's heavily altered studio one block to the west,
that remain of his work. There are examples of residential buildings located in the County.
The subject building is unaltered to our knowledge, except perhaps the addition of some
windows on the rear fapade. It scores 99 out of 100 points on the Integrity scoring form. We
find that the all of the criteria for designation; a, b, and c, are met.
ORDINANCE #48 NEGOTIATION
The application includes requests for benefits that will incentivize voluntary designation of the
property. The applicant requests that these benefits be awarded within the 90 day negotiation
period (ending January 5`" )
First, it is requested that Growth Management exemption be granted in a timely manner for the
right to add one residential unit. This is an existing (and valuable) benefit for landmarks.
Exemption will be granted by the Community Development Director if the property is
landmazked. The property owner will not have to provide affordable housing mitigation for this
unit.
The second request concerns the 2,000 squaze foot limit on residential units. Property owners
can exceed that cap by 500 squaze feet by purchasing and landing a Transferable Development
Right. The applicant is requesting Council allow the residential unit to be 2,500 square feet in
size without a TDR. This incentive does require Council negotiation and action.
The third request is related to two building features that currently encroach on to the City owned
right of way along Spring Street. The features aze a column and a set of stairs. Revocable
encroachment licenses have been granted in the past. The applicant would like the City to
provide permanent easements. This request has been referred to the Attorney's Office and
Engineering. Generally the City should not grant easements in perpetuity. The Attorney's office
recommends the applicant prepaze a proposed encroachment agreement to be reviewed prior to
Second Reading.
Finally, there is a request to waive the School Land Dedication fees that will be generated by the
project. This is a fee the City collects and transfers to the School District. The City does not
have the authority to waive the fee.
5
The negotiations include two points which staff believes are moot. The applicant was seeking
Subdivision approval, but the project does not require Subdivision review.
The second issue which requires no action relates to allocation of FAR. The building is under
the total allowable FAR and will remain so with the proposed addition. 630 E. Hyman is
currently over the cap for amount of space devoted to commercial tenants. Staff finds no action
is necessary since the non-conforming situation is not being made worse in the proposal and the
amount of commercial space can remain the same.
RECOMMENDATION: Staff and HPC appreciate the cooperative spirit of this application and
recommend Council approve Historic Landmark Designation and Ordinance #48 negotiation,
particularly with regard to increasing the residential unit size cap by 500 square feet.
CITY MANAGER COMMENTS:
PROPOSED MOTION: "I move to approve Ordinance #Zb, Series of 2009, on First Reading."
Exhibits:
Ordinance #~ Series of 2009
A. HPC minutes of October 28, 2009
B. ASPEN'S 20T" CENTURY ARCHITECTURE:MODERNISM
C. Integrity Scoring Sheet
D. Historical background on Tom Benton
E. Application
6
ORDINANCE #=xK/
(Series of 2009)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO
APPROVING LANDMARK DESIGNATION AND A 500 SQUARE FOOT INCREASE
IN THE CAP FOR RESIDENTIAL UNIT SIZE FOR THE SITE SPECIFIC
DEVELOPMENT PLAN OF THE PROPERTY LOCATED AT 630 E. HYMAN
AVENUE, LOTS R AND S, BLOCK 99, CITY AND TOWNSITE OF ASPEN,
COLORADO
PARCEL ID: 2737-182-12-007
WHEREAS, the applicant, 630 E. Hyman LLC, represented by Haas Land Planning, LLC and
Rowland + Broughton Architects, has requested negotiation for landmark designation pursuant to
Ordinance No. 48, Series of 2007 for the proposed alterations to the property located at 630 E.
Hyman Avenue, Lots R and S, Block 99, City and Townsite of Aspen, Colorado; and
WHEREAS, the property is included on Exhibit A to Ordinance No. 48, Series of 2007, as a
potential historic resource; and
WHEREAS, Section 26.415.025(E) of the Municipal Code states that, curing the negotiation
period set forth in the Code, "the Community Development Director shall confer with the
Historic Preservation Commission, during a public meeting, regarding the proposed building
permit and the nature of the Potential Historic Resource. The property owner shall be provided
notice of this meeting with the Historic Preservation Commission;" and
WHEREAS, the property owners were notified of the Historic Preservation Commission
meeting; and
WHEREAS, Amy Guthrie, in her staff report to HPC dated October 28, 2009, performed an
analysis of the building and the impact of the proposed alterations to the potential historic
significance of the building and found that the criteria for landmark designation aze met; and
WHEREAS, at their regulaz meeting on October 28, 2009, the Historic Preservation
Commission considered the application and approved a recommendation to City Council by a
vote of 5-0; and
WHEREAS, the City Council finds that the proposal meets or exceeds all applicable development
standards and that the approval of the development proposal is consistent with the goals and
elements of the Aspen Area Community Plan; and,
WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion
of public health, safety, and welfare.
630 E. Hyman Avenue
Ordinance #48 Negotiation Review
Page 1 of 3
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
Section 1: Historic Designation
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code,
Aspen City Council hereby approves Historic Designation for 630 E. Hyman Avenue, Lots R and
S, Block 99, City and Townsite of Aspen, Colorado.
Section 2: Ordinance #48. Series of 2007 Negotiation
Pursuant to the procedures and standazds set forth in Title 26 of the Aspen Municipal Code,
Aspen City Council hereby grants the following Land Use entitlements, conditioned upon the
voluntary landmazk designation of 630 E. Hyman Avenue, Lots R and S, Block 99, City and
Townsite of Aspen, Colorado:
1. Council hereby approves an increase in the maximum residential unit size for the free
market unit represented for 630 E. Hyman to 2,500 squaze feet, without the
requirement to extinguish a TDR.
Section 3: Severability
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
sepazate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 4: Existing Litigation
This ordinance shall not have any effect on existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances amended as herein
provided, and the same shall be construed and concluded under such prior ordinances.
Section 5: Vested Rigbts
The development approvals granted herein shall constitute asite-specific development plan vested
for a period of three (3) years from the date of issuance of a development order. However, any
failure to abide by any of the terms and conditions attendant to this approval shall result in the
forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to
properly record all plats and agreements required to be recorded, as specified herein, within 180
days of the effective date of the development order shall also result in the forfeiture of said
vested property rights and shall render the development order void within the meaning of Section
26.104.050 (Void permits). Zoning that is not part of the approved site-specific development
plan shall not result in the creation of a vested property right.
No later than fourteen (14) days following fmal approval of all requisite reviews necessary to obtain
a development order as set forth in this Ordinance, the City Clerk shall cause to be published in a
newspaper of general circulation within the jurisdictional boundaries of the City of Aspen, a notice
630 E. Hyman Avenue
Ordinance #48 Negotiation Review
Page 2 of 3
advising the general public of the approval of a site specific development plan and creation of a
vested property right pursuant to this Title. Such notice shall be substantially in the following form:
Notice is hereby given to the general public of the approval of a site specific development plan, and
the creation of a vested property right, valid for a period often (10) years, pursuant to the Land Use
Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the
following described property: 630 E. Hyman Avenue, Lots R and S, Block 99, City and Townsite
of Aspen, Colorado.
Nothing in this approval shall exempt the development order from subsequent reviews and
approvals required by this approval of the general rules, regulations and ordinances or the City of
Aspen provided that such reviews and approvals are not inconsistent with this approval.
The approval granted hereby shall be subject to all rights of referendum and judicial review; the
period of time permitted by law for the exercise of such rights shall not begin to run until the date
of publication of the notice of final development approval as required under Section
26.304.070(A). The rights of referendum shall be limited as set forth in the Colorado
Constitution and the Aspen Home Rule Charter.
Section 6: Public Hearine
A public hearing on the ordinance shall be held on the 7r' day of December, 2009, in the City
Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a
public notice of the same was published in a newspaper of general circulation within the City of
Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the _ day of _, 2009.
Michael C. Ireland, Mayor
ATTEST:
Kathryn Koch, City Clerk
FINALLY, adopted, passed and approved this day of , 2009.
Michael C. Ireland, Mayor
ATTEST:
Kathryn Koch, City Clerk
APPROVED AS TO FORM:
John Worcester, City Attorney
630 E. Hyman Avenue
Ordinance #48 Negotiation Review
Page 3 of 3
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28.2009
Amy said the concern is that council has recommended that the applicant go
with the COWOP plan which is that the larger ticket office be preserved.
Brian said he agreed with staff s recommendation. He was never convinced
that a 1940's building existed. He is an advocate for reclaiming the
materials.
Michael said he agreed that the 1940's building was to be investigated but
there is no 1940's building. If this is of no historic significance we should
not save it but preserve the materials.
Jason said the asset department should be cautious with the city inventory. I
would prefer not to see any building tom down.
Ann said her concern is the fact that the building was allowed to get in the
state it is. It should have been repaired when it collapsed. Saving the
materials would be great but we need to take care of our buildings in the
future.
630 E. Hyman Ave. Landmark, Conceptual HPC and Commercial
Design Review, Ord. #48 negotiation
Mitch Haas, Haas Land Planning LLC.
The first and second floor are largely left intact and we are replacing a few
openings with actual windows. A rectangular window has been added to the
Spring Street side of the facade. The building is on Ord. #48. We are
voluntarily designating the building with a third floor residential unit set
back over 22 feet from the fapade facing Hyman Ave. and 11 feet back on
the Spring Street side. The design of the third floor does not compete with
the structure but compliments it. There are also new windows on the alley
side. On the ground level changes to the front were requirements of the
building code. The siding will be recovered to a light color that was
historically there.
Under ord. #48 there is negotiation. In terms of incentives we have not
asked for much. We are asking that growth management exemptions be
discussed with city council. The building today is over the commercial floor
area and after the remodel it would still be over. The residential floor area
exceeds the allowable and that footage is in the common spaces. We are 524
square feet over. 832 square feet is in common areas which is counted as
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28, 2009
residential. In the zone district the maximum residential unit allowed is
2,000 net livable square feet and can be increased to 2,500 square feet with a
TDR. We are asking for the 2,500 without a TDR. We are under the
allowable FAR for the property. The existing structure has two
encroachment licenses into the right-of--way; one for the CMU columns on
the Spring Street side and the other for the stairs along the alley. What is the
point for a revocable license when the building can't go away because it will
be landmarked?
John Rowland, Rowland Broughton architects:
The property is in the C 1 zone district. The basement was built in 1962 and
in 1973the remaining upper floors were constructed. The courtyard is not
functional and we have handicapped issues and energy requirements that are
not being met. Existing windows are not functional. Thomas Benton was
the original designer and he is becoming an icon in Aspen particularly
because of the round windows. The intent of the building is that it will truly
be a mixed use with a residence on the upper floor. Some of our project
goals are to respect the character of the building, improve accessibility,
energy improvements, retain the opening on the second level and introduce a
Tom Benton art gallery in the common spaces. The client Greg Hil] would
like to sell back the condominium units to the existing tenants at an
affordable price as well as adhering to the community master plan.
Preservation concepts that are important are the round windows and the
second level opening; the expressiveness of the concrete columns; the red
wood siding and spider effect on the siding detailing as well as the general
architecture form.
Sustainable goals: We are not demolishing the building but will enclose the
courtyard. Currently 64% of the surface area is exposed to cold weather and
we will up the insulation values and retain the redwood siding. We will
upgrade the stairs and elevator to required standards.
We are proposing to bring the stair on the south side to meet code and
egress. The stair will be relocated. There will be an additional egress to the
street per fire codes. Tom Benton's work will be displayed on the common
spaces on all levels and we will enhance the pedestrian amenities and engage
the side wall as a place to sit and gather and be communal. The pent house
is 5.6 off the west setback, 26.7 feet off the property line and 11.3off the
Hunter Street side. The highest element is an elevator overrun that will be
3
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28, 2009
flat in a round form. We will sandblast the facade to bring it back to its
original intent. The architecture on the upper floor is a combination of metal
panels. There is a new window proposed on the Hunter Street side.
Amy Guthrie, Preservation Officer:
Amy stated that in the. assessment scoring the building scored 99 out of 100
due to window changes in the back. Other than that the building is just as it
was designed. Tom Benton is known beyond Aspen with his work and we
feel he contributed to modern architecture during 1945 to 1975. The
building clearly meets the designation criteria and staff supports that. This is
a voluntary designation and because this building is on Ord. #48 HPC has no
authority to designate without the owner's consent.
The primary issue with the project is the addition on the roof and the
entryway to the building. We generally do not like the entrances changed
but in order to keep the stair and address fire code issues it would require
enclosing it in a manner that had a piece jutting out in front of the building
which staff feels is worse that moving the stair over. You still enter through
the center of the building. At final we should revisit the store front level to
reduce demolition. In general staff supports the stair relocation. In terms of
the upper floor addition we find that it is sympathetic to the building. It has
been pulled in from the roof s edges. The overall height is about 10.6 plate
height which is reasonable. The glass railing seems to align with the walls
of the Benton structure and staff feels that possibly it could be improved by
pulling it back.
The next discussion is windows. The applicant intends to replace all of the
windows in the building and in this case we feel there is no artistic merit to
the windows. They do not have craftsmanship that we would be interested
in saving. We have no issue with the replacement but they need to be
replaced in-kind as the originals and they need to be all wood. The
application suggests a clad window and the existing windows are wood.
These are issues that can be addressed at final. One window will be added
on Spring Street which is not a negative impact on the building.
Commercial design review applies here. In general we did not find any
guidelines that were in conflict. Most of the commercial design guidelines
talk about new buildings. Growth management will be issued by the
Community Development Director to allow the new free market unit with no
employee mitigation. They are already over the commercial allocation and
4
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28.2009
they are going to improve that but still out of compliance. They are already
an existing non-conformity. The applicant wants to expand the size of the
upper unit. The allowable is 2,000 and they want to go to 2,500 and the only
way they can do that is by landing a TDR. They would like to do that
without landing a TDR and that is something that council would have to
allow. The issue of encroachments is an attorney and engineering matter.
The applicant is also requesting waiver of school land dedication fees and
that is money that we gather for the school districts benefit and we don't
think that it can be waived. The character of the courtyard is being
maintained because the space will be more enjoyable and usable. It is an
important aspect of this project the way the weather and this building
interact. That will change with the new addition but your experience from
the street will not.
In summary we are very pleased in seeing this voluntary designation offered
and feel this is a good project and we recommend HPC grant conceptual
approval.
Clarifications:
Brian inquired about the commercial square footage. Mitch said the
commercial FAR is going down but because the courtyard right now is being
exposed from above grade on the lower level it counts as floor area. When
you put a roof over it, it doesn't count as floor area. The amount of
commercial space is not going down but the commercial FAR is.
John Rowland clarified the commercial square footage is going down by 340
square feet.
Ann asked about the parking situation. Mitch said right now there is no
parking but two garages will be offthe far corner of the alley. Ann asked if
the applicant is intending to keep the spider web design throughout the
fapade. Mitch said the proposal is to replace the spider webs with store front
windows.
John Rowland said they would like to hear what the board has to say about
the spider webs.
Jason asked if a skylight was investigated that would light the whole way
through to the courtyard; just a small shaft of light. John said they had
discussed it early on and found some problems with it.
5
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28.2009
Jamie said the existing building is pretty much an open courtyard and very
inviting for people to walk in and you are proposing doors which limits that
interaction. Was this discussed at the work sessions. John said it was
discussed from an environmental standpoint. We are at a time where energy
is expensive and precious and we wanted to enclose the courtyard for that
reason. There will also be foliage that will be able to grown inside due to
the lighting system. It will be a great place to go and to check out Tom's art
work. This will be another gathering space that will be lighted and
engaging.
Amy said the doors are recessed which gives you the sense of openness.
Chairperson, Michael Hoffman opened the public hearing:
John Olson, public said he has had the opportunity to work with Greg in the
past and the owners are very sensitive and focused on the historic
preservation and to do it right. This project would be done no different than
what they have done in the past.
Bill Mitchell, pediatrician
My office is in the building and it is a great place to watch events on the
mountain. One of the biggest improvements are the elevators. Most parents
currently use the back stairs and with the elderly my partner and I either go
to Basalt or to the hospital. The Hills are making this affordable. My
partner and I are the only ones from here to Glenwood that will see
Medicade patients. Over the past 24 years I have spent well over a million
dollars in rent in this building and I have nothing to show. We have been
trying for years to buy. With the open roof the snow comes right down and
the area gets very slippery. It will be nice to have Tom's work accessible in
the building to show or sell.
June Kirk, said she served on Historic Preservation Task Force
Many of us are concerned that historic preservation doesn't become an
avenue for just over incentives and adding additional FAR without
preserving the integrity of historic structures. This building came about in
the 60's when the codes were some restrictive and you could only build one
or two story buildings. Along this three block area there are just one and
two story buildings. I am concerned with the third floor on this building and
it changes the integrity and the whole character of what we are trying to
preserve. The old Boomerang lodge was preserved without changes. I can't
see why you can't have your residential unit in the building instead of
6
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28, 2009
having a hat on top. The conceptual review changes the character of the
neighborhood and the building that we are trying to preserve. If you are
getting rid of the patio you should somehow maintain the two story structure
which is typical of Tom Benton design and feel and still have the residential
unit within the building as it stands today.
Toni Kronberg, public
I look at this application as the beginning of a domino effect like what
happened across the street from Wagner Park. This is one block east of the
historic district. When the Dancing Bear got built everything around it got
bigger. The Wienerstube went before city council and it was a tie vote so it
was a failed motion. The reason it failed because it did not keep within the
existing size and scale of the neighborhood which is in the Aspen Area
Community Plan. In the historic district guidelines chapter 10 building
additions it basically says any additions are to be outside of the building and
have a connector to it. It also talks about roof top additions which are to go
out perpendicular to the building and not up. In the assessment the roof
form was given a score of 10. How can you get a score of 10 when you are
adding a third story. In the guidelines it says any new additions are
supposed to be subservient to the historic structure. Adam Walton's house is
historic and right behind this structure. If this is allowed to be built
everything around it will go higher. The community character and
neighborhood character will be diminished and destroyed. I commend the
owner voluntarily coming in and asking for designation. Once the third
floor is on, the historic aspect is diminished. This project needs more
thought.
Brain said there maybe historical significance associated with this building
and in order to preserve it there are certain things requested in order to
maintain it which entail increase in height of the building. Given that
information is it a wiser choice not to approve this with the understanding
that this may go away entirely and they would have to come through a
regular process in which you would hope only a two story building would be
proposed.
Toni said she has given that a lot of thought. The building has changed with
the elevator and filling in the front. This is like the Mother Lode. It might
be better that this not receive landmark designation and the building go
through another process.
7
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28.2009
Brian said his point is at the end we could end up with nothing being
preserved on this building. Are minor modifications OK to preserve what
we see as historical in this building or is it better to take a risk and start over.
Bill Wiener, 701 Gibson Street; For the past couple of years I have been
involved in preserving Aspen's character. Just because you can do
something doesn't mean you should. Everyone is talking about numbers
rather than should we be doing things. Is it good for the community should
be discussed and this has gotten me angry. If they buy a piece of property
for twice what they should be then that opens the door to do more to get a
fair return and it doesn't make any sense at all. This is a piece of sculpture
and you don't add a knob on top of it. It is an introverted building and you
can do a lot of energy upgrades without putting a house on top of it. You
can put an insulated glass roof over the courtyard and have double doors
coming in. You need to try and get some of the sunlight back in. I
remember an employee unit in here and it disappeared and does employee
housing have to go back into the building. The elevator is needed. HPC is
following under the code and it shouldn't come down to that, it should be
this is important to our community and what can we do to keep it without
giving the developer something that undoes the whole reason for keeping it.
This is not minor; you are building a house on top of the building.
Greg Hill, owner of the building. I appreciate all the comments that
everyone has made. Our philosophy when we take a building that is tired we
like to bring it back to life and that doesn't necessarily mean keeping the
building exactly the way it is in our opinion. Certain buildings lose their
functionality and their life. What we have tried to do through all the
comments from the commission and public is to make minor changes to the
original structure to make it a better building for the people that are going to
inhabit the building and we wanted to add more vitality through landscaping
or public amenities. We have tried to minimize the unit on top. This height
that we are adding is fairly minimal. We are only four feet higher than the
building next door. The point of having the residential unit philosophically
is to help the pediatrician, the barber, and Sandy's being able to afford their
space. Yes, we will make money off the residential unit. It becomes a
choice, do we add the unit on top and minimize the impact or not do that and
charge higher rates. The choice as a citizen of this community is to restoring
what is currently there and creating an opportunity for locals to stay put. We
are really trying to make this a better building and something that we all will
be proud of when it is done.
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28, 2009
Chairperson Michael Hoffman closed the public input portion of the agenda
item.
Clarifications and questions:
Jason asked what the maximum height could be if this building was torn
down. Mitch said 36 feet and up to40 feet with commercial design review.
This building is at 33 feet.
John Olson said they did a structural analysis for this building and it is a
very strong structure and can receive the third floor with what is existing
right now.
Michael said regarding any demolition he would like to see what is being
proposed.
Jamie asked if the interior courtyard really is exterior space. Amy said if
you allow for the enclosure of the courtyard it does eliminate HPC purview
on the interior. It is an impact, making what was exterior interior. The
applicant is not proposing to chop up that area for offices. 1 see this as an
adaptation of the space.
Michael inquired about the housing unit.
Mitch said the space occupied by a salon we feel was a residential unit at
one time but staff researched it and none of the approvals of record show it
was allowed in the first place so we are not allowed to use it as a credit. If
we were allowed to use it as a credit we don't even need an I-IPC exemption
for the free market unit which is moving within the building.
Designation:
Jason said we are talking about two names in Aspen that are big, Jack
Crandall and Tom Benton. [ am glad to see someone is trying to preserve it
and we have a great opportunity here. Anytime you have designation there
is compromise involved.
Ann said she is in favor of designation and the building complies with b,c, of
the criteria and the integrity scoring was 99.
Brian said he understands the importance of this building and how it adds to
the culture of Aspen which are all great attributes. It is too much of a risk
not to accept designation.
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28.2009
Jamie said overall she is in favor of designation.
Michael agreed with his fellow commissioners. It meets designation criteria
b and c. The designation is being brought to us voluntarily.
Major Development Conceptual:
Michael said the issue is the roof top addition.
Jamie said she is a little concerned about how historic it will feel with you
will be seeing a very modern top added. The preservation of the interior
courtyard is great and the preservation of the exterior skin. Another concern
is the modem glass railing up against the historic fagade.
Ann said this is one of the tradeoffs we have been talking about. The
architects have done a nice job of updating the building and it seems vibrant
now and there will be more activity on the roof top garden and keeping the
old tenants is very appreciated. It would be great to leave it without the top;
on the other hand it is nicely designed and integrated well into the building
itself. We are much better off with a known solution rather than losing the
building and not knowing what is going to be there. It also has a great
relationship to the Hannah Dustin Building which is quite a bit higher and it
works out nicely. The landscaping is a little robust and a few trees should be
removed so you can see the building.
Jason reflected that Design Guidelines 10.12 -When constructing a rooftop
addition, keep the mass and scale subordinate to that of a historic building.
The ceiling height is 9 feet and pretty modest and that guideline is met. It
also meets 10.13 - Set a rooftop addition back from the front of the building.
Staff has a good point about the glass railing and it needs to be set back from
the plane of the historic fagade. Guideline 10.14 -The roof form and slope
of the new addition should be in character with the historic building. Maybe
we can see more of a shadow line on the eastern fagade so that it disappears
more and you don't see the glazing.
Jason said he has questions with guideline 3.3 -Preserve the historic ratio of
window openings to solid wall on a fagade. The spider walls on the Hyman
side are very important and worth saving. The rectangular window on the
Spring Street side is a large "add" to the fagade. It could be justified if it lit
the courtyard but it is lighting a private space. The biggest issue is the
courtyard and if it had an element through I could get behind the pent house.
io
ASPEN HISTORIC PRESERVATION COMMISSION
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Mitch Haas said they will restudy the window for final.
Greg Hill said they could possibly move the closet etc. and add light down
the courtyard.
Brian said the architects have done a good job to add a third story and
making it as least impactful as possible. As a suggestion maybe the front
fapade should go back a little further on the third story. Another concern is
the courtyard space and everything that can be done to create that space
more habitable for the community I am fully in favor of Maybe adding
natural light would be a big component for making that a better space. With
the addition on top it will help preserve the integrity of this building and
hopefully make the interior space more inviting.
Ann said if there is any way to get a light shaft in the courtyard I would
support studying that.
Michael pointed out that the HPC struggles with "who is the gate keeper" of
preservation if it is not the HPC. It is a reality if we don't approve the third
story then the whole scheme that the Hill's need the investment pursuant to
will blow up and we will be stuck with an entire new building. I am very
sensitive to the individuals who have paid over a million dollars in this
building and do not have an ownership stake in it. This plan will give them
that. Those particular factors are not in the guidelines but I can find plenty
in the guidelines that justify the creation of this third level and Jason pointed
them out. I feel this is a good compromise for the community. I don't feel
this will start a domino effect for the rest of the block.
Reconfiguration of the entry stair case and spider web:
Ann said this is a compromise and it is important to maintain the spider web
panels along the front the same way you are along the side of the building.
John Rowland said the spider webs can be retained.
MOTION: Michael moved to continue the Historic Preservation Guidelines
and Update on the new recycling containers to the next meeting; second by
Jason. All in favor, motion carried.
Commercial design review:
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28.2009
Michael said the major issue with the design review is the increased height
of the building and Jason went over the guidelines that apply.
Plate height:
Jason said we can't request anything less than 9 feet.
Brian said he thinks it could come down a little more.
John Rowland said he cannot lower the plate height. It is livability and there
are mechanical equipments that will lower it to 8 feet in some places.
Mitch Haas pointed out that they are already three feet under the height
limit.
The board agreed that 9 feet plate heights are acceptable.
Ordinance #48 negotiations:
Michael said the issue he would weight in on is the 2,500 square foot
residence on the upper floor. This can be justified because theoretically
they are preserving the building and basically creating their own TDR and
applying it to the roof. The board feels this is a good compromise in order to
preserve the building.
Ann pointed out that this is a compromise and the benefits that will come out
of this development merit what they are asking for such as keeping the
tenants and upgrading the building and streetscape.
Jason asked if the 500 square feet is not approved by city council does the
project come back to the HPC.
Greg said some of the interior common area for Benton's display would go
away.
Jamie said she is new on the board and should we be taking monitory issues
into consideration? Michael said you listen to the presentation and it will
have some effect on your decision but you need to follow the guidelines first
and the monitory issues have to be secondary. They could propose to sell it
so that the tenants can afford it but they can always change that at any point.
Ann pointed out that the residential unit is there to subsidize the rents so that
the same tenants can stay there.
~z
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF OCTOBER 28.2009
Michael said promises that they make to their tenants is outside our decision
making.
Greg Hill, owner said it because an issue with my reputation. I am trying
very hard to keep the prices set but as we all know people's financial
situations change. I have told everyone what the price was going to be.
Mitch Haas said normally you would not consider anything financial but this
is not normal, it is an ordinance #48 discussion which basically means throw
out the codes and negotiate on incentives. This is an incentive that we have
requested and it is perfectly within reason. You can achieve a 2,500 square
foot unit in this zone district by landing a TDR. We are already 2,500
square feet plus under the allowable floor area and we would like to have the
2,500 square foot unit and that goes with getting an historic preservation
project and a landmark structure.
Michael made the motion to approve 630 E. Hyman Ave. with the standard
conditions and the following conditions of approval:
1. Preserve the spider walls.
2. Preserve the ability to open the second story window on the south
facade.
3. Restudy the rectangular window on the second floor east fapade.
4. Consider a skylight that lights the courtyard through the residential
unit.
5. Recommend the approval of the 2,500 residential unit on the third
floor pursuant to ordinance #48.
6. Investigate the eave on the upper east addition.
7. Restudy pushing the glass railing back.
Jason second the motion. All in favor, motion carried 5-0.
MOTION: Michael moved to adjourn; second by Jason. All in favor,
motion carried.
Meetin adjourned at 8:00 p.m.
Kathleen J. Strickland, Chief Deputy Clerk
13
~~t~t ~ ~
ASPEN'S 20TH CENTURY ARCHITECTURE:
The Modernist Movement
Modernism as a style of architecture describes the works that were produced
beginning in the 20`h century as a result of a clear philosophical shift in design practices
and attitudes, and incredible changes in building technology. The roots of this style can
be attributed in great part to the Industrial Revolution, which led to dramatic social
changes, and an inclination to react against all that had come before. In addition there
was a new abundance of raw materials, including bricks, timber, and glass; and stronger
materials, particularly metals, which allowed structural innovations.
Initially, the modern technologies were employed in ways that reflected much of
the preference for decoration and organic design that had preceded the 20`h century, for
instance in the Arts and Crafts Style of the 1920's and the influential designs of Frank
Lloyd Wright. As the century progressed, however, the demands of the automobile, and
the need for buildings to serve uses previously unknown, such as airports, led to the
search for a new architectural vocabulary. The streamlined and austere became more
relevant. "Functionalism" and "Rationalism" were terms used to describe architectural
philosophies related to this period. "Modern building codes had replaced rules of
thumb."`
"Architecture was seen primarily as volume and not mass. So the stress was on the
continuous, unmodulated wall surface- long ribbon windows without frames, cut right
into the wall plane, horizontally or vertically disposed; flush joints; flat roofs. Corners
were not made prominent. Technically, the argument went, materials like steel and
reinforced concrete had rendered conventional construction- and with it cornices, pitched
roofs, and emphatic corners-obsolete. There would be no applied ornament anywhere,
inside or out...A house was a machine made for living Le Corbusier provocatively
declared in 1923 in his Towards a New Architecture, which has proved the most
influential book on architecture in this (the 20`h) century."Z
Modernism in Aspen
The period between the Silver Crash in 1893 and the end of ~,~
World War II saw little new construction in Aspen. This changed ~ ~
when interest began to grow in developing a major ski resort, and ; "
when Walter Paepcke envisioned the town as the ideal setting fora s 4;?~ ~,
community of intellect, cultural institutions, and pristine natural ` '
environment. As a result of this renaissance taking place, many
Walter Paencke
~ Robert Frankeberger, and James Garrison, "From Rustic Romanticism to Modernism, and Beyond:
Architectural Resources in the National Parks," Fomm Joumal. The Journal of the National Trust for
Historic Preservation Summer 2002, p. 16.
z Spiro Kostof, A His[orv of Architecture: Settinss and Rituals, (New York:Oxford University Press, 1985),
p. 701.
important architects were drawn to live and work here and left an imprint of the
philosophies of the modernist period on the town. The two masters who had the largest
influence on Aspen, Fritz Benedict and Herbert Bayer, are discussed at length in this
paper, along with a number of others who completed notable works here.
FRITZ BENEDICT
Frederic "Fritz" Benedict (b. 1914- Medford, Wisconsin,
d. 1995- Aspen, Colorado) was the first trained architect to arrive
in Aspen at the end of World War II. Benedict had earned a
Bachelor's Degree and Master's Degree in Landscape
Architecture at the University of Wisconsin before being invited
to Frank Lloyd Wright's school, Taliesen, in Spring Green,
Wisconsin in 1938. Initially, Benedict's role at Taliesen was as
head gardener, but his interest in Wright's philosophy of the
integration of architecture and landscape led him to study design
at both Taliesen and Taliesen West in Phoenix, Arizona for the
next three years.
Benedict, an avid skier, first visited Aspen as a participant in the National Skiing
Championships held here in 1941, apparently told of the charms of the town by Frank
Mechau, an artist whom he met at Taliesen and who resided in Redstone, Colorado. In
1942, Benedict was drafted to serve with the 10`h Mountain Division troops, an elite
group of skiers who trained at Camp Hale, north of Leadville, Colorado. On weekends,
the soldiers would often travel to Aspen for recreational skiing.
Benedict saw active duty in Italy and served with the 10`h Mountain Division until
the end of the war in 1945. He returned to Aspen and purchased a ranch at the top of Red
Mountain, focusing on operating the property as his livelihood for some time. According
to Benedict, "The place (Aspen) was so dead and was starting to be a resort so slowly that
there wasn't much to do in the way of design."'
This situation changed for good after 1946, when noted artist Herbert Bayer
arrived in Aspen with Walter Paepcke, and the duo's plans for the town brought more
people and a new period of construction. Through Herbert Bayer, Fritz met his future
wife, Fabienne, the sister of Bayer's wife Joella. Fabi persuaded Fritz to quit ranching
and pursue architecture, which he did after being awarded a license under a grandfather
clause that allowed architects to be licensed based on experience, rather than on testing.
Benedict was known for setting buildings into the landscape in an unobtrusive and
harmonious way, clearly derived from his landscape architecture education and the
influence of Frank Lloyd Wright. He placed a high priority on creating an intimate
relationship between a house and its garden. Benedict was a pioneer of passive solar and
'Adele Dusenbury, "When the Architect Arrived After the War," The Asoen Times July 31, 1975,
p. 1-B,
Fritz Benedict
earth shelter design. He experimented with
and solar buildings. His master work,
Edmundson Waterfall house, which
car-free village design, sod roofed structures,
the
was
strongly related to Frank Lloyd Wright's
Fallingwater, exhibited many of these qualities
and all of the central characteristics of
Wrightian design, including a low pitched roof,
strong horizontal emphasis of the structure, and
the use of mitred windows at building corners.
The most important of Benedict's works may
best be defined by the examples that clearly
represent Wrightian ideas, or where innovation
was key.
Benedict's earliest projects in Aspen were
residences. In collaboration with his brother-in-
law, Herbert Bayer, he also helped to design the
buildings of the Aspen Institute, the intellectual
center of Paepcke's facilities. Other known works
by Benedict include the cabin at 835 W. Main
Street (1947), the John P. Marquand studio on Lake
Avenue (1950, since demolished), the Copper
Kettle (1954, 845 Meadows Road), Bank of Aspen
(1956, 119 S. Mill Street), 625 and 615 Gillespie
Avenue (1957), the original Pitkin County Library
Waterfall House, on Castle Creek
Road, Pitkin County,1960
(1960, 120 E. Main Street), the Aspen Alps (1963,
777 Ute Avenue- the first luxury condominiums in 835 W. Main Street. 1947
the Rocky Mountains), the Bidwell Building, (1965, 434 E. Cooper Avenue), Aspen
Square (1969, 617 E. Cooper Avenue), The Gant (1972, 610 S. West End Street), the
Benedict Building (1976, 1280 Ute Avenue), the Aspen Club Townhouses (1976, Crystal
Lake Road), and Pitkin County Bank (1978, 534 E. Hyman Avenue) In total, Benedict
designed and renovated over 200 homes and buildings in Aspen and Snowmass.4
The Copper Kettle, 1954
Mary Eshbaugh Hayes. Dedication plaque on "The Benedict Suite," Little Nell Hotel, Aspen, Colorado.
434 E. Cooper Avenue, 1965
Benedict's works in Pitkin County, outside of Aspen's city limits, include two personal
residences, the Waterfall house (1960, since demolished), the Aspen Music School
campus, and the Aspen Highlands base lodge (since demolished). Benedict also did the
master plan for Snowmass (1967), Vail (1962) and Breckenridge (1971.)
Fritz Benedict was inducted into the College of Fellows of the American Institute
of Architects in 1985, by election of his peers. This is a lifetime honor bestowed on
registered architects who have made outstanding contributions to the profession, and only
5% of the profession receive this honor. The nomination submitted stated that "Frederic
`Fritz' Benedict lefr a legendary influence on design and construction in the Rocky
Mountain West...(creating) classics of the mountain vernacular."5 He was given the
Greg Mace Award in 1987 for epitomizing the spirit of the Aspen community, was
inducted into the Aspen Hall of Fame in 1988 and the Colorado Ski Hall of Fame in
1995, and was given the "Welton Anderson" award for his contribution to Aspen's built
environment by the Aspen Historic Preservation Commission in 1993. In all cases
Benedict was recognized for being a pioneer of Aspen's rebirth as a resort community.
Many quotes from his memorial service in 1995 attest to the community's respect for his
role in Aspen's history. Bob Maynard, former president of the Aspen Skiing Company
stated "Aspen was fortunate fifry years ago to be wakened from her sleep by visionazies.
The trio of Benedict, Bayer, and Paepcke combined dreams and hope and reality uniquely
to restore a community ravaged by mining, trapped in poverty- yet willing to follow the
dreamers."6 Similarly, the Aspen Times stated at his death, "Along with the late Walter
and Elizabeth Paepcke and his Bauhaus trained brother-in-law Herbert Bayer, all of
whom came to Aspen with a rare vision in the traumatic wake of World War II, Benedict
was one of the fathers of modern Aspen, a man whose architecture not only helped shape
the city aesthetic, but whose personal commitment to the original dream of a special
`Aspen Ideal' made him the guarantor of the city's very soul."~ Local resident and fellow
student of Taliesen, Charles Paterson stated, "Whatever he was building was one jump
ahead."$
Aside from his architectural contributions, Benedict influenced the Aspen
environment in several other ways. Benedict and his wife donated more than 250 acres
of land within Pitkin County for open space. He was the father of the ] 0`h Mountain Hut
system (established in 1980), and served as the first chairman of Aspen's Planning and
Zoning Commission, developing height and density controls for the City, open space
preservation, a City parks system, a sign code, and a ban on billboards. He played a
significant role in the founding of the Aspen Institute, and the International Design
Conference. He served on the board of the Music Associates of Aspen for 35 years.
s Joanne Ditmer, The Denver Pos[, as reprinted in the program for the Fritz Benedict Memorial Service.
e Robert A. Maynard, Remarks given at Fritz Benedict's Memorial Service.
' Mary Eshbaugh Hayes, "Fritz Benedict, 1914-1995: The Passing of a Local Legend," The Aspen Times
July 15 and 16, 1995, cover page.
s Charles Paterson, Remarks given at Fritz Benedic['s Memorial Service.
HERBERT BAYER
Herbert Bayer (b. 1900- Austria, d. 1985- Santa Barbara, California) was an artist
of many disciplines. He apprenticed with architects in his native country Austria, and in
Germany, starting at the age of 18. In 1921 he entered the most reknowned art and
design school of the 20`h century, the Bauhaus in Weimar, Germany.
"~-°' ~ The Bauhaus, which existed from 1919 to
~~~ 1933, was begun in a spirit of social reform and
represented a rejection of many design ideas that
preceded it. "From skyscrapers to doorknobs,
modern design was born, really, at the Bauhaus. The
ideas of the Bauhaus shaped whole cities, changed
architecture, modified the nature of furniture design
and transformed the essential implements of daily
life." e Bayer was named the head of the typography
.Herbert Bayer workshop at the Bauhaus in 1925 and was ultimately
one of three masters named by director Walter
Gropius, the other two masters being the gifted Josef
Albers and Marcel Breuer. In 1928, Bayer left the school and established his own studio
in Berlin, then becoming the art director for Vogue magazine.
As Nazism gained strength in Germany, Bayer fled the country and immigrated to
New York City in 1938. There, he had his first show with the Museum of Modern Art,
and began to work as art director for corporations and ad agencies. By 1946, all of his
work was for Walter Paepcke at the Container Corporation of America and Robert O.
Anderson at the Atlantic Richfield Corporation, both of whom had an interest in Aspen
and the establishment of the Aspen Institute.
Walter Paepcke brought Herbert Bayer to Aspen in 1946 to serve as the design
consultant for the Institute, a role in which he served until 1976. Bayer was offered the
chance to design a planned environment, where the goal was total visual integration.
The Sundeck 1946
on the grounds), Aspen Meadows
On April 1, 1960, Bayer received a
license to practice architecture in Colorado,
without examination. He had no formal training
in the discipline, so he generally worked
in association with another firm, particularly
with Fritz Benedict. The Sundeck on Aspen
Mountain (1946,. since demolished) was the first
of his designs that was ever built. At the
Institute, Bayer designed the Seminar Building
and it's sgraffito mural (1952, the first building
Guest Chalets (1954, since demolished and
~ Beth Dunlop, "Bauhaus' Influence Exceeds It's Life," The Denver Post April 20, 1986.
reconstructed), Central Building (1954), the
Health Center (1955), Grass Mound (1955,
which pre-dates the "earthwork" movement
in landscape design by 10 years and was one
of the first
environmental sculptures in the country), the
Marble Sculpture Garden (1955), Walter
Paepcke Memorial Building (1962), the
Institute for Theoretical Physics Building
(1962, since demolished), Concert Tent
(1964, removed in 2000), and Anderson
Park (c. 1970.) Bayer also led the design for the
rehabilitation of the Wheeler Opera House
(1950-1960), designed two personal residences
on Red Mountain (1950 and 1959), and other
homes in Aspen, including those still in
existence at 240 Lake Avenue (1957) and 311
North Street (1963).
Aspen Meadows Health Center, 1955
~, The period during which most of
"' Bayer's architecture was designed is confined
to 1946-1965. Important characteristics of his
buildings were simplicity and the use of basic
geometrical shapes and pared down forms. He
was heavily influenced by Bauhaus and
The Marble Sculpture Garden, 1955 International Style principles. Color was an
important component to some of his work, and
he ofren used primary red, blue and yellow graphics.
Bayer paint scheme
Bayer believed in the concept of designing the total
human environment and that art should be incorporated into
all areas of life. He drew logos and posters for the Aspen
Skiing Company, and even designed signs for small Aspen
businesses. He provided the paint color schemes for certain
Victorians that Paepcke's Aspen Company decided should
be saved in the 1940's. A strong blue color, known locally
as "Bayer Blue" was one of his selections and can still be
seen on the former Elli's building (101 S. Mill) and other
locations in town. His choice of a bright pink for Pioneer
Park (442 W. Bleeker) and a bold paint scheme that once
existed on the Hotel Jerome will also be remembered.
Aspen Institute Seminar Building, 1952
Bayer spent 28 years living in Aspen and was one of the first artists to make his
home here. A Rocky Mountain News article from 1955 stated "Even in competition with
millionaire tycoons, best-selling novelists, and top-ranking musicians, Herbert Bayer is
Aspen's most world-famous resident."10 During his years in Aspen, he resided at times at
234 W. Francis, a Victorian home in the West End, in an apartment in a downtown
commercial building, SO1 E. Cooper Avenue, and in his home on Red Mountain. Bayer
moved to Santa Barbara for health reasons in 1975 and died there ten years later, the last
surviving Bauhaus master.
Notable among Bayer's many achievements include his credits in
typography. He designed the "universal" type font in 1925 and was
credited with "liberating typography and design in advertising and
creating the very look of advertising we take for granted today."~ ~ Much
of modern print design reflects his ideas. FIe was the inventor of .~ "
photomontage. Bayer created the "World Geo-Graphic Atlas" in 1953, ~, +
which was described as one of the most beautiful books ever printed in
this country by the Atlantic Monthly and the greatest world atlas ever Poster, /946
made in the United States by Publisher's Weekly.
Bayer created the famed "Great Ideas of Western Man" advertisement series for
the Container Corporation of America and had more than 50 one-man exhibitions of his
artistic works. His paintings are represented in the collections of at least 40 museums.
He spent six decades of his life working as a painter, photographer, typographer,
architect, sculptor, designer of graphics, exhibitions, and landscapes. His last work was
the 85 foot tall, yellow articulated wall sculpture at the Denver Design Center, which can
be viewed from I-25, near Broadway in Denver.
Bayer founded the International Design Conference in Aspen in 1950 and was
named a Trustee of the Aspen Institute for Humanistic Studies in 1953. He was the Chair
of the City and County Zoning Committee For five yeazs and was very concerned with the
issues of sprawl. Bayer promoted increased density in town, put the original tree
protection ordinance in place, and helped institute the ban on billboards.
ARCHITECTS OF NOTE
Charles Paterson was born Karl Schanzer in Austria in 1929. His mother died in
his youth, and his father fled Austria, taking Charles and his sister when Hitler invaded in
1938. They traveled first to Czechoslovakia and then to France. Once there it was
decided that the only way to get the two children out of Europe entirely was to allow
10 Robert L. Perkin, "Aspen Reborn: Herbert Bayer Changing the Town's Face," The Rocky Mountain
News September 27, 19SS.
~ ~ Joanne Ditmer, "Schlosser Gallery Host [o Major Bayer Show/Sale," The Denver Pos[ October I, 1997,
p. l OG.
them to be adopted by a family in Australia, whom Mr. Schanzer knew through business
connections. Relocated to that country in 1940, the children took on the family's name;
Paterson. Their father fought in the war and was eventually reunited with his children in
New York City, after they immigrated.
In New York City, Charles "Charlie" Paterson started engineering school, but he
had an interest in skiing and was disappointed with the conditions in the area. He moved
west in 1949, stopping in Denver. There, he worked for the Denver and Rio Grande
Railroad and skied on weekends. On one ski trip, Paterson met someone who had been to
Aspen, and decided to hitchhike there a week later. Afrer finding a job as a bellhop at the
Hotel Jerome, he decided to stay.
Within a month of his arrival in Aspen, Charlie Paterson bought three lots on
West Hopkins Avenue, shortly followed by another three that comprised a full half a
block between Fifth and Sixth Streets. There he built aone-room cabin in 1949 out of
leftover lumber.
Paterson returned to New York from 1950-1951 to continue his studies, then
moved back to Aspen and began expanding the cabin. In 1952, he leased a Victorian
house that had been operating under the name "Holiday House," and his father came to
town to help out. This experience got Paterson interested in running his own lodge, and
led to more construction on the Hopkins Avenue property. In 1956, he added three units
and opened the Boomerang. Convinced by Fritz Benedict to study architecture, Paterson
left again to spend three years at Taliesen East in Wisconsin, under Frank Lloyd Wright's
instruction, during which time he drew some of the plans for the Boomerang Lodge as it
is known today.
The lodge's lounge, 12 more rooms, and a pool were added in ] 960. The noted
underwater window, which allows guests in the lounge to look into the pool, was featured
in Life Magazine in the 1960's. In 1965 and 1970 other expansions took place on the
property.
Although Paterson has designed relatively
few buildings, among them his own business,
structures at the Christiania Lodge, and a residence
in Basalt, the Boomerang is his master work,
exhibiting strong influences of Wrightian
architecture. Paterson designed, helped to build,
and financed the structure, and is still its host and
manager today. It has been described as
"...timeless, ageless" and "...almost futuristic."~~
Boomerang Lodge Other contributions to local organizations
made by Paterson include being a member of the
'Z Scott Dial, "The Boomerang Lodge: The Lodge That Charlie Built, and Built, and Built," Destination
Magazine.
Boazd of the Music Associates of Aspen for 20 years, Chairman of the Aspen Hall of
Fame for 2 years and of the Aspen Boazd of Adjustment for 20 years and counting. He
has also served on the Aspen Chamber Resort Association Boazd of Directors. Paterson
worked for the Aspen Skiing Company as an instructor from 1952 to 1969.
Eleanor "Ellie" Brickham graduated from the University of Colorado's School
of Architecture. Construction was a family business, so Brickham's motivation to be a
designer began as a child. She moved to Aspen in 1951, attracted by the skiing, but once
there, found herself the only female architect in town.
Eazly in her career, Brickham worked in Fritz Benedict's office and collaborated
on projects with both Benedict and Bayer, participating in the work going on at the Aspen
Institute. During her time in that office, and later '
with her own firm, she designed a number of
residences and commercial structures in town, "" ,~ ',~
including houses for several Music Festival artists R `
in Aspen Grove, the Strandberg Residence (1973,
433 W. Bleeker Street), and the Patricia Moore
Building (1969, 610 E. Hyman Avenue.) Within
Pitkin County, Brickham designed numerous n- --"
homes in Starwood, on Red Mountain, and in
Pitkin Green. Her works total at least 50
buildings in the Aspen area. 433 W. Bleeker Street, 1973
Brickham's designs have been chazacterized by spare, simple fonns and detailing,
and she has an interest in passive solar techniques. Still practicing today, Brickham's
projects focus on an "impeccable sense of proportion and feeling of lightness."13
Victor Lundy designed a second home for
his family in Aspen, which they have occupied at
300 Lake Avenue since 1972. Like Benedict,
Lundy is a Fellow in the American Institute of
Architects. He received his degree in azchitecture
from Harvard, studying with former Bauhaus
director Walter Gropius and Bauhaus master Marcel
Breuer and was later awazded two prestigious
traveling scholazships by the Boston Society of
Architects and Harvazd University.
Lundy has been in practice, most recently in Texas, since 1951 and has designed
many notable government, commercial, office, and educational buildings throughout the
world. He has received a Federal Design Achievement award, the highest honor in
design given by the National Endowment for the Arts.
i3 Bill Rollins, "Brickham: Simplicity, Lightness, and a Sense of Proportion," The Aspen Times.
300 LakeAvenue.1972
Robin Molnv (b.1928- Cleveland, d. 1997- Aspen) apprenticed at Taliesen in the
1950's. In Aspen, he served on the Planning and Zoning Commission and was the
designer of Aspen's downtown pedestrian malls. He also designed several notable
commercial buildings, including the Hearthstone House (1967, 134 E. Hyman Avenue)
and the 720 E. Hyman Avenue building (1976) along with area residences.
Well known architect Harrv Weese also
contributed a building to Aspen in the Given Institute
(1973, 100 E. Francis Street). Weese, of Harry Weese
and Associates, Chicago, was an internationally known
architect responsible for a number of significant projects
throughout the United States, including major historic
preservation projects in the Chicago area, and the design
of the Washington, D.C. subway system. A graduate of
MIT, he studied with famed architect Eliel Saarinen at
Cranbrook Academy in Michigan, and then joined l00 E. Francis Street. 1973
Skidmore, Owing, and Merrill for a short time. In 1947 he opened his own office.
Weese was recruited by the Paepcke's, who donated the land where the Given is located,
to design the building.
Eligibility Considerations
There are specific physical features that a property must possess in order for it to
reflect the significance of the historic context. Aspen's examples of modernist buildings
should exhibit the following distinctive characteristics if influenced by Wrightian design
principles:
• Low horizontal proportions, flat roofs or low pitched hip roofs.
• Deep roof overhangs create broad shadow lines across the facade. Glazing is usually
concentrated in these areas.
• Horizontal emphasis on the composition of the wall planes accentuates the floating
effect of the roof form.
• Materials are usually natural and hand worked; such as rough sawn wood timbers and
brick. Brick is generally used as a base material, wall infill or in an anchoring
fireplace element. Wood structural systems tend more toward heavy timber or post
and beam than typical stud framing.
• Structural members and construction methods are usually expressed in the building.
For example; load-bearing columns may be expressed inside and out, the wall plane is
then created by an infill of glass or brick.
• Roof structure is often expressed below the roof sheathing
• Glass is used as an infill material which expresses a void or a structural system; or it is
used to accentuate the surface of a wall through pattern or repetition.
• There is typically no trim which isolates the glazing from the wall plane. Window
openings are trimmed out to match adjacent structural members in a wood context.
Brick openings tend to be deeply set with no trim other than the brick return.
• Structures are related to the environment through battered foundation walls,
cantilevered floors and/or porches, clear areas of glazing which create visual
connections to the outside and the inside, and the effect of the roof plane hovering
over the ground.
• Decoration comes out of the detailing of the primary materials and the construction
techniques. No applied decorative elements are used.
• Color is usually related to the natural colors of materials for the majority of the
structure; natural brick, dark stained wood, and white stucco. Accent colors are used
minimally, and to accentuate the horizontal lines of the structure.
Aspen's examples of modernist buildings should exhibit the following distinctive
characteristics if influenced by Bauhaus or International Style design principles:
• Simple geometric forms, both in plan and elevation
• Flat roofs, usually single story, otherwise proportions are long and low, horizontal
lines are emphasized.
• Asymmetrical arrangement of elements.
• Windows are treated as slots in the wall surface, either vertically or horizontally.
Window divisions were made based on the expression of the overall idea of the
building.
• Detailing is reduced to composition of elements instead of decorative effects. No
decorative elements are used.
• Design is focused on rationality, reduction, and composition. It is meant to separate
itself from style and sentimentality.
• Materials are generally manufactured and standardized. The "hand" is removed from
the visual outcome of construction. Surfaces are smooth with minimal or no detail at
window jambs, grade, and at the roof edge.
• Entry is generally marked by a void in the wall, a cantilever screen element, or other
architectural clue that directs the person into the composition.
• Buildings are connected to nature through the use of courtyards, wall elements that
extend into the landscape, and areas of glazing that allow a visual connection to the
natural environment. This style relies on the contrast between the machine made
structure and the natural landscape to heighten the experience of both elements.
• Schemes are monochromatic, using neutral colors, generally grays. Secondary color
is used to reinforce a formal idea. In this case color, or lack there of, is significant to
the reading of the architectural idea.
Although modernism has likely changed the course of architecture forever, it is
possible to set a date when the style in its purest form began to wane: around the mid
1960's nationally, and into the early 1970's in Aspen. At this point, there was a growing
unease with some ways the Modern Movement had reshaped cities and resulted in
"towers and slab blocks"14 Followed by a move away from the design principals that had
guided the mid-century. The period of historic significance for buildings of this style in
14 Kostof, p. 743.
Aspen, a term used to define the time span during which the style gained architectural,
historical, or geographical importance, is 1945 until approximately 1975.
Aspen has been fortunate to have drawn the talents of the great minds in many
professional fields since the end of World War II. The architects described above had
made important contributions to Aspen's built environment that continue to influence its
character today. While there are numerous towns in Colorado that have retained some of
the character of their 19`h century mining heritage, few or none are also enriched by such
an excellent collection of modernist buildings as exist here.
Bibliography
Chanzit, Gwen F. "Herbert Bayer and Aspen," Exhibition Notes, Adelson
Gallery/Paepcke Building Aspen Institute Aspen Colorado December 1999-
December 2000.
Cohen, Arthur Allen. Herbert Bayer- Limited Edition: The Complete Works. MIT Press,
1984.
Dial, Scott. "The Boomerang Lodge: The Lodge that Charlie Built, and Built, and Built,"
Destination Magazine.
Ditmer, Joanne. "Schlosser Gallery Host to Major Bayer Show/Sale." The Denver Post.
October 1, 1997.
Dunlop, Beth. "Bauhaus' Influence Exceeds Its Life," The Denver Post April 20, 1986.
Dusenbury, Adele. "When the Architect Arrived Afrer the War," The Aspen'fimes July
31, 1975.
Frankeberger, Robert and James Garrison. "From Rustic Romanticism to Modernism,
and Beyond: Architectural Resources in the National Parks," Forum Journal, The
Journal of the National Trust for Historic Preservation Summer 2002.
"Fritz Benedict." Retrieved from http•//www vailsoft.com/museum/index.html, the
Colorado Ski Museum and Ski Hall of Fame website.
"Fritz Benedict Honored by Peer Group of Architects." The Aspen Times June 20, 1985.
Fritz Benedict Memorial Service Program, July 25, 1995.
"Harry (Mohr) Weese." Retrieved from www.artnet.com.
Hayes, Mary Eshbaugh. "Bendict's House in the Hill," The Aspen Times March 11,
1982.
Hayes, Mary Eshbaugh. Dedication plaque on "The Benedict Suite," Little Nell Hotel,
Aspen, Colorado.
Hayes, Mary Eshbaugh. "Fritz Benedict, 1914-1995, The Passing of a Local Legend,"
The Aspen Times July 15 and 16, 1995.
Kostof, Spiro. A History of Architecture: Settings and Rituals. New York: Oxford
University Press, 1985.
Laverty, Rob. "50 Years of Benedict: A Forefather of Modem Aspen Looks At What Has
Been Wrought," High Country Real Estate, Aspen Daily News February 6-12, 1999.
"Noted Designer Herbert Bayer Dies." The Aspen Times October 3, 1985.
Perkin, Robert L. "Aspen Reborn: Herbert Bayer Changing the Town's Face," Rocky
Mountain News September 27, 1955.
Rollins, Bill. "Brickham: Simplicity, Lightness, and a Sense of Proportion," The Aspen
Times December 22, 1977.
"Transitions: Robin Molny Changed Aspen- and Made His Friends Laugh," Aspen
Times, January 10-11, 1998.
Urquhart, Janet. "History Richochets Through the Boomerang," The Aspen Times
November 16`h and 17`h, 1996.
INTEGRITY ASSESSMENT- MODERNIST
Integrity is the ability of a property to convey its significance.
• LOCATION Location is the place where the historic property was constructed
or the place where the historic event occurred.
5 -The structure is in its original location.
3 -The structure has been moved within the original site but still maintains
the original alignment and proximity to the street.
0 -The structure has been moved to a location that is dissimilar to its original
site.
TOTAL POINTS (maximum of 5) = 5 points. The structure is in its original
location.
• DESIGN Design is the combination of elements that create the form, plan,
space, structure, and style of a property.
BUILDING FORM
10 -The original plan form, based on authenticating documentation, is still
intact.
6 -The plan form has been altered, but the addition would meet the design
guidelines.
0 -Alterations and/or additions to the building are such that the original form
of the structure is obscured.
Staff Response: ] 0 points - no change to building form.
ROOF FORM
10 -The original roof form is unaltered.
6 -Additions have been made that alter roof form that would meet the
current design guidelines.
0 -Alterations to the roof have been made that obscure its original form.
Staff Response:l0 points -original roof form remains unaltered.
SCALE
5 -The original scale and proportions of the building are intact.
3 -The building has been expanded but the scale of the original portion is
intact and the addition would meet the design guidelines.
0 -The scale of the building has been negatively affected by additions or
alterations.
Staff Response: Spoints -scale and proportions are intact.
SOLID/VOID PATTERN
10 -The original pattern of glazing and exterior materials is intact.
6 -The original pattern of glazing and exterior materials has been altered
but in a manner that would meet the design guidelines.
0- The original pattern of glazing and exterior materials is altered.
Staff Response: 9points - a few windows were added to the rear fagade. The
primary facades are unchanged.
CHARACTER-DEFINING FEATURES
10 -The horizontal or geometric form, minimalist detailing and features that
relate the building to its environment are intact.
6 -There are minor alterations to the horizontal or geometric form,
minimalist detailing and features that relate the building to its
environment.
0 -There have been major alterations to the horizontal or geometric form,
minimalist detailing and features that relate the building to its
environment.
Staff Response: 10 points -the character-defining features and details are intact.
TOTAL POINTS (maximum of 45) = 44 points.
• SETTING Setting is the physical environment of a historic property.
5-The physical surroundings are similar to that found when the structure was
originally constructed.
3-There are minor modifications to the physical surroundings but the changes
conform to the design guidelines.
0- The physical surroundings detract from the historic character of the
building.
TOTAL POINTS (maximum of 5) = 5 points. The physical setting of the
building is similar to that Found when originally constructed.
• MATERIALS Materials are the physical elements that were combined or
deposited during a particular period of time and in a partlcular pattern or
configuration to form a historic property.
EXTERIOR SURFACES
15-The original combination of exterior wall materials and glazing are intact.
] 0-There have been minor alterations to the original exterior wall materials
and glazing made in a manner that conform to the design guidelines.
5-There have been major changes to the original combination of exterior
wall materials and glazing.
0- All exterior wall materials and glazing has been replaced.
Staff Response: 15 points -The original material and glazing combination are
intact.
DOORS AND WINDOWS
] 0-All or most of the original door and window units are intact.
5 -Some of the original door and window units have been replaced but the
new units would meet the design guidelines.
0 -Most of the original door and window units have been replaced with units
that would not meet design guidelines.
Staff Response: ] 0 points -all of the doors and windows appear to be original.
TOTAL POINTS (maximum of 25) = 25 points.
• WORKMANSHIP Workmanship is the physical evidence of the crafts of a
particular culture or people during any given period in history or prehistory.
COMPOSITION
15 -The structural composition that distinguishes the stylistic category of
Modernism is intact. Detailing is reduced to composition of elements
instead of decorative effects. No decorative elements are used. Design is
focused on rationality, reduction, and composition. It is meant to separate
itself from style and sentimentality. Materials are generally manufactured
and standardized. The "hand" is removed from the visual outcome of
construction. Surfaces are smooth with minimal or no detail at window
jambs, grade, and at the roof edge.
10-There have been some alterations to the structural composition that
would meet the design guidelines
0 -There have been some alterations to the structural composition that
would not meet the design guidelines
Staff Response: 15 points -the building clearly expresses Modern ideals.
FINISHES & COLOR SCHEME
5 -The neutral or monochromatic color scheme and finishes that define the
stylistic category of Modernism is intact.
3 -There have been minor alterations to the neutral or monochromatic color
scheme and finishes that define the stylistic category of Modernism.
0- There have been significant alterations to the neutral or monochromatic
color scheme and finishes that define the stylistic category of Modernism.
Staff Response: Spoints -the original color palette and finishes are intact.
TOTAL POINTS (maximum of 20) = 20 points.
The Crandall Building is almost completely unaltered and as such scored 99 points.
MAXIMUM NUMBER OF POINTS= 100
MINIMUM THRESHOLD FOR DESIGNATION= 75 POINTS
Note: Each area of the integrity analysis includes a description of the circumstances
that might be found and a point assignment. However the reviewer may choose
another number within the point range to more accurately reflect the specific
property.
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Page 1 of 3
Aspen loses influential artist
Hunter poster among his most memorable works
JOHN COLSON
ASPEN, CO COLORADO,
ASPEN -Tom Benton, a local artist whose images helped to define Aspen's
tempestuous political and social upheavals starting in the late 1960s, died around
7:30 a.m. Friday at St. Anthony's North Hospital in Denver after a brief battle with
cancer. He was 76.
One of Aspen's best-known local artists, Benton had a wide circle of friends,
including Hunter 5. Thompson, with whom Benton collaborated artistically and
politically.
When Thompson ran for sheriff of Pitkin County in 1970, Benton turned out a poster
that remains one of his most sought-after works -the double-thumbed fist clutching
a peyote button, co-created with Thompson and artist Paul Pascarella.
And his most recent work has included a highly popular poster for [he current holder
of that same office, Sheriff Bob Braudis, close friend of both Benton and Thompson.
"Tom, as far as I'm concerned, is one of [he images of old Aspen, one of the reasons
I've stayed here," said photographer Bob Krueger, who has known the Bentons for
decades.
Born Thomas Whelan Benton in Oakland, Calif., on Nov. 16, 1930, he said often [hat
he spent a part of his childhood in an orphanage there. By the time he was about 10
years old, according to his son, Brian Benton, he had relocated to an unincorporated
area outside Los Angeles called La Crescenta.
After graduating from high school in suburban Los Angeles, he attended Glendale
Junior College for a short time before enlisting in the U.S. Navy in the late 1940s and
shipping out to sea. He served aboard ship during the Korean War, but never saw
direct fighting.
With his discharge from the Navy around 1953, and the GI Bill paying his tuition, he enrolled in the architecture
school at the University of Southern California. He graduated with a degree and went to work for an
architectural firm for a number of years. He met and married his first wife, Betty, and they had two children
while living in California -Brian and Michelle.
According to Brian Benton, he designed several buildings in Northern California that were built and can be seen
today.
But, Brian recalled, his father's passion was to become a working artist, and following a visit on a ski trip, he
decided Aspen was where he should be. In 1963, Brian Benton recalled, his father moved to Aspen on his own,
bought a lot on Hyman Avenue for $3,000 and began building himself a studio and gallery at 521 E. Hyman Ave.,
the building that for years was O'Leary's bar and later Zoe's, and now is the home of the Guerilla Gallery. The
family followed him the next year,
While pursuing his artistic passions, his son remembered, he also continued to dabble in architecture, designing
The Patio Building in the center of town as well as homes for local doctor Jack Crandall and movie star Jill St.
John.
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Page 2 of 3
But it was his silk-screening work that made him a local legend, as he began cranking out political posters, some
for such nationally known figures as Hunter Thompson and U.S. Sen. George McGovern (D-South Dakota) in his
1972 presidential bid. He also began turning out The Aspen Wallposters, again in collaboration with Hunter
Thompson, locally famous bits of history that carried political screeds from Thompson on one side and startling
Benton images on the other.
And along the way, he developed an ever broadening circle of friends, such as Pitkin County Sheriff Bob Braudis
and Woody Creek rancher George Stranahan.
"It was open house up there," Stranahan recalled of Benton's studio. "Tom'd be up there screening his prints, his
kids'd be all around and everybody was welcome."
Speaking from New Orleans, where he was attending a celebration of the life of another late friend, CBS news
man and former Woody Creek resident Ed Bradley, Braudis recalled that Benton was on the "oral examination
board" convened by Pitkin County Sheriff Dick Kienast when Braudis first applied for a job with the sheriff's office
in 1976.
"He asked me two questions," Braudis remembered, "what I thought of burglary ... and what I thought about
marijuana." Braudis responded that "burglary was a dangerous crime because it might turn violent if somebody
was at home," and that "marijuana should be legalized."
"He told me, 'Don't ever let anyone burglarize my marijuana,"' Braudis continued, and Braudis got the job.
Living the life of a struggling Aspen artist took a toll on Benton's family affairs, starting with a divorce in 1977
that forced him to sell his gallery/studio as part of the settlement.
He then embarked on life as a roaming artist, establishing himself in studios around Aspen and [he upper valley,
and remarrying twice, in the mid-1980s to the late Katie Smith, and in 1991 to Marci Griffin, who said their 16
anniversary is today.
Besides his posters, he would produce other forms of screened and painted art, including large, multipiece works
that require considerable display space but have been prized by certain art collectors.
By 1989, as he has said more than once, he was in need of a regular paycheck, and Braudis hired him as a jail
deputy, where he worked full time, off and on, until 2003.
Long-time jail supervisor Billy Tomb, who worked with Benton for years, called him "a great fellow, an icon of
the town, a character in his own right" and a jailer who "wouldn't take guff from anyone ... a great, feisty old
man."
But his love of art continued and, in the mid 1990s, he quit the jail and tried his hand at painting, a move he told
The Aspen Times he had always wanted to make.
A one-man show at the Barney Wycoff Gallery in Aspen was well received, but financial gains did not follow, and
by 1996 he was back at work at the jail, where he worked until finally retiring in 2003.
But, as he told Aspen Times arts editor Stewart Oksenhorn in a feature story Sept. 1, 1995, "The reward isn't
what you get at the end. It's doing it. That's the pain and [hat's the pleasure. For my intellect, it takes every
goddamn bit of energy I can muster."
He continue to produce prints, using a makeshift studio on Stranahan's property and selling his works through the
Woody Creek Art Studio, until he was diagnosed with advanced lymphoma about two months ago. He was
hospitalized in early February and after a week at Aspen Valley Hospital was transferred to Denver.
His family had made plans this week to bring Benton back to Aspen once it became clear that treatments were
not effective, and an ambulance sent to retrieve him was en route when he died, apparently of pneumonia
related to the cancer, according to Tomb.
Benton is survived by his children, Brian Benton and Michelle (Bremer) Benton; two grandchildren, Natalie and
Emily Bremer; his wife, Marci; and uncounted friends and acquaintances.
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Benton's remains were to be cremated in Denver and a memorial service in Aspen is planned at a date and place
to be announced.
John Colson's e-mail address is jcolson~a~enti_mes.com
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* ls= i
MEMORANDUM
TO: Mayor & City Council
THRU: Don Taylor, Finance Director
FROM: Don Pergande, Budget Officer
a.
DATE: November 16, 2009
RE: Second Reading: Adoption of Budget Supplemental -Ordinance No.~Series 2009)
this item will be discussed on Monday, November 23th, 2009
Staff is requesting an amendment to the City's 2009 budget that increases the city-wide total
expenditure appropriation from $110.3 to $112.8 million, (See Attachment A). Net of inter fund
transfers, budget authority increases from $88.5 to $90.2 million.
Interfund transfers are required appropriations between City funds that do not reflect the true cost of
operations. Attachment E provides a detailed listing of budgeted 2009 interfund transfers.
The exhibit below outlines the supplemental request's impact on the City's overall appropriation
authority. The reference attachments provide itemized listings of requested supplemental budget
authority.
Description
2009 Adopted Budget:
Total New Requests:
Technical Adjustments:
Total Budget Requests:
TOTAL ORDINANCE:
Less Interfund Transfers:
NET APPROPRIATIONS:
Amount
$110,340,540
$4,380,530
($1,888,840)
$2,491,690
$112,832,230
$22,588,230
$90,244,000
Location
See Attachment A
See Attachment B
See Attachment C
See Attachment A
See Attachment A
See Attachment D
See Attachment A
As noted in the chart above, this supplemental is comprised of new, previously approved and technical
appropriation requests. Different categories of requests include:
• Attachment B: "New Requests" of $4,380,530 include requests for formal appropriation of
funding issues previously reviewed by Council during this fiscal year and new requests.
Narrative justification of each new request is provided as part of this memorandum below.
• Attachment C: This attachment details all of the technical adjustments in 2009 of $1,888,840 in
total.
• Attachment D: McKinstry Energy Project funding request and fund sources.
• Attachment E: This attachment details all budgeted interfund transfers of the City for 2009 of
$22,588,230 in total. Interfund transfers are required appropriations between City funds that
do not reflect the true cost of operations.
New Reauests General Fund (Attachment Bl
City Contributions Department- The City Contributions Department is requesting $80,000 in
total. $14,000 is for funding 12 Days of Aspen. This funding was approved during the 2010 budget
development work sessions. This is the formal appropriation of this funding. Council also approved
funding for ACRA up to $66,000 related to the shortfall in the lodging tax revenue in 2009. These funds
were approved to meet the original forecast in lodging tax in 2009. The distribution of this budget
appropriation is directly related to the 2009 lodging tax collections. These two requests are funded
from the General Fund cash reserves. The $80,000 is a loan to ACRA and is scheduled to be repaid by
ACRA in 2011. If the proposed lodging tax passes, otherwise this $80,000 will not be repaid.
City Council Department- The City Council Department is requesting $4,100 in total. ACRA and
local businesses gave the City checks totaling $4,100. The City used these funds to pay for street
performers over the summer. This expense was booked against the City Council's existing budget
authority. This request formally appropriates the pass through expense for the street performers in
2009.
City Attorney Department- The City Attorney Department is requesting $20,000 in total. The
2009 City Attorney Department payroll was loaded into the financial system at an incorrect amount.
Payroll was under funded by $20,000. This increase in budget authority fully funds the 2009 City
Attorney Department's payroll budget and corrects this oversight. This request will be funded from the
General Fund cash reserves.
Finance Department- The Finance Department is requesting $58,000 in total. The funding
request reflects a change in account for the property tax collection fees. This change matches expense
and revenue in 2009 in the General Fund and the Asset Management Fund. There is no net impact to
the overall budget for 2009. The General Fund budget increases and the AMP fund budget decreases
by the same amount.
Environmental Health Department- The Environmental Health Department is requesting $1,950
in total. The Environmental Health Department received a radon grant from the Colorado Department
of Public Health and Environment (CDPHE) to educate and provide radon test kits to owners in the
Aspen/Pitkin County Housing Authority's owned-housing inventory. This project will provide 100
homes with free radon test kits, help owners interpret their results and inform owners about radon
remediation options if their results are greater than 4 pCi/I. The $1,950 cost of the test kits will be
100% reimbursed by CDPHE.
Police Department- The Police Department is requesting $15,210 in total. $650 of this request
is to replace funds spent by the Police Department for overtime coverage for one officer, working 12
hours, assisting at the JAS concerts. This request is 100% offset by the reimbursement from 1AS. See
memo for additional details. $14,560 of this request is to replace funds paid by the Police Department
for repairs to police cars following accidents in which our vehicles were not at fault. This request is
100% offset by the reimbursement from the insurance company. See memo for additional details.
Recreation Department- The Recreation Department is requesting a reduction of $40,000. An
ongoing supplemental budget appropriation was passed in 2008 to pay for the rising utilities expenses
at the ARC. Natural gas prices have decreased since the approval of this budget authority. This
reduction in budget authority matches the ARC gas service budget with the forecasted expenses in
2009 and the out years. This request will increase the General Fund cash reserves by $40,000.
New Requests All Other Funds (Attachment B)
Housing Development Fund- The Housing Development Fund is requesting $790,970 in total.
$467,290 of this request is to fund the purchase of two deed restricted units due to onetime HOA
assessments on the units. This request will be funded by cash reserves in 2009 and reimbursed by the
resale of the units in 2010. See memo for additional details. During the 2010 budget development
process Council has approved moving forward with the IPD process for the design of Burlingame Phase
II and III. This request of $217,680 is for the formal appropriations of these funds. See memo for
additional details. The Burlingame HOA negotiations have been completed. As part of the negotiated
terms the Burlingame project is going to pay for the HOA delinquent transit fees. This payment will be
received in the Transportation Fund and the liability removed. This request is for the formal
appropriations of $106,000. See memo for additional details. These two requests will be funded by
the cash reserves in the Housing Development Fund.
Early Childhood Education Fund- The Early Childhood Education Fund is requesting $50,960 in
total. Grants from the Colorado Trust and the Colorado Department of Human Services, including
ARRA funds for system building were obtained after the 2009 budget was approved. This request is to
begin to spend those funds for the purpose intended. This request will not impact the City of Aspen's
cash reserves.
Parks and Open Space Capital Fund- The Parks and Open Space Capital Fund is requesting
$90,470 in total. The City of Aspen was awarded a GOCO grant. This GOCO grant has been approved
by Council by resolution number 2009.56. The additional funding allows the Lot C Neighborhood Park
to be built as originally envisioned. This additional funding request increases the project budget from
$287,430 to $377,900 with no impact to the cash reserves of the Parks and Open Space Fund.
Water Fund- The Water Fund is requesting $136,000 in total. The Water Fund transferred
funding of $770,000 to the Parks and Open Space Capital Fund in 2006 for the Water Reclamation
Project. The remaining funding of $613,170 is being moved back to the Water Fund for the completion
of the Water Reclamation Project. The transfer of funding is taking place because Parks is done with
the portion of this project that they were managing. The remaining piece of the project crosses the
Burlingame Ranch subdivision and shares rights-of-way with Burlingame infrastructure. This aspect of
the project will be managed by the Water Department staff. Completion of project engineering and
construction is dependent upon final design for Phase II and III of Burlingame. $61,000 is requested to
be appropriated in 2009 with $276,085 appropriated in 2010 and the remaining $276,085 appropriated
in 2011 for a total of $613,170. This request is fully funded from the transfer in funds from the Parks
and Open Space Capital Fund. $75,000 is being requested in the 2009 Water Department budget for
material and labor costs associated with water mainline repair due to ahigher-than-expected number
of water line failures. This request will be funded $44,570 by a lien and the remainder from cash
reserves in the Water Fund. See memo for additional details.
Golf Course Fund- The Golf Course Fund is requesting $150,000 in total. $150,000 is part of the
golf shop start up costs approved by Council in a 2010 budget development work session. The total
amount approved is $200,000. $150,000 is requested to be appropriated in 2009 the remainder is
budgeted in 2010. See memo for additional details. This request will be funded by a inter fund loan
from the Parks and Open Space Fund. This inter fund loan has a 10 year repayment schedule with the
first payment being made in 2010. See memo for additional details.
Employee Health Insurance Fund- The Employee Health Insurance Fund is requesting
$1,602,450 in total. Staff is requesting an increase in budget authority to cover the new forecast for
claims paid. The City of Aspen has incurred a number of large claims in the 2009 fiscal year.
$1,200,000 of the request for the increase in budget authority is offset by insurance claims paid when
the stop/loss is triggered. The $402,450 increase in budget authority will be funded from the cash
reserves in the Employee Health Insurance Fund.
Employee Housing Fund- The Employee Housing Fund is requesting $318,240 in total. Per
Council's direction at the November 2"d work session staff is requesting $70,000 for the AABC Housing
Project. This requested is to fund the payment of all existing 2009 expenditures associated with
redesign, value engineering, exploration of alternative construction methods, staff costs to date and to
get the AABC Housing Project to a stopping point. This project will then be placed on hold until future
direction is received from City Council. This request will be funded by the Employee Housing fund's
cash reserves. Staff is requesting additional funding of $248,240. The City Employee Housing Fund
records the purchase and resale of City of Aspen employee housing units. Throughout the year
additional appropriations are needed to fund these pass through transactions. Staff is requesting the
appropriation of $248,240 to facilitate this action. Resale price was higher than the purchase price of
this unit. This transaction had a positive impact to the cash reserves of this fund.
Smuggler Housing Fund- The Smuggler Housing Fund is requesting $12,000 in total. This request
is for the formal appropriations of maintenance and repairs at the Smuggler apartments. The APCHA
board approved this request on September 16th. This request will be funded from the cash reserves in
the Smuggler Housing Fund. See Resolution.
Asset Management Capital- The Asset Management Capital fund is requesting a decrease of
$8,790 in total. A $58,000 decrease in funding reflects a change in account for the property tax
collection fees. This change matches expense and revenue in 2009 and all of the out years in the
General Fund and the Asset Management Fund. There is no net impact to the overall budget for 2009.
The General Fund budget increases and the AMP fund budget decreases by the same amount. The
Environmental Health Department received approval for the installation of an ozone monitoring
system within the City limits at the October 26th (resolution # 87) Council work session. Staff is
requesting the formal appropriation of $48,710 for this project. This request will be 100% funded by
air quality impact fees previously collected and held for these type of projects. Staff is requesting
$57,500 in funding for the replacement of damaged network equipment. Earlier this year network
equipment was damaged as a result of City Hall ice fall that damaged computer room HVAC
equipment. Funds were used from the existing IT asset management budget to purchase replacement
equipment. These funds were intended for planned IT projects. This request allows these required
network projects to proceed as planned. This request is 100% offset by the insurance reimbursement.
Staff is requesting $10,000 for a clip on snow fence and heat cable at the new Animal Shelter. This
work with be reimbursed by the County per existing inter governmental agreement. Staff is requesting
a reduction of $67,000 in the Recreation 2009 asset management projects. These funds will be
returned to fund balance in 2009. This increase in fund balance will be used to partially fund the
upgrade of the two Aspen Ice Garden compressors in 2010. This action was approved in a 2010 budget
development work session. See memo for additional details.
Technical Adjustment (Attachment Cl
Technical adjustments are accounting adjustments that need to be made to implement
approved decisions in the Eden financial system.
Start up funding of $200,000 for the Golf Fund was approved in the 2010 budget work sessions.
This funding is necessary for the City to take over the operations of the golf shop at the City of Aspen
golf course. In order to facilitate this, an inter-fund loan is needed from the Parks and Open Space
Fund to the Golf Course Fund in 2009.
The Plaza Replacement Project was budgeted in 2009 at $2,097,740 in the Parking Fund. This
was a preliminary estimate for the project cost. Since then staff has worked with engineers and other
specialists and revised the estimates, scope and timing of the project. The plaza repair is scheduled to
begin in 2009 and be completed in 2012. Staff is requesting a reduction in budget authority of
$2,007,740. This will leave $90,000 in 2009. The remaining project budget is distributed in 2010, 2011
and 2012.
Second Readine Additions or Chanties - hiahliehted in srav in each attachment
Attachment B -New Requests
Human Resources Department- The Human Resources Department is requesting $7,380 in total.
This request is to fully fund the employee bus pass benefit. Due to the rising cost of bus passes, costs
of the employee bus pass are forecasted to be slightly higher than the current budgeted amount. This
request will be funded from the General Fund cash reserves.
Recreation Department- The Recreation Department is requesting $14,300 in total. Five
employees' pay increases fell prior to the cutoff point in 2009. During the budget cut calculations,
$14,300 was removed that should have remained part of the payroll budget. This funding request
corrects that oversight. This request will be funded from the General Fund cash reserves.
Early Childhood Education Fund- The Early Childhood Education Fund is requesting $29,040 for
a total of $80,000. Grants from the Colorado Trust and the Colorado Department of Human Services,
including ARRA funds for system building were obtained after the 2009 budget was approved. This
request is to begin to spend those funds for the purpose intended. This request will not impact the
City of Aspen's cash reserves.
Multiple Funds -Council has approved the McKinstry Energy Project in an earlier work sessions
in 2009. This is the formal request to fund the contract in full. The McKinstry contract will be
$1,227,098. This contract will be funded by existing budget authority, rebates, grants, financing and
fund balance. See attachment D for the breakdown of the projects, funding requests and the funding
sources. Also included is the original Council memo from the November 2, 2009 Council work session.
Attachment C-Technical Adjustments
The Deer Hill Project is forecasted to be $40,000 less than the original budget. The Parks and
Open Space Capital Fund is requesting to decrease budget authority by $40,000. This reduction
impacts the amount of funding that is needed to be transferred from the Parks and Open Space Fund
in a similar amount.
ORDINANCE NO. ~- S
(Series of 2009)
AN ORDINANCE APPROPRIATING AN INCREASE IN THE ASSET
MANAGEMENT PLAN FUND EXPENDITURES OF $441,700, AN INCREASE
IN THE GENERAL FUND OF $160,940, AN INCREASE IN THE PARKS AND
OPEN SPACE FUND OF $158,900 AN INCREASE IN THE HOUSING
DEVELOPMENT FUND OF $790,970, AN INCREASE IN THE EARLY
CHILDHOOD EDUCATION FUND OF $80,000, AN INCREASE IN THE KIDS
FIRST FUND OF $24,390, AN INCREASE IN THE PARKS AND OPEN SPACE
CAPITAL FUND OF $63,140, AN INCREASE IN THE WATER FUND OF
$692,660, A REDUCTION IN THE PARKING FUND OF $2,007,740, AN
INCREASE IN THE GOLF COURSE FUND OF $154,040, AN INCREASE IN
THE EMPLOYEE HEALTH INSUARANCE FUND OF $1,602,450, AN
INCREASE IN THE EMPLOYEE HOUSING FUND OF $318,240, AND AN
INCREASE IN THE SMUGGLER FUND OF $12,000.
WHEREAS, by virtue of Section 9.12 of the Home Rule Charter, the City Council may
make supplemental appropriations; and
WHEREAS, the City Manager has certified that the City has unappropriated current year
revenues and/or unappropriated prior year fund balance available for appropriations in
the following funds: ASSET MANAGEMENT PLAN FUND, GENERAL FUND,
EARLY CHILDHOOD EDUCATION FUND, KIDS FIRST, PARKS AND OPEN
SPACE CAPITAL FUND, WATER FUND, PARKING FUND, GOLF COURSE
FUND, EMPLOYEE HEALTH INSURANCE FUND, EMPLOYEE HOUSING FUND
AND THE SMUGGLER FUND.
WHEREAS, the City Council is advised that certain expenditures, revenue and transfers
must be approved.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO:
Section 1
Upon the City Manager's certification that there are current year revenues and/or prior
year fund balances available for appropriation in the: ASSET MANAGEMENT PLAN
FUND, GENERAL FUND, EARLY CHILDHOOD EDUCATION FUND, KIDS FIRST,
PARKS AND OPEN SPACE CAPITAL FUND, WATER FUND, PARKING FUND,
GOLF COURSE FUND, EMPLOYEE HEALTH INSURANCE FUND, EMPLOYEE
HOUSING FUND AND THE SMUGGLER FUND: the City Council hereby makes
supplemental appropriations as itemized in the exhibit A.
Section 2
If any section, subdivision, sentence, clause, phrase, or portion of this ordinance is for
any reason invalid or unconstitutional by any court or competent jurisdiction, such
portion shall be deemed a separate, distinct and independent provision and such holding
shall not affect the validity of the remaining portion thereof.
INTRODUCED, READ, APPROVED AND ORDERED PUBLISHED AND/OR
POSTED ON FIRST READING on the 9th day of November, 2009.
ATTEST:
Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor
FINALLY ADOPTED AFTER PUBLIC HEARING on the 23rd day of November,
2009.
ATTEST:
Kathryn S. Koch, City Clerk
Approved as to Form:
Michael C. Ireland, Mayor
John Worcester, City Attorney
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City of Aspen
2009 supplemental Budget
New Funding Requests
Department /Fund
All Requests are one-time unless otherwise noted.
New Request Description
Attachment B
Offsetting
Rev Source
Amount subtotal by Deot. ~ One Time
:: , ....
City Contributions
001.02.xxzxx Council approved fundingforthe l2 Days of Aspen. This istheformal appropriation of $14,000 '
the funding. This funding is scheduled to be repaid by ACRA in 2011.
001.02.zzxxx Council approved funding for ACRA Up to566,000 related to the shortfallin the lodging $66,000
tax revenue. This is the formal appropriation of the funding. This funding is scheduled to
be repaid by ACRA in 2011.
Subtotal, City Contributions $80,000
City Council
001.03.03002.82900 ACRA and local businesses gave[he City checks totaling $4,300 to pay for the street $4,100 ~ j4,100;i
"
performer ezpenses. This expense was paid out of the City Council's budget. This _
"`
increases the budget to reflect the pass through expense for the performers.
Subtotal, City Council $4,100
Human Resources /Risk
001.06.06500.81360 Due to rising costs of bus passes and increased useage the employee bus pass purchases ~_ ;.:_ $7,38D
areforecasted to be slightly higherthanthe current budgeted amount. Thisfundsthls `"~'
employee benefit in full.
~
Subtotal, Human Resources $7,380
City Attorney
001.09.09000.80xxx The payrollfor the 2009 City Attorney was loaded into the 2009 financial system at an $20,000
incorrectamount. This increase in budget authority fully funds the 2009 City Attorney's
payroll budget and corrects this oversight.
Subtotal, City Attorney $20,000
Finance
001.11.03000.82990 Accounting change in the property taz collection fees. This change matches the expense $58,000
and revenues in 2009 and all out years in the General Fund and the ASSet Management
Fund. There is no net impact to the overall budget for 2009. The General Fund budget is
increased and the AMP Fund budget is decreased by the same amount.
Subtotal, Finance $58,000
Environmental Health
001.25.25500.83999 The Environmental Health Department receiveda radon grant from the Colorado $1,950 $1,950
Department of Public Health and Environment (CDPH EI to educate and provide radon
test kits to owners in the Aspen/Pitkin County Housing Authori[~s owned-housing
inventory. This project will provide 100 homes with free radon test kits, help owners
interpret their results and inform owners about radon remediation options if their results
are greater than 4 pCi/I. The $1,950 cost of the test kits will be 100% reimbursed by
CDPHE.
Subtotal, Environmental Health $1,950
Police
001.31.31200.80040 This request is to replace funds spent by the Police Department for overtime coverage for $650 $650
one officer, working l2 hours, assisting at the lAS Concerts. This reques[is 100%offset
by the reimbursement from lAS. See memofor additional details.
001.31.31200.82800 This request is to replace funds paid by the Police Department for repairs to police cars $14,560 $14,560
following accidents in which our vehicles were not at fault. This request is 100%offset by
the reimbursement from the insurance company. See memofor additional details.
Subtotal, Police $15,210
Recreation
S employees pay increases fell prior to the cut off point in 2009. During the budget cut
-j14300 i.
calculations, $14,300 was removed that should have remained part of the payroll budget
This funding request corrects that oversight. ,_
~" .-
Subtotal, Recreation Department: $14.300
Aspen Recreation Center
001.72.72100.82320 An ongoing supplemental budget appropriation was passed in 2008 to pay for the rising ($40,000)
utilities expenses at the ARC. Natural gas prices have decreased since the approval of
this budget authority. This reduction in budget authority matches the ARC gas service
budget with the forecasted expenses in 2009 and the out years.
Subtotal, Aspen Recreation Center: ($40,000)
SUBTOTAL, GENERAL FUND: $160,940 $21,260
Aa R. New Requests Fall Page 1
City of Aspen
2009 Supplemental Budget
New Funding Requests All Requests are one-time unless otherwise noted.
Attachment B
Department /Fund New Reaues[ Description Amount Subtotal by Deot.
Flous3rig Devetapmerd Fund ... :.... ~ ,. ~.
150.94.94140.86000 This request is to fund the purchase ofa deed restricted unit due to onetime HOA $317,730
assessments on the unit. See memofor additional details.
150.94.94138.86000 This request is to fund [he purchase of a deed restricted unit due to onetime HOA $149,560 '
assessments on the unit. See memofor additional details.
150.23.23700.Sxzzx Duringthe 2010 budget development process Council has approved moving forward with $217,680
the IPD process for the design of Burlingame Phase II and III. The funding amount was
presented to Council in the long range plans as forecasted expenses for 2009. This
request is for the formal appropriations of these funds. See memofor additional details.
150.23.23121.8xxxx The Burlingame HOA negotiations have been completed. As part of the negotiated terms $106,000
the Burlingame project is going to pay for the HOA delinquent transit fees. This payment
will be received in the Transportation Fund and the liability removed.
Subtotal. Housin¢ Development Fund
751.26.26200.xxxxx Grants from the Colorado Trust and the Colorado Department of Human Services,
including ARRA funds for system building were obtained after the 2009 budget was
approved. This request is to begin to spend those funds for the purpose intended. This
request will not impact the Ciry of Aspen's cash reserves.
Offsetting
Rev Source
One Time
$80,000
$80,000
152.94.xzxxz.xxxxz Council approved the MCKinstry Energy Project ata work session earlierthisyear.The
Water Department Staff will be bringing a contract to council later in 2009. This request
fully funds the °$1.2 million contract. This budget authority for this contract is spead
between the Asset Management Fund, Parks and Open Space Capital Fund, Kids First
Fund, Water Fund, Electric Fund, Parking Fund and the Golf Fund. See attachment D for
the breakdown of new funding requests, funding sources and additonal details in the
original memo from October 29, 2009.
Subtotal, Kids First Fund $14,390
Parks and Open Space Capital FUnd
340.94.81161.86000 GOCO grant has been approved by Council by resolution number 2009.56. This grant $90,470
funding will be used to build the Lot C neighborhood park. This funding request
increases the project budget from $287,430 to $377,900.
340.94.xxxxx.xxxxx Council approved the MCKinstry Energy Project ata work session earlierthisyear.The
Water Department Staff will be bringing a contract to council later in 2009. This request
fully funds the ^$1.2 million contract. This budget authority for this contract is spead
between the Asset Management Fund, Parks and Open Space Capital Fund, Kids First
Fund, Water fund, Electric Fund, Parking Fund and the Golf Fund. See attachment D for
the breakdown of new funding requests, funding sources and additonal details in the
original memo from October 29, 2009.
Subtotal, Parks and Open Space Capital Fund $103,140
_;
421.94.82067.86000 Fundingof 5613,170that wastransferred to the Parks and Open Space Capital FUnd in $61,000
2006 from the Water Fund is being moved back to the Water Fund for the completion of
the Water Reclamation Project. The transfer of funding is taking place because Parks is
done with their portion of this project. The remaining piece of the project crosses the
Burlingame Ranch subdivision and shares rights-of-way with Burlingame infrastructure.
This aspect of the project will be managed by the Water Department staff. Completion of
project engineering and construction is dependant upon final design for Phase II of
Burlingame. $61,000 is requested to be appropriated in 2009 with $276,085
appropriated in 2010 and the remaining $276,085 appropriated in 2011.
421.94.xxxxx.zxxxx Council approved the MCKinstry Energy Project atawork session earlier this year. The
Water Department Staff will be bringing a contract to council later in 2009. This request
fully funds the ^$1.2 million contract. This budget authority for this contract is spead
between the Asset Management Fund, Parks and Open Space Capital Fund, Kids First
Fund, Water Fund, Electric Fund, Parking Fund and the Golf Fund. See attachment D for
the breakdown of new funding requests, funding sources and additonal details in the
original memo from October 29, 2009.
421.zx.xxxxx.zxzxx Additional funds are being requested in the 2009 Water Department budget for material $75,000
and labor costs associated with water mainline repair due to ahigher-than-expected
number of water line failures. See memofor additional details.
Subtotal, Water FUnd $692,660
Att B. New Requests Fall
$20,000
$91,366
$61,000
$243
City of Aspen
20095upplemental Budget
New Funding Requests All Requests are one-time unless otherwise noted.
471.zx.zxxzx.zxxzx Golf shop start up~costs approved by Council in a 2010 budget development work $150,000
session. The total amount approved is $200,000. $150,000 is requested to be
appropriated in 2009 the remainder is budgeted in 2010. See memo for additional
details.
.
471.94.zxxzx.zxxzx .._ ..
Council approved the MCKinstry Energy Project atawork session earlierthisyear The .............................
:: $4,04Q :.
Water Department Staff will be bringingacontract to council later in 2009. This request
fully funds the °$1.2 million contract. This budget authority for this contrac[is spead :-:. '~
between [he Asset Management Fund, Parks and Open Space Capital Fund, Kids Frst t , . -
Fund,Water Fund, Electric Fund, Parking Fund and the Golf fund. See attachment Dfor :, :~ ~i
the breakdown of new funding requests, funding sources and additonal details in the
original memo from October 29, 2009.
Subtotal, Golf Course Fund
Heath insurance Fdnd ~~
501.51.50151.82460 Staff is requestingan increase in budget authority to mverthe new forecast for claims $1,602,450
paid. The City of Aspen has incurred a number of large claims in the 2009 fiscal year.
$1,200,000 of the request for the increase in budget authority is offset by insurance
claims paid when the stop/loss is triggered.
Subtotal, Health Insurance Fund
Employee HOU4ir~Eund :~,...,, ~'. i _ ..~. :.
505.94.82054.86000 Per Council's direction at the November 2nd work session staff is requesting $70,000 for $70,000
the AABC Housing Project. This requested is to fund the payment of all existing 2009
expenditures associated with redesign, value engineering, exploration of alternative
construction methods, staff casts to date and to get the AABC Housing Project to a
stopping point. This project will then be placed on hold until future direction is received
from City Council.
505.81.46501.82908 The City Employee Housing Fund records all of the purchase and resale of City of Aspen $248,240
employee housing units. At timesthroughout the year additional funding is needed to be
appropriated to allow these pass through transactions to occur. Staff is requesting the
appropriation of $248,240 to facilitate this action. Resale price was higher than the
purchase price. This transaction positively impacted the cash reserves of this fund.
Subtotal, Employee Housing Fund
Smuggler Housing Fund ..
622.xx.xxxzx.xzxxx $9,000 Of this funding request is for maintenance and repair work that was completed $12,000
earlier in 2009 at the Smuggler apartments. $3,000 is for additional work will be
preformed in the future. This request will bring the budget in line with expenses for
2009. Staff is requesting for the formal appropriations of the $12,000 approved by the
APCHA board on September 16th. See Resolution.
Subtotal, Smuggler Housing Fund
AsseiManagementPtan fund ~ -
000.9103000.82990 Accountingchange in the property tax collection fees. This change matchesthe expense ~ ($58,000)
and revenues in 2009 and all out years in the General Fund and the Asset Management
Fund. There is no net impact to the overall budget for 2009. The General Fund budget is
increased and the AMP Fund budget is decreased by the same amount.
OOO.xx.xxxxx.xxxxx Council approvedthe MCKinstry Energy Project ata work session eadierthis year. The ~%$4SQ490i
water Department Staff will be bringingacontract to council later in 20179. This request -
fullyfundsthe °$1.2 million contract. This budget authority for this contract is spead ~ s .__,; ~s.
. .
between the Asset Management Fund, Parks and Open Space Capital Fund, Kids First . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Fund, Water Fund, Electric Fund, Parking Fund and the Golf Fund. See attachment Dfor -
t
the breakdown of new funding requests, funding sources and additonal details In the .. ~„
original memofrom October 29, 2009. ,
~
000.26.zxxzx.86000 The Environmental Health Department received approval for the installation of an ozone $48,710
monitoring system within the City limits at the October 26th (resolution # 87) Council
work session. This request is to formally appropriate the funding for this project.
000.61.82088.86000 Network equipment was damaged asa result of City Hall ice fall that damaged computer $57,500
room HVAC equipment. Funds were used out of the existing IT AMP to purchase
replacement equipment that was budgeted for other IT projects in 2009. This request
allows the required network projects to proceed as planned. This request is 100% offset
by insurance reimbursement.
Attachment B
Offsetting
Rev Source
subtotal by Deot. One Time
$1,513
$154,040 $1,513
$1,200,000
$1,602,450 $1,200,000
$176,950
$276,950
$48,710
$57,500
Att B. New Requests Fall Page 3
City of Aspen
2009 Supplemental Budget
New Funding Requests
Department /Fund
000.91.xxxxx.xxxxx
All Requests are one-time unless otherwise noted.
Attachment B
New Request Description Amount Subtotal by Deot.
Clip on snow fence and heat cable atthe Animal Shelter. This work will be reimbursed by $10,000
the County per inter governmental agreement.
000.74.81021.86000 Council approved the replacement of the original compressors for the Aspen lce Garden ($52,000)
facility in the 20106udget development process. By replacing these compressors with
new compressors staff was able to reallocate $52,000 in funding that would have been
used for the maintenance and rebuild of the facilities' original compressors in 2009. This
$52,000 reduction in authority in 2009 along with two other reductions listed below is
necessary to complete the funding of the 2010 purchase. A total of $67,000 of 2009
funding will go towards the total cost of $110,000 in 2010. See memofor additional
details.
000.74.81151.86000 Staff was able to complete the necessary maintenance work on the Brine Pump for less ($11,830)
than the budgeted amount in the AIG to create funding to apply towards the new
compressor purchase (see above). This $11,830 reduction in authority in 2009 is
necessary to complete the funding of the 2010 compressors purchase.
000.74.81038.86000 Staff has chose to reduce the budget in the locker room renovation project at the AIG as ($3,170)
a funding mechanism forthe purchase of the new compressors (see above). This $3,170
reduction in authority in 2009 is necessary to complete the funding of the 2010
compressors purchase.
Subtotal, Asset Management Plan Fund
Total New Requests All Funds: $4,380,530
Total New Requests After 2009 Offsetting Funding Source:
Italics Indicates offsetti ng fundi ng sou rce
* Indicates offsetting funding source in out years
$441,7011
$4,380,530
$2,459,931
Offsetting
Rev Source
One Time
$10,000
$315,210
Att B. New Repuests Fall page q
Ciry Of Aspen
2009 Technical Adjustments
Department/Fund
Technical Adjustment Description
Attachment C
Amount Subtotal
:: ,
Parks and Open Space Fund i _ `. .
100.95.xxxxx.95471 Start u funding of $200,000 for the Golf Fund was $200,000
approved in the 2010 budget work sessions. This funding is
necessary for the City to take over the operations of the
golf shop at the City of Aspen golf course. In order to
facilitate this, aninter-fund loan is needed from the Parks
and Open Space Fund to the Golf Course Fund in 2009.
100.95.xxxxx.95340 The Parks and Open Space Capital Fund has forecasted the
Deer Hill Project to cost $40,0001ess than the original
budget. This transfer reduction reflects the decrease in the
Deer Hill budget of $40,000. By reducing the transfer
another $1,100 the revenue and expense budget is brought
in balance.
Subtotal. Parks and Ooen Space Fund
340.94.xxxxx.xxxxx
Parks and
451.94.xxxxx.'
The Parks and Open Space Capital Fund has forecasted the
Deer Hill Project to cost $40,000 less than the original
budget.
(Fund
The Plaza Replacement Project was budgeted in 2009 at
$2,097,740 in the Parking Fund. This was a preliminary
estimate for the project cost. Since then staff has worked
with engineers and other specialists and revised the
estimates, scope and timing of the project. The plaza
repair is scheduled to begin in 2009 and be completed in
2012. Staff is requesting a reduction in budget authority of
$2,007,740. This will leave $90,000 in 2009. The remaining
project budget is distributed in 2010, 2011 and 2012.
Subtotal, Parking Fund
Total Technical Adjustment All Funds:
,740)
($2,007,740)
(51,ssa,sao) (S1,sss,sao)
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MEMORANDUM
TO: Mayor and City Council
FROM: Jeff Rice
THRU: Phil Overeynder, Utilities Director
THRU: Steve Barwick, City Manager
THRU: John Worcester, City Attorney
DATE OF MEMO: October 29~`, 2009
MEETING DATE: November 2nd, 2009
RE: Performance Contracting Energy Efficiency Improvements
REQUEST OF COUNCIL: Staff requests council approval to contract with McKinstry for
Performance Contracting of energy efficiency improvements to thirteen (13) City of Aspen
owned buildings and facilities. Under the Colorado Governor's Energy Office (GEO) technical
energy audit and performance contracting model the performance contract award is to
McKinstry.
PREVIOUS COUNCIL ACTION: On October 5`h Staff and McKinstry presented to council
the final energy improvement work scope related to the McKinstry project. Council had
questions concerning duplicative efforts of projects listed, financial stability of McKinstry, the
financial aspect of the performance guarantees, utilizing local contractor resources, and Leas
option financing. The attached documents support the clarification of these concerns. Prior
council action: July 8`h of 2008 council voted to approve a contract with the energy services
company McKinstry to perform technical energy audits in ten (10) city owned buildings and
facilities at a base cost of $0.10/square foot. Additional buildings were added to McKinstry's
scope for the audit and 14 buildings were audited, for a total audit cost of $38,000. The
Colorado GEO performance contracting model was made know to council at that time.
Performance contracting is using the savings in operating and maintenance costs generated from
improvements to offset the cost of implementing the improvements.
BACKGROUND: The City of Aspen owns and operates a number of buildings and facilities
varying in age and condition. With the exception of the Aspen Recreational Center (ARC) and
Red Brick Building none has undergone a technical energy audit to improve performance, reduce
energy use, reduce operating costs, and reduce carbon emissions. McKinstry was challenged to
be innovative beyond traditional performance measures and integrate City goals for energy
Page 1 of 3
efficiency. These goals include reduced energy consumption, lower cazbon emissions, and acting
as leaders on climate change and development of new energy economies. To date McKinstry has
performed technical energy audits in all tazgeted buildings and facilities and a detailed report has
been compiled. There were many potential areas of improvement and a preliminary list of
measures was constructed from which the final work scope was selected. Extensive staff input
was received on the final list of improvements. With McKinstry acting as our general contractor,
RFP's for improvement projects were developed. Those proposals were compiled into a final
work scope and financial matrix (attached) to complete the report.
DISCUSSION: The utilities energy efficiency division in cooperation with key city staff desires
to act on the proposed energy performance improvements identified in the technical energy
audits performed by McKinstry. The goal of this process will be to implement energy upgrades
to city facilities and buildings to reflect the City of Aspen's 2005 adoption of the Canary
Initiative and its commitment to reduce carbon emissions to address climate change. When
implemented, the proposed improvements will have an annual net energy and operational cost
savings of $58,796, reducing the city carbon emissions by 717,340 pounds per year. McKinstry
will act as general contractor throughout the entire implementation process. McKinstry has
followed city procurement procedures releasing RFP's and obtaining bids for individual projects.
The costs of the project are $1,310,210 with $752,967 of city capital and an estimated utility
rebate of $13,299. The calculated energy savings are guaranteed as is the proposal dollaz amount
per improvement project. The work performed under McKinstry's supervision will be
guaranteed by McKinstry and upon completion including commissioning and monitoring
verification of savings will be performed. These savings are guaranteed by McKinstry. What
this means is if we have a problem with performance, energy reduction, or operation, McKinstry
will repair the situation to guazanteed levels at no cost. Any reduction of savings realized
beyond the calculations presented will be to the benefit of the city and no further funds will be
awarded McKinstry.
The buildings and facilities that will receive improvements are Aspen City Hall, Electric Switch
Station, Golf Facilities, Ice Garden, Aspen Recreation Center, Pazking Department, Parks
Facilities, Rio Grande, Red Brick, Yellow Brick, Parking Gazage, Building and Plaza, Street
Facilities and Water Department Facilities. The improvement projects vary from building to
building and include lighting, controls, automation of systems, pumps, drive motors, waste heat
recovery, HVAC upgrades, retro-active commissioning, and new installation of necessary
equipment and structures. Upon completion of the project city buildings and facilities will use
less energy and operate more efficiently. This will lengthen the life of equipment, and in some
cases increased comfort for the building occupants.
If this proposal and subsequent performance contract with McKinstry is approved by Council,
the construction implementation phase will begin within two weeks of signing a contract. The
construction phase will be up to 180 days and the majority will be interior, ]ow impact
construction.
Page 2 of 3
FINANCIAL/BUDGET IMPACTS: The energy improvements identified have a bundled
simple payback of 11.4 years. The $38,000 cost of the initial technical energy audits were
financed from the Utility Efficiency Budget. The total performance contracting proposal of
$1,310,210 is initially offset by $752,967 of contributed department capital budget. In addition,
the City will receive utility grants/rebates estimated at $13,299. The performance contracting
model allows the remaining $544,013 to be financed through atax-exempt municipal lease
purchase agreement over a 10-12 year term at an expected 4.5 - 5.0% interest rate.
ENVIRONMENTAL IMPACTS: The technical energy audit provided discovery into a wealth
of energy efficiency and operations improvements directly in correlation with the City of Aspen
Canary Initiative and our commitment to reduce carbon emissions and green house gases (GHG).
The percent energy reduction calculated for this project is 12% of current consumption in the
buildings receiving upgrades. That equates to 717,340 lbs of reduced carbon emissions. A
benefit of the technical energy audits and the subsequent implementation of improvements will
be that Aspen "walks our talk". Aspen will continue to be established as a leading example in
energy efficiency, carbon reduction, and renewable technologies.
RECOMMENDED ACTION: Staff recommends award of performance contracting contract to
McKinstry in the amount of $1,310,210 for the purpose of implementing the proposed energy
saving improvements to the recommended City of Aspen facilities and buildings.
ALTERNATIVES: The city can choose to implement the energy savings improvement
proposals under individual contracts managed by city staff. The implications of this are
increased costs of individual construction elements with multiple general contractors, loss of
high level of quality control, loss of performance guarantees, loss of inclusive commissioning,
loss of monitoring and verification of improvements. This model also requires increased staff
involvement resulting in large impacts to staff and available time.
PROPOSED MOTION:
I move that we move forward to finalizing the financing arrangement and energy performance
contract with McKinstry to implement the identified projects.
CITY MANAGER COMMENTS:
Page 3
Attachment E
_,.. i., M , .. .a Z004IR7ERFIf~!IU TRANSFEI{S _: ~
Transfer From Transfer TO Transferpmount Purpose of intedund Transfer
m ~. _: .. _:~ ::
000=ASeflrStagementplan HtmE,~_...:
~-m. ..
:°:~i> ~' a_. ice. k.~.
.___ ~
Wheeler Opera HOUSe Fund $186,470 19965treet Improvements lO Vr lF Loan
Wheeler Opera House Fund 591,980 Red Brick West End Project SOYr IF Loan
Kids First Fund $181,690 1998 Street Improvements 10 Yr IF Loan
Debt Service FUnd 93180 Series 2005-STRR-AMP'S Portion
Subtotal, Transfers $553,320
001-General{urW ~ d` ,. _ .ii , „,. ... ..!, ~ . ~ .._' _:i ..
Parks and Open Space Fund 586,090 Annual Partial Subsidy of Food Tax Refund
Employee Housing Fund $200,000 City of Aspen Affordable Housing
Water Utility Fund $74,fi00 1/3 of the Glpbal Warming Prpgram
Housing Development Fund 5580,000 Zupancis Property Re-purchase
AMPFund 74900 Finance Savings to FUnd CIP Sohware Package
Subtotal, Transfers $1,015,590
100.Aaskz endt7pejn 5pdce FUnd .:.:', ~.. '- .. ~ :i '~ ; ~. ;
.-
Parks and Open Space Capital Fu nd '- $1{336,940 'Capital PmjeRs
Debt Service Fund $844,400 Parks 2005 Open Space Bonds
Debt Service Fund $858,110 2001 Sales Tax Revenue Bonds
Golf Course FUnd $135,000 Series 2005 -STRR-Golfs Portion
Debt Service FUnd $950,]00 Series 2005 -STRR-Park's Portion
General Fund $15,000 Additional ACRA Marketing
General Fund $]07,100 Overhead Payment
General Fund $3,610 Central Savings
Golf Course FUnd m; $ZOOa00 ~, ~
~ - Golf Shop Start UP-Inter Fund Loan
Employee Housing Fund 221190 City of Aspen Affordable Housing
Subtotal, Transfers $5,272,050
... _ __
120-WKcelerOperaT#odse Fund .~~
,,. .~ '.°'
', s: .; '
Employee Housing Fund $7],830 City of Aspen Affordable Housing
General FUnd $15,000 Additional ACRA Marketing
General Fund $12,]70 Central Savings
General Fund 251050 Overhead Payment
Subtotal, Transfers $356,650
341. TrailEllorlatipn EUrM .: [' .'.' ,' ' ~ ~:. .~ .-
~
Employee Housing Fund $9,150 Ciry of Aspen Affordable HOUSing
Parks and Open Space Fund $366,730 Rubey Park Mall Maintenance
General Fund $157,500 Use Tax Positions
General Fund $15,000 Power Plant Road Study
General Fund 144 430 Overhead Payment
Subtotal, Transfers $692,810
750-tld~s(ngDevelopmerrtFund ,'. '.' ~ ~ ..._ .. .
Truscott Housing Fund $]43,820 Truscott I, 2001 Housing Bonds Subsidy
Housing Administration Fund $198,880 Operations Subsidy X50%af total)
General FUnd $523,360 Overhead Payment
Wheeler Opera HOUSe FUnd $2915.680 BMC West-IF Loan
Subtotal, Transfers $9 381,740
.
-.
.
351•EarlyChiWhagd EducatiortFund ,:
';
, ., .
Kids First Fund 212]0 Administration Services
Subtotal, Transfers $21,270
152-Kids First Fund' .:_ .: `.
~ '. < :: ..; ~...
Employee Housing FUnd $31,130 Ciry of Aspen Affordable Housing
General Fund 66 760 Overhead Payment
Subtotal, Transfers $97,890
i6p•SfePmwAter FUnd ... ..: . ' .'. .. _: ...: ,
General fund 61000 Overhead Payment
Subtotal, Transfers $61,000
340-Parl6and Opeit SpacaCapital Fund,
.. .., ..
,
,_
Water Fund $613,170 ; ,,
...................... ,,'Water Reclamation Project
.:
General Fund 32 ]]0 Overhead Payment
Subtotal, Transfers $645,940
Attachment E
. ~ ., _-_- 2009:INTERFUNDTRAN$FER$ :;. .: „ , ~ ( .. ~. ~'
Transfer From Transfer TO TransferAmount Puroose of interfund Transfer
A21•Water UtlBry FUMi ...~ r
~ " '.'.' ... ..,. +. .. .;: a '.:._.
General Fund $1,000,000 Operations facilities Land
Renewable Energy Fund $975,000 Capital Projects Moved
Employee Housing Fund 543,440 Ciry of Aspen Affordable Housing
Parks and Open Space Fund 5150,000 Water Usage Conservation Programs
General Fund 650 340 Overhead Payment
Subtotal, Transfers $2,818,780
A31-EkBr&Ut1lkyWdd .,' .. ~" .. .. .. .. ..
General Fund $425,350 Franchise Fee
General Fund $330,]50 Overhead Payment
General Fund $1,980 Central Savings
Employee Housing Fund $18,830 City of Aspen Affordable Housing
Renewable Energy Fund 5144,000 Capital Projects Moved
Renewable Energy Fund $312,000 Carbon Emission Reduction Tags
Renewable Energy Fund $418,240 Purchase of HydroeleRric Power
Renewable Energy Fund $132,000 Purchase of HydroeleRric Power
Water Utility Fund $]4,600 1/3 of Global Warming Program
Water Utility Fund 289 800 Electric Utility portion of Utility Billing Services
Suhtotal, Transfers $2,147,590
444+Aenewahk Energy Fund _...r ,_...
~~ ? '=
General Fund 12000 Overhead Payment
Subtotal, Transfers $12,000
451-Fatldng Fund - , ... ~ nr .. ..
Employee Housing Fund $58,910 City of Aspen Affordable Housing
General Fund $3,600 Central Savings
General Fund 494 510 Overhead Payment
Subtotal, Transfers $557,020
A#-GaHCourseFUnd ti::.+
Employee Housing Fund $18,830 City of Aspen Affordable Housing
General Fund 111940 Overhead Payment
Subtotal, Transfers $130,]]0
A91-TN$S9ttHWFFn~fU1W ,,,, ,.;5... _~:~ ~ I ~ '~ '. ..
General Fund $23,560 Overhead Payment
Employee Housing Fund $31,130 Ciry of Aspen Affordable Housing
Housing Administration Fund 49 ]60 Overhead Payment
Subtotal, Transfers $104,440
492-INxmkHausing Fund ,_
General Fund $18,650 Overhead Payment
Employee Housing Fund $24,610 Ciry of Aspen Affordable Housing
Housing Development Fund $417,050 Loan Repayment
Housing Administration Fund 58370 Overhead Payment
Subtotal, Transfers $518,680
d20- HcusMg AdmInlSSration Fd
General Fund 100810 Overhead Payment
Subtotal, Transfers $100,810
622-SmW88&i HOUSing.Wnd .... .. ~;~:~!'~ .:: - ~ .~ ..; ~ ... ~ ..
General Fund $8,020 Overhead Payment
Housing Administration Fund 1900 Overhead Payment
Subtotal, Transfers $9,920
AB Othe~OneTHrxTrensfers ,. ,.
~ .._ ..
All Capital Prolects ]4 900 CIPACe Software
$74,900
All City FUndsudth Heath lnsuranpeEx',°pensls :r
3
Employee Health Insurance Fund 015100 Employee Health Insurance Premiums
Subtotal, Transfers $3,015,100
2009 TOTALINTERFUND TRANSFERS $22,$88,230
T~ CrrY of Asr~v
Back Up Documentation For:
First Reading Memos
MEMORANDUM
TO: Mayor and City Council
FROM: Bill Linn
THRU: Steve Barwick
DATE OF MEMO: Oct. 21, 2009
MEETING DATE:
RE: Police Supplemental Budget Requests.
REQUEST OF COUNCIL: We ask city council to pass two supplemental budget requests.
BACKGROUND:
1. Supplemental budget request to recover use of insurance funds from an automobile
accident eazlier in 2009.
2. Supplemental budget request to recover funds reimbursed to the city for officers assigned
to assist Snowmass Village with the Jazz Aspen concerts (which were reimbursed to the
City of Aspen general fund).
DISCUSSION:
1"ne first request is to recover the funds from anot-at-fault automobile accident in 2009,
which resulted in about $14,563 in damage to a police patrol caz. The at-fault driver's
insurance has reimbursed the city for the damage.
The second request will recover the funds paid by Jazz Aspen to the City of Aspen general
fund, reimbursing the Police Department for an officer who assisted the Snowmass Village
Police Department. We have billed JAS for $653.64.
FINANCIAL/BUDGET IMPACTS:
Item #1, Accident insurance request; revenues match expenses. One-time operational request.
Item #2, Jazz Aspen reimbursement; revenues match expenses. One-time operational request.
ENVIRONMENTAL IMPACTS: No environmental impacts aze anticipated.
Page 1 of 2
RECOMMENDED ACTION: Passage of the supplemental budget requests.
ALTERNATIVES:
Item #1; Police Department would absorb costs in existing operational budget leaving revenue
unallocated in general fund.
Item #2; Police Department would absorb costs in existing operational budget leaving revenue
unallocated in general fund.
CITY MANAGER COMMENTS
Page 2 of 2
THE CRT OF ASPEN
MEMORANDUM
TO:
FROM:
THRU:
DATE-0F MEMO
MEETING DATE
RE:
Mayor and City Council
Scott Miller, Capital Asset Director
Steve Barwick, City Manager
September 3, 2009
September 14, 2009
Purchase of 104 W. Cooper, Unit #5
REQUEST OF COUNCIL: Staff recommends that City Council purchase the deed-restricted
housing unit at 104 W. Cooper, Unit 5, remove the deed restriction, finish renovation of that unit,
and sell the unit.
PREVIOUS COUNCIL ACTION: On July 17, 2009, Council passed Ordinance #17 (Series
2009) amending the Aspen/Pitkin County Employee Housing Guidelines, permitting APCHA to
determine if adeed-restricted unit located in a condominium or subdivision which also includes
free-market units, has been rendered unaffordable as a result of general or special assessments.
Such a unit would then be eligible to be purchased, the deed restriction removed and sold into the
free market, with the proceeds being deposited into the appropriate housing development fund.
BACKGROUND: This unit was built as a free-mazket unit in 1972, then deed-restricted as an
affordable housing unit in 1991. This unit is the only affordable, deed restricted unit out of six
units at 104 W. Cooper. The Home Owners Association for this building decided to undergo a
capital improvement project, updating the building's exterior facade, expand the building
footprint, and improve the mechanical and electrical systems. Doing so requires almost total
renovation of the interior of all six units. This renovation is currently underway, requiring
payment of a special assessment of $165,000 by the owner of unit 5 as well as the cost of
renovating the unit's interior. The owners of unit 5 have asked the City of Aspen to buy this unit
back, allowing them to move to another affordable unit.
DISCUSSION: The reality of deed-restricted units as an extreme minority in an HOA
dominated by free-mazket units is that large assessments for capital improvements make it almost
impossible to maintain that deed-restricted status. This unit is one of several facing this reality in
Aspen and has generated the change in housing guidelines referenced above.
This gazden level unit, across the street from Koch Park, is being increased in size from 878 to
1000 square feet. The building and the other five units are being updated to a finish level
appropriate for units worth $1.5 to $2.0 million. If City Council decides to purchase this unit,
staff recommends that this unit be finished to this level of finish as well. The cost of buying and
completing this unit breaks down as follows:
Page 1 of 3
Buyback of unit $152,730
HOA assessment $165,000
Finish out unit $226,500
(Includes asbestos mitigation, drywall, interior trim, cabinets, countertops, floor
coverings, tile, paint, electrical fixtures, fire sprinkler system upgrade, fire alarm upgrade)
Total Purchase Cost $544,230
The real estate broker representing the city estimates that with the appropriate level of finishes
this unit will sell for well over a million dollars. A conservative estimate of the selling price and
selling expenses is listed below:
Selling price $950,000
Sales costs (broker fee, closing costs) ($54,000)
Net Selling Price $896,000
Net Proceeds to City $351,765
If City Council chooses to purchase this unit and sell it as a free market unit, the net proceeds
from this sale will benefit the 150 Housing Development Fund. This money will then be used to
develop future deed-restricted housing.
FINANCIALBUDGET IMPACTS: The cost of purchasing and fmishing this unit, $544,230,
will be paid from the 150 Housing Development Fund in calendaz yeaz 2009. The revenue from
the sale of the unit, $896,000, will be received by the 150 Housing Development Fund, with the
net proceeds from the sale benefitting the 150 Fund in the amount of $351,765. The unit will
most likely be completed by the end of 2009. The sale will most likely occur in 2010.
Supplemental appropriations will have to be made in order to budget for these expenses in FY
2009 and to anticipate the revenue in the FY 2010 budget. By agreeing to this purchase, Council
is agreeing to approve those supplemental requests when they aze made. Subsequent contracts for
the renovation of the unit and an eventual sales contract will be coming to the Council in the
future.
ENVIRONMENTAL IMPACTS: This project is a reuse of an existing structure on an existing
city lot, resulting in much less impact to the environment than new construction on a vacant lot.
The building's mechanical and electrical system, insulation, doors and windows are all being
replaced with components that meet or exceed current building code requirements, resulting in
greatly reduced consumption of greenhouse gases.
RECOMMENDED ACTION: Staff recommends that City Council purchase the deed-
restricted housing unit at 104 W. Cooper, Unit 5, remove the deed restriction, finish renovation
Page 2 of 3
of that unit, and sell the unit. This action will start that process by authorizing the purchase of the
unit.
ALTERNATIVES: If Council does not want to approve the purchase and sale of this unit,
APCHA has the right to purchase the unit and to thereby benefit from the subsequent sale of the
unit into the free market.
PROPOSED MOTION: Resolution approving a contract for purchase.
CITY MANAGER COMMENTS:
ATTACHMENTS:
• Contract for purchase of 104 W. Cooper, Unit 5
Page 3 of 3
THE Crn OF ASPEN
MEMORANDUM
TO:
FROM: _
THRU:
DATE OF MEMO:
b'[EETING DATE:
RE:
Mayor and City Council
Scott Miller, Capital Asset Director
Steve Barwick, City Manager
September 3, 2009
September 14, 2009
Purchase of 910 W. Hallam, #11
REQUEST OF COUNCIL: Staff recommends that City Council purchase the deed-restricted
housing unit at 910 W. Hallam, Unit 11, remove the deed restriction, finish renovation of that
unit, and sell the unit.
PREVIOUS COUNCIL ACTION: On July 17, 2009, Council passed Ordinance #17 (Series
2009) amending the Aspen/Pitkin County Employee Housing Guidelines, permitting APCHA to
determine if adeed-restricted unit located in a condominium or subdivision which also includes
free-market units, has been rendered unaffordable as a result of general or special assessments.
Such a unit would then be eligible to be purchased, the deed restriction removed and sold into the
free market, with the proceeds being deposited into the appropriate housing development fund.
BACKGROUND: This unit was built as afree-mazket unit in 1970, then deed-restricted as an
affordable housing unit in 1987. This unit is the only affordable, deed restricted unit out of
twelve units at 910 W Hallam. The Home Owners Association replaced the roof for this building
in 2004, resulting in a special assessment on this unit for $5,600. Recently the HOA chazged a
special assessment of $3,615 for interior common azea renovation. These assessments, combined
with monthly HOA dues of $426 make this unit unaffordable for the current owners, not to
mention the possibility of other special assessments as the building ages.
DISCUSSION: The reality of deed-restricted units as an extreme minority in an HOA
dominated by free-mazket units is that large assessments for capital improvements make it almost
impossible to maintain that deed-restricted status. This unit is one of several facing this reality in
Aspen and has generated the change in housing guidelines referenced above.
This unit, which faces Highway 82, is 765 square feet in habitable azea. If City Council decides
to purchase this unit, staff recommends that this unit be finished to a level of finish
commensurate to it's free mazket value. The cost of buying and completing this unit breaks down
as follows:
Page 1 of 3
Buyback of unit $145 945
HOA assessment $3,615
Finish out unit $60,000
(Includes interior trim, cabinets, countertops, paint, and carpet)
Total Purchase Cost $209,560
The real estate broker representing the city estimates that with the appropriate level of finishes
this unit will sell for $650,000. A conservative estimate of the selling price and selling expenses
is listed below:
Selling price $650,000
Sales costs (broker fee, closing costs) ($39,000)
Net Selling Price $611,000
Net Proceeds to City $401,440
If City Council chooses to purchase this unit and sell it as a free mazket unit, the net proceeds
from this sale will benefit the 150 Housing Development Fund. This money will then be used to
develop future deed-restricted housing.
FINANCIALBUDGET IMPACTS:.The cost of purchasing and finishing this unit, $209,560
will be paid from the 150 Housing Development Fund in calendaz yeaz 2009. The revenue from
the sale of the unit, $611,000, will be received by the I50 Housing Development Fund, with the
net proceeds from the sale benefitting the 150 Fund in the amount of $401,440. The unit will
most likely be completed by the end of 2009. The sale will most likely occur in 2010.
Supplemental appropriations will have to be made in order to budget for these expenses in FY
2009 and to anticipate the revenue in the FY 2010 budget. By agreeing to this purchase, Council
is agreeing to approve those supplemental requests when they aze made. Subsequent contracts for
the renovation of the unit and an eventual sales contract will be coming to the Council in the
future.
ENVIRONMENTAL IMPACTS: This project is a reuse of an existing structure on an existing
city lot, resulting in much less impact to the environment than new construction on a vacant lot.
The building's mechanical and electrical system, insulation, doors and windows aze all being
replaced with components that meet or exceed current building code requirements, resulting in
greatly reduced consumption of greenhouse gases.
RECOMMENDED ACTION: Staff recommends that City Council purchase the deed-
restricted housing unit at 910 W Hallam, Unit 11, remove the deed restriction, finish renovation
of that unit, and sell the unit. This action will start that process by authorizing the purchase of the
unit.
Page 2 of 3
ALTERNATIVES: If Council does not want to approve the purchase and sale of this unit,
APCHA has the right to purchase the unit and to thereby benefit from the subsequent sale of the
unit into the free mazket.
PROPOSED MOTION: Resolution approving a contract for purchase.
CITY MANAGER COMMENTS:
ATTACHMENTS:
• Contract for purchase of 910 W. Hallam, Unit 11
Page 3 of 3
MEMORANDUM
TO: Mayor and Council
FROM : Scott Miller, Capital Asset Director
THRU: Steve Barwick, City Manager
DATE OF MEMO: October 29, 2009
MEETING DATE: November 9, 2009
RE: 150 Housing Fund Supplemental Request for 2009 Burlingame II Integrated Project
Delivery Design and Planning Effort
SUMMARY: Staff is requesting 150 Fund budget supplemental in the amount of $323,680 for the Burlingame
II Integrated Project Delivery design and planning effort. This supplemental amount fulfills the needs for both
the IPD effort as well as for the necessary transfer to the Transportation fund for payment of the Burlingame
HOA transit fee debt, which was negotiated as part of the density increase agreement with the HOA.
BACKGROUND: Per the recommendations of the Construction Experts Group (CEG) ni 2008 and the
subsequent adoption of the CEG recommendations by City Council, staff is moving forward with the Integrated
Project Delivery (IPD) model approach for the design of Burlingame Phase II. The IPD model recommended by
the CEG entails that the City hire an owner's agent, a design team, a preconstruction contractor and a
commissioning agent. The objective of the IPD team approach is to collaborate and develop the most high-
quality, cost-efficient design possible for the project and to develop a comprehensive guaranteed maximum
price (GMP) bid for the project by June 2010.
DISCUSSION: In a work session with City Council on June 30, 2009, staff presented a detailed projected cash
flow for the 2009 & 2010 Burlingame II IPD design effort. At that time, staff stated that the total IPD design
effort will cost $4.3 million with a need for $1.5 million in 2009 and $2.8 million in 2010. Since the original
2009 budget of $1,176,320 was established before the IPD effort was conceived, it was deemed reasonable by
Council that additional funds might be needed to support the revised effort. Council asked that staff verify the
need for additional funds. Staff is currently getting professional services proposals to do that.
RECOMMENDATION: Staff recommends approval of the described supplemental funding for which staff
will verify the need before utilizing for the IPD effort.
CITY MANAGER COMMENTS
ATTACHMENTS: Burlingame II Integrated Project Delivery (IPD) Projected Cash Flow
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MEMORANDUM
TO: Mayor and City Council
FROM: Phil Overeynder, Utilities and Environmental Initiatives Director
CC: Steve Barwick, City Manager
CC: Don Taylor, Finance Director
DATE OF MEMO: October 30, 2009
MEETING DATE: November 9, 2009
RE: Water Fund 2009 Supplemental Appropriation for Mainline Repairs
REQUEST OF COUNCIL: This request is for a supplemental budget increase in the Water
Fund in the amount of 575,000 due to higher than normal mainline failures and due to the
increase in cost for each mainline repair performed.
PREVIOUS COUNCIL ACTION: The existing 2009 operating budget for the Water Fund
includes 5100,000 for maintenance and repair services resulting from mainline failures.
BACKGROUND: While a constant figure of 5100,000 per yeaz is utilized for these types of
expenses, actual expenses vary from year to yeaz based on the number and type of mainline
failures. The average number of failures in the past three years was seven.
DISCUSSION: For the yeaz to date, the water system has experienced more failures than the
average. The average experience serves as the budget basis. A total of nine failures were
experienced in the first ten months of the yeaz, compared with an average annual f o°ure of seven.
In addition, the cost of each individual repair is higher due to a number of factors. These factors
include more stringent standazds for road restoration as well as an increased cost for restoration
of surface features such as trees and landscaping. Finally the 2009 expenses included repair costs
for a private service line (the responsibility for repairs belongs to the landowner). The City has
filed a lien (the lien amount totals $44,573) for recovery of these costs and when recovered, this
will serve as an offsetting revenue source.
FINANCIALBUDGET IMPACTS: Existing expenses to date for this item total $137,684.
The request is to increase the budget for mainline repairs from $100,000 to $175,000 for 2009.
This is expected to cover the cost of repair work through the end of the yeaz. The projected yeaz
Page 1 of 2
end Water Fund balance is approximately $6.5 million. The increased expense would reduce the
fund balance by the amount proposed supplemental appropriation or $75,000.
RECOMMENDED ACTION: Staff recommends a supplemental budget increase of $75,000 in
the Water Fund for the reasons stated above.
ALTERNATIVES: The increased cost of mainline repairs could be taken out of departmental
savings. However, potential liabilities in other azeas may substantially deplete the current savings
amount of $211,260.
PROPOSED MOTION: I move to approve Ordinance #
CITY MANAGER COMMENTS:
Page 2 of 2
MEMORANDUM
TO: MAYOR AND CITY COUNCIL
THRU: STEVE BARWICK, CITY MANAGER
THRU: DON TAYLOR, FINANCE DIRECTOR
FROM: JEFF WOODS, MANGER OF PARKS AND RECREATION AND
STEVE AITKEN, DIRECTOR OF GOLF
DATE: OCTOBER 19, 2009
RE: SUPPLEMENTAL REQUEST
REQUEST OF COUNCIL: Staffis requesting a $150,000 supplemental apgropriation
for golf shop startup operations into the 2009 budget. The remaining $50,000 will be
budgeted in 2010 for a total of $200,000 in startup costs. In order to accomplish this
financially a transfer of funds will be required from the Parks Fund and will be paid back
over a 10 yeaz period with interest.
PREVIOUS COUNCIL ACTION: At the October 19`~ budget work session, Council
approved the plan to hire a head golf professional, acquire equipment, and purchase retail
inventory for a total in golf shop start up costs of $200,000. In addition the plan to
transfer $200,000 from the Pazks Fund to the Golf Fund was approved.
DISCUSSION: Staffis ready to move forward with the plan to operate the golf shop.
There are many tasks to complete before the golf shop operation is prepazed for the 2010
golf season. Much of the $200,000 startup will be spent immediately with the remainder
spent in the first few months of 2010. Outlined below is how the funds will be spent.
• Head Golf Professional Compensation $13,125
An advertisement for the Head Golf Professional has been posted and we anticipate many
highly qualified applicants applying for the position. Once the Head Golf Professional is
hired we anticipate this person working approximately 2 days per week thru the end of
the year. In 2010 this person will also be needed on this 2 day per week schedule until
the start of the golf season beginning in April.
• Equipment Acquisition $86,875
The acquisition of the equipment which is being offered at an exceptional value needs to
be purchased now. The current owner of the equipment is moving out of the golf shop at
the end of October 2009. It would be more appropriate that the equipment stay on site
and not be moved again.
• Retail Inventory $100,000
Retail Inventory will need to be purchased. Some of the inventory will be purchased in
2009 and the remainder in 2010.
FINANCLALBUDGET IMPACTS: The $200,000 transfer to the Golf Fund will allow
staff to hire appropriate personnel, purchase equipment, and acquire retail inventory.
Funds not utilized in 2009 will be carried over to 2010. The Golf Fund will pay the
$200,000 startup cost back to the Parks fund over a 10 year period, at a rate of interest of
4%.
RECOMMENDED ACTION:
ALTERNATIVES:
PROPOSED MOTION:
CTTY MANAGER
COMMENTS:
ATTACHMENTS: October 16, 2009 Memorandum to City Council providing detail on
the golf shop operation.
A RESOLUTION OF THE ASPEN/PITHIN COUNTY
HOUSING AUTHORITY BOARD
APPROPRIATING AN EXPENDITURE OF $12,000
FOR REPAIRS AT SMUGGLER MOUNTAIN APARTMENTS
Resolution No. 2009-12
RECITALS
WHEREAS, the Aspen~Pitkin County Housing Authority Boazd (hereinafter "Boazd")
owns Smuggler Mountain Apartments (hereinafter "SMA");
WHEREAS, the Boazd had directed staff to deferr maintenance on SMA due to the
redevelopment of ±he property;
WHEREAS, the redevelopment of .the property is on hold without a potential
construction date in sight;
WHEREAS, due to the delay of the redevelopment of the property repair work needs to
be done to the property; and
WHEREAS, the attached Exhibit "A" describes the maintenance and repairs that need to
be done until such time the project is redeveloped.
NOW, THEREFORE, BE IT RESOLVED that the Housing Boazd has approved the
appropriation of Twelve Thousand Dollazs ($12,000) for the maintenance and repair of the
Smuggler Mountain Apartments as shown on Exhibit "A". Such funds shall be appropriated to
account number 622.83.00001.89950 from the cash balance in the Smuggler Mountain
Aparments account.
ADOPTED AND APPROVED THIS 16~h DAY OF SEPTEMBER 2009 at the
Aspen/Pitkin County Housing Authority's Regulaz Meeting.
ATTEST:
Tom McCabe, Secretary
Resolurion No. 2009-12
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MEMORANDUM
T0: MAYOR & CITY COUNCIL
FROM: TIM ANDERSON, RECREATION DIRECTOR
THRU: FINANCE DEPARTMENT
DATE: OCTOBER 20, 2009
RE: PURCHASE OF NEW COMPRESSORS IN 2009 FOR THE ASPEN
ICE GARDEN
Summary:
The Aspen Ice Garden was constructed in about 1960 as an outdoor facility, through the years a
roof and walls have been added along with other improvements by the City of Aspen.
Components remaining in the Garden which are original equipment are the two compressors
for the refrigeration system. Through regular maintenance and rebuilds the City has been able
to keep these original two compressors operating through the years.
The issues arising these days in keeping the two original compressors are:
Parts are getting hard to find, expensive, and at time they have to be manufactured.
New Compressors operate 12% more efficiently
• The Old Compressors cost $52,000 to rebuild every 5 to 6 years while new compressors
cost half as much for rebuilds.
• Oil changes and PM on new compressors are over $10,000 less expensive than the
original compressors
Efficiencies:
Council will find attached a spreadsheet which identifies the long term savings by going with
the new compressors. There is a net savings of $42,000 over 10 years, and a reduction of 12%
in energy consumption.
Staff is accomplishing the installation of new compressors by carrying forward remaining 2009
funds of $67,000 with an additional request of $43,000 in 2010 to purchase and install new
compressors. Staff felt this was the best direction to take so we have performed minimal
maintenance on the old compressors in 2009 so that funding could be utilized towards the
purchase of the new compressors. If Council chooses not to go this direction, staff would ask
that the $67,000 in the2009 AMP be carried forward for a major overhaul in 2010.
Issues:
With the original compressors at the Aspen Ice Garden we are taking a chance in parts no
longer being available in the near future, increased cost to maintain, and a lower efficiency in
operations.
Recommendation:
Staff is recommending the replacement of the original compressors at the Aspen Ice Garden as
they have become costly to maintain, parts are becoming difficult to obtain, new compressors
are more energy efficient, and over a 10 year span staff has shown how the City will reduce
costs by purchasing new compressors.
MEMORANDUM
TO: Mayor and City Council
FROM: Don Taylor, Director of Finance
THRU: Steve Barwick, City Manager
DATE OF MEMO: November 16, 2009
MEETING DATE: November 23, 2009
RE: Adoption of the Proposed 2010 Budget
b.
REQUEST OF COUNCIL: This is for the City Council to consider adoption of the proposed
2010 budget.
PREVIOUS COUNCIL ACTION: City Council and staff just completed 7 budget work
sessions reviewing the proposed 2010 budget and 2010-2019 Asset Management Plan.
Numerous changes were made to the proposal and incorporated into this budget that is now
proposed for adoption.
BACKGROUND: The City's revenue sources in 2009 experienced perhaps its biggest decline it
its modern era. Sales taxes are down 17%, community development and building deparhnent
revenues are down 50% from 2007 levels, and use taxes aze projected to be less than originally
forecast after their implementation in early 2008. The City moved quickly to bring in its 2009
proposed spending in line cutting total budgets by about 11% in February 09. Once it was
apparent that the economy was not going to quickly recover, another round of cuts were made in
August in order to form the framework for this 2010 budget proposal.
DISCUSSION: The proposed 2010 budget, for the most part, maintains service levels at
previous year's levels. Most of the staffing cuts were made in areas where service level
requirements were decreased because of the economy. The proposed budget for 2010, net of
interfund transfers is $67,032,470, which is down 15% from 2009. The budget assumes that the
sales tax in 2010 will grow by 1.5% from 2009. The proposed budget includes $500,000 of
additional funding to ACRA in 2010. $400,000 of this is to be paid back in $100,000 increments
staring in 2011, regardless of the passage of the proposed local mazketing district. It will be
important to continue to monitor how the City's major revenues track against projections in
2010. The budget assumes that a property tax mill levy will be assessed for the General
Fund/Amp in the amount of 3.533 mills and a mill levy for the Stormwater Fund in the amount
of 0.492 mills.
Page 1 of 2
Revenues
Operating
Capital Outlay
Debt Service
Net Appropriations
Interfund Transfers
Total Appropriations
Ending Fund Balance
2009 2010
Original Recommended
Budget Budget Variance Change
$99,159,260 $85,656,840 ($13,502,420) (14%)
$50,321,550 $46,681,610 ($3,639,940) (7%)
$22,875,030 $15,345,920 ($7,529,110) (33%)
$5,607,860 $5,004,940 ($602,920) (11%)
$78,804,440 $67,032,470 ($11,771,970) (16%)
$23,475,680 $24,700,220 $1,224,540 5%
$102,280,120 $91,732,690 ($10,547,430) (10%)
$53,030,171 $56,631,805 $3,601,634 7%
*Wheeler Expansion is shown as a capital outlay in 2009 and 2010
2010 Recommended Budget rounded to the nearest $10
RECOMMENDED ACTION: Staff proposes that the 2010 budget be adopted.
ALTERNATIVES: The proposed budget may be amended as the City Council may deem
necessary.
PROPOSED MOTION: Move adoption of the resolution attached which approves the 2010
budget and makes appropriations to the various funds as proposed.
CITY MANAGER COMMENTS:
ATTACHMENTS:
Page 2 of 2
RESOLUTION NO.~~
(SERIES OF 2009)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO ADOPTING THE 2009 MUNICIPAL BUDGET AND
AUTHORIZING APPROPRIATIONS PURSUANT THERE TO
WHEREAS, the City Manager, designated by Charter to prepare the budget, has
prepazed and submitted to the Mayor and City Council the Annual Budget for the City of
Aspen, Colorado for the fiscal year beginning January 1, 2010 and ending December 31,
2010; and
WHEREAS, in accordance with Section 9.8 of the Home Rule Charter, the
Council shall adopt the budget by Resolution on or before the final day established by
law as December 15`h for certification of the ensuing year's tax levy to the county; and
WHEREAS, Article 9 of the Aspen Home Rule Charter requires the adoption of
an annual budget with the opportunity for the public to participate at a public hearing at
least 15 days prior to the statutory deadline for certification of the ensuing year's tax levy
to the county, it is the intent of the Council by adoption of this budget to follow the
requirements of City Charter; and
WHEREAS, the budget as submitted in Exhibit A sets forth the estimated fiscal
data of appropriated expenditures and estimated revenues for the calendar year of 2010.
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
SECTION 1
That the budget for the City of Aspen, Colorado for the fiscal year 2010 as submitted in
attachment hereto as Exhibit A and incorporated herein by this reference, be and is
hereby adopted, which option all constituted appropriations of the amounts specified
therein as expenditures amounting to $91,732,690, and the estimated budget revenue
requirements of $85,656,840 both in Exhibit A, is hereby declared to be the amount of
revenue necessary to be raised by the tax levy and income from all other sources not
inclusive of fund balance at the beginning of the year of $62,707,655 for total revenues of
$148,364,495 to pay the expenses and certain indebtedness, and provide a reasonable
fund balance at the close of the fiscal year beginning January 1, 2010 and ending
December 31, 2010.
SECTION 2
That the City Council hereby authorizes and directs the City Manager to enter into such
contracts and execute such documents on behalf of the City as maybe necessary and
customary to expend the funds appropriated for all capital acquisitions within its budget,
and that Council further directs the City Manager to inform it of such contracts and
documents promptly at its regularly scheduled Council meetings.
Adopted this 23, day of November 2009
Michael C. Ireland, Mayor
I, KATHRYN KOCH, duly appointed and acting City Clerk of the City of Aspen,
Colorado, do hereby certify that the foregoing is a true and accurate copy of the
Resolution adopted by the City Council at its meeting held on the 23 day of November,
2009.
Kathryn Koch, City Clerk
Exhibit A
,,
TOTAL CITY OF,ASPfN 2010 APPROPRIATIONS BY FUNQ;__ ..
...~
Beginning Total Current Total 2010 Ending
Fund Name Fund Balance Revenue Budget Expenditures & Balance
General Government Funds
Asset Management Plan Fund $2,997,756 $2,852,490 $3,931,310 $1,918,936
General Fund $5,960,934 $21,820,960 $21,921,440 $5,860,454
Subtotal General Gov't Funds $8,958,690 $24,673,450 $25,852,750 $7,779,390
Special Revenue Funds
Parks and Open Space Fund $1,807,654 $7,348,870 $7,743,920 $1,412,604
Wheeler Opera House Fund * $27,023,628 $4,440,740 $6,302,650 $25,161,718
City Tourism Promotion Fund $0 $894,670 $894,670 $0
Transportation Fund $1,416,468 $3,236,520 $1,738,440 $2,914,848
Housing Development Fund $806,045 $10,043,190 $10,792,520 $56,715
Early Childhood Education Fund $280,310 $459,470 $435,830 $303,950
Kids First Fund $3,751,096 $1,425,170 $1,595,680 $3,580,586
Stormwater Fund $1,625,484 $1,326,260 $937,140 $2,014,604
Subtotal special Revenue Funds $36,710,685 $29,175,190 $30,440,850 $35,445,025
Debt Service Fund
Debt Service FUnd $185,297 $3,331,040 $3,332,040 $187,297
subtotal Debt Service Fund $188,297 $3,331,040 $3,332,040 $187,297
Capital Fund
Parks and Open Space Capital Fund $109,800 $1,392,430 $1,392,430 $109,800
Subtotal Capital Fund $109,800 $1,392,430 $1,392,430 $109,800
Enterprise Funds
Water Utility Fund $6,988,010 $5,666,060 $6,434,900 $6,219,170
Electric Utility Fund $996,664 $6,878,530 $6,652,130 $1,223,064
Renewable Energy Fund $311,680 $1,114,470 $1,281,180 $144,970
Parking Fund $1,714,340 $2,847,070 $3,385,390 $1,176,020
Golf Course FUnd $117,948 $1,655,680 $1,587,710 $185,918
Truscott Housing Fund $881,830 $1,804,310 $1,513,000 $1,173,140
Marolt Housing Fund $1,024,883 $1,236,210 $1,121,670 $1,139,423
Subtotal Enterprise Funds $11,035,355 $21,202,330 $21,975,980 $11,261,705
Internal Service Funds
Employee Health Insurance Fund $741,142 $4,304,290 $4,735,080 $310,352
Employee Housing Fund $2,542,863 $566,180 $2,622,820 $486,223
Subtotal Internal Service Funds $3,284,005 $4,870,470 $7,357,900 $796,575
Trust and Agency Funds
Housing Administration FUnd $1,164,477 $946,720 $1,182,400 $928,797
Smuggler Housing Fund $256,346 $65,210 $198,340 $123,216
subtotal Trust and Agency Funds $1,420,823 $1,011,930 $1,380,740 $1,052,013
ALL FUNDS $62,707,655 $85,656,840 $91,732,690 $56,631,805
Less lnterfund Transfers $24,700,220 $24,700,220
NET APPROPRIATIONS $62,707,655 $60,956,620 $67,032,470 $56,631,805
`Wheeler Balances shown GAPP basis adjusted
i '~ ` ~
RESOLUTON NO. ~`~
(SERIES OF 2009)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO SETTING THE 2010 MUNICIPAL MIL LEVY RATES AND
CERTIFYING SAME TO THE BOARD OF COUNTY COMMISSIONERS FOR
PITKIN COUNTY.
WHEREAS, the City Manager, designated by Charter to prepare the budget, has
prepared and submitted to the Mayor and City Council the Annual Budget for the City of
Aspen, Colorado for the fiscal year beginning January 1, 2010 and ending December 31,
2010; and
WHEREAS, the net assessed valuation of the taxable property for the year 2009
in the City of Aspen returned by the County Assessor of Pitkin County on October 26th,
2009, is the sum of $1,694,855,595; and
WHEREAS, THE CITIZENS OF ASPEN in November, 2005, authorized the
City of Aspen to collect, retain, and expend any property tax that is in excess of the limits
of Article X, Section 20, of the Colorado Constitution, for the purpose of purchasing
alternative fuel (e.g. hybrid) bus or busses for use within the City's RFTA routes;
Improving the quality of storm water runoff entering the Roaring Fork River through
construction ofthe Jenny Adair Wetlands Project, and associated improvements to the
City's storm water runoff retention and sediment removal systems; Design and
construction of a new outdoor swimming pool at the Aspen Recreation Center; and,
Construction of improvements to key elements of the City's sidewalk and trail system
including Americans with Disabilities Act (ADA) improvements; and the amount of such
excess revenue available for these purposes for 2010 is calculated as $567,777 and
WHEREAS, said voter approval on November 1, 2005 established the City's
general government mil levy rate at 5.410 mils upon each dollar of the assessed valuation
on all taxable property within the city for the five year assessment period beginning in
2005 and ending in 2009, and permitting collection of property tax revenues in excess of
the mil levy limitation provided in Article X, Section 20 of the Colorado Constitution for
property tax collection years 2006 through 2010; and
WHEREAS, said mil levy is calculated to produce gross ad valorem tax proceeds
in the amount of $9,169,169 for collection year 2010; based upon the assessed valuation
as determined by the County Assessor, and
WHEREAS, voter approval on November 6, 2007 established the City's
Stormwater Fund mil levy rate at an amount not to exceed 0.650 mils upon each dollar of
assessed valuation on all taxable property within the city annually with no date of
expiration, permitting collection of property tax revenues in excess of the mil levy
limitation provided in Article X, Section 20 or the Colorado Constitution for property tax
collection in all future years beginning in 2008; and
WHEREAS, said mil levy rate is calculated to produce gross ad valorem tax
proceeds in the amount of $1,101,656 for collection yeaz 2010; based upon the net
assessed valuation of the City of Aspen as determined by the County Assessor, and
WHEREAS, the net assessed valuation of taxable property in Aspen increased
approximately 35% between 2008 and 2009 assessment yeazs, and
WHEREAS, a temporary reduction in property tax collections is desired by the
City Council in order to reduce the tax burden on owners of taxable property within the
City of Aspen while preserving the City's ability to increase property taxes to levels
previously authorized by City of Aspen voters as described above, and
WHEREAS, C.R.S. section 39-1-111.5 authorizes a local government to certify a
refund in the form of a temporary property tax credit or a temporary mil levy rate
reduction, provided that the certification includes the gross mil levy, the temporary
property tax credit or temporary mil levy rate reduction expressed in mil levy equivalents,
and the net mil levy and under C.R.S. section 39-1-111.5(4), the Assessor shall,
concurrent with delivery of tax warrants to the Treasurer, itemize duly certified
temporary property tax credits or temporary mil levy rate reductions in the manner set
forth in C.R.S. section 39-1-111.5(2), and under C.R.S. section 39-1-111.5(5) the tax
statements shall indicate by footnote which local government mil levies reflect a
temporary property tax credit or temporary mil levy rate reduction for the purpose of
effecting a refund.
SECTION 1
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF
THE CITY OF ASPEN, Colorado for the purpose of balancing the 2010 budget, and
providing a reasonable closing fund balance for said fiscal yeaz, levies the following
taxes upon each dollar of the total valuation for assessment of all taxable property within
the City of Aspen for the year 2009; that a temporary mil levy rate reduction is
authorized; and that the individual mil levies are expressed in terms of the gross mil levy,
the temporary mil levy rate reduction shown in mil levy equivalents, and the net mil levy
as shown below, which includes a temporary credit of 1.877 for the General Property Tax
mil levy and a temporary credit of 0.158 for the Stormwater Fund mil levy:
2010 Temporary 2010 Mill Levv
2010 Tax Rate Credit Rate
General Property Tax 5.410 2.212 3.198
Voter Approvedlncrease 0.335
Subtotal 5.410 1.877 3.533
StormwaterFund 0.650 0.158 0.492
Total 6.060 2.035 4.025
2009 Assessed 2010 MiIlLevy
Valuation Rate 2010PropertyTax
General Fund $1,694,855,595 2.175 $3,686,311
Asset Management Fund $1,694,855,595 1.023 $1,733,837
Voter Approvedlncrease $1,694,855,595 0.335 $567,777
Total General Mill Levy 3.533 $5,987,925
Total Stormwater Mill Levy $1,694,855,595 0.492 $833,869
Total 2010 Property Tax $6,821,794
SECTION 2
The City Clerk is hereby directed to certify and deliver this Resolution to the Board of
County Commissioners for Pitkin County on or before December 15, 2009.
ADOPTED THIS 23, day of November 2009
Michael C. Ireland, Mayor
I, KATHRYN KOCH, duly appointed and acting City Clerk of the City of Aspen,
Colorado, do hereby certify that the foregoing is a true and correct copy of the Resolution
adopted by the City Council at its meeting held on November 23, 2009, which Resolution
was adopted subsequent to public hearings on the City of Aspen's 2010 Proposed
Municipal Budget and prior to the final day established bylaw for the certification of the
tax levy to Pitkin County, all was required by the Sections 9.8 and 9.9 of the Aspen
Home Rule Charter.
Kathryn Koch, City Clerk
d.
MEMORANDUM
TO: Mayor and City Council
FROM: Don Taylor, Director of Finance
THRU: Steve Barwick, City Manager
DATE OF MEMO: November 16, 2009
MEETING DATE: November 23, 2009
~~ Refinancing of 2001 Parks and Open Space Bonds -Ordinance
#24, Series of 2009
REQUEST OF COUNCIL: To authorize issuance of refunding bonds to repay the outstanding
2001 Parks and Open Space Bonds.
PREVIOUS COUNCIL ACTION: City Council authorized the issuance of Parks and Open
Space Bonds in 2001. On October 20`h 2009, Council authorized preparation of documents to
authorize the sale of refunding bonds in order to realize no less than a 3% savings on a net
present value basis.
BACKGROUND: The coupon rates on the remaining bonds outstanding from the 2001 Parks
and Open Space bond issue are now higher than what can be achieved from issuing new bonds in
today's market. By issuing new bonds at lower interest rates in order to repay the old bonds the
City can affect savings on each of this bond issues. If the Parks and Open Space bonds were
refinanced at the interest rates that were available in late October, it would save approximately
$241,000 on a present value basis. Annual savings ranges from $20,000 to $24,000 per year.
These savings are net of al] issuance costs.
DISCUSSION: Interest rates aze very low in this current market, particularly on the short end
of the yield curve. Refinancing the outstanding 2001 Pazks and Open Space bonds will allow us
to take advantage of these rates that aze lower than what is currently stated on the existing bonds.
The ordinance that is provided authorizes the issuance of the bonds subject to meeting certain
criteria. This is referred to as a pazameters ordinance. The pazameters are specified in section 31
of the ordinance. The parameter that is of primary interest to the city is achieving net present
value savings of at least 3% of the par value or the refunded bonds. If this level of savings
cannot be achieved then the sale of the refunding bonds will not proceed.
Page I of 2
FINANCIALBUDGET IMPACTS: The Pazks and Open Space Bond refunding will produce
an annual budget savings of $20,000-24,000 per year in the Parks and Open Space Fund (100
fund).
RECOMMENDED ACTION: Staff recommends City Council approve the ordinance
authorizing the issuance of the Refunding Bonds.
ALTERNATIVES: The Council could choose to not do the refunding or to postpone the
refunding to a point in time when it thought interest rates would be lower.
PROPOSED MOTION: I move to adopt Ordinance #24 on second reading.
CITY MANAGER COMMENTS:
ATTACHMENTS:
Page 2 of 2
CERTIFIED RECORD
OF
PROCEEDINGS OF THE CITY COUNCIL
OF THE CITY OF ASPEN, COLORADO
RELATING TO AN ORDINANCE
AUTHORIZING THE ISSUANCE OF:
Up to $7,500,000
City of Aspen, Colorado
Sales Tax Revenue Refunding Bonds
Series 2009
This cover page is not a part of the following ordinance and is included solely for the
convenience of the reader.
4847-4608-8909.2
TABLE OF CONTENTS
Page
Section 1. Definitions ....................................................................................................... .......4
Section 2. Authorization and Purpose of Series 2009 Bonds .......................................... ....... 9
Section 3. Series 2009 Bond Details ................................................................................ ....... 9
Section 4. Form of Series 2009 Bonds ............................................................................. ..... 11
Section 5. Registration, Transfer and Exchange of Series 2009 Bonds ........................... ..... 11
Section 6. Replacement of Lost, Destroyed or Stolen Series 2009 Bonds ...................... ..... 11
Section 7. Execution of Series 2009 Bonds ..................................................................... ..... 12
Section 8. Redemption of Series 2009 Bonds Prior to Maturity ..................................... ..... 12
Section 9. Delivery of Series 2009 Bonds Upon Original Issuance ................................ ..... 13
Section 10. Creation and Reaffirmation of Funds and Accounts ....................................... ..... 13
Section 11. Application of Proceeds of Series 2009 Bonds ............................................... ..... 14
Section 12. Special Obligations; Pledge and Lien for Payment of Bonds ......................... ..... 14
Section 13. Conditions to Issuance of Additional Parity Bonds ........................................ ..... 15
Section 14. Application of Pledged Revenues ................................................................... ..... 17
Section 15. Bond Fund ....................................................................................................... ..... 18
Section 16. Series 2009 Reserve Fund ............................................................................... ..... 18
Section 17. Rebate Fund .................................................................................................... .....19
Section 18. Payments to and by Paying Agent .................................................................. ..... 20
Section 19. General Administration of Funds .................................................................... ..... 20
Section 20. Additional General Covenants ........................................................................ ..... 21
Section 21. Covenants Regarding Exclusion of Interest on Series 2009 Bonds from
Gross Income for Federal Income Tax Purposes ............................................ ..... 22
Section 22. Defeasance ...................................................................................................... ..... 23
Section 23. Events of Default ............................................................................................ ..... 23
Section 24. Remedies for and Duties Upon Events of Default ........................................... .... 24
Section 25. Amendment of Ordinance ................................................................................ .... 25
Section 26. Appointment and Duties of Paying Agent ....................................................... .... 25
Section 27. Provisions Relating to the Bond Insurer .......................................................... .... 26
Section 28. Parties Interested Herein .................................................................................. .... 31
Section 29. Events Occurring on Days That Are Not Business Days ................................ .... 32
Section 30. Approval of Documents and Authorization of Officers .................................. .... 32
Section 31. Findings and Determinations ........................................................................... .... 32
Section 32. Ratification of Prior Actions ............................................................................ .... 32
Section 33. Repeal of Inconsistent Resolutions; Contract with Owners of Series 2009
Bonds; Resolution hTepealable ........................................................................ .... 33
Section 34. Headings, Table of Contents and Cover Page ................................................. .... 33
Section 35. Severability ...................................................................................................... ....33
Section 36. Recordation ...................................................................................................... .... 33
Section 37. Declaration of Emergency and Effective Date ................................................ .... 33
APPENDIX A FORM OF SERIES 2009 BOND
4847-4608-8709.2
ORDINANCE NO. 24 (SERIES OF 2009)
AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY OF
ASPEN, COLORADO, OF ITS SALES TAX REVENUE REFUNDING
BONDS, SERIES 2009, IN THE AGGREGATE PRINCIPAL AMOUNT NOT
TO EXCEED $7,500,000, FOR THE PURPOSE OF ADVANCE REFUNDING
THE CITY'S SALES TAX REVENUE BONDS, SERIES 2001; PRESCRIBING
THE FORM OF THE SERIES 2009 BONDS; PROVIDING FOR THE
PAYMENT OF THE SERIES 2009 BONDS FROM THE SAME REVENUES
PLEDGED TO THE PAYMENT OF THE SERIES 2001 BONDS TO BE
REFUNDED (CONSISTING OF THE CITY'S ORIGINAL 1.0% OPEN SPACE
SALES TAX AND ITS ADDITIONAL 0.5% OPEN SPACE SALES TAX);
PROVIDING OTHER DETAILS AND APPROVING OTHER DOCUMENTS
IN CONNECTION WITH THE SERIES 2009 BONDS; DELEGATING THE
AUTHORITY TO MAKE A FINAL DETERMINATION OF CERTAIN TERMS
OF THE SERIES 2009 BONDS; DIItECTING OFFICERS OF THE CITY TO
EXECUTE CERTAIN DOCUMENTS IN CONNECTION WITH SUCH
REFUNDING BONDS; AND DECLARING AN EMERGENCY
WHEREAS, the City of Aspen (the "City"), in the County of Pitkin and State of
Colorado, is a legally and regularly created, established, organized and existing municipal
corporation under the provisions of Article XX of the Constitution of the State of Colorado and
the home rule charter of the City (as more particularly defined in Section 1 herein, the "Charter")
(all capitalized terms used and not otherwise defined in the recitals hereof shall have the meaning
assigned in Section 1 of this Ordinance); and
WHEREAS, under the Charter, the City is possessed of all powers which are necessary,
requisite or proper for the government and administration of its local and municipal matters, all
powers which are granted to home rule municipalities by the Colorado Constitution, and all
rights and powers that now or hereafter maybe granted to municipalities by the laws of the State
of Colorado; and
WHEREAS, pursuant to Section 10.6 of the Charter, the City Council of the City (the
"City Council") may authorize, by ordinance, without an election, the issuance of refunding
bonds for the purpose of refunding and providing for the payment of the City's outstanding
bonds;
WHEREAS, pursuant to the provisions of Article 56 of Title 11, Colorado Revised
Statutes, as amended (the "Refunding Act"), the City is authorized to issue refunding bonds for
the purpose of refunding, paying and discharging any part of the Series 2001 Bonds (described
below) and for one or more other purposes, including but not limited to effecting certain
economies for the City, subject to the terms, conditions and limitations in the Refunding Act; and
WHEREAS, Article X, Section 20 of the Colorado Constitution ("TABOR") provides
that voter approval in advance is required for the creation of any district (as such term is defined
in TABOR, which includes governmental entities such as the City) direct or indirect debt or
4847-4608-8709.2
other multiple-fiscal year financial obligation whatsoever except for refinancing district bonded
debt at a lower interest rate; and
WHEREAS, pursuant to the City's Ordinance No. 16, Series of 1970 (the "Original Parks
and Open Space Sales Tax Ordinance"), the City levies a one percent (1.00%) sales tax (the
"Original Parks and Open Space Sales Tax") on all sales of tangible property and services
specified in Section 23.32.090 of the City's Municipal Code for the payment of food tax refunds,
and for the acquisition of real property including open space or construction of capital
improvements for municipal purposes, or the payment of indebtedness incurred for such
acquisition or construction of capital improvements for municipal purposes, for the expenditures
necessary to protect such property against loss, damage or destruction; and
WHEREAS, receipts from the Original Parks and Open Space Sales Tax aze required by
Section 23.32.060(c)(3) of the City's Municipal Code to be set aside in a separate fund entitled
"Pazks and Open Space Fund" and expended by the City Council solely for the acquisition of
parks, trails and open space real property, for the construction of improvements on any real
property, owned or purchased by the City for parks, trails and open space purposes, for the
maintenance of real property owned by the city and used for parks, trails and open space, and for
payment of indebtedness incurred for acquisition or improvement of parks, trails and open space
real property, food tax refunds payable by the City, and for such expenditures as may be
necessary to protect real property or the improvements thereon owned by the City for pazks,
trails and open space purposes and for the payment of sales tax revenue bonds issued by the City;
and
WHEREAS, a majority of the City's qualified electors voting at the City's November 7,
2000 election approved the imposition of an additional 0.5% sales tax (as defined herein, the
"Additional Parks and Open Space Sales Tax" and, collectively with the Original Parks and
Open Space Sales Tax, the "Parks and Open Space Sales Tax") and the issuance of sales tax
revenue bonds for the purpose of buying, improving and maintaining trail, recreation and open
space properties and ancillary facilities; and
WHEREAS, the City, pursuant to Ordinance No. 7, Series of 2001 (the "Additional Pazks
and Open Space Sales Tax Ordinance" and, together with the Original Pazks and Open Space
Sales Tax Ordinance, the "Parks and Open Space Tax Ordinances"), has since Januazy 1, 2001
levied the Additional Parks and Open Space Sales Tax and, pursuant to Section 23.32.060(c)(7)
of the City's Municipal Code, deposits the revenues of the Additional Parks and Open Space
Sales Tax in the Parks and Open Space Fund; and
WHEREAS, on August 21, 2001, pursuant to Ordinance No. 29 (Series of 2001) (the
"Series 2001 Ordinance"), the City issued the City of Aspen, Colorado, Parks and Open Space
Sales Tax Revenue Bonds, Series 2001 (the "Series 2001 Bonds"), originally issued in the
aggregate principal amount of $10,780,000 and presently outstanding in the aggregate principal
amount of $7,640,000, for the purpose of providing funds for buying, improving and maintaining
trail, recreation and open space properties and ancillary facilities; and
WHEREAS, on March 24, 2005, pursuant to its Ordinance No. 19 (Series of 2005) (the
"Series 2005 Ordinance"), the City issued the City of Aspen, Colorado, Sales Tax Revenue
4847-4608-8709.2 2
Refunding Bonds, Series 2005 (the "Series 2005 Bonds"), originally issued in the aggregate
principal amount of $12,380,000 and presently outstanding in the aggregate principal amount of
$7,907,475, for the purpose of refunding the City's Sales Tax Revenue Bonds, Series 1999; and
WHEREAS, on October 12, 2005, pursuant to its Ordinance No. 42 (Series of 2005) (the
"Series 2005B Ordinance"), the City issued the City of Aspen, Colorado, Sales Tax Revenue
Bonds, Series 2005B (the "Series 2005B Bonds"), originally issued in the aggregate principal
amount of $14,900,000 and presently outstanding in the aggregate principal amount of
$14,500,000, for the purpose of buying, improving and maintaining trail, recreation and open
space properties and ancillary facilities; and
WHEREAS, the net revenues of the Parks and Open Space Sales Tax aze pledged to the
payment of the principal of and interest on the Series 2001 Bonds, the Series 2005 Bonds and the
Series 2005B Bonds pursuant to the Series 2001 Ordinance, the Series 2005 Ordinance and the
Series 2005B Ordinance, respectively; and
WHEREAS, the Series 2001 Bonds maturing on or before November 1, 2011 are not
subject to redemption prior to their respective maturities, and the Series 2001 Bonds maturing on
and after November 1, 2012 are subject to redemption prior to their maturity, at the option of the
City, on November 1, 2011 at a redemption price equal to the principal amount of the bonds so
redeemed, plus accrued interest to the redemption date; and
WHEREAS, the City Council of the City has determined that it is in the best interests of
the City to refund the portion of the Series 2001 Bonds maturing on and after November 1, 2012
(the "Refunded Bonds"), presently outstanding in the aggregate principal amount of $6,640,000,
and for the purpose of refunding the Refunded Bonds at a lower interest rate, acquiring a reserve
fund surety bond and to fund costs of issuance, to issue the City of Aspen, Colorado, Sales Tax
Revenue Refunding Bonds, Series 2009 (the "Series 2009 Bonds") in the aggregate principal
amount of up to $7,500,000; and
WHEREAS, the principal amount of the Series 2009 Bonds is expected to exceed the
principal amount of the Refunded Bonds, however, in accordance with Section 11-56-107,
C.R.S., the principal amount of the Series 2009 Bonds, when combined with the Series 2001
Bonds outstanding principal amount which is not being refunded ($1,000,000) will not exceed
the total original authorized principal amount of the Series 2001 Bonds; and
WHEREAS, the Series 2009 Bonds will be secured by a lien on the Parks and Open
Space Sales Tax revenue on parity with the lien thereon of the Series 2001 Bonds, the Series
2005 Bonds and the Series 2005B Bonds; and
WHEREAS, a portion of the proceeds derived from the sale of the Series 2009 Bonds
shall be deposited in the Escrow Account solely for payment of the Refunded Bonds and shall be
applied by the Escrow Agent to refund, pay and discharge the Refunded Bonds as shall be more
particulazly set forth in the Escrow Agreement and the Sale Certificate; and
WHEREAS, the City Council has been presented with a proposal from Stifel Nicolaus &
Company, Incorporated, of Denver, Colorado, to purchase the Series 2009 Bonds upon specified
terms and conditions, the final terms and conditions of which aze to be set forth in the Bond
4847-4608-8709.2 3
Purchase Agreement in accordance with the Sale Certificate, and, after consideration, the City
Council has determined that the negotiated sale of the Series 2009 Bonds, subject to the
parameters set forth herein, to said company is to the best advantage of the City; and
WHEREAS, no member of the City Council has a potential conflict of interest in
connection with the authorization, issuance, sale or use of proceeds of the Series 2009 Bonds;
and
WHEREAS, pursuant to Section 4.11 of the Charter, the City is authorized to adopt
emergency ordinances for the preservation of public property, health, peace, or safety; and
WHEREAS, there is a need for issuing the Series 2009 Bonds in a timely manner in order
to take advantage of existing mazket conditions and obtain the greatest savings to the City's
inhabitants, thus freeing up City revenues which can be used for the purposes of preserving
public property, health, peace and safety; and
WHEREAS, this Ordinance is being adopted to authorize the issuance, sale and delivery
of the Series 2009 Bonds, to provide for the payment of the Series 2009 Bonds and to provide
the details of the Series 2009 Bonds; and
WHEREAS, there has been presented to the City Council, among other things,
substantially final forms of (a) the Preliminary Official Statement, (b) Paying Agent Agreement,
(c) the Bond Purchase Agreement (subject to completion in accordance with the terms of the
Sale Certificate), (d) the Escrow Agreement, and (e) the Continuing Disclosure Undertaking; and
WHEREAS, subject to the Series 2009 Bonds effecting a savings as set forth in this
Ordinance, the City Council desires, as provided in the Supplemental Public Securities Act,
Part 2 of Article 57 of Title 11 of the Colorado Revised Statutes, as amended, to delegate the
authority to the City Manager, or in the City Manager's absence, the Finance Director, to
determine certain provisions of the Series 2009 Bonds to be set forth in the Sale Certificate, in
accordance with the provisions of this Ordinance; and
WHEREAS, the City Council also desires to delegate the authority to the City Manager,
or in the City Manager's absence, the Finance Director to determine whether it is economically
beneficial to obtain a financial guaranty insurance policy insuring the payment of the Series 2009
Bonds and, if so determined, to confirm that Assured Guaranty Corp. shall be, or otherwise
identify, the Bond Insurer and execute the Commitment; to determine whether a surety bond is to
be obtained to secure payments on the Series 2009 Bonds, and to execute and deliver the Bond
Purchase Agreement and approve certain terms thereof, all in accordance with the provisions of
this Ordinance;
NOW, THEREFORE, BE IT ORDAINED by the City Council of City of Aspen,
Colorado:
Section 1. Definitions. The following terms shall have the following meanings as used
in this Ordinance:
asap-aeon-a~o9.z 4
"Additional Parks and Open Space Sales Tax" means the 0.5% sales tax that is levied in
addition to the Original Parks and Open Space Sales Tax by the City pursuant to the authority
granted by the Ballot Question, the Additional Parks and Open Space Sales Tax Ordinance and
Section 23.32.060(c)(7) of the City's Municipal Code;
"Additional Parity Bonds" means any bonds or other obligations (which may or may not
be multiple-fiscal year financial obligations) permitted to be issued pursuant to Section 13 hereof
with a lien that is equal and on a panty with the lien of the Series 2001 Bonds, the Series 2005
Bonds, the Series 2005B Bonds and the Series 2009 Bonds on the Pledged Revenues, the Bond
Fund and the Revenue Fund.
"Ballot Question" means the ballot question approved by City voters on November 7,
2000 authorizing the Additional Parks and Open Space Sales Tax.
"Bond Counsel" means (a) as of the date of issuance of the Series 2009 Bonds, Kutak
Rock LLP, and (b) as of any other date, Kutak Rock LLP or such other attorneys selected by the
City with nationally recognized expertise in the issuance of municipal bonds.
"Bond Fund" means the "City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds Bond Fund" which fund is reaffirmed as such in Section 10(b) hereof.
"Bond Insurance Policy" means the municipal bond insurance policy, if any, issued by
the Bond Insurer insuring the payment when due of the principal of and interest on the Series
2009 Bonds as provided therein.
thereto.
"Bond Insurer" means the entity, if any, set forth in the Sale Certificate, or any successor
"Bond Purchase Agreement" means the agreement between the City and the Underwriter
concerning the purchase of the Bonds by the Underwriter.
"Bonds" means, collectively, the Series 2001 Bonds, the Series 2005 Bonds, the Series
2005B Bonds, the Series 2009 Bonds and any Additional Parity Bonds.
"Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in the State are authorized or obligated by law or executive order to be
closed for business.
"Charter" means the Charter of the City of Aspen, adopted June 16, 1970, as amended.
"City" means the City of Aspen, Colorado, and any successor thereto.
"City Council" means the City Council of the City, and any successor body.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder and applicable to the Series 2009 Bonds or the use of proceeds
thereof, unless the context clearly requires otherwise.
4847-4608-8709.2 5
"Commitment" means, collectively, those certain offers, if any, to issue the Bond
Insurance Policy, designated as the Commitment, issued by the Bond Insurer.
"Defeasance Securities" means Permitted Investments that are bills, certificates of
indebtedness, notes, bonds or similaz securities which aze direct non-callable obligations of the
United States of America or which are fully and unconditionally guaranteed as to the timely
payment of principal and interest by the United States of America.
"Escrow Account" means the special account designated "Sales Tax Revenue Refunding
Bonds, Series 2009, Escrow Account" to be maintained by the Escrow Agent in accordance with
the Escrow Agreement and the provisions hereof entitled "Escrow Account."
"Escrow Agent" means Wells Fazgo Bank, National Association, Denver, Colorado, in
its capacity as escrow agent under the Escrow Agreement, its successors and assigns.
"Escrow Agreement" means the Refunding Escrow Agreement between the City and the
Escrow Agent, relating to the deposit of funds thereunder for the purpose of defeasing the
Refunded Bonds.
"Event of Default" means any of the events specified in Section 24 hereof.
"Interest Payment Date" means any date on which a payment of principal of, premium,
if any, or interest on the Bonds is due pursuant to Section 3(c) hereof.
"Letter of Instructions" means the Letter of Instructions, dated the date of issuance of the
Series 2009 Bonds, delivered by Bond Counsel to the City, as it maybe superseded or amended
in accordance with its terms.
"Moody's" means Moody's Investor Service and its successors.
"Ordinance" means this Ordinance, which authorizes the issuance of the Series 2009
Bonds, including any amendments or supplements hereto.
"Original Parks and Open Space Sales Tax" means the 1.0% Open Space Sales Tax
levied by the City pursuant to the Original Parks and Open Space Sales Tax Ordinance.
"Original Parks and Open Space Sales Tax Ordinance" means the City's Ordinance No.
16, Series of 1970.
"Outstanding" means, as of any date, all Bonds, except the following:
(a) any Bond cancelled by the City or the Paying Agent, or otherwise on the
City's behalf, at or before such date;
(b) any Bond held by or on behalf of the City;
(c) any Bond for the payment or the redemption of which moneys or
Defeasance Securities sufficient to meet all of the payment requirements of the principal
4847-4608-8709.2 6
of, interest on, and any premium due in connection with the redemption of such Bond to
the date of maturity or any redemption date thereof, shall have theretofore been deposited
in trust for such purpose in accordance with Section 23 hereof; and
(d) any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in
substitution for which another bond or other security shall have been executed and
delivered.
"Owner" means the Person or Persons in whose name or names a Series 2009 Bond is
registered on the registration books maintained by the Paying Agent pursuant hereto.
"Parks and Open Space Fund" means the City's Parks and Open Space Fund maintained
by the City pursuant to Section 23.32.060(c)(3) of the City's Municipal Code.
"Parks and Open Space Sales Tax" means, collectively, the Original Parks and Open
Space Sales Tax and the Additional Parks and Open Space Sales Tax.
"Parks and Open Space Sales Tax Ordinances" means, collectively the Original Parks
and Open Space Sales Tax Ordinance and the Additional Parks and Open Space Sales Tax
Ordinance.
"Paying Agent" means Wells Fargo Bank, National Association, and its successors in
interest or assigns approved by the City.
"Permitted Investments" means any investment which is permitted for investment of City
Funds by the Charter and all other applicable laws which are included on the following list:
(a) Cash (insured at all times by the Federal Deposit Insurance Corporation);
(b) Direct obligations of (including obligations issued or held in book entry
form on the books of) the Department of the Treasury of the United States of America;
(c) obligations of any of the following federal agencies which obligations
represent full faith and credit of the United States of America, including:
- Export -Import Bank
- Rural Economic Community Development Administration
- U.S. Maritime Administration
- Small Business Administration
- U.S. Department of Housing & Urban Development (PHA's)
- Federal Housing Administration
- Federal Financing Bank;
4847-4608-87092 7
(d) direct obligations of any of the following federal agencies which
obligations are not fully guaranteed by the full faith and credit of the United States of
America: senior debt obligations issued by the Federal National Mortgage Association
(FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC); obligations of the
Resolution Funding Corporation (REFCORP); senior debt obligations of the Federal
Home Loan Bank System; and senior debt obligations of other Government Sponsored
Agencies approved by Ambac;
(e) U.S. dollar denominated deposit accounts, federal funds and banker's
acceptances with domestic commercial banks which have a rating on their short-term
certificates of deposit on the date of purchase of "A 1" or "A l+" by S&P and "P 1" by
Moody's and maturing no more than 360 days after the date of purchase, where ratings
on holding companies are not considered as the rating of the bank;
(f) commercial paper which is rated at the time of purchase in the single
highest classification, "A 1+" by S&P and "P 1" by Moody's, and which matures not
more than 270 days after the date of purchase;
(g) investments in a money mazket fund rated "AAAm" or "AAAm-G" or
better by S&P;
(h) pre-refunded municipal obligations defined as follows:
Any bonds or other obligations of any state of the United States of America or of any
agency, instrumentality or local governmental unit of any such state which are not
callable at the option of the obligor prior to maturity or as to which irrevocable
instructions have been given by the obligor to call on the date specified in the notice; and
(i) which aze rated, based on an irrevocable escrow account or fund (the "escrow"), in the
highest rating category of S&P and Moody's or any successors thereto; or (ii)(A) which
aze fully secured as to principal and interest and redemption premium, if any, by an
escrow consisting only of cash or obligations described in paragraph (a) above, which
escrow may be applied only to the payment of such principal of and interest and
redemption premium, if any, on such bonds or other obligations on the maturity date or
dates thereof or the specified redemption date or dates pursuant to such irrevocable
instructions, as appropriate; and (B) which escrow is sufficient, as verified by a nationally
recognized independent certified public accountant, to pay principal of and interest and
redemption premium, if any, on the bonds or other obligations described in this paragraph
on the maturity date or dates thereof or on the redemption date or dates specified in the
irrevocable instructions referred to above, as appropriate;
(i) municipal obligations rated "Aaa/AAA", or general obligations of states
with a rating of at least "A2/A", or higher by both Moody's and S&P; and
(j) investment agreements and other forms of investments approved in
writing by the Bond Insurer.
4847-4608-8709.2 $
"Person" means a corporation, firm, other body corporate, partnership, association or
individual and also includes an executor, administrator, trustee, receiver or other representative
appointed according to law.
"Pledged Revenues" means, for each fiscal year, all of the proceeds of the Parks and
Open Space Sales Tax after deduction of the reasonable and necessary costs and expenses of
collecting and enforcing the Parks and Open Space Sales Tax, if any.
"Rebate Fund" means the City of Aspen, Colorado, Sales Tax Revenue Refunding
Bonds, Series 2009, Rebate Fund created in Section 10 hereof.
"Refunded Bond Requirements" means the principal, redemption premium, if any, and
interest due in connection with the Refunded Bonds, at maturity or upon prior redemption, as set
forth in the Escrow Agreement.
"Refunded Bonds" means the Series 2001 Bonds maturing on and after November 1,
2012.
"Refunding Act" means the Public Securities Refunding Act codified in Article 56 of
Title 11, Colorado Revised Statutes, as amended.
"Reserve Fund" means, as the context requires, any one or more of the Series 2001
Reserve Fund, the Series 2005 Reserve Fund, the Series 2005B Reserve Fund, the Series 2009
Reserve Fund, and/or any reserve fund or funds established for Additional Parity Bonds.
"Reserve Fund Contract" has the meaning specified in Section 16(c)(i) hereof.
"Reserve Fund Requirement" means, as of any date on which it is calculated, with respect
to each series of Bonds, the least of (a) 10% of the principal amount of such series of Bonds,
(b) the maximum annual debt service in any calendar year on the Outstanding Bonds of such
series or (c) 125% of the average annual debt service on the Bonds of such series; provided,
however, that the Reserve Fund Requirement may be reduced if, in the opinion of Bond Counsel,
the funding or maintenance of it at the level otherwise determined pursuant to this definition will
adversely affect the exclusion from gross income tax for federal income tax purposes of interest
on any of the Bonds.
"Revenue Fund" means the "City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds Revenue Fund" which fund is reaffirmed as such pursuant to Section 10(b)
hereof.
"Sale Certificate" means the certificate executed by the Sale Delegate under the
authority delegated pursuant to this Ordinance, which sets forth, among other things, the prices at
which the Bonds will be sold, the delivery date of the Bonds, interest rates and annual maturing
principal for the Bonds, as well as the dates on which the Bonds may be redeemed and the
redemption prices therefor, the identity of the Bond Insurer (if any), additional provisions
required by the Bond Insurer, including terms of the Commitment, and details regarding any
Series 2009 Surety Bond.
4847-4608-87092 9
"Sale Delegate" means the City Manager or, in the City Manager's absence, the Finance
Director.
"S&P" means Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc., and its successors.
"Series 1999 Ordinance" means the City's Ordinance No. 31, Series of 1999, pursuant to
which the City of Aspen, Colorado, Sales Tax Revenue Bonds, Series 1999 were issued (all of
which were subsequently advance refunded with proceeds of the Series 2005 Bonds).
"Series 2001 Bonds" means the City of Aspen, Colorado, Open Space Sales Tax
Revenue Bonds, Series 2001, authorized pursuant to the Series 2001 Ordinance.
"Series 2001 Ordinance" means the City's Ordinance No. 29, Series of 2001, pursuant to
which the Series 2001 Bonds were issued.
"Series 2001 Reserve Fund" means the Reserve Fund established for the Series 2001
Bonds pursuant to the Series 2001 Ordinance.
"Series 2005 Reserve Fund" means the Reserve Fund established for the Series 2005
Bonds pursuant to the Series 2005 Ordinance.
"Series 2005E Reserve Fund" means the Reserve Fund established for the Series 2005B
Bonds pursuant to the Series 2005B Ordinance.
"Series 2009 Reserve Fund" means the City of Aspen, Colorado, Sales Tax Revenue
Refunding Bonds, Series 2009, Reserve Fund created in Section 10(a)(ii) hereof.
"Series 2009 Reserve Policy Agreement" means the reserve policy agreement, if any,
with respect to the Series 2009 Bonds and the Series 2009 Surety Bond, between the City and the
Bond Insurer.
"Series 2009 Surety Bond" means the Reserve Fund Contract, if any, issued by the Bond
Insurer guaranteeing certain payments from the Series 2009 Reserve Fund with respect to the
Series 2009 Bonds.
"State" means the State of Colorado.
"Supplemental Act" means the Supplemental Public Securities Act codified in Part 2 of
Article 57 of Title 11, Colorado Revised Statutes, as amended.
"Underwriter" means Stifel Nicolaus & Company, Incorporated, the original purchaser
of the Bonds.
Section 2. Authorization and Purpose of Series 2009 Bonds. Pursuant to and in
accordance with the Constitution of the State, the Charter, the Supplemental Act and the
Refunding Act, the City hereby authorizes, and directs that there shall be issued, the "City of
Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2009" in the aggregate principal
4847-4608-8709.2 10
amount set forth in the Sale Certificate (the "Series 2009 Bonds") for the purpose of refunding
the Refunded Bonds, purchasing the Series 2009 Surety Bond (if any) or otherwise funding the
Series 2009 Reserve Fund, and paying the costs of issuance of the Series 2009 Bonds.
Section 3. Series 2009 Bond Details.
(a) Registered Form, Denominations, Original Dated Date and Numbering.
The Series 2009 Bonds shall be issued as fully registered bonds in the denominations set
forth in the Sale Certificate, shall be dated as of the date set forth in the Sale Certificate,
shall be consecutively numbered in the manner determined by the Paying Agent and shall
be registered in the names of the Persons identified in the registration books of the City
maintained by the Paying Agent.
(b) Maturity Dates, Principal Amounts and Interest Rates. The Series 2009
Bonds shall mature on November 1 of the years and in the principal amounts, and shall
bear interest at the rates per annum (calculated based on a 360-day year of twelve 30-day
months) set forth in the Sale Certificate.
(c) Accrual and Dates of Payment of Interest. Interest on the Series 2009
Bonds shall accrue at the rates set forth in the Sale Certificate from the later of the
original dated date or the latest interest payment date (or in the case of defaulted interest,
the latest date) to which interest has been paid in full and shall be payable on May 1 and
November 1 of each year, commencing on the date set forth in the Sale Certificate.
(d) Manner and Form of Payment. Principal of, premium, if any, and the
final installment of interest on each Series 2009 Bond shall be payable to the Owner
thereof upon presentation and surrender of such bond at the principal office of the Paying
Agent in the city identified in the definition of Paying Agent in Section 1 hereof. Interest
(other than the final installment of interest) on each Series 2009 Bond shall be payable by
check or draft of the Paying Agent mailed on the interest payment date to the Owner
thereof as of the close of business on the fifteenth day (whether or not such day is a
Business Day) of the month preceding the month in which the Interest Payment Date
occurs. All payments of the principal of, premium, if any, and interest on the Series 2009
Bonds shall be made in lawful money of the United States of America.
(e) Book-Entry Registration. Notwithstanding any other provision hereof,
the Series 2009 Bonds shall be delivered only in book-entry form registered in the name
of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, New
York, acting as securities depository of the Series 2009 Bonds and principal of, premium,
if any, and interest on the Series 2009 Bonds shall be paid by wire transfer to DTC;
provided, however, if at any time the Paying Agent determines, and notifies the City of
its determination, that DTC is no longer able to act as, or is no longer satisfactorily
performing its duties as, securities depository for the Series 2009 Bonds, the Paying
Agent may, at its discretion, either (i) designate a substitute securities depository for DTC
and reregister the Series 2009 Bonds as directed by such substitute securities depository
or (ii) terminate the book-entry registration system and reregister the Series 2009 Bonds
in the names of the beneficial owners thereof provided to it by DTC. Neither the City nor
4847-4608-8709.2 1 1
the Paying Agent shall have any liability to DTC, Cede & Co., any substitute securities
depository, any Person in whose name the Series 2009 Bonds are reregistered at the
direction of any substitute securities depository, any beneficial owner of the Series 2009
Bonds or any other Person for (A) any determination made by the Paying Agent pursuant
to the proviso at the end of the immediately preceding sentence or (B) any action taken to
implement such determination and the procedures related thereto that is taken pursuant to
any direction of or in reliance on any information provided by DTC, Cede & Co., any
substitute securities depository or any Person in whose name the Series 2009 Bonds aze
reregistered.
Section 4. Form of Series 2009 Bonds. The Series 2009 Bonds shall be in substantially
the form set forth in Appendix A hereto, with such changes thereto, not inconsistent herewith, as
may be necessary or desirable and approved by the officials of the City executing the same
(whose manual or facsimile signatures thereon shall constitute conclusive evidence of such
approval). Although attached as an appendix for the convenience of the reader, Appendix A is
an integral part of this Ordinance and is incorporated herein as if set forth in full in the body of
this Ordinance.
Section 5. Registration, Transfer and Exchange of Series 2009 Bonds. The Paying
Agent shall maintain. registration books in which the ownership, transfer and exchange of Series
2009 Bonds shall be recorded. The Person in whose name any Series 2009 Bond shall be
registered on such registration books shall be deemed to be the absolute owner thereof for all
purposes, whether or not payment on any Series 2009 Bond shall be overdue, and neither the
City nor the Paying Agent shall be affected by any notice or other information to the contrary.
The Series 2009 Bonds may be transferred or exchanged, at the principal office of the Paying
Agent in the city identified in the definition of Paying Agent in Section 1 hereof, for a like
aggregate principal amount of Series 2009 Bonds of other authorized denominations of the same
maturity and interest rate, upon payment by the transferee of a transfer fee, any tax or
governmental charge required to be paid with respect to such transfer or exchange and any cost
of printing bonds in connection therewith. Upon surrender for transfer of any Series 2009 Bond,
duly endorsed for transfer or accompanied by an assignment duly executed by the Owner or his
or her attorney duly authorized in writing, the City shall execute and the Paying Agent shall
authenticate and deliver in the name of the transferee a new Series 2009 Bond.
Section 6. Replacement of Lost, Destroyed or Stolen Series 2009 Bonds. If any
Series 2009 Bond shall become lost, apparently destroyed, stolen or wrongfully taken, it maybe
replaced in the form and tenor of the lost, destroyed, stolen or taken bond and the City shall
execute and the Paying Agent shall authenticate and deliver a replacement Series 2009 Bond
upon the Owner furnishing, to the satisfaction of the Paying Agent: (a) proof of ownership
(which shall be shown by the registration books of the Paying Agent), (b) proof of loss,
destruction or theft, (c) an indemnity to the City and the Paying Agent with respect to the Series
2009 Bond lost, destroyed or taken, and (d) payment of the cost of preparing and executing the
new bond or bonds.
Section 7. Execution of Series 2009 Bonds. The Series 2009 Bonds shall be executed
in the name and on behalf of the City with the manual or facsimile signature of the Mayor or
Mayor Pro Tem of the City, shall bear a manual or facsimile of the seal of the City and shall be
4847-4608-8709.2 12
attested by the manual or facsimile signature of the City Clerk or Deputy or Assistant City Clerk,
all of whom are hereby authorized and directed to prepare and execute the Series 2009 Bonds in
accordance with the requirements hereof. Should any officer whose manual or facsimile
signature appears on the Series 2009 Bonds cease to be such officer before delivery of any Series
2009 Bond, such manual or facsimile signature shall nevertheless be valid and sufficient for all
purposes. When the Series 2009 Bonds have been duly executed, the officers of the City are
authorized to, and shall, deliver the Series 2009 Bonds to the Paying Agent for authentication.
No Series 2009 Bond shall be secured by or entitled to the benefit of this Ordinance, or shall be
valid or obligatory for any purpose, unless the certificate of authentication of the Paying Agent
has been manually executed by an authorized signatory of the Paying Agent. The executed
certificate of authentication of the Paying Agent upon any Series 2009 Bond shall be conclusive
evidence, and the only competent evidence, that such Series 2009 Bond has been properly
authenticated and delivered hereunder.
Section 8. Redemption of Series 2009 Bonds Prior to Maturity.
(a) Optional Redemption. The Series 2009 Bonds shall be subject to
redemption at the option of the City, in whole or in part, and if in part in such order of
maturities as the City shall determine and by lot within a maturity on such dates and at
such prices (but not in excess of 101% of the principal amount redeemed) as set forth in
the Sale Certificate.
(b) Mandatory Sinking Fund Redemption. The Series 2009 Bonds shall be
subject to mandatory sinking fund redemption by lot on November 1 of the yeazs and in
the principal amounts specified in the Sale Certificate, at a redemption price equal to the
principal amount to be redeemed (with no redemption premium), plus accrued interest to
the redemption date.
If the Sale Certificate designates mandatory sinking fund redemption dates for the
Series 2009 Bonds, the City, at its option, to be exercised on or before the forty-fifth day
next preceding each sinking fund redemption date, may (i) purchase and cancel any
Series 2009 Bonds with the same maturity date as the Series 2009 Bonds subject to such
sinking fund redemption and (ii) receive a credit in respect of its sinking fund redemption
obligation for any Series 2009 Bonds with the same maturity date as the Series 2009
Bonds subject to such sinking fund redemption which prior to such date have been
redeemed (otherwise than through the operation of the sinking fund) and cancelled and
not theretofore applied as a credit against any sinking fund redemption obligation. Each
Series 2009 Bond so purchased and cancelled or previously redeemed shall be credited at
the principal amount thereof to the obligation of the City on such sinking fund
redemption date, and the principal amount of Series 2009 Bonds to be redeemed by
operation of such sinking fund on such date shall be accordingly reduced.
(c) Redemption Procedures. Notice of any redemption of Series 2009 Bonds
shall be given by sending a copy of such notice by first-class, postage prepaid mail, not
less than 30 days prior to the redemption date, to the Owner of each Series 2009 Bond
being redeemed. Such notice shall specify the number or numbers of the Series 2009
Bonds so to be redeemed (if redemption shall be in part) and the redemption date. If any
4847-4608-8709.2 13
Series 2009 Bond shall have been duly called for redemption and if, on or before the
redemption date, the City shall have set aside funds sufficient to pay the redemption price
of such Series 2009 Bond on the redemption date, then such Series 2009 Bond shall
become due and payable at such redemption date, and from and after such date interest
will cease to accrue thereon. Failure to deliver any redemption notice or any defect in
any redemption notice shall not affect the validity of the proceeding for the redemption of
Series 2009 Bonds with respect to which such failure or defect did not occur. Any Series
2009 Bond redeemed prior to its maturity by prior redemption or otherwise shall not be
reissued and shall be cancelled.
Section 9. Delivery of Series 2009 Bonds Upon Original Issuance. Prior to the
authentication and delivery by the Paying Agent of the Series 2009 Bonds in connection with
their original issuance there shall be filed with the Paying Agent (a) a certified copy of this
Ordinance and (b) a request and authorization to the Paying Agent on behalf of the City and
signed by the Mayor or Mayor Pro Tem to authenticate the Series 2009 Bonds and to deliver the
Series 2009 Bonds to the Underwriter or the Persons designated therein, upon payment to the
City of a sum specified in such request and authorization plus accrued interest thereon to the date
of delivery. Upon the authentication of the Series 2009 Bonds, the Paying Agent shall deliver
the same to the Underwriter or its designee as directed in such request and authorization.
Section 10. Creation and Reaffirmation of Funds and Accounts.
(a) There is hereby created by the City the following funds and accounts:
(i) the Series 2009 Rebate Fund, designated as the "City of Aspen,
Colorado, Sales Tax Revenue Refunding Bonds, Series 2009, Rebate Fund;" and
(ii) the Series 2009 Reserve Fund, designated as the "City of Aspen,
Colorado, Sales Tax Revenue Refunding Bonds, Series 2009, Reserve Fund."
(b) The following funds, originally created pursuant to Section 13 of the
Series 1999 Ordinance and renamed pursuant to Section 10(b) of the Series 2001
Ordinance, are hereby reaffirmed as follows:
(i) the Bond Fund is hereby reaffirmed as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Bond Fund;" and
(ii) the Revenue Fund is hereby reaffirmed as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Revenue Fund."
Section 11. Application of Proceeds of Series 2009 Bonds. The proceeds received by
the City from the sale of the Series 2009 Bonds shall be applied generally as set forth below, and
as more particularly provided in the Sale Certificate:
(a) to the Escrow Account, proceeds of the Series 2009 Bonds which are
sufficient to pay the Refunded Bond Requirements in accordance with the Escrow
Agreement; and
4847-4608-8709.2 14
(b) to fund the Series 2009 Reserve Fund or to pay for the Series 2009 Surety
Bond (as determined by the Sale Delegate and set forth in the Sale Certificate); and
(c) the remainder shall be separately accounted for by the City to pay the
costs of issuing the Series 2009 Bonds, including any premium due with respect to a
Bond Insurance Policy (if any).
Section 12. Special Obligations; Pledge and Lien for Payment of Bonds.
(a) Series 2009 Bonds. The City hereby pledges the Pledged Revenues, the
Bond Fund, the Series 2009 Reserve Fund and the Revenue Fund for the payment of the
principal of, premium, if any, and interest on the Series 2009 Bonds at any time
Outstanding, and grants an irrevocable and first lien for such purpose on the Pledged
Revenues, the Bond Fund, the Series 2009 Reserve Fund and the Revenue Fund.
(b) Series 2005E Bonds. The City hereby pledges the Pledged Revenues, the
Bond Fund, the Series 20058 Reserve Fund and the Revenue Fund for the payment of the
principal of, premium, if any, and interest on the Series 20058 Bonds at any time
Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive
such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2005E
Reserve Fund and the Revenue Fund. The lien of the Series 20058 Bonds on the Pledged
Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series
2001 Bonds, the Series 2005 Bonds, the Series 2009 Bonds and any Additional Parity
Bonds.
(c) Series 2005 Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2005 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2005 Bonds at
any time Outstanding, and grants an irrevocable and first lien (but not necessarily an
exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the
Series 2005 Reserve Fund and the Revenue Fund. The lien of the Series 2005 Bonds on
the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of
the Series 2001 Bonds, the Series 20058 Bonds, the Series 2009 Bonds and any
Additional Parity Bonds.
(d) Series 2001 Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2001 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2001 Bonds at
any time Outstanding, and grants an irrevocable and first lien (but not necessarily an
exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the
Series 2001 Reserve Fund and the Revenue Fund. The lien of the Series 2001 Bonds on
the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of
the Series 2005 Bonds, the Series 2005E Bonds, the Series 2009 Bonds and any
Additional Parity Bonds.
(e) Additional Parity Bonds. Subject to Section 13 hereof, the City also
hereby pledges the Pledged Revenues, the Bond Fund and the Revenue Fund for the
aaa~-aeos-s~o9.z 15
payment of the principal of, premium, if any, and interest on any Additional Parity Bonds
at any time Outstanding, and grants an irrevocable and first lien for such purpose on the
Pledged Revenues, the Bond Fund and the Revenue Fund.
(f) Equally and Ratably Secured. The Bonds shall be equally and ratably
secured by the pledge of and lien on the Pledged Revenues, the Bond Fund and the
Revenue Fund granted by this Section and shall not be entitled to any priority one over
the other in the application of Pledged Revenues or the moneys on deposit at any time in
the Bond Fund and the Revenue Fund.
(g) Superior Liens Prohibited. The City shall not pledge or create any other
lien on the revenues and moneys pledged pursuant to this Section that is superior to the
pledge thereof or lien thereon pursuant hereto.
(h) Subordinate Liens Permitted. Nothing herein shall prohibit the City from
pledging or creating a lien on the revenues and moneys pledged and the lien created
pursuant to subsections (a), (b) and (c) of this Section that is subordinate to the pledge
thereof or lien thereon pursuant to such subsections, provided that no such subordinate
pledge or lien shall be created unless and until there is delivered to the Paying Agent a
written certification by the Mayor that no Event of Default has occurred and is
continuing.
(i) No Prohibition on Additional Security. Nothing herein shall prohibit the
City from (i) using, pledging or granting a lien on any revenues from the Parks and Open
Space Sales Tax that aze not Pledged Revenues or any other moneys for the payment of
the principal of, premium, if any, or interest on the Bonds or (ii) depositing any revenues
from the Parks and Open Space Sales Tax that aze not Pledged Revenues or any other
moneys into the Bond Fund or the Revenue Fund (and thereby subjecting the moneys so
deposited to the pledge made and lien granted by this Section).
(j) Bonds are Special, Limited Obligations of the City. The Bonds are
special, limited obligations of the City payable solely from and secured solely by the
Pledged Revenues and the other sources specified in this Ordinance and shall not be
deemed or construed as creating a debt or indebtedness of the City within the meaning of
any constitutional or statutory limitation.
Section 13. Conditions to Issuance of Additional Parity Bonds. So long as any Bonds
maybe Outstanding:
(a) Limitations Upon Issuance of Additional Parity Bonds. Nothing in this
Ordinance shall be construed to prevent the issuance by the City of Additional Parity
Bonds (including refunding obligations) payable in whole or in part from the Pledged
Revenues (or any designated part thereof) and constituting a lien thereon on a parity with,
but not prior or superior to, the lien of the Series 2009 Bonds, the Series 2005B Bonds,
the Series 2005 Bonds, the Series 2001 Bonds and any previously issued Additional
Parity Bonds; provided, however, that before any such Additional Parity Bonds are
authorized or actually issued:
4847-4608-8709.2 16
(i) The City is then current in all payments required to have been
accumulated in the Bond Fund, the Series 2009 Reserve Fund, the Series 2005B
Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and
any reserve fund maintained with respect to any then Outstanding series of
Additional Parity Bonds, and there is not otherwise an Event of Default as defined
in Section 24 hereof.
(ii) The revenues derived from the entire Pledged Revenues for the
twelve consecutive calendar months immediately preceding the month of issuance
of such Additional Parity Bonds shall have been sufficient to pay an amount equal
to 150% of the combined maximum annual principal and interest requirements (to
and including the final maturity of each then-Outstanding series of Bonds) on the
then-Outstanding Bonds and on the Additional Parity Bonds then proposed to be
issued (including any reserve requirements therefor).
(iii) The ordinance authorizing such Additional Parity Bonds shall
require that a reserve fund for Additional Parity Bonds be created in an amount
equal to the Reserve Fund Requirement for such Additional Parity Bonds. The
City may, however, comply with the Reserve Fund Requirement through a
Reserve Fund Contract that meets the standards established in Section 16 hereof.
(b) Certificate of Revenues. A written certification by a certified public
accountant who is not a regular salaried employee of the City that such Pledged Revenues
are sufficient to pay the amounts required by paragraph (a)(ii) of this Section shall be
conclusively presumed to be accurate in determining the right of the City to authorize,
issue, sell and deliver Additional Parity Bonds.
(c) Subordinate Obligations Permitted. Nothing in this Ordinance shall be
construed to prevent the issuance by the City of additional obligations (including
refunding obligations) payable from the Pledged Revenues (or any designated part
thereof) and having a lien thereon subordinate or junior to the lien of the Bonds.
(d) Superior Obligations Prohibited. Nothing in this Ordinance shall be
construed to permit the City to issue additional obligations (including refunding
obligations) payable from the Pledged Revenues (or any designated part thereof) having a
lien thereon prior and superior to the lien of the Bonds.
(e) Refunding Obligations. The provisions of this Section are subject to the
following exception:
(i) Privilege of Issuing Refunding Obligations. If at any time after
any of the Bonds, or any part thereof, shall have been issued and remain
Outstanding, the City shall find it desirable to refund all or any part of the
Outstanding Bonds, such Bonds, or any part thereof, may be refunded (but only
with the consent of the Owner or Owners thereof, unless such Bonds, at the time
of their required surrender for payment, shall then mature, or shall then be subject
to redemption prior to maturity).
4847-0608-8709.2 17
(ii) Limitations Upon Issuance of Parity Refunding Obligations. No
refunding obligations payable from the Pledged Revenues (or any designated part
thereof) shall be issued on a parity with the Series 2001 Bonds, the Series 2005
Bonds, the Series 2005B Bonds and Series 2009 Bonds, unless:
(A) the lien on such Pledged Revenues of the outstanding
obligations so refunded is on a parity with the lien thereon of the Series
2001 Bonds, the Series 2005 Bonds, the Series 2005B Bonds and Series
2009 Bonds; or
(B) the refunding obligations aze issued in compliance with
subsection (a) of this Section.
(iii) Partial Refunding of Bonds. Any refunding obligations so issued
to refund any of the Bonds shall enjoy complete equality of lien with any Bonds
which are not refunded.
(iv) Limitations Upon Refundings. Any refunding obligations payable
from the Pledged Revenues may be issued with such details as the City may by
ordinance provide, but without any impairment of any contractual obligations
imposed upon the City by this Ordinance.
Section 14. Application of Pledged Revenues. So long as any of the Bonds shall
remain Outstanding, all Pledged Revenues, as they are received, shall be transferred from the
Parks and Open Space Fund or any other funds or accounts to which they are required to be
deposited by the Section 23-32-060(c)(7) of the City's Municipal Code or otherwise, and shall
thereupon be deposited into the Revenue Fund, and the Pledged Revenues are hereby
appropriated for such purpose. Moneys on deposit in the Revenue Fund shall be transferred from
the Revenue Fund and applied to the following purposes and in the following order of priority:
(a) FIRST, there shall be credited to the Bond Fund an amount necessary,
together with any moneys therein and available therefor, to pay the next due installment
of principal of, premium, if any, and interest on the Bonds;
(b) SECOND, there shall be credited, on a pro rata basis, to the Series 2009
Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series
2001 Reserve Fund and any reserve fund or funds created with respect to any series of
Additional Parity Bonds an amount, if any, necessary to increase the amount on deposit
in each of such funds to the Reserve Fund Requirement for such fund or to repay the
provider of a Reserve Fund Contract for a drawing thereon. No payment need be made
into any such fund so long as the moneys therein shall equal not less than the Reserve
Fund Requirement for such fund and no draw has been made on any Reserve Fund
Contract deposited in such fund. The Reserve Fund Requirement for each such fund
shall be accumulated and maintained in each such fund as a continuing reserve to be
used, except as hereinafter provided, only to prevent deficiencies in the payment of the
principal of, premium, if any, and interest on the Bonds.
4847-4608-87092 1$
(c) THIRD, there shall be credited to the Parks and Open Space Fund or,
subject to any limitation in the Charter, the Parks and Open Space Sales Tax Ordinances
and the City's Municipal Code, used in any lawful manner by the City, any amounts
remaining after making the deposits required by subsections (a) and (b) of this Section.
(d) Notwithstanding subsections (a) and (b) of this Section, no payment need
be made pursuant to subsection (a) or (b) of this Section into either the Bond Fund, the
Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve
Fund, the Series 2001 Reserve Fund or any reserve fund created for a series of Additional
Parity Bonds if the moneys on deposit in such funds total a sum at least equal to the entire
amount of the Outstanding Bonds as to any principal, premium, if any, and interest
requirements, to their respective maturities, or to any redemption date on which the City
shall have exercised its option to redeem all or a portion of the Bonds then Outstanding
and thereafter maturing, and both accrued and not accrued, in which case moneys in such
funds in an amount at least equal to such principal, premium, if any, and interest
requirements shall be used solely to pay such as the same accrue, and any moneys in
excess thereof in such funds may, subject to any limitations in the Parks and Open Space
Sales Tax Ordinances or the City's Municipal Code, be used in any lawful manner by the
City.
Section 15. Bond Fund. Moneys in the Bond Fund shall be used solely for the purpose
of paying the principal of, premium, if any, and interest on the Bonds.
Section 16. Series 2009 Reserve Fund.
(a) Use of Moneys in Series 2009 Reserve Fund. If on any date specified in
Section 19 hereof, the City shall have for any reason failed to pay to the Paying Agent the
full amount required to pay the next installment of principal of or interest on the Bonds,
then an amount equal to the amount needed to bring the amount in the Bond Fund to the
full amount so required shall be immediately paid, pro rata, to the Paying Agent from: (i)
the Series 2009 Reserve Fund with respect to the portion of the deficiency corresponding
to the amounts due on the Series 2009 Bonds; (ii) the Series 2005B Reserve Fund with
respect to the portion of the deficiency corresponding to the amounts due on the Series
2005B Bonds; (iii) the Series 2005 Reserve Fund with respect to the portion of the
deficiency corresponding to the amounts due on the Series 2005 Bonds; (iv) the Series
2001 Reserve Fund with respect to the portion of the deficiency corresponding to the
amounts due on the Series 2001 Bonds; and (v) any reserve fund or funds created with
respect to any series of Additional Parity Bonds with respect to the portion of the
deficiency corresponding to the amounts due on such series of Additional Parity Bonds.
The money so used shall be replaced in the Series 2009 Reserve Fund, the Series 2005B
Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and any such
other reserve fund or funds on a pro rata basis from the first Pledged Revenues thereafter
received not required to be otherwise applied hereunder, but excluding any payments
required for any subordinate obligations. If in any period the City shall for any reason
fail to pay into the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series
2005 Reserve Fund, the Series 2001 Reserve Fund or any such other reserve fund or
funds the full amount above stipulated from the Pledged Revenues, the difference
4847-0608-87092 19
between the amount paid and the amount so stipulated shall in a like manner be deposited
therein from the first Pledged Revenues thereafter received not required to be applied
otherwise by this Section, but excluding any payments required for any subordinate
obligations. Moneys in the Series 2009 Reserve Fund, the Series 2005B Reserve Fund,
the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and any such other reserve
fund shall be used solely for the purpose of paying the principal of, premium, if any, and
interest on the series of Bonds with respect to which such fund is maintained.
(b) Use of Moneys in Excess of Reserve Fund Requirement Any moneys at
any time in excess of the Reserve Fund Requirement in the Series 2009 Reserve Fund,
the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve
Fund or any reserve fund or funds maintained with respect to any series of Additional
Parity Bonds may be withdrawn therefrom and, subject to any limitation in the Charter,
the Parks and Open Space Sales Tax Ordinances and the City's Municipal Code, used in
any lawful manner by the City.
(c) Reserve Fund Contract.
(i) The City may substitute for the cash or Permitted Investments in
any Reserve Fund a surety bond issued by an insurance company rated in the
highest rating category by S&P and Moody's (a "Reserve Fund Contract"), so
long as the amount on deposit in any Reserve Fund after such substitution is at
least equal to the Reserve Fund Requirement applicable to such Reserve Fund. In
the event the City shall substitute a Reserve Fund Contract for the cash or
Permitted Investments in any Reserve Fund, the amount on deposit in any
Reserve Fund shall be that amount available to be drawn or otherwise paid
pursuant to such surety bond at the time of calculation. If any Reserve Fund shall
include both cash or Permitted Investments and a Reserve Fund Contract, the cash
and Permitted Investments shall be used before any demand is made on any
Reserve Fund Contract. Notwithstanding the foregoing, prior to such substitution,
the City must receive an opinion of nationally recognized municipal bond counsel
to the effect that such substitution and the intended use by the City of the cash or
Permitted Investments to be released from any Reserve Fund will not adversely
affect the exclusion from gross income for federal income tax purposes of interest
on the Bonds to which such Reserve Fund applies.
(ii) The Series 2009 Surety Bond (if any) is hereby recognized to be a
Reserve Fund Contract described in paragraph (i) of this subsection (c). Upon
issuance thereof by the Bond Insurer, the Series 2009 Surety Bond (if any) shall
be deposited in the Series 2009 Reserve Fund and shall be used in the manner
described in paragraph (i) of this subsection (c).
(d) Valuation of Deposits. Cash shall satisfy the Reserve Fund Requirement
for the Series 2009 Reserve Fund by the amount of cash on deposit. Permitted
Investments shall satisfy the Reserve Fund Requirement by the value of such
investments. The value of each Permitted Investment on deposit in Series 2009 Reserve
Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001
4847-4608-8709.2 20
Reserve Fund and any reserve fund or funds created with respect to any series of
Additional Parity Bonds shall be (i) its purchase price from the date of purchase until the
first date thereafter on which the Reserve Fund Requirement is calculated pursuant to
subsection (e) of this Section and (ii) following each date on which the Reserve Fund
Requirement is calculated pursuant to subsection (e) of this Section until the next date on
which the Reserve Fund Requirement is so calculated, its fair market value determined as
of such calculation date. A Reserve Fund Contract shall satisfy the Reserve Fund
Requirement by the amount payable to the City pursuant to such contract.
(e) Calculation of Reserve Fund Requirement and Transfers Resulting
from Calculation. The Reserve Fund Requirement for each of the Series 2009 Reserve
Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001
Reserve Fund and any reserve fund or funds created with respect to any series of
Additional Parity Bonds shall be calculated as of (i) the date of issuance of the Series
2009 Bonds, (ii) the date of issuance of each series of Additional Parity Bonds and
(iii) each November 1, commencing November 1, 2010. If, on any calculation date, the
amount on deposit in any of such funds is less than the Reserve Fund Requirement for
such fund, Pledged Revenues shall be deposited into such fund as provided in Section 14
hereof to the extent necessary to satisfy the Reserve Fund Requirement in cash or by the
purchase of Permitted Investments or a Reserve Fund Contract.
Section 17. Escrow Account.
(a) Establishment and Maintenance of Escrow Account. There is hereby
authorized and directed to be established pursuant to the terms of the Escrow Agreement
a special account designated as the "Sales Tax Revenue Refunding Bonds, Series 2009,
Escrow Account," which shall be maintained in accordance with the provisions hereof
and of the Escrow Agreement. The Escrow Account shall be maintained in an amount at
the time of the initial deposits therein and at all times subsequently at least sufficient,
together with the known minimum yield to be derived from the initial investment and any
temporary reinvestment of the deposits therein or any part thereof in Federal Securities to
pay the Refunded Bond Requirements with respect to the Refunded Bonds. Except as
maybe otherwise provided in the Escrow Agreement, the City shall have no right or title
to the moneys credited to or held in the Escrow Account, and such title shall be and is
hereby transferred to the Escrow Agent in trust for the payment of the Refunded Bond
Requirements for the Refunded Bonds pursuant to the Escrow Agreement. Moneys shall
be withdrawn by the Escrow Agent from the Escrow Account in sufficient amounts and
at such times to permit the payment without default of the Refunded Bond Requirements
for the Refunded Bonds. If for any reason the amount in the Escrow Account shall at any
time be insufficient for the purpose hereof, the City shall forthwith from the first moneys
available therefor deposit in such account such additional moneys as shall be necessary to
permit the payment in full of the Refunded Bond Requirements for the Refunded Bonds.
(b) Ca[I of Refunded Bonds. The City Council does hereby declare its intent
to exercise on behalf of and in the name of the City its option to redeem all of the
Refunded Bonds on the earliest date on which the Refunded Bonds can be called and
redeemed. The City hereby authorizes and irrevocably instructs the Escrow Agent, in its
aaaaa6oa-s~o9.z 21
capacity as paying agent for the Refunded Bonds, to give or cause to be given a notice of
refunding, defeasance and redemption of the Refunded Bonds in accordance with the
provisions of the Series 2001 Ordinance.
Section 18. Rebate Fund. The City shall deposit earnings from the investment of
proceeds of the Series 2009 Bonds, earnings from the investment of moneys on deposit in the
Bond Fund, the Series 2009 Reserve Fund and the Revenue Fund or other legally available
moneys in the Rebate Fund in the amounts and at the times provided in the Letter of Instructions.
Earnings from the investment of moneys on deposit in the Rebate Fund shall be retained in the
Rebate Fund. Moneys on deposit in the Rebate Fund shall be used as provided in the Letter of
Instructions.
Section 19. Payments to and by Paying Agent.
(a) Payments to Paying Agent. No later than the Business Day immediately
preceding each Interest Payment Date, the City shall deliver moneys to the Paying Agent
in an amount sufficient to pay the principal of, premium, if any, and interest on the Bonds
on such date from the sources and in the priority order set forth below:
First, from moneys on deposit in the Bond Fund; and
Second, if and to the extent the moneys on deposit in the Bond Fund are
not sufficient to pay the principal of, premium, if any, or interest due on the
Bonds on such date, from the Series 2009 Reserve Fund, the Series 2005B
Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and
any reserve fund maintained with respect to any series of Additional Parity
Bonds, on a pro rata basis, pursuant to Section 16 hereof.
(b) Payments by Paying Agent. The Paying Agent shall use the moneys
delivered to it pursuant to subsection (a) of this Section to pay the principal of, premium,
if any, and interest on the Bonds when due.
Section 20. General Administration of Funds. The funds and accounts established
pursuant to this Ordinance, with the exception of the Rebate Fund, shall be administered as
follows, subject to the limitations stated in Sections 16 and 21 of this Ordinance:
(a) Investment of Money. Any moneys in any such fund and account may be
invested in Permitted Investments. The obligations in which moneys in each fund or
account are invested shall be deemed at all times to be part of the respective fund or
account, and any appreciation or loss resulting therefrom shall be recorded to such fund
or account. Interest accruing on the investment of any moneys in the Series 2009
Reserve Fund shall be deposited as received into the Revenue Fund, and interest accruing
on the investment of any moneys in any other such fund or account shall be credited to
the fund or account from which it is derived. The City Finance Director shall present for
redemption or sale in the prevailing mazket any obligations so purchased as an
investment of moneys in the fund or account whenever it shall be necessazy to do so in
order to provide moneys to meet any payment or transfer from said fund or account.
4847-4608-8709.2 22
(b) Deposits of Funds. The moneys and investments comprising each of such
funds and accounts shall be deposited in one or more banks or savings and loans
associations, each of which is a member of the Federal Deposit Insurance Corporation.
Each payment shall be made into and credited to the proper fund or account on the date
specified, but if such date shall be other than a Business Day, such payment shall be
made on the next preceding Business Day. Nothing herein shall prevent the
establishment of one or more such bank accounts, for all of such funds and accounts, or
shall prevent the combination of such funds and accounts with any other bank account or
accounts for other accounts of the City.
Section 21. Additional General Covenants. In addition to the other covenants of the
City contained herein, the City hereby further covenants for the benefit of Owners of the Bonds
that:
(a) Payment of Series 2009 Bonds. The City will promptly pay or cause to
be paid the principal of, premium, if any, and interest on the Series 2009 Bonds, at the
place, on the dates and in the manner provided in this Ordinance, according to the true
intent and meaning of this Ordinance.
(b) No Repea[ or Modification of Parks and Open Space Sales Tax
Ordinances or Applicable Sections of City's Municipal Code. The City shall not repeal
the Parks and Open Space Sales Tax Ordinances or adopt any modification of such
ordinances or any provisions of the City's Municipal Code which would impair the
Pledged Revenues.
(c) Duty to Impose Open Space Sales Tax. If the Parks and Open Space
Sales Tax Ordinances, the provisions of the City's Municipal Code referred to in
subsection (b) of this Section or any modifying or supplemental instrument thereto not
contravening the limitations of subsection (b) of this Section, or any part of such
ordinances or such portions of the City's Municipal Code, shall ever be held to be invalid
or unenforceable or shall otherwise be terminated, it shall be the duty of the City, to the
extent possible under then existing law, to adopt immediately such ordinances, to seek
such voter approval, if any, as may then be required by law, or to take any other action
necessary to produce at least the same amount of Pledged Revenues as would have
otherwise been produced under the terms of such ordinances and such portions of the
City's Municipal Code.
(d) Impairment of Contract. The City agrees that any law, ordinance or
resolution of the City in any manner affecting the Pledged Revenues or the Bonds, shall
not be repealed or otherwise directly or indirectly modified in such a manner as to impair
any Bonds Outstanding, unless in the case of this Ordinance the required consent of the
Owners of the then Outstanding Bonds is obtained pursuant to Section 26 of this
Ordinance.
(e) Records. So long as any of the Bonds remain Outstanding, proper books
of record and account will be kept by the City, separate and apart from all other records
and accounts, showing complete and correct entries of all transactions relating to the
4847-4608-8709.2 23
Pledged Revenues. The Owners of any Bonds shall have the right at any reasonable time
to inspect such records and accounts.
(f) Audits. The City further agrees that it will, within 120 days following the
close of each fiscal year, cause an audit of such books and accounts to be made by an
independent certified public accountant, showing the revenues and expenditures of the
Pledged Revenues. The City agrees to furnish forthwith a copy of each such audit to the
Owner of any Bond at his request, and without request to the Original Purchaser. Any
such Owner shall have the right to discuss with the accountant or person making the audit
its contents and to ask for such additional information as he may reasonably require.
(g) Extending Interest Payments. In order to prevent any accumulation of
claims for interest after maturity, the City will not directly or indirectly extend or assent
to the extension of time for the payment of any claim for interest on any of the Bonds and
it will not directly or indirectly be a party to or approve any such arrangement; and in
case the time for payment of any interest shall be extended, such installment or
installments of interest after such extension or arrangement shall not be entitled in case of
default hereunder to the benefit or security of this Ordinance except subject to the prior
payment in full of the principal of all Bonds and then Outstanding, and of matured
interest on such Bonds, the payment of which has not been extended.
(h) Performing Duties. The City will faithfully and punctually perform all
duties with respect to the Pledged Revenues required by the Charter and the Constitution
and laws of the State of Colorado, and the ordinances and resolutions of the City,
including but not limited to, the proper segregation of the Pledged Revenues and their
application to the respective funds.
(i) Other Liens. Other than that granted for the Bonds herein, there are
presently no other liens or encumbrances of any nature whatsoever on or against the
Pledged Revenues.
(j) City's Existence. The City will maintain its corporate identity and
existence so long as any of the Bonds remain Outstanding, unless another body corporate
and politic by operation of law succeeds to the duties, privileges, powers, liabilities,
disabilities, immunities and rights of the City and is obligated by law to receive and
distribute the Pledged Revenues in place of the City, without affecting to any substantial
degree the privileges and rights of any Owner of any Outstanding Bond.
Section 22. Covenants Regarding Exclusion of Interest on Series 2009 Bonds from
Gross Income for Federal Income Tax Purposes. For purposes of ensuring that the interest on
the Series 2009 Bonds is and remains excluded from gross income for federal income tax
purposes, the City hereby covenants that:
(a) Prohibited Actions. The City will not use or permit the use of any
proceeds of the Series 2009 Bonds or any other funds of the City from whatever source
derived, directly or indirectly, to acquire any securities or obligations and shall not take
or permit to be taken any other action or actions, which would cause any Series 2009
4847-4608-8709.2 24
Bond to bean "azbitrage bond" within the meaning of Section 148 of the Code, or would
otherwise cause the interest on any Series 2009 Bond to be includible in gross income for
federal income tax purposes.
(b) Affirmative Actwns. The City will at all times do and perform all acts
permitted by law that are necessazy in order to assure that interest paid by the City on the
Series 2009 Bonds shall not be includible in gross income for federal income tax
purposes under the Code or any other valid provision of law. In particulaz, but without
limitation, the City represents, warrants and covenants to comply with the following rules
unless it receives an opinion of Bond Counsel stating that such compliance is not
necessary: (i) gross proceeds of the Series 2009 Bonds will not be used in a manner that
will cause the Series 2009 Bonds to be considered "private activity bonds" within the
meaning of the Code; (ii) the Series 2009 Bonds are not and will not become directly or
indirectly "federally guazanteed"; and (iii) the City will timely file Internal Revenue
Form 8038-G which shall contain the information required to be filed pursuant to
Section 149(e) of the Code.
(c) Letter of Instructions. The City will comply with the Letter of
Instructions, including but not limited by the provisions of the Letter of Instructions
regarding the application and investment of Series 2009 Bond proceeds, the calculations,
the deposits, the disbursements, the investments and the retention of records described in
the Letter of Instructions; provided that, in the event the original Letter of Instructions is
superseded or amended by a new Letter of Instructions drafted by, and accompanied by
an opinion of, Bond Counsel stating that the use of the new Letter of Instructions will not
cause the interest on the Series 2009 Bonds to become includible in gross income for
federal income tax purposes, the City will thereafter comply with the new Letter of
Instructions.
(d) Designation of Bonds as Qualified Tax-Exempt Obligations. The City
hereby designates the Series 2009 Bonds as qualified tax-exempt obligations within the
meaning of Section 265(b)(3) of the Code. The City covenants that the aggregate face
amount of all tax-exempt obligations issued by the City, together with governmental
entities which derive their issuing authority from the City or are subject to substantial
control by the City, shall not be more than $30,000,000 during calendar year 2009. The
City recognizes that such tax-exempt obligations include notes, leases, loans and
warrants, as well as bonds. The City further recognizes that any bank, thrift institution or
other financial institution that owns the Series 2009 Bonds will rely on the City's
designation of the Series 2009 Bonds as qualified tax-exempt obligations for the purpose
of avoiding the loss of 100% of any otherwise available interest deduction attributable to
such institution's tax-exempt holdings.
Section 23. Defeasance. Any Series 2009 Bond shall not be deemed to be Outstanding
hereunder if it shall have been paid and cancelled or if cash or Defeasance Securities shall have
been deposited in trust for the payment thereof (whether upon or prior to the maturity of such
Series 2009 Bond, but if such Series 2009 Bond is to be paid prior to maturity, the City shall
have given the Paying Agent irrevocable directions to give notice of redemption as required by
this Ordinance, or such notice shall have been given in accordance with this Ordinance). In
aaa~-aeoa-s~o9.z 25
computing the amount of the deposit described above, the City may include interest to be earned
on the Defeasance Securities. If less than all the Series 2009 Bonds are to be defeased pursuant
to this Section, the City, in its sole discretion, may select which of the Series 2009 Bonds shall
be defeased.
Notwithstanding anything in this Bond Ordinance to the contrary, in the event that the
principal and/or interest due on the Series 2009 Bonds shall be paid by the Bond Insurer pursuant
to the Bond Insurance Policy, the Series 2009 Bonds shall remain Outstanding for all purposes,
not be defeased or otherwise satisfied and not be considered paid by the City, and the assignment
and pledge of the Pledged Revenues and all covenants, agreements and other obligations of the
City to the Owners shall continue to exist and shall run to the benefit of the Bond Insurer, and the
Bond Insurer shall be subrogated to the rights of such Owners.
Section 24. Events of Default. If any of the following .events occurs, it is hereby
declared to constitute an Event of Default:
(a) default in the due and punctual payment of the principal of, premium, if
any, or interest on any Bond whether at maturity thereof, or upon proceedings for
redemption thereof; or
(b) the City is for any reason rendered incapable of fulfilling its obligations
hereunder; or
(c) default in the due and punctual performance of the City's covenants or
conditions, agreements and provisions as set forth in this Ordinance, other than those
delineated in paragraphs (a) and (b) of this Section, and such default has continued for 60
days after written notice specifying the default and requiring the same to be remedied has
been given to the City by the Owners of 25% in principal amount of the Bonds then
Outstanding; or
(d) the City shall file a petition for bankruptcy or shall be declared insolvent
by a court of competent jurisdiction.
Section 25. Remedies for and Duties Upon Events of Default.
(a) Remedies for Events of Default. Upon the happening and continuance of
any of the Events of Default as provided in Section 24 of this Ordinance, then and in
every case, the Owner or Owners of not less than 25% in principal amount of the Bonds
then Outstanding, including but not limited to, a trustee or trustees therefor, may proceed
against the City and its agents, officers and employees, to protect and enforce the rights
of any Owner of Bonds under this Ordinance by mandamus or other suit, action or special
proceedings in equity or at law, in any court of competent jurisdiction, either for the
specific performance of any covenant or agreement contained herein or in an award of
execution of any power herein granted for the enforcement of any proper legal or
equitable remedy as such Owner or Owners may deem most effectual to protect and
enforce the rights aforesaid, or thereby to enjoin any act or thing which may be unlawful
or in violation of any right of any Owner, or to require the governing body to act as if it
were the trustee of an express trust, or any combination of such remedies. All such
4847-0608-8709.2 26
proceedings at law or in equity shall be instituted, had and maintained for the equal
benefit of all Owners of the Bonds then Outstanding. The failure of any such Owner so
to proceed shall not relieve the City or any of its officers, agents or employees of any
liability for failure to perform any duty. Each right or privilege of any such Owner (or
trustee thereof) is in addition and cumulative to any other right or privilege, and the
exercise of any right or privilege by or on behalf of any Owner shall not be deemed a
waiver of any other right or privilege thereof.
(b) Duties Upon Events of Default. Upon the happening of any of the Events
of Default as provided in Section 24 of this Ordinance, the City will do and perform all
proper acts on behalf of and for the Owners of the Bonds to protect and preserve the
security created for the payment of their Bonds and to insure the payment of the principal
of, premium, if any, and interest on Bonds promptly as the same become due. All
proceeds derived from the Pledged Revenues, during such period of default and so long
as any of the Bonds, as to any principal, premium, if any, and interest are Outstanding
and unpaid, shall be paid into the Bond Fund, and used for the purposes herein provided.
In the event the City fails or refuses to proceed as provided in this Section, the Owner or
Owners of not less than 25% in principal amount of the Bonds then Outstanding, after
demand in writing, may proceed to protect and enforce the rights of the Owners as herein
provided.
Section 26. Amendment of Ordinance. This Ordinance may be amended or
supplemented by ordinance adopted by the City Council in accordance with law, without receipt
by the City of additional considerations and without the consent of the Owners, to make any
amendment or supplement to this Ordinance which, in the opinion of Bond Counsel, is not to the
material prejudice of the Owners. This Ordinance may be amended or supplemented by
ordinance adopted by the City Council in accordance with law, without receipt by the City of any
additional consideration, but with the written consent of the Owners of 66-2/3% of the Bonds
Outstanding at the time of the adoption of the amendatory ordinance, excluding any Bonds held
for the account of the City; provided, however, that no such ordinance, without the consent of the
Owners of all Outstanding Bonds which will be adversely affected, shall have the effect of
permitting:
(a) an extension of the maturity of any Bond; or
(b) a reduction in the principal amount of any Bond, the rate of interest
thereon, or the premium payable thereon; or
(c) the creation of a lien upon or pledge of Pledged Revenues ranking prior to
the lien or pledge of Pledged Revenues created by this Ordinance; or
(d) a reduction of the principal amount of Bonds required for consent to such
amendatory or supplemental ordinance; or
(e) the establishment of priorities as between Bonds issued and Outstanding
under the provisions of this Ordinance; or
4847-4608-8709.2 27
(f) the modification of or otherwise affecting the rights of the Owners of less
than all of any series of Bonds then Outstanding.
Section 27. Appointment and Duties of Paying Agent.
(a) The Paying Agent identified in Section 1 hereof is hereby appointed as
paying agent, registraz and authenticating agent for the Series 2009 Bonds unless and
until the City or the Bond Insurer removes it as such and appoints a successor Paying
Agent, in which event such successor shall, subject to subsection (b) of this Section,
automatically succeed to the duties of the Paying Agent hereunder and its predecessor
shall immediately turn over all its records regazding the Series 2009 Bonds to such
successor. The Paying Agent, by accepting its duties as such, agrees to perform all duties
and to take all actions assigned to it hereunder in accordance with the terms hereof.
(b) Any successor Paying Agent appointed as such pursuant to subsection (a)
of this Section must: (i) be a trust company or bank in good standing located in or
incorporated under the laws of the State; (ii) be duly authorized to exercise trust powers
and subject to examination by federal or State authority; (iii) have a capital and surplus at
the time of such appointment of not less than $75,000,000; and (iv) be acceptable to the
Bond Insurer.
(c) Notwithstanding any other provision of this Ordinance, no removal,
resignation or termination of the Paying Agent shall take effect until a successor,
acceptable to the Bond Insurer, shall be appointed.
Section 28. Parties Interested Herein. Nothing in this Ordinance expressed or implied
is intended or shall be construed to confer upon, or to give or grant to, any person or entity, other
than the City, the Paying Agent, the Bond Insurer and the Owners of the Bonds, any right,
remedy or claim under or by reason of this Ordinance or any covenant, condition or stipulation
hereof, and all covenants, stipulations, promises and agreements in this Ordinance contained by
and on behalf of the City shall be for the sole and exclusive benefit of the City, the Paying
Agent, the Bond Insurer and the Owners of the Bonds.
Section 29. Events Occurring on Days That Are Not Business Days. Except as
otherwise specifically provided herein with respect to a particular payment, event or action, if
any payment to be made hereunder or any event or action to occur hereunder which, but for this
Section, is to be made or is to occur on a day that is not a Business Day shall instead be made or
occur on the next succeeding day that is a Business Day.
Section 30. Findings and Determinations. The City Council hereby finds, determines
and declares that:
(a) it is in the best interest of the City and its residents that the Series 2009 Bonds
be authorized, sold, issued and delivered at the time, in the manner and for the purposes
provided herein;
4847-4608-8709.2 28
(b) all actions required by the Charter and any other applicable law to be taken
by the City for the issuance of the Series 2009 Bonds and the application of any of the
provisions hereof have been taken by the City;
(c) the interest rate on the Series 2009 Bonds as sold to the Underwriter, shall
be a lower interest rate than the interest rate on the Refunded Bonds; therefore, the Series
2009 Bonds aze issued to refinance City bonded debt at a lower interest rate for the
purposes of TABOR and the Refunding Act;
(d) the issuance of the Series 2009 Bonds will not cause the City to exceed its
debt limit under the Charter or applicable State law;
(e) the issuance of the Series 2009 Bonds and all procedures undertaken
incident thereto are in full compliance and conformity with all applicable requirements,
provisions and limitations prescribed by the Constitution and laws of the State and the
City, including the Charter, and all conditions and limitations of the Charter and other
applicable law relating to the issuance of the Series 2009 Bonds have been satisfied;
(f) the refunding of the Refunded Bonds with proceeds of the Series 2009
Bonds will, in accordance with Section 11-56-104(1), Colorado Revised Statutes, as
amended, accomplish one or more of the following purposes: (i) reducing the net
effective interest rate on the City's bonds (based on a comparison of the net effective
interest rate on the Refunded Bonds to the net effective interest rate on the Series 2009
Bonds); (ii) reducing total interest payable over the life of the City's bonds, by issuing
bonds of a shorter term, or at a lower net interest cost, or having a lower net effective
interest rate than the Refunded Bonds; (iii) reducing the total principal and interest
payable on the Refunded Bonds or the principal and interest payable thereon in any
particular yeaz or years, or (iv) effecting other economies;
(g) in accordance with Section 11-56-107, C.R.S., the principal amount of the
Series 2009 Bonds, when combined with the Series 2001 Bonds outstanding principal
amount which is not being refunded ($1,000,000) will not exceed the total original
authorized principal amount of the Series 2001 Bonds; and
(h) as required by Section 11-56-104.5, Colorado Revised Statutes, as
amended: (i) the Underwriter, simultaneously with the submission to the City of its
proposal to refund the Refunded Bonds, disclosed, in writing, to the City Council, the
entire income, from al] sources, which it anticipated receiving if its proposal were to be
accepted, specifying all such sources and amounts, as well as disclosing all expenses
which it anticipated the City would incur as a part of the refunding transaction; (ii) the
City Council will require, as a condition to the issuance of the Series 2009 Bonds, that the
Underwriter provide to the City Council (A) an update of the information described in
clause (i) above and (B) a comparison of annual debt service requirements before and
after the refunding, by year and amount, including funds which are required in addition to
bond proceeds, showing the present value of all annual differences in debt service
requirements, using as a discount factor the net effective interest rate of the Series 2009
Bonds, all computed from the date on which the transaction is closed, including funds
4847-4608-8709.2 29
provided by the City as a reduction of, or an addition to, debt service requirements and
showing funds provided by the City in excess of accrued principal and interest, and
earnings on the funds, over the life of, and compounded at the net effective interest rate
of, the Series 2009 Bonds.
Section 31. Delegation and Parameters.
(a) The City Council hereby delegates to the Sale Delegate the authority to
determine and set forth in the Sale Certificate: (i) the matters set forth in subsection (b) of
this Section, subject to the applicable parameters set forth in subsection (c) of this
Section; and (ii) any other matters that, in the judgment of the Sale Delegate, are
necessary or convenient to be set forth in the Sale Certificate and are not inconsistent
with the parameters set forth in subsection (c) of this Section.
(b) The Sale Certificate shall set forth the following matters and other matters
permitted to be set forth therein pursuant to subsection (a) of this Section, but each such
matter must fall within the applicable parameters set forth in subsection (c) of this
Section:
(i) the date on which the Bonds will be issued, which shall be the
Dated Date;
(ii) the aggregate principal amount of the Series 2009 Bonds;
(iii) the principal amount of the Series 2009 Bonds maturing in each
year;
(iv) the interest payment dates;
(v) the rate of interest;
(vi) the prices at which the Series 2009 Bonds will be sold pursuant to
the Bond Purchase Agreement;
(vii) the Series 2009 Bonds which maybe redeemed at the option of the
City, the dates upon which such optional redemption may occur, and the prices at
which such Bonds maybe optionally redeemed;
(viii) the principal amounts, if any, of Bonds subject to mandatory
sinking fund redemption, and the years in which such Bonds will be subject to
such redemption;
(ix) the identity of the Bond Insurer (if any); and
(x) the amount (if any) of net proceeds of the Series 2009 Bonds to be
deposited into the Reserve Fund or applied to pay for the Series 2009 Surety Bond
(if any).
4847-0608-8709.2 30
(c) The authority delegated to the Sale Delegate by this Section shall be
subject to the following parameters:
(i) in no event shall the Sale Delegate be authorized to execute the
Sale Certificate and Bond Purchase Agreement after the date that is 180 days after
the date of adoption of this Ordinance and in no event may the Series 2009 Bonds
be issued after such date, absent further authorization by the City Council;
(ii) the aggregate principal amount of the Series 2009 Bonds shall not
exceed $7,500,000;
(iii) the final maturity of the Series 2009 Bonds shall be no later than
the date that is 13 years after the date of issuance of the Series 2009 Bonds; and
(iv) the net effective interest rate on the Series 2009 Bonds shall not
exceed the net effective interest rate of the Refunded Bonds and the debt service
on the Series 2009 Bonds shall represent a net present value savings, as compared
to the Refunded Bonds, of not less than 3.00%.
Section 32. Authorization to Execute Documents. For a period of 180 days following
the adoption of this Ordinance, the City Council authorizes the Sale Delegate to execute the Sale
Certificate and to execute the Bond Purchase Agreement in accordance with the provisions
hereof. The Mayor or City Clerk, or any other duly authorized officer of the City, shall, and they
are hereby authorized and directed to, take all actions necessary or appropriate to effectuate the
provisions of this Ordinance, including, but not limited to, the execution of the Escrow
Agreement, the Paying Agent Agreement, and the Continuing Disclosure Undertaking, in
substantially the forms presented to this meeting of the City Council, with such changes therein,
if any, not inconsistent herewith, as are approved by the City (which, once executed by the
appropriate City official, shall constitute conclusive evidence of approval of the City), a "Tax
Compliance Certificate" or similar certificate describing the City's expectations regarding the
use and investment of proceeds of the Series 2009 Bonds and other moneys, an Internal Revenue
Service Form 8038-G with respect to the Series 2009 Bonds, and all other documents and
certificates necessary or desirable to effectuate the issuance of the Series 2009 Bonds, the
investment of proceeds of the Series 2009 Bonds and the other transactions contemplated hereby.
The execution by the Mayor or Mayor Pro Tem of the City or any other duly authorized officer
of the City of any document authorized herein shall be conclusive proof of the approval by the
City of the terms thereof.
Section 33. Authorization of Bond Insurance and Series 2009 Surety Bond. The
Underwriter may request, on behalf of the City, the submittal of bids to issue the Bond Insurance
Policy. In the event that the Sale Delegate determines, based in part upon information provided
by the Underwriter, that the premium bid for issuance of the Bond Insurance Policy is less than
the interest cost savings to be realized by the City as a result of the issuance of the Bond
Insurance Policy, the Council hereby delegates to the Sale Delegate the authority to execute the
Commitment with the Bond Insurer designated by the Sale Delegate, provided that the Bond
Insurer shall be listed in The Bond Buyer's Municipal Marketplace Directory-Spring 2009,
published by Thomson Media. In the event that a Bond Insurance Policy is to be issued by the
asap-abos-s~o9.z 31
Bond Insurer, there is also delegated to the Sale Delegate the authority to determine whether the
Series 2009 Reserve Fund shall be funded with a Series 2009 Surety Bond, which determination
shall be set forth in the Sale Certificate. The officers of the City are also hereby authorized and
directed to take all actions necessary to cause the Bond Insurer to issue the Bond Insurance
Policy (if any) in accordance with the Commitment and to issue the Series 2009 Surety Bond (if
any) in accordance with the Commitment, including without limitation, payment of the
premium(s) due in connection therewith and entering into any authorizing agreement, including a
Series 2009 Reserve Policy Agreement. The execution of the Commitment by the Sale Delegate
or other authorized officer of the City is hereby ratified and approved. The Sale Delegate is also
authorized to set forth in the Sale Certificate such additional terms, provisions and conditions as
may be required to cause the Bond Insurer to issue the Bond Insurance Policy and the Series
2009 Surety Bond (if any) in accordance with the Commitment, and the provisions of this
Ordinance shall be subject to such provisions, if any, set forth in the Sale Certificate.
Section 34. Approval of Official Statement. The City Council hereby approves the
distribution and use of the Preliminary Official Statement relating to the Series 2009 Bonds in
connection with the offering of the Series 2009 Bonds and authorizes and directs the City staff to
prepare a final Official Statement for use in connection with the sale of the Series 2009 Bonds in
substantially the form thereof presented to the City Council at the meeting at which this
Ordinance is adopted, with such changes therein, if any, not inconsistent herewith, as are
approved by the City Attorney of the City. The Mayor or Mayor Pro Tem is hereby authorized
and directed to execute the final Official Statement.
Section 35. Application of Supplemental Act. The City Council specifically elects to
apply all of the provisions of Title 11, Article 57, Part 2, C.R.S. (as previously defined, the
"Supplemental Act"), to the Series 2009 Bonds.
Section 36. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or
equitable action brought with respect to any legislative acts or proceedings in connection with
the authorization or issuance of the Series 2009 Bonds shall be commenced more than thirty days
after the authorization of the Series 2009 Bonds.
Section 37. Ratification of Prior Actions. All actions heretofore taken not inconsistent
with the provisions of this Ordinance or the Charter by the City Council, the Finance Director, or
by the officers and employees of the City directed toward the issuance of the Series 2009 Bonds
for the purposes herein set forth are hereby ratified, approved and confirmed.
Section 38. Repeal of Inconsistent Resolutions; Contract with Owners of Series
2009 Bonds; Resolution Irrepealable. All ordinances and resolutions, or parts thereof, that are
in conflict with this Ordinance are hereby repealed. After the Series 2009 Bonds have been
issued, this Ordinance shall be and remain a contract between the City and the Owners of the
Series 2009 Bonds and shall be and remain irrepealable until all amounts due with respect to the
Series 2009 Bonds shall be fully paid, satisfied and discharged and all other obligations of the
City with respect to the Series 2009 Bonds shall have been satisfied in the manner provided
herein.
4847-4608-8709.2 32
Section 39. Headings, Table of Contents and Cover Page. The headings to the
various sections and subsections to this Ordinance, and the cover page and table of contents that
appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are
not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance.
Section 40. Severability. It is hereby expressly declared that all provisions hereof and
their application are intended to be and are severable. In order to implement such intent, if any
provision hereof or the application thereof is determined by a court or administrative body to be
invalid or unenforceable, in whole or in part, such determination shall not affect, impair or
invalidate any other provision hereof or the application of the provision in question to any other
situation; and if any provision hereof or the application thereof is determined by a court or
administrative body to be valid or enforceable only if its application is limited, its application
shall be limited as required to most fully implement its purpose.
Section 41. Recordation. A true copy of this Ordinance, as adopted by the City Council
of the City, shall be numbered and recorded, and its adoption and publication shall be
authenticated by the signatures of the Mayor and the City Clerk and by a certification of
publication.
Section 42. Declaration of Emergency and Effective Date. Due to fluctuations in
municipal bond prices and interest rates and due to currently favorable interest rates and due to
the need to preserve public property, health, peace and safety, it is hereby declared that, in the
opinion of the City Council, an emergency exists, and therefore this Ordinance shall be in full
force and effect upon its passage.
[remainder of this page intentionally left blank]
4847-4608-8709.2 33
INTRODUCED, READ AND PASSED ON FIRST READING AS AN EMERGENCY
MEASURE by the City Council of the City of Aspen at its regular meeting on November 9,
2009, as provided by the City's Charter and applicable law.
[SEAL]
Attest:
By
City Clerk
By
Mayor
READ, PASSED ON SECOND READING, FINALLY ADOPTED AND APPROVED
AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED WITHIN 10 DAYS OF
SUCH FINAL PASSAGE by the City Council of the City of Aspen at its regular meeting on
2009, as provided by the City's Charter and applicable law.
[SEAL]
Attest:
By
City Clerk
By
Mayor
[signature page to Bond Ordinance]
asap-aeoa-s~o9.z 34
APPENDIX A
No. R-
FORM OF SERIES 2009 BOND
UNITED STATES OF AMERICA
CITY OF ASPEN, COLORADO
SALES TAX REFUNDING REVENUE BOND
SERIES 2009
Interest Rate:
REGISTERED OWNER:
Maturity Date:
November 1,
Original Dated Date: CUSIP:
**CEDE & CO.**
Tax Identification Number: 13-2555119
PRINCIPAL SUM: **
DOLLARS**
The City of Aspen, Colorado (the "City"), a legally and regularly created, established,
organized and existing municipal corporation under the provisions of Article XX of the
Constitution of the State of Colorado (the "State") and the home rule charter of the City (the
"Charter") and political subdivision of the State, for value received, hereby promises to pay to
the order of the registered owner named above or registered assigns, solely from the special
funds as hereinafter set forth, on the maturity date stated above, the principal sum stated above,
in lawful money of the United States of America, with interest thereon from the original dated
date stated above, at the interest rate per annum stated above, payable on May 1 and November 1
of each year, commencing November 1, 2005, the principal of and premium, if any, and the final
installment of interest on this bond being payable to the registered owner hereof upon
presentation and surrender of this bond at the principal office of Wells Fargo Bank, National
Association, as Paying Agent (the "Paying Agent"), in Denver, Colorado, and the interest hereon
(other than the final installment of interest hereon) to be paid by check or draft of the Paying
Agent mailed on the interest payment date to the registered owner hereof as of the close of
business on the fifteenth day of the month (whether or not such day is a Business Day) preceding
the month in which the interest payment date occurs, except that so long as Cede & Co. is the
registered owner of this bond, the principal of, premium, if any, and interest on this bond shall be
paid by wire transfer to Cede & Co.
This bond is one of an issue of bonds of the City of Aspen, Colorado Sales Tax Revenue
Refunding Bonds, Series 2009, issued in the principal amount of $ (the "Series 2009
Bonds"). The Series 2009 Bonds are being issued by the City for the purpose of refunding the
City's Sales Tax Revenue Bonds, Series 2001 and the funding of a reserve fund surety bond for,
and the costs of issuance of, the Series 2009 Bonds, pursuant to and in full conformity with the
4847-0608-87092
State Constitution and the Charter, the laws of the State, including, in particular, Article 56 of
Title 11 and Part 2 of Article 57 of Title 11, Colorado Revised Statutes, as amended and pursuant
to an ordinance (the "Ordinance") adopted by the City Council of the City prior to the issuance
hereof.
[Insert Redemption Provisions from Sale Certificate]
Notice of any redemption of Series 2009 Bonds shall be given by sending a copy of such
notice by first class, postage prepaid mail, not less than 30 days prior to the redemption date, to
the Owner of each Series 2009 Bond being redeemed. Such notice shall specify the number or
numbers of the Series 2009 Bonds so to be redeemed (if redemption shall be in part) and the
redemption date. If any Series 2009 Bond shall have been duly called for redemption and if, on
or before the redemption date, the City shall have set aside funds sufficient to pay the redemption
price of such Series 2009 Bond on the redemption date, then such Series 2009 Bond shall
become due and payable at such redemption date, and from and after such date interest will cease
to accrue thereon. Failure to deliver any redemption notice or any defect in any redemption
notice shall not affect the validity of the proceeding for the redemption of Series 2009 Bonds
with respect to which such failure or defect did not occur. Any Series 2009 Bond redeemed prior
to its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled.
The Paying Agent shall maintain registration books in which the ownership, transfer and
exchange of Series 2009 Bonds shall be recorded. The person in whose name this bond shall be
registered on such registration books shall be deemed to be the absolute owner hereof for all
purposes, whether or not payment on this bond shall be overdue, and neither the City nor the
Paying Agent shall be affected by any notice or other information to the contrary. This bond
may be transferred or exchanged, at the principal office of the Paying Agent in Denver,
Colorado, for a like aggregate principal amount of Series 2009 Bonds of other authorized
denominations ($5,000 or any integral multiple thereof) of the same maturity and interest rate,
upon payment by the transferee of a transfer fee, any tax or governmental charge required to be
paid with respect to such transfer or exchange and any cost of printing bonds in connection
therewith.
The Series 2009 Bonds are special, limited obligations of the City payable solely from
and secured solely by the sources provided in the Ordinance and shall not constitute a debt of the
City within the meaning of any constitutional or statutory limitation. Pursuant to the Ordinance
the City has pledged for the payment of the principal of, premium, if any, and interest on the
Series 2009 Bonds, and granted a lien for such purpose on the Pledged Revenues, constituting,
for each fiscal year, all of the proceeds of the Parks and Open Space Sales Tax (as defined in the
Ordinance) after deduction of the reasonable and necessazy costs and expenses of collecting and
enforcing the Parks and Open Space Sales Tax, if any, the Bond Fund, the Series 2009 Reserve
Fund and the Revenue Fund (all as defined in the Ordinance). The Series 2009 Bonds are issued
on a parity with the City's Parks and Open Space Sales Tax Revenue Bonds, Series 2001 (the
"Series 2001 Bonds"), the City's Sales Tax Revenue Refunding Bonds, Series 2005 (the "Series
2005 Bonds"), and the City's Sales Tax Revenue Bonds, Series 2005B (the "Series 2005B
Bonds"). The City is further authorized by the Ordinance to pledge and grant a lien, on a parity
with the lien for the payment of the principal of, premium, if any, and interest on the Series 2009
Bonds, the Series 2005B Bonds, the Series 2005 Bonds and the Series 2001 Bonds, on the
4847-4608-8709.2 A-2
Pledged Revenues, the Bond Fund and the Revenue for the payment of the principal of,
premium, if any, and interest on additional bonds or obligations (which may or may not be
multiple-fiscal year obligations), upon satisfaction of certain conditions set forth in the
Ordinance.
This bond, including the interest hereon, is payable solely from and secured solely by the
special funds provided in the Ordinance and shall not constitute a debt of the City within the
meaning of any constitutional or statutory debt limitation or provision.
THE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE
REGISTERED OWNER OF THIS BOND AND THE CITY. THIS BOND IS ONLY
EVIDENCE OF SUCH CONTRACT AND, AS SUCH, IS SUBJECT IN ALL RESPECTS TO
THE TERMS OF THE ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT
STATEMENT IN THIS BOND.
The City agrees with the owner of this bond and with each and every person who may
become the owner hereof, that it will keep and perform all the covenants and agreements
contained in the Ordinance.
The Ordinance may be amended or supplemented from time-to-time with or without the
consent of the registered owners of the Series 2009 Bonds as provided in the Ordinance.
It is hereby certified that all conditions, acts and things required by the State Constitution,
the Charter, and the ordinances and resolutions of the City, to exist, to happen and to be
performed, precedent to and in the issuance of this bond, exist, have happened and have been
performed, and that the Series 2009 Bonds do not exceed any limitations prescribed by the State
Constitution, the Charter or the ordinances of the City.
This bond shall not be entitled to any benefit under the Ordinance, or become valid or
obligatory for any purpose, until the Paying Agent shall have signed the certificate of
authentication hereon.
[remainder of this page intentionally left blank]
4847-4608-8709.2 A-3
IN WITNESS WHEREOF, the City has caused this bond to be executed with the manual
or facsimile signature of its Mayor and attested by the manual or facsimile signature of the City
Clerk, and has caused the seal of the City to be impressed or imprinted hereon, all as of the date
set forth above.
[SEAL] CITY OF ASPEN, COLORADO
By
Attest:
By
City Clerk
Mayor
4847-4608-87092 A-4
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2009 Bonds described in the within-mentioned Ordinance.
WELLS FARGO BANK, NATIONAL
ASSOCIATION as Paying Agent
By
Authorized Signatory
Date of Authentication:
4847-4608-8709.2 A-5
[STATEMENT OF INSURANCE]
4847-4608-8709.2 A'6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please print or typewrite name and address of Transferee)
(Tax Identi5cation or Social Security No.)
the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
Signature(s) must be guaranteed by a
national bank or trust company or by
a brokerage firm having a
membership in one of the major
stock exchanges.
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within bond in every particular, without
alteration or enlargement or any change whatever.
TRANSFER FEE MAY BE REQUIRED
aaa~-aeoa-s~o9.z A-7
PREPAYMENT PANEL
The following installments of principal (or portion thereof) of this Bond have been
prepaid in accordance with the terms of the Indenture.
Date of Principal Signature of Authorized
Prenayrnent Reuresentative of the Depository
4847-4608-8709.2 A-8
Q.
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
FROM: Chris Bendon, Community Development Director~~
RE: Lift One Conceptual PUD/Timesbare Review -Public Hearing
Resolution No. 52, Series of 2009
DATE: November 23, 2009
SUMMARY:
Tonight's hearing is a continuation from November 9`s. The last meeting provided an overview
of the project and a review of the proposed Resolution. At that meeting, there were a few
questions and the Applicant has responded to those questions in the attached memo from Bob
Daniel. Staff has also added language to Section #3 of the resolution. This section requires the
applicant work with Planning Staff and the City Attorney on a plan that protects the City against
unforeseen financial difficulties of the property owner and the ability for the City to complete
public facilities or remediate the site as may be necessary.
Staff supports this project and is recommending approval of the Conceptual application. This is
the original base of Aspen Mountain and the beginnings of Aspen as a resort destination. As
time has passed, Lift lA moved up the mountain, the "base" shifted to the gondola, and the
lodging in this neighborhood has suffered. With less than 3% of the Mountain's skier upload,
this side of the mountain is nearly dormant, other than a few selected events such as
Winternational. This project will return some of the lost activity that this azea used to enjoy.
Staff believes this project meets the review criteria for approval, including the 2000 Aspen Area
Community Plan. The AACP calls for lodging development at the base of Aspen Mountain,
which this project provides. At the same time, this project accommodates a lift lower on the
mountain, preservation of historic resources, 100% employee mitigation, and LEED Gold
Certification - an unprecedented commitment in Aspen's lodging history. The project is
expected to rejuvenate a tired and underutilized section of town with tourist accommodations and
commercial and restaurant uses. The project is requesting some variations, but those variations
are minimal and appeaz to be valid trade-offs to achieve desirable results.
Staff recommends City Council adopt Resolution No. 52, Series 2009.
BACKGROUND:
The Lift One azea has had multiple development applications proceeding through development
review during the past few years. The owners of the Lodge at Aspen Mountain project, the Lift
One Lodge project, the Aspen Skiing Company, and the City of Aspen jointly initiated a master
planning process in early 2008 -the Lift One Neighborhood Master Plan COWOP. That process
incorporated a citizen task force and developed a master plan for the entire neighborhood. The
master plan was not adopted and that process has been terminated.
Page 1 of 2
Prior to entering into the master planning process, the Lift One Lodge project had received
positive recommendations for the Planning and Zoning Commission and the Historic
Preservation Commission for their Conceptual PUD application. The Conceptual application
was not forwazded to City Council, but rather tolled for the term of the master planning effort.
Resolution No. 13, Series of 2008, maintained the Lift One Lodge application as "active" and
preserved the land owner's ability to renew the review if the master planning effort terminated.
The 2006 PUD application did not incorporate the newer ideas of the master planning exercise
(as it was prepazed prior to that effort). Some of the ideas were for items off this property and
may not be accommodated on the smaller land azea. But, some of the ideas are still valid and
worth pursuing. Based upon feedback from Council during the review process, the applicant has
been pursuing amendments to the application to more closely reflect the ideas of the master
planning effort.
CONCEPTUAL REVIEW:
Conceptual Review is an opportunity to determine if a project meets the basic pazameters
expected of new development. It is also an opportunity to determine what changes are necessary
to the project and the submission requirements for final review. Although conceptual approval
does not guazantee a final approval, there is a tacit expectation that the fundamental aspects of a
proposal are acceptable and the remaining reviews aze for detailed issues.
CITY MANAGER COMMENTS:
RECOMMENDED MOTION:
"I move to approve Resolution No. 52."
PREVIOUS ATTACHMENTS:
Exhibit A: July 10, 2009, memo from Bob Daniel (July 27, 2009 packet)
Exhibit B: Application (July 27, 2009 packet)
Exhibit C: July 30, 2009, memo from Bob Daniel with site plan (Aug. 10, 2009 packet)
Exhibit D: September 4, 2009, memo from Bob Daniel (Sept. 14, 2009, packet)
Exhibit E: September 21, 2009, memo from Bob Daniel (Sept. 28, 2009, packet)
Exhibit F: October 5, 2009, memo from Bob Daniel (October 13, 2009, packet)
Exhibit G: October 19, 2009, memo from Bob Daniel (October 26, 2009, packet)
Exhibit H: October 16, 2009, memo from Sunny Vann (October 26, 2009, packet)
Exhibit I: Review Criteria and Staff Findings (Nov 9, 2009, packet)
Exhibit J: November 2, 2009, memorandum from Bob Daniel (Nov 9, 2009, packet)
Exhibit K: October 28, 2009, memorandum from Sunny Vann (Nov 9, 2009, packet)
CURRENT ATTACHMENTS:
Exhibit L: November 18, 2009, memorandum from Bob Daniel
Proposed Resolution No. 52, 2009
Page 2 of 2
~~~~~„~ L
MEMORANDUM
TO: Chris Bendon, Community Development Director
Mayor Ireland and Aspen City Council Members
FROM: Bob Daniel, Roaring Fork Lodging Company
RE: November 23 Aspen City Council Meeting -Lift One Lodge
DATE: November 12, 2009
Baclcaround
At the November 9, 2009 City Council meeting, staff and the applicant both provided
information that established that the Lift One Project is found to be in conformance with
the Aspen Area Community Plan. Staff also recommended approval of the project and
introduced Resolution 52, which would provide Conceptual approval. Council began
discussion of the Resolution and possible changes to the conditions of approval. The
November 23`d meeting is expected to focus on improvements to and hopefully, approval
of the Resolution.
This memorandum is intended to respond to some comments made regazding the "fit" of
the project with Aspen's present and future resort market, character of the project and to
other comments made by Council members related to parking, financial assurances, and
ongoing revenue from the project to community purposes.
Market
Mayor Ireland has shared his views on the market for lodging and real estate in Aspen
and his sense of trends for the future. The mazket identified for the Lift One Lodge shares
some of the perspectives about lodging and real estate trends with views expressed by
some Council members.
We have designed the lodge to attract owners who could otherwise afford to purchase a
second home in the area but we hope will choose to purchase a share of the lodge instead.
This visitor wants Aspen to be a part of the rest of their life. At times couples will travel
to Aspen and enjoy aone-bedroom suite or lock-off and at times they will bring their
entire family and need the full use of a suite with a living areas and kitchen for family
gathering. They wish to enjoy the experience of a home during their stay but are seeking
to simplify their lifestyle and thus do not need to own a second single family residence.
The design of the program for Lift One Lodge wherein we have a variety of products; one
bedroom suites up to four bedroom suites provides flexibility for the owners as well as
the operation of the property. The fact that the owners will not own a deed in a specific
unit, but may stay in a different unit or unit type depending upon their needs opens up the
greatest Ieve1 of flexibility as well as potential public accessibility to Lift One Lodge.
As the Mayor has pointed out, even those in the higher income categories are looking for
value. Eight families sharing the initial and ongoing expense of a suite at the base of the
mountain will appeal to this market. The use plan for the lodge encourages public nightly
lodging in order to maintain higher occupancy of the units. The City of Aspen had the
foresight to develop regulations for managing this type of lodging in a manner that
encourages high use. We believe that this project is needed in Aspen and that it will
remain vital in the future. We also believe that it is a great planning alternative to single
family, low-occupancy homes that were a part of meeting the demand in prior mazket
cycles.
In addition to the understandable efficiency of fractional product over whole ownership
as it relates to impact on the environment, the Lift One Lodge has made significant
commitments to green building. The project was conceived with input from national and
regional energy experts and has made a commitment to pursue LEED Gold certification
for the lodge. In addition, aground-source heat pump system will provide major
reductions in energy demand for heating and cooling the lodge. This system is intended
to be a part of the efficient mechanical design for the lodge, whether or not it is
incorporated into a snowmelt system for S. Aspen Street.
Character
While there is no one definition of character in Aspen, we have come to understand that
the character in this area is rooted in skiing and being. The fun and active days of Lift
One included apres ski and dinner at the Skier Chalet or dinner at the Chart House. Both
places attracted a mix of locals and visitors while serving different price points. Both of
those facilities grew tired and lost their viability and closed, thus the area currently lacks
a focus and services for the residents and visitors to the area. We know as business
operators in the Roaring Fork Valley that the businesses that succeed are those that
appeal to a broad range of clientele.....they stand the test of time due to their business
models that provide attraction to local residents, part-time residents and tourists. The
focus of Lift One Lodge in establishing a restaurant and apres ski venue at the base of
Lift One requires this diverse focus to be a viable enterprise.
Skiing on the Lifr One sde has dropped to 3% of initial daily scans, with a small but hard
core group of skiers, such the Flyers and Dogs, and the AVSC racing program as usual
suspects.
The Lift One Lodge has evolved into a good fit with the community and resort, through
addressing skiing and being in planning the area. Below are a list of commitments that
have been made as a part of becoming a good fit:
Skiin
• Broke up building to create ski corridor
• New appropriately scaled surface lift from Willoughby Park to connect town and
mountain and return lift-served skiing
• New high speed Lift lA to improve uphill access, racing experience, and return skiing
Lifr One Lodge November 23, 2009 2
• Dedicated easements to create permanent ski corridor to Willoughby Park
Beine
• Public restaurant on the mountain with ski-up access and huge apres ski deck
• Beer, boots, and brats restaurant and employee housing in historic steakhouse
• Low cost public ski lockers
• Skico ticketing and patrol facilities in the core lobby area of lodge to reinforce ski lodge
qualities and embrace skiers
• Aspen Historical Society museum to engage locals and visitors in understanding the
past and creating the future
• Lock-off unit designs that optimize utilization of lodge rooms
We believe that there has been much evidence in the record to support success in pursuit
of these concepts. At City Council's November 9, 2009 meeting, a number of experts on
the Lift One side of Aspen Mountain testified about the success of and their support for
the planning effort and improvements in this area of town.
Parkin¢
The proposed parking for the Lift One Lodge includes a 50-space underground public
garage and 200 spaces under the lodge for owners, guests, members, Skico employees,
employee housing residents, delivery vehicles, and associated lodge uses. An appropriate
level of parking is necessary for the viability of the project; however, too much parking is
wasteful and expensive.
Councilman Romero and Mayor Ireland inquired about reductions in the parking allowed
on-site. There were also comments about Transportation Demand Management. During
the engineering work required for final design, we have always intended to re-examine
the pazking count based on constructability and see what size parking facility made the
most sense. Issues to study will include service vehicle circulation, combining public and
lodge parking, and total space reduction. We hope to find some reductions that make
sense from a design and operations perspective.
If the Council has a target below 250 spaces, then we would work toward that in final
design. We would ask that good engineering and construction practices allow some
flexibility in the target. Given the fact that some of the parking contributes to the
economic viability of the project, these all have to be weighed through the final design.
Financial Assurances
We understand the Council's concern over disruption of construction. We agree that a
completion bond and restoration bond are appropriate to insure timely project completion
and have worked with staff to create a mutually acceptable condition of approval.
Oneoine Revenue for Community Grouus
Councilman Romero noted Chaffin, Light and Wilhelm's history of building community
capacity while building new developments. He specifically noted the Roaring Fork
Lift One Lodge November 23, 2009
Club's creation and funding for the Roaring Fork Conservancy. The Club has imposed a
Real Estate Transfer Assessment on transactions for the benefit of the Conservancy.
Principals and members are also leading the way on the capital campaign to build a river
ecology education center in Basalt and host a major fundraiser each year to supplement
operating funds.
Others know of Chaffin and Light's role in creation and ongoing support for the
Anderson Ranch Arts Center and Snowmass Chapel. With the exception of the Real
Estate Transfer Assessment on the RF Club, all of the support provided has been
voluntarily and often without fanfare. As Jim Light once said, "charity is most heartfelt
when no one is looking."
This project involves an initial commitment of multiple millions of dollars to repurposing
the Skiers Chalet Lodge into a space for the Aspen Historical Society museum. While we
have other ideas to generate funding in partnership with local groups, such as the Aspen
Historical Society and Aspen Valley Ski Club, we would prefer to continue our tradition
of voluntary actions and partnering with the community.
Lifr One Lodge November 23, 2009
RESOLUTION N0.52
(SERIES OF 2009)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING A
CONCEPTUAL PLANNED UNIT DEVELOPMENT AND A CONCEPTUAL
TIMESHARE APPLICATION FOR THE LIFT ONE LODGE ON PROPERTY
COMMONLY KNOWN AS 233 GILBERT STREET, 710 SOUTH ASPEN STREET, AND
720 SOUTH ASPEN STREET, CITY OF ASPEN, PITKIN COUNTY, COLORADO
ParcellD:
2735-131-168-51, 2735-131-210-01, 2735-131-210-02,
2735-131-198-51, 2735-131-190-01, 2735-131-260-01
WHEREAS, the Community Development Department received an application (the
Application) from the Roaring Fork Mountain Lodge -Aspen, LLC (Applicant), represented by
Sunny Vann of Vann Associates, and with consent from the Aspen Skiing Company, the City of
Aspen, and the Historical Society of Aspen, for approval of a Conceptual Development Plan for
a Planned Unit Development (PUD) and a Conceptual Timeshaze for the Lift One Lodge; and,
WHEREAS, the Property is commonly known as Willoughby Park, Lift One Pazk, 233
Gilbert Street, 710 South Aspen Street, and 720 South Aspen Street, City of Aspen, Colorado,
and as more fully described in Exhibit A, attached hereto; and,
WHEREAS, the Application for the Lift One Lodge proposes:
On Parce[ 1:
• A multi-story structure consisting of 27 timeshaze lodging units divided into one-
eighth (1/8) interests with a total of 216 member interests. With "lock-off'
capability, the 27 units represent a total of 107 keys.
• 5 free-mazket residential units.
• 24 affordable housing units.
• Sub-grade parking garages with a combined total of no more than 250 spaces, 50
spaces in a public garage for replacement of lost parking on South Aspen Street
and the current Willoughby Pazk surface parking. 200 spaces for lodge,
commercial, Aspen Skiing Company, Club Members, and other uses associated
with the lodge.
• A public restaurant and apres ski azea.
• Fitness facilities.
• Lodge guest facilities.
• Aspen Skiing Company facilities and Guest Services.
• Public access and ski easements.
• Ski area operations
On Parcel 2:
• Housing for ten employees in dormitory-style units.
City Council Reso No. 52,
Series of 2009.
Page 1 of 14
• A public restaurant and apres ski azea.
• A portion of the sub-grade pazking gazage that connects to the underground
parking under Lot 1.
On Parcel 3 (Lift One Park):
• A public park.
• One lift tower of the historic Lift One appazatus.
• Underground pazking (part of the subsurface pazking garages on Lot 1)
• Lift tower for surface lift
• Ski azea operations
On Parcel 4 (Willoughby Park):
• A public park.
• A Historical Society Museum (the Skiers Chalet Lodge will be relocated for this
purpose).
• The historic Lift One.
• A skier drop off area.
• Terminus of surface lift and associated equipment
• Access into a Public Parking Gazage and Public below grade pazking
• Ticket booth
• Ski azea operations; and,
WHEREAS, pursuant to Section 26.415.070.D., Certificate of Appropriateness for
Major Development, of the Land Use Code, Conceptual approval may be granted by the Historic
Preservation Commission (HPC) at a duly noticed public hearing and was granted for the review
of Willoughby Pazk, Lift 1 Park, and Skier's Chalet Steakhouse by the HPC on August 9, 2006,
via Resolution No. 21, Series of 2006, and an additional public review and approval was granted
by Resolution 23, Series of 2008; and,
WHEREAS, the Community Development Department received referral comments from
the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire
Protection District, Environmental Health Department, Pazks Department, Parking Department ,
Aspen/Pitkin County Housing Authority, Public Works Department, and the Transportation
Department as a result of the Development Review Committee meeting; and,
WHEREAS, pursuant to Section 26.470.040.0.7, Affordable Housing, of the Land Use
Code, a recommendation from the Aspen/Pitkin County Housing Authority is required and a
recommendation for approval by the board was provided at their June 20, 2007, regulaz meeting;
and,
WHEREAS, said referral agencies and the Aspen Community Development Department
reviewed the proposed Conceptual PUD and Conceptual Timeshaze and recommended approval
with conditions; and,
WHEREAS, pursuant to Chapter 26.445 of the Land Use Code, Conceptual PUD
approval may be granted by the City Council at a duly noticed public heazing after considering
City Council Reso No. 52,
Series of 2009.
Page 2 of 14
recommendations by the Planning and Zoning Commission, the Community Development
Director, and relevant referral agencies; and,
WHEREAS, pursuant to Chapter 26.590 of the Land Use Code, Conceptual Timeshaze
approval may be granted by the City Council at a duly noticed public heazing after considering
recommendations by the Planning and Zoning Commission, the Community Development
Director, and relevant referral agencies; and,
WHEREAS, Conceptual PUD and Conceptual Timeshare review by the Planning and
Zoning Commission requires a public hearing and this application was reviewed at multiple
public hearings where the recommendations of the Community Development Director and
comments from the public were heard; and,
WHEREAS, during a regular meeting on June 19, 2007, the Planning and Zoning
Commission opened a duly noticed public hearing to consider the project and continued the
public hearing to July 10, 2007 for further discussion. At the July 10, 2007 public hearing, the
Planning and Zoning Commission opened a duly noticed public heazing to consider the project
and continued the heazing until July 17, 2007 for further discussion. At the July 17, 2007 public
heazing, the Planning and Zoning Commission opened a duly noticed public heazing to consider
the project and continued the project to July 24, 2007 for further discussion. At the July 24,
2007 public heazing, the Planning and Zoning Commission opened a duly noticed public hearing
to consider the project and continued the project to August 7, 2007 for further discussion. At the
August 7, 2007, public hearing the Planning and Zoning Commission opened a duly noticed
public hearing to consider the project and recommended City Council approve the Conceptual
Planned Unit Development and Conceptual Timeshare application by a three to one (3-1) vote,
with the findings and conditions listed hereinafter; and,
WHEREAS, after the recommendations from the City of Aspen Planning and Zoning
Commission and the Historic Preservation Commission were obtained and prior to City Council
reviewing the Application, City Council adopted Resolution No. 13, Series of 2008, initiating a
master planning effort known as the Lift One Neighborhood Master Plan involving properties
within this Application, properties held by the City of Aspen, and properties held by others; and,
WHEREAS, the Applicant entered into the master planning process willingly with
certain conditions regarding the continued "active" status of the Lift One Lodge Application and
the potential withdrawal from the master planning process among other conditions memorialized
in Resolution No. 13, Series of 2008; and,
WHEREAS, the City of Aspen, the other parties, and the Applicant all actively pursued
the master planning effort with the assistance of a citizen task force throughout 2008 and early
2009 although the master plan was never adopted; and,
WHEREAS, pursuant to Resolution No 13, Series of 2008, Section 10 "Master Planning
Process may be Terminated," the Applicant withdrew from the master planning process and the
City renewed review of the Lift One Lodge Application; and,
WHEREAS, pursuant to Resolution No. 13, Series of 2008, Section 12 "Lift One Lodge
Application on Hold," for the purposes of Section 26.304.070(f) of the Land Use Code, the
Application for Lift One Lodge remained "active" during the Lift One Neighborhood Master
Plan COWOP process and any and all deadlines or expiration dates associated with the Lift One
Lodge Application were tolled until the date on which processing of the Application was
resumed. All previously obtained consents and all previously obtained approvals or
City Council Reso No. 52,
Series of 2009.
Page 3 of 14
recommendations of approval, in particular the approvals of the Planning and
Zoning Commission and the Historic Preservation Commission remain in effect. The
Application will continue to be processed and considered pursuant to the City's Land Use
Regulations in place on the date that the Application to the Historic Preservation Commission
was deemed complete in March of 2006; and,
WHEREAS, pursuant to Resolution No. 13, Series of 2008, Section 13 "Holland House
Redevelopment Credits," the time period for utilization of replacement credits for employees,
lodging and other pertinent matters related to the former Holland House Lodge have been
extended to 24 months after final approval, denial, or withdrawal of the current Application for
Lift One Lodge; and,
WHEREAS, at the direction of City Council, the applicant amended the application to
better respond to and reflect community planning concepts realized during the master planning
effort of the Lift One Neighborhood Master Plan, specifically a ski lift and skiing corridor
through the center of the properties roughly along the historic alignment of the original Lift One,
adjustments to include portions of the S. Aspen Street Right-of--Way and the Gilbert Street
Right-of--Way into the project; and,
WHEREAS, the Planning and Zoning Commission recommended consideration of a
zero lot line from the eastern border of Lift One Park to the Lift One Lodge in order to minimize
impacts to properties adjacent to the eastem boundary; and,
WHEREAS, Conceptual PUD and Conceptual Timeshaze approval shall only grant the
ability for the applicant to submit a Final PUD and Timeshaze application and the proposed
development is further subject to Final PUD review, Conditional Use, Special Review, GMQS
Allotment, Mountain View Plane Review, Subdivision, Subdivision Exemption, Rezoning,
Timeshaze and a Street Vacation and Right-of--Way Dedication Plat pursuant to the Municipal
Code; and,
WHEREAS, the City Council of the City of Aspen finds that the Application meets or
exceeds the development review standards for a Conceptual PUD and Conceptual Timeshaze, is
consistent with the goals and elements of the Aspen Area Community Plan, that this Resolution
furthers and is necessary for the promotion of public health, safety, and welfaze as long as certain
conditions are implemented.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Aspen hereby
grants Conceptual Planned Unit Development Review Approval and Conceptual Timeshaze
Review Approval to the Lift One Lodge Application, subject to the conditions listed hereinafter:
Section 1 Conceptual Approval:
The Lift One Lodge is granted Conceptual PUD approval and Conceptual Timeshare approval
for the uses as depicted and described in Exhibit B to this resolution.
Section 2: Final PUD Application
The Final PUD application shall include:
A. An application for Final PUD and Timeshaze application and the proposed development is
further subject to Final PUD review, Conditional Use, Special Review, GMQS Allotment,
Mountain View Plane Review, Subdivision, Condominiumization, Rezoning, Timeshare,
City Council Reso No. 52,
Series of 2009.
Page 4 of 14
Commercial Design Review and 8040 Greenline Review, and a Street Vacation and Right-of-
Way Dedication Plat pursuant to the Municipal Code. Apre-application conference with a
member of the Community Development Department is required prior to submitting an
application.
B. Delineation of all dimensional provisions to become requirements of the PUD.
C. A proposed subdivision plat and PUD plans.
D. A Street Vacation and Right-of--Way Dedication Plat that accomplishes the following public
right-of--way dedications and grants the following perpetual easements and encroachment
licenses:
1. Vacation of that portion of South Aspen Street located south of Juan Street and north of
the northern boundary of the Shadow Mountain Condominiums as depicted on the
Conceptual PUD Development Plan;
2. Vacation of those portions of Gilbert Street depicted on Conceptual PUD Development
Plan;
3. Vacation of Hill Street east of South Aspen Street through the Lift One Lodge Project;
4. Vacation of Summit Street east of South Aspen Street through the Lift One Lodge
Project; and
5. Vacation of the portion of the remaining alley in Block 9, Eames Addition to the City of
Aspen, within the Lift One Lodge Project.
6. Grant of a public right-of--way for relocated South Aspen Street;
7. Grant of a public ski and pedestrian easement within Lot 1, Lifr One Lodge Project,
within Lot 3, Lift One Park, and within Lot 4, Willoughby Park. Pedestrian use will be
allowed when the surface lift is not in operation;
8. Grant of an easement granted to the Aspen Skiing Company and/or assigns within Lots 1,
3 and 4 for purposes of constructing, operating and maintaining the surface lift and other
associated skiing improvements and operations;
9. Grant of a perpetual subsurface easement beneath Lot 3, Lift One Park, and Lot 4,
Willoughby Park, for the use and benefit of the Lift One Lodge Project for purposes of
constructing, operating, using, maintaining and accessing parking garages;
10. Grant of a perpetual subsurface easement beneath a portion of relocated South Aspen
Street for the use and benefit of the Lift One Lodge Project for purposes of constructing,
operating, using, maintaining and accessing a snowmelt system; and
11. Grant of a perpetual access easement across Lot 1 for the benefit of the Aspen Skiing
Company.
12. The final application shall include legal descriptions of all land to be vacated and
dedicated and a combined total acreage of such land in order to facilitate the
implementation of the uses outlined in the site plan and Conceptual Approval attached
hereto as Exhibit B.
City Council Reso No. 52,
Series of 2009.
Page 5 of 14
13. The vacations and dedications shall become effective upon the recording of the Street
Vacation and Right-of--Way Dedication Plat and the Development Agreement for the
project.
14. In addition to the foregoing, the City of Aspen public right-of--way known as Dean Street,
a/k/a Deane Street, is hereby officially named and designated Deane Street (with an "e"),
and this spelling shall be reflected in the various Plats and Agreements recorded pursuant
for this project.
E. A proposed Development Agreement which sets forth a description of the subdivision
improvements and other amenities required, including the following:
1. The relocation of South Aspen Street and associated sidewalks;
2. The installation and/or relocation of all utilities and drainage facilities depicted and
described on the Master Utility and Drainage Plan. Drainage facilities shall be
coordinated with the City Engineering Department and shall comply with the City of
Aspen Engineering Department. Rights-of--Way shall be repaved as necessary;
3. Deane Street right-of--way improvements, including sidewalks;
4. The design of the Deane Street right-of--way improvements for that section of Deane
Street between the South Aspen Street and Monazch Street rights-of--way shall be
coordinated with the City of Aspen Community Development, Pazks, and Engineering
Depaztments. All, or a portion, of the $250,000 allocated to Deane Street improvements
by Ordinance No. 32, Series of 2005 (the Chart House contribution) may be used for the
design and implementation of these improvements.
5. The landscaping of South Aspen Street and other public rights-of--way. The Applicant
will be required to use structural soils where anon-compacted continuous root zone
cannot be provided. These soils will be required within the City Rights of Way and/or as
may be required on the private property. Structural Soils aze applicable in situations
where tree rooting potential is insufficient in designated planter azeas adjacent to
sidewalks. Tree Lighting, electrical conduits must comply with City of Aspen standazds;
6. The new Lift lA lift and other improvements to facilitate access to the lift from South
Aspen Street;
7. The surface lift from Willoughby Park to the Lift lA Base Area Development Envelope.
The Agreement shall reference and exhibit approval provided by the State of Colorado
Tramway Boazd regarding the alignment and development setbacks for the new surface
lift;
8. 50 subgrade public parking spaces beneath areas to be depicted on the Street Vacation
and Right-of--Way Dedication Plat;
9. Public locker facilities. Public locker facilities shall be available in a transparent, non-
discriminatory manner on a seasonal basis via a valley wide lottery. Seasonal rental rates
shall not initially exceed $300 subject to an annual increase of 3% or the CPI, whichever
is greater. Locker rental agreements shall prohibit assignment and subrental;
10. A Ski Museum located in Willoughby Pazk;
City Council Reso No. 52,
Series of 2009.
Page 6 of 14
11. The relocation of the volleyball courts currently located in Willoughby Pazk;
12. Improvements to Willoughby Park;
13. An allocation of the responsibilities for the ongoing maintenance of said improvements
and amenities;
14. The Agreement shall define and describe the perpetual use of the public open space as a
ski corridor;
15. The Development Agreement shall include a Transportation Management Plan that
requires the Lift One Lodge Project to participate in the City of Aspen Transportation
Options Program. This pazticipation shall include, but not be limited to, lodge shuttle
service, subsidized employee RFTA passes, participation in the City of Aspen caz sharing
program, on-site bicycles for use by employees and guests and specific marketing
materials regarding the an-ay of mobility options available to guests.
F. A detailed timeshare/membership operational plan. The final application shall include
representations regazding efforts that will be made to optimize occupancy and to report
occupancy rates after the third and fifth yeazs of operation. The final application shall include
implementation agreements that assure the City that lodge rooms will not be priced in a
manner so as to prevent rental to the general public. The plan shall require a substantial
amendment review upon conversion of fractional units to whole ownership units. The plan
may allow an administrative amendment review for the conversion of whole ownership units
to fractional units.
G. An azchitectural character plan showing the character and materials of proposed buildings. This
may be a model, digital model, detailed elevations, or renderings. Representations of view will
include the view up the ski corridor from Lift One, from the ski azea down toward Lift One, and
up Aspen St. from Deane St. A form of 3-D model is recommended.
H. A landscape plan that includes a description of the green roof system and
operations/maintenance associated therewith. A formal vegetation protection plan shall be
required with building permit application. An approved tree permit will be required before
any demolition or access infrastructure work takes place. A detailed excavation plan may be
required for work in the vicinity of certain lazge trees. Further review and detail of
excavation distances is necessary. All right-of way improvements shall meet city codes. Final
layout of the plantings and pazk designs require Park Department approval. Additional
detailed comments are included in the Development Review Committee minutes of April 11,
2007.
A drainage report and grading & drainage plan developed using the criteria and specifications of
the City Engineer. This analysis must account for critical uphill off site basins and must
consider downstream facilities and whether these facilities aze sized appropriately. Attention
should be paid to the design of surface drainage from the snowmelt system where it
transitions to Durant Avenue to avoid any water runoff to non-snow melted surfaces at the
intersection of Durant and Aspen Streets.
A detailed civil plan showing the geometric design for grading improvements to Lift lA and
South Aspen Street, including an accessible path to primary lodging, commercial and restaurant
uses, and the snow surface, vehicle fuming radii, garage entrances, shuttle staging and skier
drop-off areas.
City Council Reso No. 52,
Series of 2009.
Page 7 of 14
K. An operations plan for the public parking garage including ownership of the facility,
ticketing, hours, and fees.
L. A service operations plan showing truck delivery routes, expected demand, and expected
scheduling.
M. The Applicant shall comply with the City of Aspen Water System Standards, with Title 25,
and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory
Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department.
Utility placement and design shall meet adopted City of Aspen standards. Special
consideration for utilities in relation to snowmelt shall be considered prior to final approval
as indicated in the Development Review Committee minutes of April 11, 2007.
N. A draft construction schedule and Construction Mitigation Plan.
Section 3: Financial Assurance
The final application shall include a proposal to secure the landowner's performance on a final
approval and conditions thereon and remediation costs where appropriate. The Applicant shall
work with the Community Development Director and the City Attorney to develop the draft plan
prior to submission. Final approvals shall be granted upon a finding by the City Council that the
public interest is protected against possible financial burdens of completing public infrastructure,
public amenities, project amenities where a significant public interest exists, and costs for safety
and aesthetic remediation of an incomplete or abandoned development site, which shall include
authorization for accessing the property. The plan shall provide a mechanism that guarantees the
City's ability to secure the landowner's performance of the aforementioned obligations
independent of any bankruptcy or other similar financial distress of the property owner. This
plan shall include definitions of these terms, a process for monitoring performance and releases
of performance securities, and remedies for the City and the Landowner. Upon final approval,
the final plan shall be incorporated into a Development Agreement between the City and the
landowner and appended to the Subdivision/PUD Agreement.
Section 4: Public Restaurants and Aares Ski Deck
The final application shall provide assurances that public access to restaurant and apres ski deck
are maintained and that any change in use would require approval by City Council.
Section 5: East Lode Setbacks
The final application should evaluate the feasibility of a greater than required by Code setback of
the lodge's east wing location in relation to the eastern property line and the Caribou and Silver
Shadow Condominiums for skier access to the condominiums by potentially allowing a zero lot
line along Lift 1 Pazk to provide a greater setback adjacent to the property line shazed with the
Cazibou Condominiums.
Section 6: Willou¢bby Park
Willoughby Pazk should be an active park. The museum location should be evaluated to
consider a transit drop-off/group gathering azea near the museum. The final application should
City Council Reso No. 52,
Series of 2009.
Page 8 of ]4
address how the existing volleyball courts will be accommodated and timing of court
replacement. Off-site replacement courts shall be coordinated with and obtain approval from the
Parks Department.
Pazks staff requests that the Applicant consider the feasibility of a dedicated maintenance/storage
facility for the use by the Department in the Willoughby pazking gazage design. The purpose of
this facility will be for the storage of maintenance vehicles used for maintenance of Parks
Facilities located within the Core of Aspen.
Section 7: Skiin¢ & Snow Surface Conditionine and Maintenance Plan.
The final application shall include a proposed operating plan for ski area operations on City of
Aspen pazk land that has been reviewed and approved by the Pazks Department. The plan shall
include a requirement that Aspen Skiing Company, its successors or assigns ("ASC"), through
and by agreement, license, and/or easement with the Projects' owners and the City of Aspen,
regulazly groom and maintain the snow conditions in the surface lift corridor from Willoughby
Pazk to the Lift lA Base Area Development Envelope. Typically the maintained snow base and
surfaces in the corridor shall consist of natural snow accumulation and at all times during the ski
season shall be subject to ASC's operational management, controls and closures at ASC's sole
discretion for safety, functional and related reasons. However, subject to the physical
limitations of weather, temperature, and technical or mechanical constraints normally associated
with artificial snowmaking, grooming and snow management, ASC shall make, move, spread,
groom and prepare a base of artificial snow in the surface lift corridor at the beginning of each
ski season in accord with its annual snowmaking and terrain opening plan.
Section 8: Deea Powder Cabins
Community Development staff request the Applicant and the Aspen Skiing Company continue to
evaluate off-site options for rehabilitating and relocating the Deep Powder cabins pursuant to the
October 7, 2008, letter provided by the Aspen Skiing Company, attached as Exhibit C.
Prior to redevelopment, the Skiers Chalet Steakhouse (a designated historic landmark) and
the Skiers Chalet Lodge (an "Ordinance 48" property) shall be maintained in a reasonable
state of repair by its owner. Periodic access shall be afforded the City's Historic Preservation
staff to view the condition of the buildings and to conduct follow up visits to ensure that the
resources are not becoming damaged through neglect.
Section 10: Aspen Winternational - Alnine World Cua
The final application shall include a plan that accommodates the annual Winternational event
operations during and after construction that is acceptable to the local FIS event coordinator and
the Aspen Skiing Company.
Section 11: Enerav
The final application shall provide specific energy performance measures and commitments to
achieve LEED Gold certification. The final application shall include additional information
regarding the energy requirements for the snowmelt proposal for South Aspen Street and
City Council Reso No. 52,
Series of 2009.
Page 9 of 14
strategies to mitigate such energy usage. The Applicant shall present an analysis of options
ranging from snowmelting S. Aspen Street to utilization of mechanical maintenance and
removal. In the event the City of Aspen forms a renewable energy district, the Lift Ore Lodge
Project shall agree to join such district.
Section 12: Special Improvement District
The final application shall include additional information regazding the potential creation of a
Special Improvement District. To the extent the owners of the Lift One Lodge Project azea elect
to form a Special District to fund, construct, operate and/or maintain certain of these subdivision
improvements and amenities, the details thereof shall be set forth in the Master Development
Agreement. The Agreement shall provide that in the event either the Lift One Lodge Project or
another project in the neighborhood is ready to proceed with its development ahead of the other
Project, then that Project shall have the right to proceed on its own to form the Special District
with the requirement that the other Project will join the Special District when it is ready to do so.
If the Special District chooses to issue bonds for purposes of constructing improvements, and if
the Special District has sold bonds sufficient in amount to cover the approved estimated cost of
accomplishing the improvements undertaken by the Special District, the City agrees that such
Special District funding shall be deemed adequate financial assurance from the Project owners
for such subdivision improvements. In establishing the boundaries of and the real property
interest to be included within the Special District, Lots 1 and 2 shall be included and all publicly-
owned property and facilities, including publicly owned underground public pazking, and owner
occupied affordable housing units, shall be excluded.
Section 13: Measurements
Heieht Due to the nature of this site and consistent with the approach taken in the review of this
project, the maximum height for development within this project, shall be calculated and
depicted in the final application as the maximum distance possible measured vertically from
interpolated natural grade to the highest point or structure within a vertical plane. Architectural
and mechanical appurtenances including but not limited to elevator overruns, mechanical
equipment, antennas, chimneys, flues, vents, trellises, flag poles or similaz structures shall be
separately depicted and not extend over ten (10) feet above the specified maximum height limit
and be limited to areas fifteen (15) or more feet from exterior wall edge or pazapet.
Floor azea Due to the nature of this site and consistent with the approach taken in the review of
this project, floor area shall be calculated as that floor space within the surrounding exterior
walls as measured from the outside face of structural sheathing. For any story that is partially
above and partially below interpolated natural grade, only the floor space above the point at
which interpolated natural grade crosses the subfloor elevation of that story shall be counted
towazds floor area. The tabulation shall include a separate measurement for decks, balconies,
exterior stairways, gazebos, porches, landscape terraces and similar features.
Section 14: Reconstruction Credits
The following reconstruction credits have been verified by the City of Aspen and shall be
credited towazds the Growth Management Quota System allotment and affordable housing
requirements of the Lift One Lodge Project.
City Council Reso No. 52,
Series of 2009.
Page ]0 of 14
A. A total of 38 lodging reconstruction credits consisting of 20 lodge units in the former
Holland House Lodge; l O lodge units in the former Skiers Chalet Lodge; and 8 lodge units in
the former Skiers Chalet Steak House shall be credited against the Lift One Lodge Project's
lodging GMQS allotment requirement. The 38 reconstruction credits shall equate to 76
lodging pillows for allotment purposes.
B. One free mazket residential reconstruction credit located in the former Holland House Lodge
shall be credited against the Lift One Lodge Project's free market residential GMQS
allotment requirement.
C. A commercial reconstruction credit of 3,374 square feet of net leasable area consisting of
2,429 square feet in the Skiers Chalet Steak House and 945 squaze feet in the Lift lA base
structure shall be credited against the Lift One Lodge Project's commercial GMQS allotment
requirement.
Section 15: Emalovee Generation and Affordable Housin¢ Requirement
The proposal exceeds the requirements for affordable housing mitigation based on proposed type
and intensity of uses. A recommendation from the Housing Boazd is required during final review.
Housing staff recommends that the affordable units at the lodge have assigned parking.
The Lift One Lodge Project will generate approximately 65 employees. The Project has
committed to provide affordable housing mitigation for 100 percent of the net additional
employees generated by the project. This exceeds the 60% requirement. The Project's employee
generation is as follows.
Lodge Bedrooms. The development of lodge units within the Lodge zone 34.5 Employees
district generates 0.5 employees per bedroom. The Lift One Lodge Project
contains 107 lodge bedrooms and has a lodge GMQS reconstruction credit of
38 bedrooms. The Project's 69 net new lodge bedrooms, therefore, will
generate 34.Semployees.
The Project's new net leasable commercial space of 5,613 squaze feet generates 18.4 Employees
18.4 employees
The Aspen Skiing Company's new net leasable commercial space of 1,574 4.9 Employees
square feet within the Project generates 4.9 employees.
The Project's net new four free market residential units will generate 7.0 7.0 Employees
employees
Total Em loyees Generated 64.8 Em loyees
Mitigation required at 100% 64.8 Employees
The Lift One Lodge Project's affordable housing mitigation shall be met with at least 40% of the
requirement on site. The remaining affordable housing shall be provided with mitigation units
within the Aspen Urban Growth Boundary. The Applicant reserves the right to submit an
Employee Staffing Plan to the City to develop accurate employee generation calculations.
Otherwise, amendments to the project prior to final approval shall use the above methodology for
City Council Reso No. 52,
Series of 2009.
Page 11 of 14
calculafing the affordable housing requirements. The final application shall include an agreement
to an employee generation audit two years after operations have commence and an agreement to
mitigate any shortage of employees or to obtain credits for any employee housing mitigation that is
in excess of the actual generated employees.
Section 16: Temporary Use for Affordable Housine
The Skiers Chalet Lodge and Skiers Chalet Steakhouse may be utilized as housing for working
residents during the pendency of the PUD Process. The temporary use as affordable housing
shall not affect a change in use in the properties subject to the PUD Application and shall not be
subject to the City's Housing Replacement Program. In additional, lodging and employee credits
associated with the Skiers Chalet Lodge will remain in effect while it is used for temporary
affordable housing.
Section 17: Ground Stability Monitorine
An inclinometer shall be installed within 6 months of the conceptual approval (dependent upon
ski azea operation and weather limitations) and bi-monthly readings shall be provided to the City
through the review of a final application to analyze any slope movement. The final approval
may require continuation of the monitoring until or past issuance of a Certificate of Occupancy.
The Final application shall include additional information and evaluation on uphill conditions
including: off-site drainage, geo hazards, stability issues and groundwater mitigation. Additional
detailed comments are included in the Development Review Committee minutes of April 11,
2007.
Section 17: Sanitation District Requirements
Service is contingent upon compliance with the District's rules, regulations, and specifications,
which are on file at the District office. An upgraded main sanitary sewer line is necessary to
serve the proposed development; therefore a "Collection System Agreement" is required.
Section 18: Environmental Health Department
The state of Colorado mandates specific mitigation requirements with regard to asbestos.
Additionally, code requirements to be aware of when filing a building permit include: a
prohibition on engine idling, regulation of fireplaces, fugitive dust requirements, noise abatement
and pool designs. Additional detail is provided in the Development Review Committee minutes
of April 11, 2007.
Section 19: School Lands Dedication and Impact Fees
The Applicant shall pay all impact fees and the school lands dedication assessed at the time of
building permit application submittal and paid at building permit issuance.
Section 20: Conceptual Approval
City Council Reso No. 52,
Series of 2009.
Page 12 of 14
Approval of this conceptual development plan does not constitute final approval or permission to
proceed with any aspect of the development. Approval of this conceptual development plan
authorizes the Applicant to submit an application for a final PUD development plan in
accordance with the City Council Resolution granting conceptual PUD approval. A final PUD
application shall be submitted within two years of the adoption of this resolution, unless
otherwise extended or exempted.
The Historic Preservation Commission previously granted Conceptual Approval for the
relocation of the Skiers Chalet Lodge and the Skiers Chalet Steak House. The Lift One Lodge
Project shall require final approval from the Historic Preservation Commission for both
relocations, limited to the extent of their purview, which shall be processed separately in
accordance with the provisions of Chapter 26.415 of the City of Aspen Land Use Code. The one-
year limitation on submission of a final development plan to the Historic Preservation
Commission and expiration of the Conceptual approval is hereby waived.
Section 21:
This Resolution shall not affect any existing litigation and shall not operate as an abatement of
any action or proceeding now pending under or by virtue of the ordinances repealed or amended
as herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 22•
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be
deemed a separate, distinct and independent provision and shall not affect the validity of the
remaining portions thereof.
FINALLY, adopted, passed and approved this
day of , 2009.
Attest:
Kathryn S. Koch, City Clerk
Michael C. Ireland, Mayor.
Approved as to form:
John P. Worcester, City Attorney
City Council Reso No. 52,
Series of 2009.
Page 13 of ]4
Exhibit A - Property Descriptions
Exhibit B - Summary of Conceptual Approval
Exhibit C - October 7, 2008, Letter from Aspen Skiing Company regarding Deep Powder
Cabins
City Council Reso No. 52,
Series of 2009.
Page 14 of 14
Resolution No. 52, Series 2009
ExhibitA -Legal Descriptions
A. Property of Aspen Skiing Company
1. Land Under Contract with Roaring Fork Mountain Lodge -Aspen, LLC which is
included in the Lift One Lodge Application:
Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14,
Block 10, and Lots 1, 2, 3, 4, 5, 6 and 7, Block 12,
EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN,
TOGETHER WITH an easement and right of way for the construction, erection,
operation and maintenance of a cable ski chair lift, as created, defined and established by
Easement Agreement between the Board of County Commissioners of the County of
Pitkin and Friedl Pfeifer recorded October 24, 1962, in Book 199 at Page 489, and,
TOGETHER WITH an easement and right of way for skiing purposes, as created,
defined and established by Easement Agreement by and between the City of Aspen and
Aspen Skiing Corporation recorded October 17, 1969, in Book 244 at Page 31, and
TOGETHER WITH that portion of the alleyway for Block 10 vacated in Book 259 at
Page 83.
2. Land Area generally adjacent to and south of the Lift One Lodge Site:
That property owned by the Aspen Skiing Company extending generally to the south
from the southwesterly boundary of the Mountain Queen Condominiums, the southerly
boundary of Block 12, Eames Addition to the City and Townsite of Aspen, the south end
of the South Aspen Street Right-of--way and the southerly boundary of the Shadow
Mountain Condominiums to the southerly boundary of the City of Aspen.
B. Property of Roaring Fork Mountain Lodge -Aspen, LLC
Lots 12, 13 and 14, Block 8, together with that portion of the alley in Block 8 abutting
said lots, Eames Addition to the City and Townsite of Aspen, Eames Addition, City and
Townsite of Aspen (Skiers Chalet Steakhouse); Lots 5, 6, 7, 8, 9 and 10, Block 9,
together with Lots 4 and 11, Block 9, less the west 22 feet thereof, Eames Addition to the
City and Townsite of Aspen, and that portion of the alley in said Block 9 vacated by the
City of Aspen in Ordinance No. 4, Series of 2006, recorded April 11, 2006 under
Reception No. 522845 (Skiers Chalet Lodge); and Lots 1, 2, 13 and 14, Block 9, Eames
Addition to the City and Townsite of Aspen, together with that portion of the vacated
alley between Lots 1 and 14 and the west 20 feet of the vacated alley between Lots 2 and
13, Block 9, Eames Addition to the City and Townsite of Aspen (Holland House).
C. Property owned or maintained by the City of Aspen.
Willoughby Park:
Lots 1-14, Block 7 and Lots 1-3, Block 8 Eames Addition, City and Townsite of Aspen,
and that portion of Juan Street east of South Aspen Street between Blocks 7 and 8, Eames
Addition, City and Townsite of Aspen and that portion of the alley in Block 8 adjacent to
Lots 1, 2, and 3 Block 8, Eames Addition, City and Townsite of Aspen.
Lift One Park:
Lots 3 and 12 Block 9 and the western 22 feet of Lots 4 and 11, Block 9 Eames Addition,
City and Townsite of Aspen.
Public rights-of--way:
• South Aspen Street south of Durant Avenue.
• Deane Street between Monazch and South Aspen Streets.
• The alleyway between Lots 1, 2 and 3 and Lots 12, 13, and 14, Block 8, Eames
Addition, City and Townsite of Aspen (unopened).
• Gilbert Street west of Monarch Street.
• Hill Street west of Monazch Street (unopened).
• Summit Street west of Monazch Street (unopened).
• A one-block section of alleyway between Hill Street and Summit Street east of
South Aspen Street (unopened).
• A one-block section of alleyway south of Summit Street east of South Aspen
Street (unopened).
Ordinance No 34, Series 2008 Page 2
Lift One Neighborhood M aster Plan
Exhibit B
to Resolution No. 52, Series 2009
Summary ojConceptual Approval -Uses
Lot 1, Lift One Lodge. The Lift One Lodge Project is a mixed use membership
lodge/whole ownership project consisting of 27 lodge units, 5 free mazket residential
units, affordable housing components, a maximum of 9,500 squaze feet of net
leasable commercial space and a maximum of 250 sub-grade parking spaces.
The Project's lodge component consists of one-bedroom, two-bedroom, three-
bedroom and four-bedroom suites. Each bedroom within the lodge component will
be sepazately keyed as a "lock-off' unit. For Growth Management Quota System
purposes, the Project's lodge component will contain a total of 107 keys or separately
rentable divisions.
The Project's commercial component consists of a public restaurant, kitchen and baz;
and various facilities for the Aspen Skiing Company, including, but not limited to, a
ticket sales area, public/employee locker rooms, ski equipment sales, servicing, and
rental, other skier servicing facilities, etc. The public restaurant, baz and kitchen will
contain a maximum of 7,000 squaze feet of net leasable commercial azea. The Aspen
Skiing Company's facilities will contain a maximum of 2,500 squaze feet of net
leasable commercial azea. The lodge will also include other guest service areas,
facilities and ancillary spaces and uses which aze not considered net leasable azea for
Growth Management Quota System purposes.
Lot 2, Skiers Chalet Steak House. The Skiers Chalet Steak House is a mixed use
commercial/affordable housing building which will contain approximately 1,050
squaze feet of net leasable commercial space on its ground floor and a total of 5
dormitory affordable housing rooms on its second and third floors housing ten
employees. An outdoor seating area will be provided adjacent to the building. The
commercial space's net leasable azea shall be identified in the Lift One Lodge Final
Plan and individual Development Agreement.
The Lift One Lodge Development Agreement shall also include a list of permitted
uses for the commercial space, which list shall be derived from those uses permitted
within the (NC), Neighborhood Commercial, zone district.
Lot 3, Lift One Park. The utilization of the Lift One Park for skiing and open
spaces purposes with the allowance for below grade pazking as a part of the Lift One
Lodge.
Lot 4. Willoughbv Park. The relocation of the Skiers Chalet Lodge to Willoughby
Pazk as depicted in the site plan, and the use of the building for community purposes
including, but not limited to, a historical museum and ancillary affordable housing or
commercial space. There shall also be an entrance to the 50 public parking spaces that
aze being provided within Lot 1.
Lift lA Base Area Development Envelope The Lift lA Base Area Development
Envelope for the uses, activities and improvements necessary, ancillazy and incidental
to the development, function, operation and maintenance of winter and summer
recreation and a ski area base, including, but not limited to the following:
1. Skiing, snowboazding, and other winter and summer recreational sports and
activities;
2. Ski and snow sports racing, competitions, demonstrations, other special events,
including supporting activities, facilities, improvements and infrastructure;
3. Ski lifts and mechanized uphill transportation, including all related improvements
and equipment, such as lift terminals, towers, platforms, supporting or retaining
walls and foundations, stairs, elevators, plaza spaces, lift mazing, housings, roofs,
and similar structures, operator houses or lift shacks and storage;
4. Ticketing sales and all necessary and incidental commercial skier services
functions, facilities and equipment, including, but not limited to ski and
equipment rental, lockers, public restrooms, offices, ski school facilities,
emergency medical caze, and related activities and uses;
5. Making, clearing, removing, sculpting, grooming and maintaining snow and snow
surfaces, together with all the infrastructure, deep and shallow utilities, and
equipment and machinery necessary for performing the same, whether fixed or
mobile;
6. Motorized vehicle access, use, and pazking, including snow grooming equipment
as described above, as well as snowmobiles, emergency vehicles, wheeled
vehicles, automobiles, service and support trucks and other vehicles routinely
used in the conduct and performance of mountain recreation, operations, services,
construction, supply, events and the permitted uses described herein or as
permitted by this Ordinance in the adjacent Projects and properties;
7. Operational, commercial, interpretive, and informational signage reasonably
necessary and/or incidental to the performance of other activities and functions
described herein;
8. Any and all customary activities, equipment, housings, structures, and functions
which may be necessary, appropriate, ancillary and/or incidental to the full use,
practice and enjoyment of skiing and other recreational sports and activities,
mechanized uphill transportation, and related business purposes and activities;
and
9. Installation, staging, construction, maintenance, alteration, repair, operation,
servicing, and replacement of all of improvements, structures, materials,
landscaping and/or equipment described or contemplated herein.
Parking Spaces and Parking Garage
The Lift One Lodge Project parking gazage shall be considered an approved commercial
parking facility. Minimum pazking spaces to serve the Project shall be identified in the
Development Agreement. Allocated spaces shall be identified on the Development
Agreement (or the Final PUD Development Plans attached thereto). Allocated spaces
shall not be sold or leased separate from the portion of the project to which they aze
allocated. Unallocated spaces may be leased by the owners thereof on a daily or longer-
term basis, or may be sold to third parties.
The parking spaces in the parking garage shall be used for parking vehicles and accessory
storage (such as ski storage at the head of a pazking space), and shall not be principally
used for storage, trash containers, mechanical equipment, or other non-automobile related
purposes.
SNOWMASS ASPEN MOUNTAIN ASPEN NIOHLANDS BUTTERMILK
October 7, 2008
City of Aspen
Historic Preservation Commission
Via PDF
Re: Deep Powder Cabins
Dear Commissioners:
ASPENC~SNOWMASS~
ASPEN SKIING COMPANY
~Cz~O ~'v'~ , Z0~
Thank you for your work and deliberations related to the Lift lA COWOP
process. It has been an exciting endeavor with an important outcome. I am the Senior
Vice President of Aspen Skiing Company ('`ASC") and authorized to make the
commitments set forth in this letter.
In connection with the redevelopment of the IA azea, it will be necessary to
relocate the Deep Powder cabins which have been temporarily stored on the site. The
Deep Powder cabins aze not currently designated historic structures. ASC is willing,
strictly as an accommodation, to endeavor to utilize one of the cabins as a lift shack at the
bottom of the relocated 1 A lift provided that necessary mechanical and electrical
equipment for the lift will fit in the structure. ASC is also willing to attempt to locate one
other Deep Powder cabin somewhere within the boundary of Aspen Mountain Ski Area
as a picnic and warming structure, in a location to be determined. Both of these uses aze
subject to review and approval by local jurisdictions and potentially the United States
Forest Service.
ASC will not accept the Deep Powder cabins if they are historically designated.
If the proposed uses are approved by governmental units having jurisdiction, ASC will
utilize the cabins for approved uses and maintain them in serviceable condition. In the
event ASC, in the future, determines to either significantly modify or demolish either of
the cabins then in use, ASC will give the Historic Preservation Commission staff at least
ninety days advance notice of such plans. ASC will give the City of Aspen the
opportunity to remove and relocate the cabins within such ninety day period, at the sole
expense of the City. If the City does not exercise such right to remove the subject cabin
then ASC shall have the right to modify, relocate or demolish the subject cabin in its sole
discretion.
If the terms of this proposal are accepted by the Historic Preservation
Commission and the City, ASC will relocate the cabins in the Spring or Summer of 2009.
Please feel free to call with questions or for further discussion.
Very tru urs,
Davt . Be
Senior Vice President
P.O. Box 1248
Aspen, CO 81612-1248
970.925.1220
www.aspananowmass.con
® ~~~~.
SNOWMASS ASPEN MOUNTAIN ASPEN HIGHLANDS BUTTERMILK
General Counsel
cc:
P.O. Box 1248
Aspen, CO 83812•L248
970.925.1220
www.aspensaowma ss. eom
Bob Daniel
John Sarpa
Peter King
David Corbin
ASPENC~SNOWMASSn
ASPEN SKIING COMPANY
® Vni¢am PerydNPms.
!~- A.
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
COPY: John Worcester, City Attorney
THROUGH: Chris Bendon, Community Development Director I ' U/INI/1
FROM: Jennifer Phelan, Deputy Planning Director ~~•~~„" ~~/
RE: Appeal of Land Use Code Interpretation -Lot Area and Development
Right
DATE: November 23, 2009
APPLICANT /OWNER:
MD1, LLC
REPRESENTATIVE:
David McConaughy,
Garfield and Hecht, PC
LOCATION:
Alpine Acres Subdivision,
specifically a former
platted right-of--way within
the subdivision that is
described as the "northerly
parceP' within this memo.
SUMMARY:
The Applicant is appealing
an interpretation issued by
the Community
Development Director.
The Applicant requests
that Council direct staff to.
1) respond to 3 out of 5
questions submitted in the
initial interpretation
request, 2) reverse staff's
conclusion that the
"northerly parcel" has no
floor area, and 3) permit
the "northerly parcel" be reviewed administratively with regard
to growth management.
STAFF RECOMMENDATION:
Staff recommends City Council uphold the Director's
interpretation by adopting the proposed Resolution affirming the
interpretation and not require staff to respond to the 3 questions
posed by the Applicant in the original interpretation request.
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Figure 1: Vicinity Map of "northerly parcel"
SUMMARY:
One of the jobs assigned to the Community Development Director is to provide
interpretations of the text of the City's Land Use Code. This is a formal process in which an
applicant requests a written interpretation and, if they don't agree with the interpretation,
affords the applicant the right to appeal the decision to the City Council.
Section 26.316.030 of the Aspen Land Use Code sets forth the applicable standard of review
that Council should follow in these matters and the actions available to Council following the
hearings on the appeals.
STANDARD OF REVIEW:
Section 26.316.030(E) reads as follows:
Standard of review. Unless otherwise specifically stated in this title, the decision-
making body authorized to hear the appeal [City Council] shall decide the appeal
based solely upon the record established by the body from which the appeal is taken
[Community Development Director]. A decision or determination shall not be
reversed or modified unless there is a finding that there was a denial of due process,
or the administrative body has exceeded its jurisdiction or abused its discretion.
The Land Use Code does not define the terms: "a denial of due process", "exceeded its
jurisdiction," or "abused its discretion." Court cases, however, have helped define these terms
as follows and may be used by Council in its deliberation of the appeal:
A denial of due process may be found if some procedural irregularity is determined to have
occurred that affected a significant right of the appellant, or the administrative body
otherwise acted in violation of the appellant's constitutional or statutory rights. Ad Hoc
Executive Committee of Medlcal Staff of Memorial Hospital v Runyan, 716 P. 2d 465 (Colo.
1986.)
A decision may be considered to be an abuse of discretion if the "decision of the
administrative body is so devoid of evidentiary support that it can only be explained as an
arbitrary and capricious exercise of authority." Ross v Fire and Police Pension Ass'n., 713
P.2d 1304 (Colo. 1986); Marker v Colorado Springs, 336 P.2d 305 (Colo. 1959).
A decision may be considered to be in excess of iurisdiction if the decision being appealed
from "is grounded in a misconstruction or misapplication of the law," City of Colorado
Springs v Givan, 897 P.2d 753 (Colo. 1995); or, the decision being appealed from was not
within the authority of the administrative body to make. City of Colorado Springs v
SecureCare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000).
2
ACTIONS BY COUNCIL FOLLOWING APPEAL HEARING:
Section 26316.030(F) reads as follows:
Action by the decision-making body hearin tg he appeal. The decision-making body
hearing the appeal may reverse, affirm, or modify the decision or determination
appealed from, and, if the decision is modified, shall be deemed to have all the
powers of the officer, board or commission From whom the appeal is taken, including
the power to impose reasonable conditions to be complied with by the appellant. The
decision shall be approved by resolution. All appeals shall be public meetings.
BACKGROUND:
In this case, the interpretation rendered by the Director essentially discusses whether there is
floor area or a development right associated with a specific area of land that was gained
through a quiet title action (described as the "northerly parcel" within this memo) and shown
in Figure 2, below. The interpretation request arose after the Applicant met with Community
Development staff and was provided apre-application conference summary primarily stating
that no floor area or development rights are associated with the subject area of land gained
through the quiet title action. The Applicant disagreed with those two points in the summary
and requested an interpretation, by posing a number of questions, to gain better understanding
of staff s conclusion in the pre-application conference summary.
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Figure 2: "Northerly parcel" gained through quiet title action
As noted in the Appeal request (Exhibit B), the Applicant is requesting Council to address
three issues in this Appeal. These issues are listed below and are addressed individually in the
memo:
1) The interpretation did not answer three questions submitted in the interpretation
request -and the Director should be directed to do so; and,
3
2) The interpretation finds that the land area gained through quiet title is a proposed
right-of way and therefore is excluded from the calculation of Lot Area (resulting in
the "northerly parcel" having no floor area associated with it) -and the Director's
finding should be reversed; and,
3) The "northerly parcel" is not eligible for development because it has never received
a Growth Management Review under Chapter 26.470 of the Land Use Code -and the
Council should amend the interpretation to allow the land azea to apply for
administrative growth management review
Issue 1) The Interpretation issued did not answer auestions 1 2 and 3.
The purpose of an interpretation is to provide an explanation of the meaning of the text of the
Land Use Code and boundaries of the zone district map. As noted previously, the request for
an interpretation was a result of staffs determination in apre-application conference
summary that the subject area of land has no associated floor area or a development right.
Although five questions were posed, a number of the questions were essentially interrogatory
questions, seeking legal opinions and posing inappropriate hypotheticals. Staffs role in a
code interpretation is to interpret the actual text of the code, not to respond to hypothetical
questions. As such staff answered the ultimate questions posed in the interpretation request:
whether the "northerly parcel" has a development right or floor area associated with it.
Issue 2) The Intemretation finds that the land area gained through quiet title is a proposed
dedicated right-of wak
The calculation of Allowable Floor Area is based upon the size of the Lot Area. Lot Area can
be a net number rather than gross number due to adopted exclusions from Lot Area within the
Land Use Code. Section 26.575.020(C), Lot Area, of the Land Use Code states, "excluded
from total lot area...is that area within a vacated right-of-way, or within an existing or
proposed dedicated right-of--way (emphasis added) or surface easement."
The ``northerly pazcel" is part of an unimproved proposed right-of--way originally known as
Silver King Drive (now known as Matchless Drive) that is part of Alpine Acres Subdivision
(Figure 3). The right-of--way was proposed as a public right-of--way by the dedication
certificate on the Alpine Acres subdivision plat. A portion of the dedication reads, "and does
hereby convey to Pitkin County, for public use, Silver King Drive and Herron Drive, as
platted for roadway easements."
4
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Figure 3: Alpine Acres Subdivision plat
The City's Land Use Code defines "public right-of--way" as, "a dedicated strip or other azea
of land on or over which the city and/or public may travel or use for passage and within
which public utilities and/or streets, alleys, trails, sidewalks and other ways may be
installed." Although not improved to standazd street improvement requirements and
consequently not accepted by Pitkin County due to the lack of improvement, the subject area
of Silver King Drive was proposed for dedication as a public right-of--way by the original
subdivider of Alpine Acres by the plat's dedication language.
The City's Land Use Code does not define the term "proposed." This requires the Director
use some discretion. Further, the code does not define the timeframe in which the proposal
must occur, whether the proposal needs to be formally accepted, or in whose jurisdiction the
proposal is made. Quite simply, the Alpine Acres Subdivision plat was approved by Pitkin
County with Silver King Drive and Herron Drive proposed as apublic-right-of--way. The
County consented, with the signing of the plat, to the creation of both streets. Cleazly, the
developer "proposed" or offered both drives as dedicated rights-of--way to the County.
Subsequently, when the entire subdivision was annexed into the City, the annexation plat
accepted by the City shows both Herron Drive and Silver King Drive.
31 The land area is not eligible for development because it has never received a Growth
Management Review under Chapter 26.470 of the Land Use Code.
In the interpretation rendered by the Director, it is noted that the land associated with the
quiet title action has not received a growth management allotment or exemption in order to
have a development right. All development within the City is subject to Chapter 2b.470,
Growth Management Quota System, and commonly described as growth management
review. The Applicant states that the "northerly parcel" should be eligible for an
administrative growth management review under Section 26.470.060 (B), Single-Family and
5
Duplex Dwelling Units; however, the "northerly parcel" does not meet any of the necessary
conditions to be reviewed under this subsection.
To be reviewed under this subsection, a vacant lot must meet one of the following conditions:
it was created by a lot split, it was created by a historic lot split, or it was subdivided or
legally described prior to November l4, 1977. This vacant area of land does not meet any of
these criteria and cannot be reviewed administratively.
Alpine Acres Subdivision was originally approved by the County with five (5) lots and two
roads. If the composition of the subdivision is to change, it requires subdivision review to
ensure orderly development such as providing adequate access or public utilities. For
example, Lot 5 has been subdivided through City Council review and approval and is now
two lots instead of one. A subdivision review by the City has not occurred and the quiet title
action was not reviewed under the expectation of development rights being created.
STANDARDS OF REVIEW:
1. Due Process -The applicant has met with staff on a number of occasions to discuss his
rights associated with the subject land area. After the pre-application summary was
provided to him, his representative requested an Interpretation based on clarifying the
basis of staff's conclusions in the pre-application summary (no floor area or a
development right is associated with the subject area of land). An Interpretation provides
the opportunity for a party to appeal the findings.
Certain timeframes affect when interpretations must be provided after a request and when
appeals need to be scheduled. Those timeframes have been met. As required by the Land
Use Code, the appellant was provided notice of tonight's meeting via registered mail and
all other affected parties were noticed by publication in the newspaper, as required.
(Please see Exhibit D). Assuming tonight's meeting does not contain any procedural
flaws, staff believes that proper procedural due process has been provided.
In providing an interpretation, the Director relied on the facts presented and the language
within the Land Use Code. Definitions within the code such as "right-of--way" and "Lot
Area" were used in evaluating the original plat creating Alpine Acres and any rights
associated with the land area gained through quiet title action. Although "proposed" is not
defined in the Land Use Code, staff applied the common definition of the word in
evaluating the code language and rendering an interpretation. Staffs interpretation was
not arbitrary and provided substantive due process.
2. Jurisdiction -The Director's jurisdiction to interpret the Land Use Code is established in
Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the
jurisdiction, authority, and duties allocated to the Community Development Director.
One of the Director's duties outlined in the Chapter reads: "To render interpretations of
this Title or the boundaries of the Official 7_one District Map pursuant to Chapter
26.306. " Staff believes this language is clear and it does not appear that the applicant is
questioning this provision of the code.
6
3. Discretion -With respect to abuse of the Director's discretion, the Director did need to
use his discretion in rendering the interpretation. The question is whether the Director
abused that discretion. With regard to issue 1, the Director is required to interpret specific
text of the code to provide explanation and clarity. Staff does not believe hypothetical
questions addressing a very specific application of the code to a property are proper
matters for code interpretations. This style of questioning is not typically used to clazify
the meaning of the text of the Land Use Code. These are interrogatory questions,
possibly containing limited facts, aimed at sequentially establishing a property right in a
"gotcha" fashion.
With regard to issue 2, there is no definition of "proposed" outlined in the code and staff
used a literal interpretation, as Silver King Drive was proposed by the subdivider as a
public right-of--way. In looking at issue 3, staff simply noted that all development is
required to go through growth management review and such review has not occurred for
the "northerly parcel" created through quiet title action.
Staff tends to approach these sorts of tasks with a very pragmatic and realistic
administration of development limitations. The Land Use Code does not predict every
type of circumstance. Staff considers the text of the code as well as the effects that would
be expected with different interpretations. The Director believes that his discretion was
applied appropriately and the Interpretation was rendered ethically.
CODE INTERPRETATION AND CODE AMENDMENT:
The question in a code interpretation is what does the code say? On occasion, applicants
seek a code interpretation because they believe the code should say something else. The code
amendment process is the proper venue for the question what should the code say?
TWO RESOLUTIONS:
Attached are two Resolutions. One finds that the Director acted correctly and affirms the
interpretation. The second finds that the Director exceeded his jurisdiction, abused his
authority, or failed to provide due process and reverses the interpretation.
RECOMMENDATION:
Staff believes the Director's interpretation was rendered ethically and that no abuse of
authority or exceeding of jurisdiction occurred. Staff recommends City Council uphold
the Director's interpretation by adopting the proposed Resolution affirming the
interpretation.
CITY MANAGER COMMENTS:
7
RECOMMENDED MOTION: (all motions must be made in the positive)
"I move to approve Resolution No. ~Q(~, Series of 2009, [affirming or reversing] the
Community Development Director's interpretation of the Land Use Code regarding Lot Area
and development rights.
ATTACHMENTS:
Exhibit A -Interpretation dated August 19, 2009 and Interpretation request
Exhibit B -Appeal letter from David McConaughy dated September 1, 2009, with exhibits
Exhibit C -Land Use Code Section Regarding Appeals
Exhibit D -Affidavit of notice
Exhibit E -Additional correspondence from David McConaughy dated October 9, 2009,
with exhibits
RESOLUTION N0. '
(SERIES OF 2009)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN
INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY
DEVELOPMENT DIRECTOR REGARDING LOT AREA AND DEVELOPMENT
RIGHTS.
WHEREAS, the Community Development Director received a request for an
interpretation of the Land Use Code regarding Floor Area and development rights from the
owner of an area of land gained through quiet title action (Pitkin County Case No. 06-CV-165)
and described as the "northerly parcel" represented by Attorney David McConaughy; and,
WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered
a decision and the owner sought an appeal; and,
WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation
of the Director or modify or reverse the Interpretation upon a finding that there was a denial of
due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and,
WHEREAS, the City Council has taken and considered written and oral argument from
Attorney David McConaughy representing the appellant, and the Community Development
Director, and has found that the Director provided due process and neither exceeded his
jurisdiction or abused his authority in rendering the Interpretation; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is
necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community
Development Director's Interpretation of the Land Use Code regarding Floor Area and
development rights associated with the "northerly parcel."
This Resolution shall not affect any existing litigation and shall not operate as an abatement of
any action or proceeding now pending under or by virtue of the ordinances repealed or amended
as herein provided, and the same shall be conducted and concluded under such prior ordinances.
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be
deemed a separate, distinct and independent provision and shall not affect the validity of the
remaining portions thereof.
APPROVED by the Aspen City Council at its regular meeting on , 2009.
ATTEST:
Kathryn S. Koch, City Clerk
APPROVED AS TO FORM:
John Worcester, City Attorney
Michael C. Ireland, Mayor
Resolution No.--, Series of 2009. Page 1
RESOLUTION N0.
(SERIES OF 2009)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REVERSING AN
INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY
DEVELOPMENT DIRECTOR REGARDING LOT AREA AND DEVELOPMENT
RIGHTS.
WHEREAS, the Community Development Director received a request for an
interpretation of the Land Use Code regarding Floor Area and development rights from the
owner of an area of land gained through quiet title action (Pitkin County Case No. 06-CV-165)
and described as the "northerly parcel" represented by Attorney David McConaughy; and,
WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered
a decision and the applicant sought an appeal; and,
WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation
of the Director or modify or reverse the Interpretation upon a finding that there was a denial of
due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and,
WHEREAS, the City Council has taken and considered written and verbal testimony
from Attorney David McConaughy representing the appellant, the Community Development
Director, and has found that the Director did not provide due process or either exceeded his
jurisdiction or abused his authority in rendering the Interpretation; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is
necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council reverses the Community
Development Director's Interpretation of the Land Use Code regarding Lot Area and
development rights associated with the "northerly parcel."
1) The "northerly parcel" cannot be considered a proposed dedicated right-of-way and
therefore should not be excluded from Lot Area.
2) The "northerly parcel" is available for administrative growth management review under
section 26.470.060 (B), Single-family and Duplex Dwelling units of the land use code.
3) Staff is directed to answer questions 1, 2, and 3 of Attorney David McConaughy's
correspondence dated July 20, 2009.
This Resolution shall not affect any existing litigation and shall not operate as an abatement of
any action or proceeding now pending under or by virtue of the ordinances repealed or amended
as herein provided, and the same shall be conducted and concluded under such prior ordinances.
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be
deemed a separate, distinct and independent provision and shall not affect the validity of the
remaining portions thereof.
APPROVED by the Aspen City Council at its regular meeting on , 2009.
Resolution No. ,Series of 2009. Page I
ATTEST:
Kathryn S. Koch, City Clerk
APPROVED AS TO FORM:
John Worcester, City Attorney
Michael C. Ireland, Mayor
Resolution No. , Series of 2009. Page 2
~~~ ~L
CITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE CODE INTERPRETATION
JURISDICTION: City of Aspen
APPLICABLE CODE SECTIONS: Section 26.104.100, Definitions -Right of
EFFECTIVE DATE:
WRITTEN BY:
APPROVED BY:
COPIES TO: City Attorney
City Planning staff
Way
Section 26.470, Growth Management
Section 26.575.020.0 -Calculations and
Measurements, Lot Area
Section 26.710.040, Medium Density
Residential (R-6) Zone District
August 19, 2009
Jennifer Phelan, Community Development
Deputy Director
Jessica Garrow, Long Range Planner
Chris Bendon, Community Development
Director
SUMMARY:
This Land Use Code interpretation is being issued in response to an inquiry with regard to the
`pazcel' created as a result of MDI LLC, et al. v. The City of Aspen, et al. Pitkin County Case
No. 06 CV 165. The request was filed by David McConaughy of Garfield and Hecht LLC on
behalf of MD 1 LLC and asks that the Community Development Director indicate if there is a
development right to the "Northerly Parcel" referenced in Pitkin County Case No. 06-CV-]65.
The requester shall have the right to appeal this code interpretation, as outlined below.
BACKGROUND:
The purpose of this interpretation is to explain the development rights, if any, associated with the
"Northerly Parcel" described in the Amended Quiet Title Decree issued by the Pitkin County
District Court in Case No. 06-CV-165.
The "Northerly Parcel" was originally platted as right-of--way called Silverking Drive in the
Alpine Acres Subdivision. Silverking Drive was dedicated to Pitkin County for public use when
it was originally approved in 1964. The subdivision was annexed by the City in 1976. The
right-of--way, although dedicated, was never improved upon and MDI LLC recently received
possession of the right-of--way through Quiet Title Decree. The area is in the R-6 Zone District.
Z
The legal case began as an adverse possession claim. The City agreed to disclaim any interest in
the subject property upon certain conditions agreed to by the parties to the lawsuit to ensure that
adequate utilities are available and adequate right-of--way was preserved for access to other
surrounding lots. When the City disclaimed interest in the right-of--way, there was no discussion
or reference by the plaintiffs regarding the creation of separate parcels, floor area, or
development rights. The final Decree did not mention floor area or new development rights.
DISCUSSION
Staff has relied on four (4) sections of the Land Use Code, to render this interpretation.
Following are the sections, with emphasis added:
A. Section 26.710.040, Medium Density Residential (R-6) Zone District. Allowable Floor Area
in the R-6 Zone District is based on Lot Area.
B. Section 26.575.020.0, Calculations and Measurements -Lot Area.
... Also excluded from total lot area for th~urpose of 11oor area calculations in all zone
districts is that area beneath the high water line of a body of water and that area within a
vacated right-orway or within an existinz or proposed dedicated right-of-wav or surface
easement. ...
C. Section 26.104.100, Definitions -Right-of--Way.
A strip or other area of land specifically designated or reserved for travel, passage, and/or
the installation of utilities or other similar uses by persons other than, or in addition to,
the landowner.
D. Section 26.470, Growth Management.
Section 26.470.020, Applicability -General: This Chapter shall apply to all
development in the City of Aspen -Residential, Lodging, Commercial, and Community
Facilities.
Citation A states that Floor Area calculations in the R-6 Zone District are based on Lot Area.
Citation B states that any area within a proposed right-of--way is excluded from total Lot Area for
floor area purposes and therefore does not contribute to floor area calculations. Citation C
defines a "right-of-way."
Citation D states that any and all development, regardless of the use type, must undergo a growth
management review and either receive a growth management allotment or an exemption. If a
growth management allotment or exemption is not received development cannot occur.
INTERPRETATION
It is Staffs interpretation that the land area that MD1 LLC received through the Quiet Title
Decree has no associated floor area and does not have a development right.
First, because the land area in question was a proposed right-of way, it is deducted from the
calculation of Lot Area and therefore it has no associated floor area. Second, all development in
• ~ ~~~~
3
the City of Aspen must receive a growth management allotment or exemption in order to have a
development right. The land associated with the Quiet Title has never received such a review.
This interpretation was provided on August 19, 2009, and shall become effective on August 19,
2009. This interpretation of the land use code shall be valid until such time as the code sections
specified are amended to implement this clarification or for other purposes.
APPEAL OF DECISION
As with any interpretation of the ]and use code by the Community Development Director, an
applicant has the ability to appeal this decision to the Aspen City Council. This can be done in
conjunction with a land use request before City Council or as a separate agenda item.
26.316.030(A) APPEAL PROCEDURES
Any person with a right to appeal an adverse decision or determination shall initiate an appeal by
filing a notice of appeal on a form prescribed by the Community Development Director. The
notice of appeal shall be filed with the Community Development Director and with the City
office or department rendering the decision or determination within fourteen (14) days of the
date of the decision or determination being appealed. Failure to file such notice of appeal within
the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision
or determination.
ASPEN OFFICE
601 East Hyman Avenue
Aspen, Colorado 81611
Telephone (970) 925-1936
Facsimile (970) 925-3008
GLENWOOD SPRINGS OFFICE
The Denver Centre
420 Seventh Stree[, Suite 100
Glenwood Springs, Colorado 8160!
Telephone (970) 947-1936
Facsimile (970) 947-1937
•
GARFIELD & HECHT, P.C.
ATTORNEYS AT LAW
Since 1975
Chris Bendon
rnminrl?;[y DeFrelopment Tli_regtnr
City of Aspen
Aspen, CO 81611
Re: 980 Gibson Avenue
Deaz Mr. Bendon:
www.garfieldhecht.comRECElVED
AVON OFFICE
0070 Benchmark Road
Post Office Bax 5450
Avon, Colorado 81620
Telephone (970) 949-0707
Facsimile (970) 949-1810
BASALT OFFICE
River View Plaza
I' i 100 EIk Run Drive, Suite 220
~U~ ~ 1 2009 Telephone (970)a927g1936
~!~"Y OF ASPEN Facsimile (970) 927-1939
I,a~MUNm o~~oa~r
July 2Q 2009
David H. McCnnaughv
dmcconaunhu N2a~eld6eckt. rum
We represent MD 1, LLC, which is the owner of a condominium unit located at 980
Gibson Avenue known as Unit 1, Lot 1, Block 1, Alpine Acres Subdivision. MD 1, LLC is also
the owner of the "Northerly Pazce1" described in the Amended Quiet Title Decree issued by the
Pitkin County District Court on July 1Q 2008, in Case'No. 06-CV-165. The purpose of this
litter is to request an interpretation of the Aspen Land Use Code pursuant to Chapter 26.306 oI
the City Code.
The subject property was the topic of apre-application conference between the owner's
representative, Stan Clauson, and Planner Jessica Garrow in November 2008. A copy of the pre-
application conference summary is enclosed for reference. The applicant respectfully disagrees
with several points in the summary and presents this application for the purpose of obtaining a
better understanding of the City Code and the purported basis for Ms. Garrow's conclusions.
Questions Presented
Our general request is to provide an explanation and basis under the City Code for the
conclusions set forth in the pre-application conference summary. Additionally, we request
specific answers to the following questions.
1. Where u separate legal parcel cf 5,603 square feet was established 5y Court Decree
in a case where the C: ih~ wus a named deferidant, and not through any C'ify subJivisivn process,
does the parcel satisfy the dimensional requirements for a detached single.~7mily home in the R-
6zone district under Section 26. ,'10.040?
We believe the answer is "yes." City Code § 26.710.040 provides that the "minimum lot
azea per dwelling unit" in the R-6 zone is 4,500 squaze feet for a detached residential dwelling,
790542-I
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~ k
City of Aspen
July 20, 2009
Page 2 of 3
but the "minimum lot size" is 6,000 square feet. We believe the latter provision applies only
during the subdivision process to create a new lot, but an existing pazcel in the R-6 zone would
be eligible for construction of a detached dwelling unit if it meets or exceeds 4,500 square feet
and complies with other requirements of the City Code.
2. Is there any process under the City Code by which a lot line between contiguous
parcels can be dissolved without formal action by the City and notice to the affected property
owners?
We aze not awaze of any such process and believe the answer is "no."
3. In the case of a condominium plat identifying three adjacent parcels where Parcel A is
owned solely by Party 1, Parcel B is owned solely by Party 2, and Parcel C is a common element
owned in egual undivided interests by both Party 1 and Parry 2, are each of the three parcels "in
separate ownership" or are any two or more parcels in the "same ownership" for purposes of
City Code Section 26.312.050?
We believe that each of the three pacels would be in separate ownership because title is
vested differently for each pazcel and that none of them would be in the same ownership.
4. Is there any provision in the City Code providing that a legal parcel established by
Court Decree has no associated~loor area for any purpose of the City Code if such parcel was
ever proposed as a potential right of way but was never actually dedicated to the City as a street
or right ofway?
We are not awaze of any such provision and therefore believe the answer is "no."
5. Under Chapter 26.306 of the City Code, will the City respond to an applicant's
request to interpret the Code by describing or confirming the land use entitlements for a specific
piece of property?
We have been informally advised by the planning department that the Community
Development Director would not provide an opinion regazding entitlements for a specific
property under this Chapter. Therefore, we merely seek to confirm that such a request would be
rejected and/or summarily denied. However, if the Community Development Director would
respond to such a request, then we request a summary of the entitlements for the pacels owned
by our client as described at the beginning of this letter.
450346-1 '
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GARFIELD &HECHT, PC. City of Aspen
7uly 20, 2009
Page 3 of 3
If you require any additional information, please let me know. We look forward to your
response. Thank you very much for your time and attention.
DHMap
Enclosure(s)
Cc: IvID 1, LLC
450346-1
®Printed on Iecycled paper
Very truly yours,
~~ rr ~z
ASPEN OFFICE
601 East Hyman Avenue
Aspeq Colorado 81611
Telephone (970) 925-1936
Facsimile (970) 925-3008
GLENWOOD SPRINGS OFFICE
The Denver Centre
420 Seveath Street, Suite 100
Glenwood Springs, Colorado 81601
Telephoae (970) 947-1936
Facsimile (970) 947-1937
GARFIELD &HECHT, P.C.
ATTORNEYS AT LAW
Since 1975
www.galfieldhecht.com
AVON OFFICE
0070 Benchmark Road
Post Oflice Box 5450
Avon, Colorado 81620
Telephone (970) 949-0707
Facsimile (970) 949-1810
BASALT OFFICE
River View Plaza
100 Elk Run Dave, Suite 220
Basalt, Colorado 81621
Telephone (970) 927-1936
Facsimile (970) 927-1939
September 1, 2009
Chris Bendon
Community Development Director
City of Aspen
Aspen, CO 81611
Re: 980 Gibson Avenue
Deaz Mr. Bendon:
David H. McConaughy
dmcconaurh vfa~2ar~eldh echt. com
Please accept this letter as an appeal of the City's decision dated August 19, 2009,
regazding this firm's application for a code interpretation dated July 20, 2009, on behalf of MD
1, LLC. For ease of reference, we enclose copies of the November 5, 2008 pre-application
conference summary, this firm's letter of July 20, 2009, and the City's decision dated August 19,
2009. We have also included additional documents identified below that were already in the
City's possession and, based on the decision, appeaz to have been relied upon by the Community
Development Department. This appeal is submitted pursuant to Section 26.316.030(A) of the
Aspen City Code.
Issues for ADaeal
The Community Development Department did not answer Questions 1, 2 or 3.
The application presented four questions regazding specific provisions of the City Code
and a fifth, general question regarding the land use entitlements for certain property described in
the application. The response was silent regazding the first three questions.
2. The City Council should reverse the decision of the Community Development
Department regazding Question 4 because Matchless .Drive is not a dedicated, vacated, or
proposed right-of--way.
3. The City Council should clazify the response to Question 5 by confirming that the
property is eligible for administrative review under the Growth Management Quota System
described in Chapter 26.470 of the City Code.
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GARFIELD &HECHT, P.C.
Law and Areument
Issue No. 1
~~~~~~
City of Aspen
September 1, 2009
Page 2 of 4
City Code Section 26.306.010 provides that any real property owner in the City may apply for an
interpretation of any provision of Title 26 of the City Code. Question 1 of the application
included a specific request to interpret Code Section 26.710.040. Question 2 requested an
interpretation of Title 26 regazding the absence of any provision to dissolve a lot line between
contiguous pazcels without formal action or notice. Question 3 presented a specific question
regazding Code Section 26.312.050.
The decision of the Community Development Department was silent as to all three questions.
Accordingly, we request that the City Council either answer the questions or direct the
Community Development Department to provide an interpretation as required by Section
26.306.010.
Issue No. 2
In response to Question No. 4, the Community Development Department cited three code
sections in support of its contention that the "Northerly Pazcel" has no floor azea because the
subject pazcel is a "vacated right-of--way" or an "existing or proposed dedicated right-of-way."
As recognized by the City, the subject parcel was created by virtue of the enclosed Amended
Decree Quieting Title dated July 10, 2008. The legal description attached to the decree as
Exhibit A confirms that the pazcel was once a portion of Silver King Drive a/k/a Matchless Drive
as shown on the plat approved by Pitkin County before the land was annexed to the City of
Aspen. An excerpt from the recorded plat is also enclosed.
It is undisputed that the portion of Matchless Drive that became the Northerly Pazcel was never
actually dedicated to, nor accepted by, either Pitkin County or the City of Aspen. Neither the
City nor the County ever took any formal action to vacate the right-of--way, because it was never
dedicated in the first place. As such, the City cannot rely on the portions of Code Section
26.757.020 referring to a "vacated right-of--way" or a "dedicated right-of-way."
The question, therefore, is whether the portion of Matchless Drive shown on the plat can be
considered a "proposed right-of--way" for purposes of Section 26.757.020. Such an
interpretation defies both law and common sense for a number of reasons.
First, the word "proposed" must be interpreted to apply to the time of the application. Land use
applications typically go through a number of iterations before reaching the stage of final plat.
The location and dimensions of lots and streets will change from sketch plan through final
approval, and lots shown on a final plat may overlap areas that were considered or proposed as
roads early in the process. As a practical matter, a "proposed right-of--way" cannot possibly
include every square foot of land that was ever considered as a road in any context, especially
465447-1
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GARFIELD &HECHT, P.C.
where the City has explicitly rejected such a proposal. Instead, this
to apply to lands that aze currently proposed as future rights-of--way
right of access will not be impaired by development.
Ciry of Aspen
September I, 2009
Page 3 of 4
section must be interpreted
so that the public's future
Second, any proposal for the dedication of Matchless Drive was made prior to the date the plat
was approved by Pitkin County in 1964 and was subject to conditions that were never fulfilled.
The County never accepted any dedication, and any contractual duties of the original developer
to fulfill any such conditions would have become unenforceable due to the statute of limitations
more than 40 years ago. There is no current proposal.
Third, even if there were a "proposal" for dedication, such a proposal would have been made to
Pitkin County, not the City of Aspen. Any such proposal to Pitkin County is not relevant under
the City Code.
Finally, and most importantly, the City affirmatively disclaimed any interest in the subject parcel
by filing the enclosed unconditional Disclaimer in Case No. 06-CV-165 on July 31, 2006. Even
if there had been a lingering "proposal" for future dedication, it was extinguished as of that date.
Under the doctrines of res judicata and collateral estoppel, the City cannot now take a position
contrary to what was litigated, or what could have been litigated, in the quiet title case.
As of the date of the application, the Northerly Pazcel is not a vacated right-of--way, a dedicated
right-of-way, or a proposed right-of-way. Accordingly, the conclusion that the pazcel has no
floor azea on this basis must be reversed.
Issue No. 3
The Community Development Department determined that the pazcel is not eligible for
development because it has never received a Growth Management review under Chapter 26.470
of the City Code.
Pursuant to Section 26.470.060, assuming that the applicant desires to apply for asingle-family
home or a duplex, the parcel should be eligible for administrative review subject only to the
construction of an ADU in order to meet affordable housing requirements. We request
confirmation of this interpretation.
Conclusion
The City Council should direct the Community Development Department to respond to
Questions 1, 2 and 3 as presented in the application. The applicant reserves the right to file a
future appeal depending on the outcome of that response.
The City Council should reverse the Community Development Department's conclusion that the
Northerly Pazcel has no associated floor area.
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$T~
GARFIELD &HECHT, P.C.
City of Aspen
September 1, 2009
Page 4 of 4
The City Council should clarify that an application for Growth Management approval for a
single family home or duplex may be processed on an administrative basis subject only to
affordable housing requirements.
We look forward to presenting this appeal to the City Council. Thank you for your time and
attention.
Very truly yours,
Garfield & Hecht, P.C.
~~/,/ ,~i// ,I,/P
David H. McConaughy
DHM:Ip
Enclosure(s)
cc: MD 1, LLC
465447-I
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~thB cgs
City of Aspcn
GARFIELD&HECHT P.C, ipiyzo,zao9
Poet z or3
but the "minimum lot size" is 6,000 squaze feet. We believe the latter provision applies only
during the subdivision process to create a new lot, but an existing pazcel in the R-6 zone would
be eligible for construction of a detached dwelling unit if it meets or exceeds 4,500 squaze feet
and complies with other requirements of the City Code.
2. Is there any process under the City Code by which a lot line behveen contiguous
parcels can be dissolved without formal action by the Ctty and notice to the affected property
owners?
We aze not aware of any such process and believe the answer is "no: '
3. In the case oja condominium plat ident~ing three ad,/'acent parcels. where Parcel A is
awned solely by Party 1, Parcel B is owned solely by Party 1, and Parcel C is a common element
owned in equal undivided interests by both Party 1 and Party 2, are each of the three parcels "in
separate ownership" or are any two or more parcels in the "same ownership" for purposes of
City Code Section 26.312.050?
We believe that each of the three pazcels would be in sepazate ownership because title is
vested differently for each parcel and that none of them would be in the same ownership.
4. Is there arty provision in the City Code providing that a legal parcel established by
Court Decree has no associated floor area for any purpose of the City Code if such parcel was
ever proposed as a potential right of way but was never actually dedicated to the City as a street
or right of way?
We are not aware of any such provision and therefore believe the answer is "no."
5. Under Chapter 26.306 of the City Code, will the City respond to an applicant's
request to interpret the Code by describing or confrming the land use entitlements for a specific
piece ojproperty?
We have been informally advised by the planning department that the Community
Development Director would not provide an opinion regazding entitlements for a specific
property under this Chapter. Therefore, we merely seek to confirm that such a request would be
rejected and/or summarily denied. However, if the Community Development Director would
respond to such a request, then we request a summary of the entitlements for the pazcels owned
by our client as described at the beginning of this letter.
« f
450346-I
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~~rC-~ ~
GARFIELD & HECHT, P,C.
Ciry of Aspen
Jniy zo, zoo9
Page 3 of 3
If you require any additional information, please let me know. We look forwazd to your
response. Thank you very much for your time and attention.
DHIvl:lp
Enclosure(s)
Cc: MD 1, LLC
450346-1
® Printed on recycled paper
Very truly yours,
~L~ ~~
CITY OF ASPEN
PRE-APPLICATION CONFERENCE SUMMARY
PLANNER: Jessica Gamow,429-2780 DATE: November 5, 2008
PROJECT: 980 Gibson
REPRESENTATIVE: Stan Clawson, 925.2323
DESCRIPTION:
The Applicant is interested in better understanding what can be done on the property located at 980 Gibson. 980 Gibson is
a comer lot, adjacent to Gibson Ave and Matchless Drive. The propedy is designated Historic.
The property was engaged in a Quiet Title action for a platted right of way that was adjacent to the historic property and,
known commonly as Silverking Drive. This is recorded at reception number 550852. The Community Development
Department and the City Attorney's office have examined the quiet title, and believe the following with respect to 980
Gibson:
• The quiet title did not create new developable parcels of land. Rather, the quiet title enlarged 2 existing properties,
one is 980 Gibson.
• Because the area of land was originally platted for a ROW (though never accepted by the City) it cannot be used
for purposes of Floor Area. It can, however, be used for purposes of setbacks.
• The City of Aspen requires adequate ROW for Matchless Drive, which is adjacent to 980 Gibson. This may mean
that a portion of the property that was subject of the quiet title may need to be dedicated fo the City.
The City advises the applicant to get a survey completed based on the language in the Quiet Title and agreements with the
City to confirm this understanding.
Land use applications can be found on the Community Development website at:
http:/Iwww.asoenpitkin.com/depts/411main alannlng.cfm.
Relevant Land Use Code Section(s): 26.104.100 Definitions, Parcel
26.304 Common Development Review Procedures
26.415 Development Involving a Landmark
26,575.020 Calculations and Measurements
26.710.040 R-6 Zone District
http:llwww.aspen pitkln.comldeptsl36lcityeode.cfm
Review by:
Referral Agencies:
Planning Fees:
Referral Agency Fees
Total Deposit:
Staff for compliance with quiet title
None.
none at this time
None
none at this time
To apply, suhmit the following information:
^ Proof of ownership with payment.
~~~g
^ Signed fee agreement.
^ Applicant's name, address and telephone number in a letter signed by the applicant which states the name,
address and telephone number of the representative authodzed to act on behalf of the applicant.
^ Street address and legal description of the parcel on which development is proposed to occur, consisting of a
current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing
the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and
agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application.
^ Total deposit for review of the application.
^ 3 Copies of the complete application packet and maps.
HPC =12; PZ =10; CC = 7; Referral Agencies =flea.; Planning Staff = 1
^ An 81/2" by 11"vicinity map locating the parcel within the City of Aspen.
^ Site improvement survey including topography and vegetation showing the current status, including ail easements
and vacated rights of way, of the parcel certified by a registered land surveyor, licensed in the state of Colorado.
(This requirement, or any part thereof, may be waived by the Community Development Department if the project is
determined not to warrant a survey document.)
^ A written description of the proposal and an explanation in written, graphic, or model form of how the proposed
development complies with the review standards relevant to the development application. Please include existing
conditions as well as proposed. List of adjacent property owners within 300' for public hearing
^ Copies of prior approvals.
^ Applications shall be provided in paper format (number of copies noted above) as well as the text only on either of
the following digital formats. Compact Disk (CD)-preferred, Zip Disk or Floppy Disk. Microsoft Word format is
preferred. Text format easily convertible to Word is acceptable.
^ Applicants are advised that building plans will be required to meet the International Building Code as adopted by
the City of Aspen, the Federal Fair Housing Act, and CRS 9.5.112. Please make sure that your application
submittal addresses these building-related and accessibility regulations. You may contact the Building Department
at 920-5090 for additional information.
Disclaimer:
The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning,
which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary
does not create a legal or vested right.
~'~181T~
CITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE CODE INTERPRETATION
NRISDICTION: City of Aspen
APPLICABLE CODE SECTIONS: Section 26.104.100, Definitions -Right of
Way
Section 26.470, Growth Management
Section 26.575.020.0 -Calculations and
Measurements, Lot Area
Section 26.710.040, Medium Density
Residential (R-6) Zone District
EFFECTIVE DATE: August 19, 2009
WRITTEN BY:
APPROVED BY:
Jennifer Phelan, Community Development
Deputy Director
Jessica Garrow, Long Range Planner
Chris Bendon, Community Development
Director
COPIES TO. City Attorney
City Planning staff
SUMMARY:
This Land Use Code interpretation is being issued in response to an inquiry with regard to the
`parcel' created as a result of MDl LLC, et al. v. The City of Aspen, et al. Pitkin County Case
No. 06 CV 165. The request was filed by David McConaughy of Garfield and Hecht LLC on
behalf of MD 1 LLC and asks that the Community Development Director indicate if there is a
development right to the "Northerly Parcel" referenced in Pitkin County Case No. 06-CV-165.
The requester shall have the right to appeal this code interpretation, as outlined below.
BACKGROUND:
The purpose of this interpretation is to explain the development rights, if any, associated with the
"Northerly Parcel" described in the Amended Quiet Title Decree issued by the Pitkin County
District Courtin Case No. 06-CV-165.
The "Northerly Parcel" was originally platted as right-of--way called Silverking Drive in the
Alpine Acres Subdivision. Silverking Drive was dedicated to Pitkin County for public use when
it was originally approved in 1964. The subdivision was annexed by the City in 1976. The
right-of--way, although dedicated, was never improved upon and MD1 LLC recently received
possession of the right-of-way through Quiet Title Decree. The area is in the R-6 Zone District.
~_~~~~
The legal case began as an adverse possession claim. The City agreed to disclaim any interest in
the subject property upon certain conditions agreed to by the parties to the lawsuit to ensure that
adequate utilities are available and adequate right-of--way was preserved for access to other
surrounding lots. When the City disclaimed interest in the right-of--way, there was no discussion
or reference by the plaintiffs regarding the creation of separate parcels, floor azea, or
development rights. The ftnal Decree did not mention floor area or new development rights.
Staff has relied on four (4} sections of the Land Use Code, to render this interpretation.
Following are the sections, with emphasis added:
A. Section 26.710.040, Medium Density Residential (R-6) Zone District. Allowable Floor Area
in the R-6 Zone District is based on Lot Area.
B. Section 26.575.020.0, Calculations and Measurements -Lot Area.
... Also excluded from total lot area for the purpose of floor area calculations in all zone
districts is that area beneath the high water line of a body of water and that area within a
vacated right of wav or within an existinP or proposed dedicated right-of-way or surface
easement. ...
C. Section 26.104.100, Definitions -Right-of-Way.
A strip or other area of land specifically designated or reserved for travel, passage, and/or
the installation of utilities or other similar uses by persons other than, or in addition to,
the landowner.
D. Section 26.470, Growth Management.
Section 26,470.020, Applicability -General: This Chapter shall apply to al!
development in the Cil~ofAspen -Residential, Lodging, Commercial, and Community
Facilities.
Citation A states that Floor Area calculations in the R-6 Zone District are based on Lot Area.
Citation S states that any area within a proposed right-of--way is excluded from total Lot Area for
floor area purposes and therefore does not contribute to floor area calculations. Citation C
defines a "right-of-way."
Citation D states that any and all development, regardless of the use type, must undergo a growth
management review and either receive a growth management allotment or an exemption. If a
growth management allotment or exemption is not received development cannot occur.
INTERPRETATION
It is Staffs interpretation that the land azea that MD1 LLC received through the Quiet Title
Decree has no associated floor area and does not have a development right.
First, because the land area in question was a proposed right-of way, it is deducted from the
calculation of Lot Area and therefore it has no associated floor area. Second, all development in
the City of Aspen must receive a growth management allotment or exemption in order to have a
development right. The land associated with the Quiet Title has never received such a review.
This interpretation was provided on August 19, 2009, and shall become effective on August 19,
2009. This interpretation of the land use code shall be valid until such time as the code sections
specified aze amended to implement this clarification or for other purposes.
APPEAL OF DECISION
As with any interpretation of the land use code by the Community Development Director, an
applicant has the ability to appeal this decision to the Aspen City Council. This can be done in
conjunction with a land use request before City Council or es a separate agenda item.
26.316.030(A) APPEAL PROCEDURES
Any person with a right to appeal an adverse decision or determination shall initiate an appeal by
filing a notice of appeal on a Form prescribed by the Community Development Director. The
notice of appeal shall be filed with the Community Development Director and with the City
office or department rendering the decision or determination within fourteen (14) days of the
date of the decision or determination being appealed. Failure to file such notice of appeal within
the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision
or determination.
RECEPTION~Y: 550853, 07/09/2008 at 02:10:07 PM, 1 OF 5,
Janice K. Vos Caudill, Pitkin County, CO
R $26.~x~tl~t, \ ~ ~n
Pitldn CaunryDimict Court
506 Eazt Main Street
Aspen, 00 81611
Plaintiffs:
MDl I.LC, a Colorado limited liabr7ity
company, and, VANMETERFAMILY
LIVING TRUST, a California Trust
v.
Defendant(s):
The QTY OF ASPEN; LUKE W. COURT USE ONLY
ANTHONY, or his heirs, successors, or
assigns; and all unlmown persons who claim Case Number. 06 CV 165
any interest in the subject matter of this action.
The Honorable Denise K. Lynch
On Plaintiffs' Motion for SummaryJudgment Division:
AMENDED DECREE QUIETING TITLE 1N PLAINTIFFS and CORRECTING
CLERICAL ERRORS
The matter was before this Court on Plaintiffs' Motion for Summary Judgment. Based upon
the pleadings that have been filed and the affidavits and exhibits admitted into evidence, THIS
OOURT FINDS:
THAT service under Rule 4 of the Colorado Rules of Civil Procedure is proper upon all of
the Defendants in this action;
THAT the legal description in the first decree contained clerical errors, which are fixed in
Revised Exhibit A and Revised Exhibit B, attached hereto, pursuant to the Court's authority
under GRCP. Rule 60(a);
T'HATMDl LLC and its predecessors in interest have adverselypossessedtpe property
descnbed in Revised ExhibitA (the °NorthedyParcel"), attached hereto, for a time in excess of
the periods of the statutes of limitation, az provided in CRS. §$ 38-41-101, etse~;
THAT the Van Meter Family Living Trust and its predecessors in interest have adversely
possessed the property descnbed in Revised Exhibit B (the "SoutheriyPareel"), attached hereto,
for a time in excess of the periods of the statutes of limitation, as provided in C.R.S. 4638-41-1Ot
Sfl].
Albemate finding for Plaintiffs' title derived through re~~.n
origlnelirtn
cm~d.-.~
-~..----'>F
AFIELD COUNTY
COLOR4D0
correct coq of the
RECEPTION#: 550653, 07/09/2008 at 02:10:07 PM, 2 OF 5,
Janice K. Vos Caudill, Pit]cin County, CO
IrIDI, et al. v. Aspea, et aL
Pitlda CounryDistrict Coun, Case No. 06 CV 165
Dime Quieting Tak in Plaintiffs
Page 2 of 5
~`3~.~, ~
THAT MDl LLC is the owner of the Northerly Parcel by reason of that certabt bargain and
sale deed from Luke W. Androrry, dated September 14, 2007, and recorded in the real property
records of Piddn County, Colorado on November 9, 2007, at Reception No. 543962;
THAT the Van Meter Family Living Tnsst is the owner of the Southerly Parcel by reason of
that cemain bargain and sale deed from Luke W. Anthony, dated September 14, 2007, and recorded
in the real property records of Pitkin County, Colorado on November 9, 2007, at Reception No.
543963;
THAT none of the Defendams bas responded to the Complaint or entered an appearance in
this action and all the Defendants are therefore in defauh, with the exception of the City of Aspen
and Luke W. Anthony, both of whom disclaimed all interest in the Northeriy Parcel and Southerly
Parcel;
THAT Daniel D. LeMoine, Esq., has been appointed and appeared for any and all
Defendants who are in, or who maybe i4 or who may have been ordered to report for induction
into, the military service, as defined bythe Soldiers' and Sailors' Civil Relief Act of 1940, as
amended;
THAT this is an action inronaffecting specific real property;
THAT the Court bas jurisdiction over all parties to this action and of the subject matter
thereof;
THAT the allegations in the Complaint are true; and
THAT no Defendant herein has any right, title, or interest in or to the NonherlyParcel or
Southerly Parcel
THEREFORE IT IS ADJUDGED AND DECREED THAT:
MDl LLC was, at the time of the frling of the Motion for Summary Judgment, and is now,
the owner in fee simple absolute with right to possession of the Northerly Parcel;
The Van Meter Family Living Trust was, at the time of the filing of the Motion for Summary
Jidgmenc, and is now, the owner in fee simple absolute with right to possession of the Southerly
Parcel; and
RE CE PTIONA: 550853, 07/09/2008 at 02:10:07 PM, 3 OF 5,
Janice K. Vos Caudill, Pitkin County, CO
hIDl, et aL v. Aspen, et aL
Piddn CnuntyDis[xic[ Coua, Case No. O6 CV 165
Decree Quieting Tide is Plaiariffs
Page 3 of S
~~~ ~~~
Fee simplytitle in and ro the NortherlyParcel and SourherlyParcel be and the same hereby
quieted in MDl LLC and the Van Meter FamilyLiving Tnut, respectively, and that each of the
Defendants has no right, title, or interest rn or to the NortherlyPan:el or SouthetlyParcel, or any
part thereof, and that Defendants are forever enjoined from asserting any claim, light, title, or
interest in or ro the NortherlyParcel or SouthedyParcel orany part thereof.
signed this ]Q day of July, 2008.
Bydre Court:
~~ , ~~
Denise K. Lynch, District Ju
RECEPTIONN: 550853, 07/09/2008 at 02:10:07 I'hf, 4 OF 5,
Janice K. Vos Caudill, Pitkin County, CO
MD1, et aL v. Aspen, et aL
Pitlon CoumyDistrict Covet, Case No. 06 CV 165
Decree Quieting Title m Plaintiffs
Page 4 of 5
E7CEiIBIT A
~~~~~5
PROPERTY DESCRIPTION OP NOR'IT-3ERLY PAR(RL
A parcel of being a portion of Silver Kiag Drive, Block 1, Alpine Acres Subdivision, Ciry of Aspen,
County of Pidrin, Stain of Colorado, as shown oa the plaz thereof recorded at Reception No. 118173
in the offices of the Clerk and Rewtder of Pitkin County, said drive more commonly lmown as
Matchless Drive m the City of Aspen, said parcel being more particularly desmbed as follows:
Beginning at the westerlgtnost comer of Lot 3 of said Alpine Acres Subdivision, a No. 5 Rebaz
found in place; thence S. 48°50'17" E, along the southwestedyI.ine of Lot 3 a distance of ~ OZ
feet; thence S. 65°55'41" W. a distance of 66.07 feet to the nortlteasteriyline of Lot 1 of said Alpine
Acres Subdivision; thence N. 48°50'17" W. a distance of 123.75 feet to a No. 5 Rebar, thence
$82°59'52" E. a distance of 106.85 feet to the point of beglnni moo, said parcel containing 5,603 square
feet, snore or less.
RECEPTION#: 550853, 07/09/2008 at 02:10:07 PM, 5 OF 5,
Sanice K. Vos Caudill, Pitkin County, CO
IYID1, et aL v. Aspen, et aL
PidSn CDUntyDistrict Court, Case No. 06 CV 165
Deane Quieting Tide m Plaintiffs
Page 5 of 5
EXHIBIT B
«~ ~~~
PROPERTY DESCRII'T10N OF SOUIT~ERLY PARCEL
A parcel of being a portion of Silver King Drive, Block 1, Alpine Acres Subdivision, City of Aspen,
County of Pitkin, State of Colorado, az shown on the plat thereof rewrded at Reception No. 118173
in the offices of the CYedc and Recorder of Pitkin County, said drive more wmrmnly known az
Matchless. Drive in the City of Aspen, said parcel being more patticulady descnbed az follows:
Beginning at the southwesterly line of Lot 3 of said Alpine Acres Subdivision, from which the
westedy~most comer of said Lot 3 beats N. 48°50'17" W. a distance of 63.02 feet; thence S.
48°50'17" E, along the southwesterly lines of Lot 3 and Lot 2 of said Alpine Acres Subdivision a
distance of 102.04 feet to the centerline of an existing drainage; thence S. 56°36'27" W. along said
drainage a distance of 22.65 feet; thence S. 53°34'06" W. along said dra_ a distance of 26.11 feet;
thence S. 17°52'03" W. along said d*~''~a; a distance of 13.79 feet to the northeazterlyline of Lot 1
of said Alpine Acres Subdivision; thence N. 48°50'17" W. along said northeasterly line distance of
12353 feet thence N. 65°55'41" ~. a distance of 66.07 feet to the point of beginning, said parcel
cont~i"'~ 6,548 square feet, more or less.
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Firkin County District Court
SOG East Main Street
Aspeq CO 81611
Plaintiffs:
MDl LLC, a Colorado limited liability
tympany; and, VAN METER FAMILY
LIVING TRUST, a California Trust
v.
Defendant(s):
The CITY OF ASPEN; LUKE W. • COURT USE ONLY
ANTHONY or his hefts, successors, or assigns;
and all unknown persons who claim any Case Number: 06 CV 1 GS
interest in the subject mattez of this action
Attorney for City of Aspen:
Joha P. Worcester
130 S. Galena Street
2nd Floor
Aspen, Colorado 81611
TeL• 970.920.5055
Fax: 970.920.5119
lpeck(a3brandt-law.com
Atty. Reg. # 20610 Division:
DISCLAIMER UNDER RULE ]D5
COMES NOW, John Woxc~ster, on behalf of defendant Ciry of:Sspen, disclaiming any and
all interest in the property at issue in this matter and thereby relieving the City of Aspen of any
liability for the costs of this action. C.R.C.P. 105(c).
Dated: ~,(,(,~It~ 77~ ~ ~~~ .
sy: /,GL~
. "Worcester, aty attorney
~h$rr ~,
Chapter 26.316
APPEALS
Sections:
26.316.010 Appeals, purpose statement.
26.316.020 Authority.
26.316.030 Appeal procedures.
26.316.010 Appeals, purpose statement.
The purpose of this Chapter is to establish the authority of the Boazd of Adjustment, Growth
Management Commission, the Planning and Zoning Commission, and City Council to heaz and decide
certain appeals and to set forth the procedures for said appeals. (Ord. No. 17-2002 § 2 (part), 2002)
26.316.020 Authority.
A. Board ofAdjustment. The Boazd of Adjustment shall have the authority to heaz and decide the
following appeals:
1. The denial of a variance pursuant to Chapter 26.314 by the Planning and Zoning Commission
or Historic Preservation Commission.
B. City Councib The City Council shall have the authority to heaz and decide the following appeals:
1. An interpretation to the text of this title or the boundaries of the zone district map by the
Community Development Director in accordance with Chapter 26.306. An appeal ofthis nature
shall be a public meeting.
2. Any action by the Historic Preservation Commission in approving, approving with conditions,
or disapproving a development application for development in an "H,", Historic Overlay
District pursuant to Chapter 26.415. An appeal of this nature shall be a public meeting.
3. The scoring determination of the Community Development Director pursuant to Chapter
26.470.. An appeal of this nature shall be a public meeting.
4. The allocation of Growth Management Allotments by the Planning and Zoning Commission
pursuant to Chapter 26.470. An appeal of this nature shall be a public .meeting.
5. Any other appeal for which specific authority is not granted to another board or commission as
established by this title. An appeal of this nature shall be a public meeting.
C. Planning and Zoning Commission. The Planning and Zoning Commission shall have the
authority to heaz and decide an appeal from an adverse determination by the Community Development
Director on an application for exemption pursuant to the growth management quota system in
accordance with Section 26.470.060(D).
City of Aspen Land Use Code. August, 2007.
Part 300, Page 35
~~T C~
D. Administrative Hearing Officer The Administrative Hearing Officer shall have the authority
to heaz an appeal from any decision or determination made by an administrative official unless
otherwise specifically stated in this title.
(Ord. No. 17-2002 § 2 (part), 2002; Ord. No. 27-2002 § 23, Ord. No. 12-2007; 2002)
26.316.030 Appeal procedures.
A. Initiation. Any person with a right to appeal an adverse decision or determination shall initiate an
appeal by filing a notice of appeal on a form prescribed by the Community Development Duector. The
notice of appeal shall be filed with the Community Development Director and with the city office or
department rendering the decision or determination within fourteen (14) days of the date of the decision
or determination being appealed. Failure to file such notice of appeal within the prescribed time shall
constitute a waiver of any rights under this title to appeal any decision or determination.
B. Effect of filing an appeal The filing of a notice of appeal shall stay any proceedings in
furtherance of the action appealed from unless the Community Development Director certifies in
writing to the chairperson of the decision-making body authorized to heaz the appeal that a stay poses
an inuninent peril to life or property, in which case the appeal shall not stay further proceedings. The
chairperson of the decision making body with authority to heaz the appeal may review such
certification and grant or deny a stay of the proceedings.
C. Timing of appeal. The decision-making body authorized to hear the appeal shall consider the
appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is
practical under the circumstances.
D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by
publication to all other affected parties. (See section 26.304.060(E)).
E. Standard of review. Unless otherwise specifically stated in this title, the decision-making body
authorized to heaz the appeal shall decide the appeal based solely upon the record established by the
body from which the appeal is taken. A decision or determination shall be not be reversed or modified
unless there is a finding that there was a denial of due process, or the administrative body has exceeded
its jurisdiction or abused its discretion.
F. Action by the decision-making body hearing the appeal The decision-making body hearing the
appeal may reverse, affirm, or modify the decision or determination appealed from, and, ifthe decision
is modified, shall be deemed to have all the powers of the officer, boazd or commission from whom the
appeal is taken, including the power to impose reasonable conditions to be complied with by the
appellant. The decision-making body may also elect to remand an appeal to the body that originally
heazd the matter for further proceedings consistent with that body's jurisdiction and directions given, if
any, by the body hearing the appeal. The decision shall be approved by written resolution. All appeals
shall be public meetings.
(Ord. No. 55-2000, §§ 4, 5; Ord. No. 27-2002 § 24, Ord. No. 12-2007, 2002)
City of Aspen Land Use Code. August, 2007
Part 300, Page 36
~~~s
October 5, 2009
Mr. David McConaughy
Garfield and Hecht, P.C.
601 E. T-Iyman Ave.
Aspen, CO 81611
RE: APPEAL OF AN INTERPRETATION (980 Gibson)
Dear David,
THE CITY OE ASPEN
As required per Section 26.316.020 D., Notice Requirements, of the land use code notice is
hereby given that a public heazing will be held on Monday, October 26, 2009, to begin at 5:00
p.m. before the Aspen City Council, City Council Chambers, City Hall, 130 S. Galena St.,
Aspen. The purpose of the hearing is to consider an appeal of an Interpretation submitted by you
on behalf of MDI,LLC.
The Interpretation provided information on the development rights associated with land that was
acquired by quiet title, specifically, that the land has no associated floor area. The request of the
applicant is to reverse the Community Development Director's interpretation on floor azea and
respond to certain additional questions. The subject land under review is adjacent to 980/990
Gibson and 1040 Matchless Drive and is generally described as a parcel being a portion of Silver
King Drive, Block 1, Alpine Acres Subdivision, City of Aspen, County of Pitkin, State of Colorado as
shown on the plat thereof recorded at Reception No. 118173, said drive more commonly known as
Matchless Drive. For further information, please feel free to contact me at 970.429.2759 or by
email Jennifer.Phelanna ci.aspen.co.us. Amemo will be emailed to you in the near future.
Regards,
~.../~.~
Jenifer Phelan
Deputy Director
]3O SOVIH GALENA STREET ~ ASPEN, COLORADO H]6]]-]97S ~ EHONE 97O.9ZO.S000 ~ EAX 97O.J2O.SI97
www. aspengovcom
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Mineral Estate Owner Notice. By the certified mailing of notice, return receipt
requested, to affected mineral estate owners by at least thirty (30) days prior to
the date scheduled for the initial public hearing on the application of
development. The names and addresses of mineral estate owners shall be those
on the current tax records of Pitkin County. At a minimum, Subdivisions that
create more than one lot, Planned Unit Developments, Specially Planned Areas,
and COWAPs are subject to this notice requirement.
Rezoning or text amendment. Whenever the official zoning district map is in
any way to be changed or amended incidental to or as part of a general revision
of this Title, or whenever the text of this Title is to be amended, whether such
revision be made by repeal of this Title and enactment of a new land use
regulation, or otherwise, the requirement of an accurate survey map or other
sufficient legal description of, and the notice to and listing of names and
addresses of owners of real property in the area of the proposed change shall be
waived. However, the proposed zoning map shall be available for public
inspection in the planning agency during all business hours for fifteen (IS) days
prior to the public hearing on such amendments.
~G
Signatf~~~ •
The foregoing "Affidavit of Notice" was ac}~owledged before me this riJ day
of ®C D , 200 '', by' 4-YlorP/~G~ ~C~~./'~
WITNESS MY HAND AND OFFICIAL SEAL
My commission expires: o ~ ~l o ICU I o
Notary Public
_.~;w
LAURA
t~3cYER
ATTACHMENTS AS APPLICABLE:
~M n. c I I a cneit iE PUBLICATION
Aspen Ciry Council PH OF THE POSTED NOTICE (SIGN)
11 b2009tl [412]335 en Times Weekly on October E OWNERS AND GOVERNMENTAL A~
BYMAIL
APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE
AS REQUIRED BYC.R.S. §24-65.5-103.3
~~g~~s
ASPEN OFFICE
601 East Hyman Avenue
Aspen, Colorado 81611
Telephone (970)925-1936
Facsimile (970) 925-3008
GLENWOOD SPRINGS OFFICE
The Denver Centre
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 ]975
www.garfieldhechtcom
October 9, 2009
(rnifer Phelan, Deputy Director of Community Development
.fim Prue, Esq.. Assist~mt City Attorney
C itv os' Ash?:..
Aspen, CO 8ltil l
Re: 980 Cibson Avenue
Dear Ms. Phelan and Mr. True:
AVON OFFICE
0070 Benchmark Road
Post Office Box 5450
Avon, Colorado 81620
Telephone (970) 949-0707
Facsimile (970) 949-1810
BASALT OFFICE
River View Plaza
100 Elk Run Drive. Suite 220
Basalt, Colorado 81621
Telephone (970) 927-1936
Facsimile (970) 927-1939
David H. McConaugh~~
Glenwood Springs Office
dmccouaueh. rCluenrfie[dh ech1. com
'thank you for the recent meeting regarding the pending appeal of the City's Land Use
Code Interpretation regarding property owned by our client, MD 1, LLC.
As we discussed, our client's goal is to determine the development rights and floor area
associated with the "Northerly Parcel" for which title was quieted in MD 1's narr,e. That
determination will provide guidance to MD 1 prior to submitting any future development
application.
Our client is considering an application to amend the final plat for Lot 1, Block I of
Alpine Acres and create a new plat that would encompass all of Lot 1 (which includes two
condominium units in addition to common elements), plus the Northerly Parcel. The owner of
the adjacent "Southerly Parcel" may or may not seek to include that land as well, but we do not
represent that owner and make no representations concerning the Southerly Parcel. 'T'his
pri,posal is only conceptual, and ne application is submitted at the current time.
Our original application for a Land Use Code Interpretation presented five separate
questions. The first three questions all related to whether the Northerly Parcel is a sepazate
buildable lot today in its current state. The City declined to answer those questions and instead
focused on the last two questions, which related to floor aria and development rights for the
Northerly Parcel.
During our meeting., you agreed that the Northerly Parcel would, iu fact, have associated
fiaor area unless it is determined to be a "proposed right-of=way." You further suggested that the
City might be open to reconsidering this issue following research to determine whether there
would be any risk of creating precedent for other undeveloped rights-of--way elsewhere in the
® Printed on recycled paper
GARFIELD & HECHT, P.C.
City of Aspen
October 9, 2009
Page 2 of 3
City. Given the unique litigation history of the Northerly Parcel, we hope you now agree that
creating precedent for other parcels should not be a concern.
We continue to maintain that the Northerly Parcel is a separate, developable lot.
However, we acknowledge that the City Staff disagrees with this position and believes that the
Northerly Pazcel should somehow be merged into the adjacent Lot 1 as an extension of the back
yard and not be considered as a distinct lot. We, in turn, have asserted arguments as to why
merger cannot have occurred. Regardless, if our client were to proceed with a subdivision
application that redrew the lot lines for Lot I and the Northerly Parcel, this issue would be moot,
and the boundaries and dimensions of any new lots would be defined by a new plat to be
approved by the City.
In the interest of avoiding controversy over a scenario that may never come to pass. MD
I requests that the City Council consider its appeal of Questions 4 and 5 tirsl. On these issues, i
have enclosed a draft "Amended Interpretation" for your consideration. As you will see, the
Amended Interpretation provides that some floor azea would be associated with the Northerly
Parcel, but it acknowledges that the first three questions would be moot if MD 1 pursues an
application for an amended plat.
If the City Council were to make a decision on Questions 4 and 5 that is acceptable to
MD 1, MD 1 would request that the Council hold its appeal in abeyance on Questions 1, 2, and 3
until such time as the property owner processes azi application for an amended plat. In order to
preserve the rights of both the City and the Applicant on the first three questions, I propose that
we enter into a simple tolling agreement with respect to any appeal deadlines (covering the
appeal deadlines applicable to appeals that would be heazd by the City Council and the District
Court).
MD 1 could then process an application for an amended plat with knowledge of its rights,
and the new final plat could be a benefit for both the City and the Applicant while
simultaneously resolving any ambiguities about future development.
To this end, I enclose the above-referenced draft "Amended Interpretation' for your
corsiueraiiun. if This document fur comet"ping simiiazj wuid i,e approved on a staf~ ievei; Then
we could avoid an appeal altogether. If that is not an option hen our goal would be to have the
staffs support at the City Council hearing on October 26, 2009 for both the issuance of the
Amended Interpretation and a tolling agreement for the other 3 questions. I welcome your
comments and any suggested revisions in furtherance of that goal. Otherwise, please submit the
enclosed draft to City Council for its consideration.
Either way, unless we can resolve this issue on a staff level and avoid the appeal hearing,
I request that Council consider the appeal of Questions 4 and 5 before considering Questions I,
2, or 3.
478395-1
®Prin[ed on recycled paper
~~~g ~ i.3
GARFIELD & HECHT, P.C.
Thank you. I look forward to hearing from you soon.
Very truly yours,
DHM:Ip
Enclosure(s)
cc: MD 1. LI,C
478395-1
City of Aspen
October 9, 2009
Page 3 of 3
®Printed on recycled paper
~~~ ~ ~
CITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
AMENDED LAND USE CODE INTERPRETATION
October 9, 2009
SUMMARY:
This Amended Land Use Code Interpretation is being issued in response to an inquiry with
respect to certain real property described in the Amended Quiet Title Decree entered in Pitkin
County District Court Case No. 06-CV-165. The request was filed by David McConaughy of
Garfield & Hecht, P.C., on behalf of the owner of the "Northerly Parcel" described in such
decree, which is MD 1, LLC. This Amended Interpretation supersedes and replaces the Land
Use Code Interpretation issued on August 19, 2009.
BACKGROUND:
The purpose of this interpretation is to explain the development rights associated with the
"Northerly Parcel" described in the Amended Quiet Title Decree issued by the Pitkin County
District Court in Case No. 06-CV-165.
The "Northerly Parcel" was originally identified on the plat of Alpine Acres Subdivision as a
right-of-way called Silverking Drive. Silverking Drive was conditionally proposed for
dedication to Pitkin County for public use when the Alpine Acres plat was approved in 1964.
The Alpine Acres Subdivision was annexed by the City in 1976. The right-of--way was never
constructed, and the conditions of dedication were never fulfilled. Neither the County nor the
City ever accepted any dedication of the right-of--way.
MD 1, LLC also owns Unit 1, Lot 1, Block 1 of Alpine Acres, which is a condominium unit.
The property outside the building footprint of the condominium unit is a limited common
element owned jointly by MD 1, LLC and the owner of Unit 2. The Northerly Parcel is adjacent
to the portion of Lot 1 designated as a limited common element on the condominium plat.
Case No. 06-CV-165 was an adverse possession case in which MD1, LLC and its predecessor
owners of Unit 1 asserted they had used, occupied and possessed the area of the Northerly Pazcel
for more than 18 yeazs. On July 31, 2006, the City filed a "Disclaimer" of any interest in the
subject parcel in Case No. 06-CV-165. Subsequently, the Pitkin County District Court issued its
Decree vesting title in the subject parcel in MD 1, LLC.
The subject property is zoned R-6. The Amended Quiet Title Decree is silent as to any
development rights that may be associated with the Northerly Parcel.
By letter from Garfield & Hecht, P.C. dated July 20, 2009, the Applicant presented five requests
for interpretation of the Land Use Code regarding development rights associated with the
Northerly Pazcel. The first three questions all related to whether the Northerly Parcel is a distinct
lot or legal parcel that may be sold or developed separately from the adjacent property that is
currently platted as condominium units and common elements. The fourth and fifth questions
related to floor area and development rights associated with the Northerly Pazcel.
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Since the original Interpretation was issued on August 19, 2009, the Applicant has stated its
desire to amend a portion of the plat for Alpine Acres such that the lot lines between the
condominium units, the common elements, and the Northerly Pazcel would all be merged and
reestablished so as to reconfigure the lots and, potentially, to seek City approval of a new plat
depicting three or more new, separate lots. If the Applicant chooses to pursue this approach,
then the first three questions would become moot, and the remaining issue would be what
development rights are associated with the land currently described as the Northerly Parcel.
Accordingly, this interpretation will address Questions 4 and 5 of the application.
DISCUSSION:
The following sections of the Land Use Code have been considered.
A. Section 26.710.040, Medium Density Residential (R-6) Zone District. Allowable Floor
Area in the R-6 Zone District is based on Lot. Area according to the chart set forth at
Section 26.710.040(D)(11).
B. Section 26.575.020(C), Calculations and Measurements -Lot Area.
...Also excluded from total lot area for the purpose ofJloor area calculations in all zone
districts is that area beneath the high water line of a body of water and that area within a
vacated right-of--way, or within an existing or proposed dedicated right-of-way....
C. Section 26.470.060 -Administrative Applications for Growth Management Review
Citation A provides a table to calculate floor area based on lot size. The Northerly Pazcel is
5,603 square feet. Pursuant to the table, this equates to 3,240 square feet of floor azea.
Citation B states that any area within a proposed right-of--way is excluded from total Lot Area for
floor area purposes.
Chapter 26.470 of the City Code requires a Growth Management allotment or exemption for all
new development. Citation C provides several options for administrative approval of a Growth
Management allotment for single-family or duplex residences.
INTERPRETATION:
If the Applicant applies for subdivision approval to amend the plat of Alpine Acres for Lot 1 and
the Northerly Parcel, the inclusion of the Northerly Pazcel would create development rights for
up to 3,240 square feet of additional floor azea. The precise amount of floor area would depend,
in part, on the dimensions of any new lots approved through the subdivision process under the
City Code. Such an application would be subject to all applicable procedures and restrictions set
forth in the City Code.
While the Northerly Parcel may have been identified on the Alpine Acres Subdivision Plat as a
"proposed right-of--way" when the plat was recorded in 1964, there is no current proposal for
right-of--way dedication, and both the City and the District Court have confirmed that title is now
vested in the Applicant as private property. Accordingly, Citation B does not apply.
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As part of any subdivision or development application, the Applicant would need to comply with
Chapter 26.470 of the City Code. However, the property would be eligible for administrative
review under Citation C.
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