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MEMORANDUM TO: Mayor Ireland and Aspen City Council COPY: Don Taylor, Finance Director FROM: Chris Bendon, Community Development Director Johannah Richards, Administrative Manager Jfl �yY 1 Tricia Aragon, City Engineer DATE: January 3, 2011 RE: Development Fees SUMMARY: Community Development and Engineering staff are proposing changes to the fees charged to development. Development fees have not been raised in four years. City Council directed staff, during a September work session, to examine the actual costs for delivering planning and building services. Community Development and Engineering are within the General Fund of the City. Any subsidy of these functions is essentially a cost to the general public. Currently, revenues do not cover the expenses of running these departments. This holds true in future projections (see chart at end of memo) promoting the need to address the issue by either accepting the deficit, ensuring development fees cover the costs of these departments, or a combination thereof. In order for staff to propose a fee system that reflects public policy, staff needs guidance on allocating the costs of services. There are two categories to describe services: Public Service — This is a service that the public, collectively, should pay for. It is a service that is a core service of the City, like police protection or snow plowing. It is a service that should exist regardless of the amount of development activity happening. These also may be development - related services that promote certain public goals deserving of a subsidy. Services in this category will translate to an amount that ComDev and Engineering are supported by the general fund. Development Service — These are services directly related to development that development should pay for. These are services that the City would not need to provide if development were not occurring. Services that can be attributed to a specific project will be billed to that applicant. Services that are development based, but are not easily assigned to any particular project are considered overhead costs and are paid by development on a proportionate basis. Staff has provided a proposed cost allocation. Staff will want to use the work session time to confirm or amend these allocations for each of services provided by ComDev and Engineering. This will provide the basis for returning with an updated fee proposal. 1 Current Planning The following functions primarily deal with providing information to the public, describing development requirements, and defining the process necessary for project approvals. These are identical for both Planning and Historic Preservation: Public Service Development Development Service — Direct Service — Indirect POD, Walk -in, Pre -Apps, 50% 50% Gen. Info. Code Updates - Printing & 50% 50% Web Code Interpretations 75% 25% Interpretation Appeals 100% These next two functions are for simple staff reviews: Public Service Development Development Service — Direct Service — Indirect Admin. Food Vending 50% 50% Admin. Temp. Use 50% 50% The following are the primary tasks of current planners — case review. The City has traditionally billed applicants for a planner's time spent reviewing a project. There are two types of time spent — case planner time Public Service Development Development Service — Direct Service — Indirect Case Review - analysis, 100% hearings, plats /agmts. Case Admin. - Opening, 100% Closing, AR 2 Historic Preservation The following historic preservation functions have traditionally been provided free of charge. Designation is typically encouraged and no fee has been charged. Small projects and small changes to approved projects have not been charged review fees. Public Service Development Development Service — Direct Service — Indirect Historic Designation 100% Hist. Pres. - Exempt by HPO 100% Hist. Pres. - Approval by 75% 25% HPO Hist. Pres. - Amend by HPO 100% Hist. Pres. - Amend by 100% Monitor These tasks are similar to current planning case review. Public Service Development Development Service — Direct Service — Indirect HP Case Review - analysis, 100% hearings HP Case Admin. - Opening, 100% Closing, AR The last three types of tasks are specific to the Historic Preservation program. The tax credit program fees are set by the State. Public Service Development Development Service — Direct Service — Indirect Annual HP Awards 100% State & Federal Tax Credit 50 -75% 25 -50% Program Property -Owner 100% Assistance/Technical Advice 3 LonR -Ranze Planning & Special Projects Long -Range and special project planning tasks are primarily focused on facilitating community discussion about development policies and then implementing those policies once adopted. Examples are the Aspen Area Community Plan and the Historic Preservation Task Force. Staff feels that the vast majority of long -range planning activities would not be necessary if it were not for the unique and sometimes heated real estate dynamic in Aspen. Yes, it is the City's responsibility to maintain development regulations that reflect community opinion, but that task is significant and constant due to the development pressures unique to Aspen. Staff is recommending long -range planning services be split 50/50 between public services and development services. Public Service Development Development Service — Direct Service — Indirect Code Amendments - 50% 50% Development Policy Task Force - Development 50% 50% Policy Aspen Area Community Plan 50% 50% A few, minimal long -range planning tasks deal with certain State requirements or assist other initiatives that have little to do with development. Most special projects that require significant staff time are decided on a case by case basis. For example, the Fire Station COWOP did not pay planning review fees while the Lift One Neighborhood Plan entered into a cost - sharing agreement with the City. Staff believes this strategy is appropriate and is not proposing a change. Public Service Development Development Service — Direct Service — Indirect Non - Development Long- 100% Range Special Projects - COWOP, Depends on each situation Area Plans Administration This category of time includes all necessary tasks required to keep ComDev and Engineering functional. This includes all personnel and HR responsibilities, annual budgeting and budget maintenance, all front desk services, software maintenance, accounts payable, training, etc. Administrative services are shared between all functions of ComDev and Engineering. Public Service Development Development Service — Direct Service — Indirect General Admin., HR, 50% 50% Personnel, Training Budget, Eden, AP 50% 50% Front Desk 50% 50% Const. Use Tax (moved to 100% Finance) 4 Zoning Review Zoning is responsible for ensuring building permit applications comply with zoning and special limitations unique to a property (such as a PUD approval). It is a function that is housed in the planning division but functions partially as a building division service. These first three functions are similar to "planner -of -the -day" service. Applicants have questions about how to apply, what to include in the permit, what types of approvals are needed, etc. Some limited examples go way beyond basic questions and attempt to be pre- review approvals. Staff believes these examples, which are limited, should be required to pay for the extra staff time. Time spent reviewing a planning application for referral comments is directly billed. Public Service Development Development Service — Direct Service — Indirect Dev. Review Committee - 100% Project related Pre - Permit Assist. - Minor 50% 50% Pre - Permit Assist. - Major 50% 50% These next zoning functions are the primary task of the zoning officer — reviewing plans for zoning compliance. These tasks are directly related to development and have traditionally been charged to the applicant. Public Service Development Development Service — Direct Service — Indirect Zoning Review for Building 100% Permit Change Orders 100% Special Services - CCO, Red 100% Tags, Corrections A few special services have been provided at a low rate and staff suggests continuing with this strategy. These tasks do not represent significant staff time. Public Service Development Development Service — Direct Service — Indirect Bear -Proof container 75% 25% Signs & Awnings 50% 50% Fence Permit 50% 50% These last zoning functions deal with enforcement. General enforcement, responding to complaints, special outreach, etc. is typically thought of as a public service. Enforcement that is required for a specific project should be the responsibility of the applicant. Public Service Development Development Service — Direct Service — Indirect Development - Related 100% Zoning Enforcement General Zoning Enforcement 100% 5 Building Division The Building Division is responsible for reviewing building permit applications for issuance and then inspecting the improvements. These first functions are very similar to those found in the Planning division. Public Service Development Development Service — Direct Service — Indirect BOD, Walk -in, Gen. Info. 50% 5 Policy /Code Interpretations 75% 25% Policy /Code Interp. Appeals 100% These next three functions are very similar to the Zoning function. Time spent reviewing planning applications is billed directly. Time spent with applicants prior to submission explaining the process, identifying the correct codes, etc. is a public service but should have some upward limit. Public Service Development Development Service — Direct Service — Indirect Dev. Review Committee - 100% Project related Pre - Permit Assist. - Minor 50% 50% Pre - Permit Assist. - Major 50% 50% These next functions are the core services within the building division — reviewing plans and inspecting improvements. Staff believes the City should continue to charge for extra special services such as after hours inspections, conditional COs and re- inspections. Public Service Development Development Service — Direct Service — Indirect Building Permit Review 100% Change Orders 100% Inspections through CO 100% Special Services - CCO, Red 100% Tags, Re- Inspection Code amendments and adoption is very similar to long -range planning services and staff is recommending a 50/50 split. Staff believes that outreach and special assistance should be a public service. Public Service Development Development Service — Direct Service — Indirect Code Amendments / 50% 50% Adoptions Public Training - New 100% Codes /Programs /Outreach Property -Owner 100% Assistance/Technical Advice 6 City Engineerinz The City Engineering Department provides services to applicants and potential applicants for land use review. Engineering provides a significant amount of service through the Development Review Committee process of reviewing land use applications as well as post - approvals plat and agreement review. Public Service Development Development Service - Direct Service - Indirect EOD, Walk -in, Gen. Info. 75% 25% Policy / Code Updates 100% Property -Owner 1 00% Assistance/Technical Advice Pre -App Assist. - Minor 75% 25% Pre -App Assist. - Major 50% 25% 25% DRC & Case Review 100% Plats and Agmts. Review 100% Engineering also review building permits for compliance with engineering standards. This function is very similar to zoning review and the building division's review. Public Service Development Development Service - Direct Service - Indirect Pre - Permit Assist. - Minor 75% 25% Pre - Permit Assist. - Major 50% 25% 25% Review for Permit/Changes 100% Special Services - CCO, Red 100% Tags Construction mitigation services are relatively new and, to date, have been provided by the general fund with no charge to development. Staff is proposing a greater percentage of these services be charged to development. Public Service Development Development Service - Direct Service - Indirect EOD, Walk -in, Gen. Info. 75% 25% Pre - Const. Meetings 100% CM Plan Review /Changes 100% CM Daily Inspections 100% Complaints / Enforcement 25% 75% Special Services - CCO, Red 100% Tags, Re- Inspections Engineering manages encroachments and right -of -way permits. These are typically associated with development projects. Public Service Development Development Service - Direct Service - Indirect EOD, Walk -in, Gen. Info. 75% 25% Pre - Permit Assistance 75% 25 % Enc. & ROW Permit Review 100% Daily Inspections 100% 7 Waiver or Flat Fee for "Small" Projects City Council has expressed an interest in maintaining a low fee system for small projects. Permit fees are based on the cost or value of the improvement. The median permit value in 2010 was $9,000. This is sharply down from prior years although the total number of permits has risen. This exacerbates the staffing -to- revenue approach that has worked in prior years. Some large projects are expected to move forward while the typical permit value (median) is not expected to increase substantially over the next few years. The City's existing fee structure allows small projects to pay proportionately lower fees. Considering the past few years of permit data and future projections, staff believes the following represents the general sensitivity of fee waiver or reductions for small permits. Permit Value % of permits % Revenue $ Revenue $0 - $5,000 35 - 40% 4 - 5% $50,000 - $75,000 $0 - $10,000 50 - 60% 7 - 10% 595,000 - $135,000 $0 - $15,000 55 - 65% 8 - 12% $125,000 - $180,000 $0 - $25,000 60 - 70% 10 - 15% $160,000 - $250,000 $0 - $50,000 65 - 80% 15 - 25% $225,000 - 5375,000 $0 - $100,000 70 - 85% 20 - 35% $275,000 - $550,000 Questions for Council Should permit fees for small value permits be waived or substantially reduced? If so, what should the breakpoint be? At what point should the fees cover the full cost of service? What are other places doing? Staff has reviewed development fee structures from other municipalities. They vary widely. The fee structures seem to reflect a jurisdiction's public policy on development — either encouraging development through low fees or requiring the full costs of services be covered by development. Mesa County, for example, has waived all development fees for 2011 and adopted a developer's bill of rights. Other jurisdictions require development pay for every service, including pre - application conferences. These are extremes, but demonstrate the wide variety of approach. 8 • Community Development Revenue and Expense Long Range Analysis $5,000,000 1 $4,000,000 - P. $3,000,000 - Al II' 2020 Deficit 0736.178 $2,000,000 - $1,000,000 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 — Revenue —Total Expenses 9 TIIE CRY or MIN MEMORANDUM TO: Mayor and City Council FROM: Chris Everson, Affordable Housing Project Manager THRU: Barry Crook, Assistant City Manager DATE OF MEMO: December 30, 2010 MEETING DATE: January 3, 2011 RE: Presales RFP for Burlingame Phase II REQUEST OF COUNCIL: Staff requests approval to release presales RFP BACKGROUND: In a City Council work session on November 23, 2010, Council directed staff to create an RFP for the Burlingame Phase II presales effort. Council requested the opportunity to review and approve the RFP. Staff' s proposed final draft of the RFP is attached to this memo. DISCUSSION: The purpose of the attached Request for Proposals (RFP) document is to solicit Presales Program Management proposals from qualified firms for Phase II of the Burlingame Ranch affordable housing development in Aspen, CO. In the RFP document, proposing firms are given background information regarding how the City envisions the presales program being structured. That structure seeks to insert the Presales Program Manager as a turnkey presales program provider between buyers and the City and APCHA in a way that will allow team communication among the Presales Program Manager, the City of Aspen and APCHA. Although proposing firms are given direction on how the City envisions the program, proposers are given an open -ended opportunity to propose a customized, turnkey program. Firms are asked to utilize the background information provided as well as their prior presales experience and their familiarity with the local affordable housing program to describe in detail a customized, streamlined presales program that manages increasing commitment levels between buyers and the City of Aspen effectively, efficiently and appropriately for the Aspen community's affordable housing program. Firms submitting proposals are asked to submit the following: Qualifications, Experience, References, Financial History, Proposed Presales Program, Proposed Scope of Services, Proposed Personnel, Proposed Schedule and Proposed Fees. Page 1 of 2 THE CHI or ASPI\ FINANCIAL /BUDGET IMPACTS: Due to savings achieved against the 2010 budgeted amount of $3.9 million for the 2010 Burlingame Phase II IPD design effort, there is an approximate balance of $1.7 million remaining in the budget available to be carried into 2011. It is anticipated that the ongoing Burlingame Phase II IPD design effort will require the use of approximately half of the remaining balance, leaving what should be more than sufficient funding for the presales effort. ENVIRONMENTAL IMPACTS: N/A RECOMMENDED ACTION: Staff requests approval to release presales RFP CITY MANAGER COMMENTS: ATTACHMENTS: A) Request for Proposals: Presales Program Manager (dated January 4, 2011) B) PowerPoint Presentation for 1/3/2011 City Council work session Page 2 of 2 Exhibit A: City Council work session January 3, 2011 Burlingame Ranch Phase 11 Request for Proposals: Presales Program Manager City of Aspen, Colorado 4 r Pi 4 f ,,,,,4414 . 1 111111111: idtio' 0 14.00r v 411:) January 4, 2011 li THE CITY OF ASPEN 130 South Galena Street Aspen, CO 81611 (970)920 -5000 www.aspenpitkin.com FINAL DRAFT0122112010 Page 1 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase 11 Request for Proposals - Presales Program Manager Table of Contents 1.0 Introduction 3 1.1 Invitation to Proposers 3 1.2 Project Summary 3 1.3 Purpose of the Presales Program 3 1.4 Relevance to Proposals 4 2.0 RFP Process 5 2.1 Process 5 ■ 2.2 RFP Schedule 5 2.3 Selection Criteria 6 2.4 Contracts 6 3.0 Housing Development Program 7 3.1 Background 7 3.2 Building Program 8 4.0 Presales Program Description 10 4.1 Presales Commitment Levels 10 4.2 Key Presales Program Elements 11 4.3 Policy Decisions 13 4.4 Team Communication Approach 14 4.5 Project Schedule 14 5.0 Proposal Requirements 15 5.1 Cover letter 15 5.2 Qualifications 15 5.3 Proposed Presales Program 16 5.4 Proposed Scope of Services 16 5.5 Proposed Personnel 17 5.6 Proposed Schedule 18 5.7 Additional Services 18 5.8 Fees 18 5.9 Proposal Format 19 6.0 Owner's Language 20 6.1 Interests of the City of Aspen 20 6.2 Regulatory Requirements 20 7.0 Exhibits 20 7.1 Agreement for Professional Services 20 7.2 Plans & Specs 20 FINAL DRAFTO 12121/2010 Page 2 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 1.0 Introduction The purpose of this Request for Proposals (RFP) document is to solicit Presales Program Management proposals from qualified firms, teams and /or individuals for Phase II of the Burlingame Ranch affordable housing development in Aspen, CO. 1.1 Invitation to Proposers If you and /or your firm /team can demonstrate specific past experience with or if you and /or your firm /team can substantiate specific expertise, core - competency and /or the appropriate skill -set for the management and execution of presales programs for for -sale affordable housing developments, then you are invited to prepare a response to this RFP. To allow the City of Aspen (Owner) to fully understand your firm's intended approach to the project, carefully prepare and submit a proposal based on the information provided in this RFP. 1.2 Project Summary The City of Aspen is in the process of planning and designing a large -scale affordable housing development at Burlingame Ranch in Aspen, Colorado. Burlingame Ranch is located approximately 2.5 miles northwest of downtown Aspen and can be accessed from Colorado State Highway 82 by turning West onto Harmony Road and following Harmony Road for approximately 1/2 mile to Burlingame Ranch. Phase I of the development has been completed (constructed, sold and occupied) and consists of 91 units, including 84 multifamily units and 7 single family lots. Phase II of the development will consist of an additional 167 units, including 161 multifamily units and 6 single family residences. The project breakdown by phase is as follows: Multifamily Units Multifamily Single Famil Total Units Current Buildings Units jig Status Phase 1 84 15 7 91 Occupied Phase II 161 15 6 167 Designed TOTAL 245 30 13 258 1.3 Purpose of the Presales Program Since 2007, the City of Aspen has envisioned construction funding for Burlingame Phase II to occur via the City's ability to issue general obligation bonds. It is a fact that the construction of affordable housing in many communities (including Aspen) is often financed, and the City has been advised that the general obligation approach is the most cost - efficient financing mechanism that can be achieved. The City of Aspen is committed to allowing the Aspen community to vote on whether or not the City should go forward with debt financing for Burlingame Phase II. One key to helping the Aspen community decide this issue may be to establish a measure of the extent to which affordable housing at Burlingame Phase II is imminently needed. The City intends to utilize this presales program to measure actual demand, which may help answer this question and may aid in making a decision whether or not to ask the Aspen community to vote on funding in the November 2011 election. FINAL DRAFTO 12/21/2010 Page 3 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 1.4 Relevance to Proposals The City does not realistically anticipate constructing all 167 units at Burlingame Phase II at one time, however if demand proves overwhelming, this could be considered. In an effort to provide a more likely solution, a Phase IIA / IIB approach is being considered — where earthwork, utility work and site grading would be performed to prepare the site for the first 82 multifamily units of Phase II. With the site ready for the first 82 units, the City may choose to construct any number of the first 7 multifamily buildings slated for the northern half of the site. Currently the City is considering either 82 multifamily units in 7 buildings or 52 multifamily units in 5 buildings for the first construction mobilization. Other options could also be considered. In the event that demand proves weak, the public vote on funding could be tabled altogether, thus halting any plans for construction. Given the opportunity for these various outcomes, it could be beneficial if fee proposals responding to this RFP are more flexible than a traditional commission plan, and it may make sense to utilize an incremental approach to revenues. Whether 82, 52 or some other number of units are constructed and sold (including zero), fee proposals should provide a built -in • mechanism to balance fixed fees and /or incremental incentives and /or commissions to match the level of value -added service that the Presales Program Manager has delivered to the City of Aspen. FINAL DRAFTO 12/2112010 Page 4 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 2.0 RFP Process 2.1 Process If your firm intends to submit a response to this RFP, you must send an email to rebecca.hodason @ci.aspen.co.us indicating that you are the contact person for your firm /team. The purpose of this registration is to make sure that your firm /team receives all of the addenda published subsequent to the initial RFP release. You must direct all questions via email to rebecca .hodason(c�ci.aspen.co.us. The City reserves the right, at its sole discretion as deemed in the best interests of the City of Aspen, to disqualify anv candidate for phone calls or other direct contact with City staff other than via the email address provided in this section. The purpose for this Q &A procedure is so that the City may track all questions, issue addenda and make sure that all respondents have access to all questions and all answers related to this RFP. While there is no specific Q &A schedule, City staff will collect questions as they come in and attempt to publish answers to questions in addenda each Friday during the RFP period. The deadline for submitting responses to this RFP is 3:OOpm, February 4, 2011 Submit RFP responses to: Ms. Rebecca Hodgson City of Aspen 130 S Galena Street Aspen, CO 81611 Proposals may be delivered in person, by courier, Federal Express or any other delivery service. The use of any delivery service, including registered mail, does not relieve the Respondent of the responsibility that proposals be received by prior to the deadline. The selection process will consist of selection committee proposal evaluations followed by oral interviews. See section 2.2 for the anticipated evaluation and selection schedule. The selection committee will develop final evaluations and will create a prioritized ranking of the top three (3) most desired firms. Your firm will be notified as to whether or not they have been selected to attend the oral interview. Please make tentative arrangements for your team to be available for oral interviews which will be conducted in Aspen, CO. 2.2 RFP Schedule • The anticipated schedule for the RFP process is as follows: January 4, 2011 Issue Request for Proposals ■ February 4, 2011 Proposal packages due from candidates by 3:OOpm February 18, 2011 Oral Interviews February 25, 2011 Selection Rankings Announced March 2, 2011 Signed Contracts Due March 14, 2011 Seek contract approval from Aspen City Council FINAL DRAFTO 12/21/2010 Page 5 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase 11 Request for Proposals — Presales Program Manager 2.3 Selection Criteria The criteria for selection shall include (but may not be limited to) experience, program approach and fees. Weightings of these selection criteria will be established by the selection committee and are subject to modification by the selection committee at any time during the evaluation process, based on the best interests of the City of Aspen. 2.4 Contracts The selected firm will be required to execute and perform work subject to the attached Agreement for Professional Services. This RFP as well as the respondent's proposal will be attached as exhibits to the Agreement for Professional Services and thus will become part of the signed contract document. The firm ranked first by the selection committee will be granted the opportunity to sign the attached Agreement for Professional Services as is ". If the firm ranked first chooses not to sign the attached Agreement for Professional Services "as is ", then the firm ranked second may be granted the opportunity to sign the contracts "as is ", and so on. Thus, suggesting modifications to the attached professional services agreement is discouraged, and being ranked first by the selection committee does not guarantee award of contract. Ultimate approval of contract award is by Aspen City Council. FINAL DRAFTO 12/21/2010 Page 6 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 3.0 Housing Development Program 3.1 Background Current designs for Phase II of the City's Burlingame Ranch Affordable Housing development consist of 167 units, including 161 multifamily units and 6 single family residences thus providing a mix of one, two and three bedroom deed - restricted affordable housing units. The project is being delivered by the City of Aspen through the use of the AIA's Integrated Project Delivery (IPD) model. The current IPD team consists of: City of Aspen: Owner Rider Levett Bucknall: Owner's Agent OZ Architecture: Architect / Engineer Haselden Construction: Contractor at Risk (Preconstruction Contractor) Engineering Economics: Commissioning Agent The work of the IPD team is managed by the City of Aspen Capital Asset department at the direction of the City Manager's Office and ultimately Aspen City Council. The Aspen/Pitkin County Housing Authority (APCHA) is a key stakeholder to the project and will be a key component to the presales effort; however APCHA has no direct involvement in the management of the development team. In early 2010, the IPD team outlined and embarked on a rigorous, open, transparent and inclusive approach to the planning and design of the master plan for Phase II of the City's Burlingame Ranch affordable housing development that incorporated a comprehensive public outreach program with the existing Burlingame Ranch Phase I residents and the Aspen community -at- large. The goals of the effort were to create a neighborhood environment that emphasizes community, livability and quality while minimizing impacts to the community — particularly in the areas of development cost and public subsidies. From April through September of 2010, the IPD team conducted a rigorous public outreach program which yielded over 500 line -items of input from the Aspen community regarding the project's design. In the July 12, 2010 regular meeting of the Aspen City Council, the Council provided unanimous conceptual approval for the Burlingame Phase II concept master plan. As a result of the rigorous process described above, the IPD team is in the process of submitting a PUD Application for the Burlingame Subdivision for review through the City's development regulating process. The PUD Application includes an extremely high level of due diligence that was created not only by the IPD design team but also by many dedicated residents of the Aspen community and many City departments and referral agencies whose input is also incorporated into the design of the project. The design materials included in the PUD Application are beyond the 100% detail design level, and the IPD team is poised to produce Implementation Documents (Construction Drawings) upon approval of the PUD Application. This effort is estimated for completion in the second quarter of 2011. The current firm members of the IPD team are contracted through completion of the PUD approval process and construction drawings for the project. Depending on the scope of Presales Program Management services proposed by respondents to this RFP, the City may consider further contracting IPD team member firms for additional services for management and/or to produce marketing collateral or additional information to aid the presales process. Costs for these potential additional services may be considered in the selection of the Presales Program Manager. FINAL DRAFTO 12,21/2010 Page 7 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 3.2 Building Program 3.2.1 Program Summary All building program information is at the 100% Detail Design level and is subject to change. A summary of the overall building program for Burlingame Phase II is as follows: Multifamily Units (MF) Unit Count Pct of MF Pct of Total I 1BR MF 46 28.6% _ 27.5 96 26R MF J.4% 29.396 3BR MF 66 41.0% 39.596 Total MF 161 100.096 Single Family Residences (SF) 3BR SF 6 ;,6;c Phase II Grand Total 167 100.03 € A more detailed breakdown of the overall building program for Phase II is as follows: U nit Detail Unit Description Unit Count Livable Area Bedrooms Baths F1 -L1 Lower Level 1BR Fiat 10 690 1 1.0 F1 - 12/L3 Middle /Upper 1BR Flat 36 726 1 1.0 F2 -L1 Lower Level 2BR Flat 10 _ 1000 2 _ 2.0 F2- L2 / Middle /Upper2BR Flat 20 _ 1037 2 2.0 F3 -L1 Lower Level 3BR Flat 10 1264 3 2.0_ F3 - L2 /L3 Middle /Upper 3BR Flat 15 1309 3 2.0 F3A -L1 Lower Level 3BR Alt. Flat 5 1160 3 2.0 F3A -L2 /L3 Middle /Upper 3BR Alt. Flat 17 1314 3 2.0 T2 2BR Town Horne /2 Level 19 1134 2 1.5 T3 3 BR Town Home /3 Level 19 1440 3 2.5 SF 3 BR Single Family Home 6 1600 3 2.5 __ Phase II Grand Total (Avg) 167 (1094) (2.16) (1.74) a Also see the detailed program information included in the Exhibits section. FINAL DRAFTO 12/21/2010 Page 8 of 20 • City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 3.2.2 Summary of Unit Category Program A summary of the unit Aspen / Pitkin County Housing Authority (APCHA) category program for Burlingame Phase II is as follows: Category Mix Summary Unit Type \ Category Cat 1 Cat 2 Cat 3 Cat 4 Cat 5 Cat 6 Cat 7 Cat RO Total # % of Total 1 Bedroom (Multifamily) 0 16 17 9 4 0 0 0 46 28% 2 Bedroom (Multifamily) 0 14 16 10 4 3 2 0 49 29% 3 Bedroom (Multifamily) 0 9 19 14 9 9 6 0 66 40% Single Family Residence 0 0 0 0 0 0 0 6 6 4% Total 0 39 52 33 17 12 8 6 167 100% of Total 0% 23c 31% 20% 10% 7% 5% 4% 100% A more detailed breakdown of the unit APCHA category program for Phase I I is as follows: Unit Type \ Category Cat 1 Cat 2 Cat 3 Cat 4 Cat 5 Cat 6 Cat 7 Cat RO Total # of Total 1 Bedroom Flat 0 16 17 9 4 0 0 0 46 28`_ 2 Bedroom Flat 0 12 16 2 0 0 0 0 30 18% 2 Bedroom Tor: nhome 0 2 0 8 4 3 2 0 19 11% 3 Bedroom Fiat 0 9 17 13 3 4 1 0 47 28% 3 Bedroom Tovrnhome 0 0 2 1 6 5 5 0 19 11`0 Single Family Horne 0 0 0 0 0 0 0 6 6 4% Total 0 39 52 33 17 12 8 6 167 100% % of Total 0% 23% 31% 20% 10% 7% 5% 4% 100% For information on the APCHA category system (and how unit categories affect sales revenues), see the Housing Guidelines section of the Aspen Pitkin County Housing Authority website at htto : / /www.asoenhousincloffice.com Also see the detailed program information included in the Exhibits section. FINAL DRAFTO 12121!2010 Page 9 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 4.0 Presales Program Description The Presales Program Manager is expected to manage and execute the presales program as a turnkey operation. RFP respondents are expected to design and propose an appropriate program for presale of deed - restricted housing units for Phase II of the Burlingame Ranch affordable housing development. City of Aspen staff has had numerous interdepartmental conversations about what should be the nature of this presales program. City staff has also reached out to APCHA staff, the APCHA board, members of the Housing Frontiers Group, local developers and consultants and has received feedback on what should be the nature of this presales program. This section provides information on the feedback received to date which should play a big role in designing the program. Section 5 (Proposal Requirements) describes the specific proposal elements that are required to be submitted as part of each proposal. The material that follows in sections 4.1 through 4.3 is intended to be used as information that should be considered when designing a presales program to meet the City's expectations. 4.1 Presales Commitment Levels As a result of the conversations described above as well as in a work session with Aspen City Council on November 23, 2010, the City envisions presales commitment levels commensurate with milestones, creating a stepping -up of commitment to both the City and to the buyers as the presales process moves forward. The presales commitment levels below have been discussed as potentially viable: Level 1: Reservation List • Buyers are required to qualify with APCHA per usual APCHA process •:• Buyers sign up on reservation list • Buyers pay APCHA fee per usual APCHA process Level 2: Reservation Agreement s• Buyers are required to pre - qualify with lender for mortgage • Buyers are required to sign a Reservation Agreement • Buyers are required to place a refundable deposit of some amount that is considered reasonably attainable for local workers - perhaps around $500 (actual deposit amount needs to be established) • The Reservation Agreement should contain specific terms that effectively deal with changes to qualifications of buyers during the term of the agreement • This is the level of commitment that the City foresees necessary for a public vote on construction funding — potentially in November 2011 Level 3: Pre -Sales Agreement • Occurs after a successful public vote on construction funding :• Buyers are required to sign a Pre -Safes Agreement • Buyers are required to place a non - refundable deposit — perhaps in the range of $1,500 to 55000 (actual deposit amount needs to be established) • The Pre -Sales Agreement should contain specific terms that effectively deal with changes to qualifications of buyers during the term of the agreement Level 4: Sales Agreement • Occurs when units are substantially complete • Buyers are required to sign a Sales Agreement FINAL DRAFTO 12/21/2010 Page 10 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase I1 Request for Proposals — Presales Program Manager • Closing date is set • The Sales Agreement should contain specific terms for closing • APCHA to close transactions Commitment levels 3 and 4 have been discussed as perhaps being a single agreement that has part 1 and part 2 executions. The primary reason for not entirely combining levels 3 and 4 altogether was conceived to better deal with potential changes to a buyer's qualifications (referenced in section 4.2.2 below). 4.2 Key Presales Program Elements Below is a list of key presales program elements that have been discussed as necessary considerations. The topics listed below are not expected to fully define the presales program, but should be considered as key directional topics in designing an appropriate presales program. A fully- defined presales program should address each of the topics listed below as well as additional considerations not foreseen here in order to define a fully - functional presales program: 4.2.1 Buyers should be required to follow the APCHA qualifying rules in the APCHA guidelines. See the Housing Guidelines section of the Aspen Pitkin County Housing Authority website at httn : / /www.asnenhousinaOffice.com. 4.2.2 The program will need to be able to effectively deal with changes to buyers' APCHA qualifications (such as a change of income category or a change in the number of people in the household) during the presales process. 4.2.3 The program needs to have the right level of commitment for both the City and the buyer at each milestone throughout the presales process. 4.2.4 It is necessary to consider whether or not it is appropriate to provide an incentive for buyers to sign up early in the presales process. Some incentive concepts previously considered are price breaks, upgrade credits or a free gift. If City Council is amenable to providing incentives to buyers, what incentive concepts should be considered? 4.2.5 Requiring buyers to prequalify for mortgages and pay a deposit will provide confidence to the community when considering a public vote on funding for construction. Requiring buyers to prequalify for mortgages also provides confidence to the bond bankers that there is a loan community ready to support the project and that the debt service on the bond can be met. 4.2.6 It may be easy to immediately open up a reservation sign -up list to initially gauge interest. 4.2.7 APCHA must close the transactions and receive 2% commission as per usual APCHA affordable housing transactions. 4.2.8 If the program requires additional effort from APCHA staff beyond APCHA's typical course of operation, costs of additional staffing at APCHA should be considered. 4.2.9 Adaptations of free market programs may be useful, but there may be some elements of free market programs that are not as useful for this application so carefully consider what can be adapted from free market programs and what not to use for an affordable housing presales program. 4.2.10 Although the current plans do not include owner- upgrade options, consider an emotionally- driven need to offer buyer- funded finish upgrade packages through the presales program. If unit finish upgrade packages are provided, consider providing fixed FINAL DRAFTO 12/21/2010 Page 11 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager packages only (no customization) and set a deadline in the agreements after which no further changes can be made by buyers. 4.2.11 A heavy advertising campaign may be negatively perceived and should be thoughtfully considered. 4.2.12 Although selling from marketing collateral will be a challenge, a presales program should be able to begin with a minimum of collateral materials such as renderings, site plans, floor plans and specifications and then perhaps more detailed materials as the program moves forward. Later stages of the program may benefit from the construction of a physical model or a 3D model or both. Since costs of development of collateral material needs to be considered, what amount of collateral materials will be both effective and cost - efficient at each stage of the presales program? 4,2.13 The Internet should be leveraged to the fullest extent for distribution of marketing collateral, information, agreements, etc. A useful, professional - looking web presence will help instill confidence in buyers and can make program execution more efficient. There are many good free market presales website examples here: http: / /rennie.com /developments /, although such an extensive use of Flash may not be desirable for this application. The presales website should be accessible from both the existing APCHA and City of Aspen websites via link. At what stage in the process could a website be put into use? Should buyers be allowed to sign up on the reservation list via website? 4.2.14 It is likely a full time job to manage all of the buyers through the entire process. Communication will be a major key to the presales program. Phone calls and meetings with buyers require timely follow -up and attention to detail. If the appropriate level of communication between the Presales Program Manager and the buyers does not exist, buyers will likely call APCHA or the City of Aspen to complain and cause unnecessarily high level of management effort if not dealt with properly. 4.2.15 Presale of units can cause buyers to have a sense of entitlement and can create emotional conflict if expectations are not met. If this occurs, the Presales Program Manager is expected to manage instances of emotional conflict to satisfy buyers and to ensure minimum loss of efficiency to the City's development team or to APCHA. 4.2.16 For every presales buyer that the presales program captures, the project has an advocate. Utilize the opportunity to keep the buyers engaged and excited about the project. 4.2.17 The Presales Program Manager should work seamlessly with buyers, APCHA and the City of Aspen Capital Asset department and should share information through regular communication so that there are no information gaps between the working members of the overall project team. This communication means should be established as part of the presales program. 4.2.18 It would be undesirable for the cost of a presales program to cause housing subsidies to go up by unacceptable levels, however if 82 units can be constructed in one construction mobilization as opposed to only 52 units, estimates indicate a potential cost savings due to construction efficiencies gained. Thus, the presales program is an investment opportunity to potentially lower subsidies. 4.2.19 The City has long contemplated employers in the Aspen community as housing partners. There is a need to establish a component of the presales program to include employer - buyers. An appropriate process as well as terms and agreements need to be developed for employer - buyers in addition to those for individual buyers. The City's intention is to develop housing units and sell them to employers at a price equal to the City's total cost to develop, thus shifting the housing subsidy to the employer. In return, employers are FINAL DRAFTO 12/21/2010 Page 12 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager provided certain terms for occupation of the units by employees. These terms need to be defined through working meetings among the potential employer- buyers, City of Aspen, APCHA and the Presales Program Manager. 4.2.20 It will be necessary to establish a priority at some point in the process that will define the order in which buyers will be allowed to select a unit for purchase. It has been suggested that this could be accomplished either by utilizing the chronological order in which buyers entered the presales program or by conducting a lottery among buyers who have entered the presales program. There are likely pros and cons to each approach as well as various options for timing. 4.2.21 In order to fully understand the true level of demand that the presales process is generating, it will be necessary to know how many buyers are coming from existing deed - restricted units and whether buyers are migrating from existing studio and one bedroom units to two and three bedroom units or if they are making a sideways move to a unit equivalent to their existing unit. The presales program should define what information will be collected from buyers and how information will be used to fully understand this. The ability to sort and /or aggregate data for summary reports will be desirable. 4.2.22 If APCHA is required to close the transactions, this may mean that APCHA has E &O responsibility. If so, how much does APCHA need to be involved throughout the information management process with buyers to satisfy APCHA's disclosure responsibility? 4.3 Policy Decisions When designing the presales program, there are a number of policy decisions that may need to be made in order for the presales program to move forward. Based on the information presented in the above sections, below is a sample list of policy questions that Aspen City Council may need to address. • What amount will buyers be required to deposit at commitment level 2? ❖ What amount will buyers be required to deposit at commitment level 3? :• What will be the policy if a buyer's mortgage qualification status changes during presales term? • What will be the policy if a buyer's income category changes during presales term? • What will be the policy if the number of members in a buyer's household changes during presales term? •:• To what extent will the City guarantee delivery of housing units at each commitment level? • What terms of agreements need to be put in place for employer - buyers? Is it appropriate to offer incentives for presales buyers? •3 Should finish upgrade packages be offered? This list is not an attempt to illustrate all of the policy decisions that will be required. Many more policy decisions may be applicable depending on the presales process proposed. Proposals should include a thoroughly - developed list of policy questions that will need to be addressed. Proposals should also suggest thoughtful policies to address each question. City Council will ultimately decide what the policy decisions will be, however the Presales Program Manager's suggestions may have input into the decisions, depending on experience and familiarity with Aspen's affordable housing program and the appropriateness of the recommendations. FINAL DRAFTO 12/21/2010 Page 13 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II I Request for Proposals — Presales Program Manager 4.4 Team Communication Approach The Presales Program Manager will be a key member of the overall project team. A suggested team communication approach is shown in the diagram below: Burlingame Phase II Presales Program Team Communication Approach Aspen City Council 1 City Manager's Office, - i 1 1 1 P Capital �. APCHA Asset Department 2 r', contract • � +.t�..�t+. .. Presales 1 P i Program ...... Manager i V - -- " 3 -daiiiimiiiiiamidik 4 = Governance / Authority = Communication / Collaboration 1: Typical CoA /APCHA Communication 2: Collaboration on presales program development effort and regular operational updates 3: Buyer qualification and closing only 4: Buyer management communication (Presales Program Manager to propose) Respondents should propose a similar team communication approach that thoroughly describes all communication necessary to run an efficient, high- functioning program. In doing so, proposals should describe the frequency and nature of each numbered communication arrow. This should be particularly detailed when describing the buyer management communication for each commitment level in the proposed presales process. t 4.5 Project Schedule In a work session on November 23, 2010, Aspen City Council unanimously agreed to postpone any public vote on construction funding until November 2011 at the earliest. The milestones of the presales program should be designed based on a schedule working toward the November 2011 election. Assume that the current working deadline for a City Council decision to hold a vote in November 2011 is August 31, 2011. Respondents should propose a schedule of milestones accordingly. FINAL DRAFTO 12/21/2010 Page 14 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 5.0 Proposal Requirements Carefully prepare and submit a proposal containing the following: 5.1 Cover letter Provide a one -page cover letter with executive summary information including: •: A brief introduction to your firm /team • Name of the person who is the point of contact with phone and email address •: A brief description or a major strength of the presales program proposed • An expression of how confident you are that the proposed presales program will fulfill all of the expectations described in this RFP • A brief description of how your firm is uniquely positioned to deliver these services 5.2 Qualifications Substantiate specific past experience with or specific expertise, core - competency and /or the appropriate skill -set for the management and execution of presales programs for for -sale affordable housing developments by providing the following qualifications: 5.2.1 Overview of the Firm /Team • Provide an overview description of the proposing firm /team and describe how your firm is uniquely positioned to deliver relevant services (generally more detailed than in the cover letter). 5.2.2 Relevant Experience Provide a list of past or present projects relevant to the program described in this RFP and include the following information for each project: Name, location and current status of project • Brief project description and general project information •3 Size and dollar value of project •: Contact person, position/role and phone number for reference checking • Description of relevant services that were provided specifically by the proposing firm /team, with emphasis on affordable residential • Project outcome describing successes, failures and/or lessons learned 5.2.3 Financial history: Provide the following: 5.2.3.1 Total annual revenues for each of the past 5 years 5.2.3.2 A letter from you firm's financial institution noting your firm's financial strength and stability 5.2.3.3 Whether your organization is in the process of filing or has filed bankruptcy within the last five years FINAL DRAFTO 12/21/2010 Page 15 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 5.3 Proposed Presales Program Based on the information provided in Section 4 of this RFP (Presales Program Description) and based on the proposing firm /team's experience and recommendations for this specific application, provide a detailed description of the presales program that your firm /team proposes. Through the use of narrative, illustration, tables, charts or the like, program descriptions are expected to describe a fully- defined, fully- functioning, turnkey program that thoroughly conveys to the reader how the proposed program addresses all of the issues described in Section 4 of this RFP (Presales Program Description) as well as additional issues that may exist but are not foreseen here. y 5.3.1 RFP respondents should describe in detail a customized, streamlined presales program that manages increasing commitment levels between buyers and the City of Aspen effectively, efficiently and appropriately for the Aspen community's affordable housing program. 5.3.2 Directly address every numbered item Section 4 (Presales Program Description) of this RFP. 5.3.3 Describe in detail the Presales Program Manager's staffing levels during each step in the program 5.3.4 Describe in detail the Presales Program Manager's physical offices and office hours during each step in the program 5.3.5 Include sample /draft agreements for each owner /buyer commitment level 5.3.6 Describe in detail proposed marketing collateral materials to be used at each level of the program and an expectation of who will create collateral materials at each step and how materials will be distributed 5.3.7 Describe in detail the proposed communication plan that will be in place during each level of the program 5.4 Proposed Scope of Services 5.4.1 Describe exactly what services the Presales Program Manager proposes to deliver at each step in the program described in Section 5.3 5.4.2 Describe exactly what are the interface points with buyers, CoA, APCHA and others and describe exactly how those are proposed to be managed by the Presales Program Manager 5.4.3 Describe exactly how demand will be measured and reported at each step and at what points decisions are intended to be made 5.4.4 Describe the tools that the Presales Program Manager will utilize and who is intended to provide each tool such as: • Office facilities, location, hours • Phone, Email, Website • Collateral materials • Agreements Y Assurance guide ➢ Additional tools 5.4.5 Describe what responsibilities the Presales Program Manager will fulfill and exactly how each responsibility will be fulfilled such as: FINAL DRAFTO 12/2112010 Page 16 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase 11 Request for Proposals — Presales Program Manager ▪ Outreach "r Buyer capture ). Buyer management and communication Y Team communication Z Reports to CoA /APCHA staff ) City Council Presentations Consider developing a responsibility assignment matrix similar to the example provided below to help illustrate what parties will fulfill each responsibility throughout the program. (Your chart may vary from the example provided below.) Responsibility Assignment Matrix (Example Only) Pr esales City Capital City's Task \ Responsibility APLHA Asset Dept Program Architect Manager Identify Marketing Collateral Needed Develop Marketing Collateral ✓ Develop Website ✓ Develop Policies ■ Develop Agreements ✓ Develop Assurance Guide ✓ Advertising /Marketing /Outreach ✓ Operate Sales Office, Email, Phones ✓ Initial Contact with Buyers / Buyer Capture ✓ Buyer Qualification ✓ Buyer Management and Communication ✓ Meet with Buyers to Sign Agreements ✓ Team Communication ✓ ✓ ✓ Generate Presales Progress Reports ✓ Develop City Council Presentations ✓ ✓ ✓ Close Transactions ✓ 5.4.6 Describe any other services not mentioned above that will be provided by the Presales Program Manager which are part of the presales program being proposed. (There is a later section, 5.7 Additional Services, which can be used to propose optional add alternate services that may be intended to enhance or otherwise be added on to the base services proposed, but Section 5.4.6 is intended for other services not previously described that are still considered part of the base program being proposed.) 5.4.7 Describe any other responsibilities or tasks not previously described that will be required as part of the proposed presales program which will need to be performed by parties other than the Presales Program Manager. 5.5 Proposed Personnel For each person proposed to perform work for the Presales Program Manager as suggested in the staffing levels provided in Section 5.3.3, please provide: • A description of the role being fulfilled • Key qualifications that make this individual an ideal fit for this project • Resume and list of relevant projects completed (either from section 5.2.2 or other) FINAL DRAFTO 12/21/2010 Page 17 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 5.6 Proposed Schedule Prepare a suggested milestone schedule that will meet the constraints described in Section 4.5. In preparing a milestone schedule, also consider the following issues and any others that will need to be addressed: •:• Presales Program Manager date of contract approval by City Council • Policy Decisions • Timing to open an initial Reservation List •: Website development and implementation • What threshold, milestone or decision is used to determine when to bring buyers from the Reservation List level to the Reservation Agreement level? • Reservation Agreement commitment level is deemed necessary for public vote on funding • Council updates at what intervals or milestones? • City Council deadline of August 31 for a decision on a November 2011 • November 2011 election 5.7 Additional Services Describe any optional services that are considered above and beyond the base program being proposed. Describe the benefits of any additional services proposed and any additional staffing needs. In the section that follows, be sure to propose fees for additional services as optional. 5.8 Fees Respondents may propose any fee structure desired, whether all fixed fees, incremental incentives, commissions or other means. See sections 1.3, 1.4 and 4.2.7 for important additional information when considering a fee structure. 5.8.1 Fee Table Provide a proposed fee table like the one shown below: Sample Fee Table Only Fixed Fee Incremental Commission Reimbursables Incentive Level 1: Reservation List $ $ /unit - $ Level 2: Reservation Agreement $ S /unit - $ Level 3: Pre -Sales Agreement $ $ /unit - S Level 4: Sales Agreement $ $ /unit - S Closing S S /unit % S Total $ S /unit % S If the fee structure proposed is more complex than the example table provided, please create a custom table to illustrate the proposed fee structure. FINAL DRAFTO 12!21./2010 Page 18 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 5.8.2 Calculation of Potential Outcomes Based on an average affordable home sale price of $250,000, calculate the total costs to the City if the Presales Program Manager were to facilitate delivery of closing for each quantity of units listed below: Incremental Fixed Fee Incentives Commissions Reimbursables TOTAL 0 Units S S 5 S $ 52 Units S S S S $ 82 Units S S $ S $ 167 Units S $ 5 $ $ If the calculation is more complex than the example table provided, please create a custom table to illustrate what the total fees would be for each of the potential outcomes shown. 5.8.3 Fixed Fee Breakdown For all fixed fees proposed, provide the number of hours and the rates that have been used to estimate the fixed fees in the above section. Utilize a table similar to the one shown below: Person - 1 2 3 4 5 6 Total Level 1: Reservation List Hours Hours Hours Hours Hours Hours Hours Level 2: Reservation Agreement Hours Hours Hours Hours Hours Hours Hours Level 3: Pre -Sales Agreement Hours Hours Hours Hours Hours Hours Hours Level 4: Sales Agreement Hours Hours Hours Hours Hours Hours Hours Closing Hours Hours Hours Hours Hours Hours Hours Total Hours Total Total Total Total Total Total Total Rate S /Hr S /Hr S /Hr S /Hr S /Hr S /Hr S /Hr Total $ $ 5 $ $ $ $ Also provide direct reference to Section 5.5 for each person and /or role in the table. If the calculation is more complex than the example table provided, please create a custom table to illustrate the fixed fee breakdown. The City expects to include all fees + reimbursables in the contract as a top -set to be billed against. Candidates are to assume that detailed backup of reimbursable costs will be required with each invoice. 5.9 Proposal Format Preferred hardcopy format is 8 x 11" bound with no single page exceeding 11" x 17 ". The selection committee requires six (6) hardcopies of your firm's proposal. The selection committee also requires one (1) electronic submittal of your firm's complete proposal, provided on a CD or DVD, preferably assembled into in a single pdf file. So that the selection committee may most easily reference sections and pages of the proposal, please number all pages and provide tab sheets to separate sections. Please also provide an index or table of contents. A transmittal letter for each Respondent's proposal must be submitted on its official business letterhead. The letter shall transmit the proposal, identify all materials and enclosures being forwarded collectively as a response to this RFP, and must be signed by an individual authorized to commit the Respondent to the scope of work proposed. FINAL DRAFTO 12/21/2010 Page 19 of 20 City of Aspen January 4, 2011 Burlingame Ranch Phase II Request for Proposals — Presales Program Manager 6.0 Owner's Language 6.1 Interests of the City of Aspen 6.1.1 The City of Aspen reserves the right to reject any or all Proposals or accept what is, in its sole judgment, the Proposal which is in the City's best interest. The City further reserves the right, in the best interests of the City, to modify this RFP process as it sees fit or waive any technical defects or irregularities in any and all Proposals submitted. 6.1.2 Proposals received after the deadline may not be accepted or considered. Receipt by the City of Aspen after the deadline shall not be construed as acceptance of the proposal. 6.1.3 The successful Respondent is prohibited from assigning or subcontracting the whole or any part of the contract without the prior written consent of the City of Aspen. 6.1.4 Proposals submitted in response to this solicitation are irrevocable for 60 days following the due date of the proposals. This period may be extended by written agreement between Respondent and the City of Aspen. 6.2 Regulatory Requirements 6.2.1 Depending on the services proposed, the proposing firm must meet all local, state and federal requirements for real estate professional licensing as well as insurance and any other requirements that may be potentially necessary. An inventory of these requirements should be provided as well as statements that support the proposing firm's fulfillment of these requirements. 7.0 Exhibits 7.1 Agreement for Professional Services 7.2 Plans & Specs 7.2.1 Burlingame Phase II Master Plan 7.2.2 Architectural Character Renderings 7.2.3 Unit Floor Plans 7.2.4 Finish Specs 7.2.5 Detailed Unit Program Visit the project website for additional information: http: / /www.aspenpitki n.com/ Departments /Capital- Asset/B urli naame/ • • FINAL DRAFTO 12/21,2010 Page 20 of 20 s THE CITY OF ASPEN AGREF.MFNT FOR PROFESSIONAT. SERVICES PRESALES PROGRAM MANAGER This AGREEMENT is made as of the day of in the year of 2011 BETWEEN the City: CITY OF ASPEN, a municipal corporation 130 South Galena Street Aspen, Colorado 81611 and the Professional: Total Contract Amount: for the following Project: Presales Program Management for Phase II of the Burlingame Ranch affordable housing development in Aspen, CO as described in Exhibit A and Exhibit B. Exhibits appended and made a part of this Agreement: Exhibit A: Proposal Exhibit B: Request for Proposals For and in consideration of the mutual covenants contained herein, the City and the Professional agree as follows: 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Services as set forth in Exhibit A attached hereto and by this reference incorporated herein. The Professional shall perform its services consistent with the professional skill and care ordinarily provided by professionals practicing in the same or similar locality under the same or similar circumstances. The Professional shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. 2. Completion Professional shall commence Work immediately upon receipt of' a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later than is stated in Exhibit A. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of Agreement for Professional Services Page 1 of 11 submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payineut. In consideration of the work performed, City shall pay Professional per Exhibit A for all work performed: The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit A appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed the amount set forth above. Professional shall submit, in timely fashion, invoices for work perfonned. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Tax-Exemption All purchases of supplies, construction or building materials shall not include Federal Excise Taxes or Colorado State or local sales or use taxes. The City of Aspen's State of Colorado tax identification number is 98- 04557. The City of Aspen's Federal Tax Identification Number is 84- 6000563. 5. Non- Assianahility. Both parties recognize that this Agreement 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 Professional of any of the responsibilities or obligations under this Agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors' officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub- contractor. 6. Ownership of Documents. The Professional hereby assigns to the Owner, without reservation, all copyrights to all project- related documents, reports, studies, models, photographs, and other documents created by the Professional or the Professional's Subcousultants. Among those documents are certain 'Instruments of Service," including the reports, studies, models, and other documents, drawings and specifications. The Owner's obligation to pay the Professional is expressly conditioned upon the Professional's obtaining a valid written comprehensive assignment of copyrights from his Subconsultants in terms identical to those that obligate the Professional to the Owner as expressed in this subparagraph, which copyrights the Professional, in tun, hereby assigns to the Owner. The Owner, in return, hereby grants the Professional a nonexclusive license to reproduce the documents for purposes relating directly to the Professional's performance of this Project, for the Professional's archival records, and for the Professional's reproduction of drawings and photographs in the Professional's marketing materials. No other project - related documents may be reproduced for any other purpose without the express written permission of the Owner. No other copyrights are included in this grant of nonexclusive license to the Professional. This nonexclusive license shall terminate automatically and immediately upon the occurence of either a breach of this Agreement by the Professional or termination. This nonexclusive license is granted to the Professional alone and shall not be assigned by the Professional to any other person or entity. Other provisions of this Agreement notwithstanding this nonexclusive license shall terminate automatically upon Professional's assignment of this nonexclusive license to another or his attempt to do so. However, nothing in this paragraph shall be construed to preclude the Professional from, in turn, assigning to his Consultants a nonexclusive license coextensive with the Professional's applying to the documents originally created by that Consultant. 6.1 If the Owner subsequently reproduces project- related documents or creates a derivative work based upon project - related documents created by the Professional, where permitted or Agreement for Professional Services Page 2 of 11 required by law, the Owner shall remove or completely obliterate the original professional seals, logos, and other indications on the documents of the identity of the Professional and bis Consultants. However if required by law, such identification with appropriate qualifying language or other statutorily prescribed information identifying the original Professional may remain or be applied by the Owner or by a designee of the Owner. 6.2 Prior to the Professional providing to the Owner any Instruments of Service in electronic form or the Owner providing to the Professional any electronic data for incorporation into the Instruments of Service, the Owner and the Professional shall by separate written agreement set forth the specific conditions governing the format of such Instruments of Service or electronic data. including any special limitations or licenses not otherwise provided in this Agreement. 7. Termination The Professional or the City may terminate this Agreement, without specifying the reason therefore, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional 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 Professional, and the City may withhold any payments to the Professional for the purposes of set -off until such time as the exact amount of damages due the City from the Professional may be determined. 8. Covenant Against Contingent Fees. The Professional warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for the Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company 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. 9. Jndependent 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. Professional 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 Professional 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 Professional. 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 Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional 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 Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 10. hulemr>ification. Professional agrees to indenmify 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 contract, if such injury, loss, or damage is caused in Agreement for Professional Services Page 3 of 11 whole or in part by, or is claimed to be caused in whole or in part by, the act. omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional 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 Professional, 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. 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 Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 11. professional's insurance. (a) Professional 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 Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any Liability, claims, demands, or other obligations assumed pursuant to Section 8 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) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with fonns and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 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. (i) Workers' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, 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 Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contrac- tual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS Agreement for Professional Services Page 4 of 11 ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non -owned vehicles assigned to or used in perfonnance of the Scope of Work. The policy shall contain a severability of interests provision If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS (51,000,000) each claim and ONE MILLION DOLLARS (51,000,000) aggregate. (c) 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 Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, 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 fonn of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages 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. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimiun limits shall constitute a material breach of contract upon which City may immediately terminate this contract, 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 Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and 5600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Govemmental Immunity Act, Section 24-10-101 et seq., C .RS., as from time to time amended, or otherwise available to City, its officers, or its employees. 12. City's insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property /Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Professional for inspection during normal business hours. City makes no representations Agreement for Professional Services Page 5 of 11 whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 13. Completeness of Agreemes. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 14. j$Totice. Any written notices as called for herein may be hand delivered or trailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 15. Non-Discrimination 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. Professional agrees to meet all of the requirements of City's municipal code, Section 13 -98, pertaining to non-discrimination in employment. 16. Waiver. The waiver by the City of any tens, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other tens. No term, covenant, or condition of this 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 Professional to which the same may apply and, until complete performance by Professional of said tens, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 17. execution of Agreement by City . This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein: (a) Contract amounts less than $25,000.00: Agreements for total compensation amounts less than $25,000.00 shall not be binding on the City unless duly executed by the City Manager of the City of Aspen, or a duly authorized official in his absence. A Motion or Resolution of the Council of the City of Aspen is not required for Agreements with total compensation less than $25,000.00. (b) Contract amounts in excess of $25,000.00: Agreements for amounts in excess of $25,000.00 shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen, or a duly authorized official in his absence, following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor, or a duly authorized official in his absence, to execute the same. 18. Illegal Aliens — CRS &¢ 8- 17.5 -101 & 24-76,5-101. (a) Pumose. 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 City of Aspen, from knowingly hiring an illegal alien to perfonn work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perfonn work under the contract. The new laws also require that all Agreement for Professional Services Page 6 of 11 contracts for services include certain specific language as set forth in the statutes. The following terns 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 contact for services entered into with the City of Aspen "E- verify 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 "Department program" means the employment verification program established pursuant to Section 8- 17.5- 102(5)(c). "Public Contract for Services" means this Agreement. "Services" means the fiunishinp 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, Professional certifies and represents that at this time: i. Professional shall confirm the employment eligibility of all employees who are newly hired for employment to perfonn work under the public contract for services: and ii. Professional has participated or attempted to participate in either the e -verify program or the department program in order to verify that new employees are not illegal aliens. (d) Professional hereby confirms that: i. Professional shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. ii. Professional shall not enter into a contract with a subcontractor that fails to certify to the Professional that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. iii. Professional 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. iv. Professional 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. v. If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Professional shall: Agreement for Professional Services Page 7 of 11 (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual lmowledge that the subcontractor is employing or subcontracting with an illegal alien; and (2) 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 Professional 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. vi. Professional 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. vii. If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8- 17.5 -102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Professional shall be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8 -17.5 -102, C.R.S. viii. If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law,(2) shall comply with the provisions of CRS 24- 76.5 -101 et seq., and (3) shall produce one of the forams of identification required by CRS 24- 76.5 -103 prior to the effective date of this Agreement. 19. General Terms. a. It is agreed that neither this 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 this 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. This agreement shall be governed by the laws of the State of Colorado as from time to time in effect. • Agreement for Professional Services Page 8 of 11 IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date hereinafter written. CITY OF ASPEN, COLORADO: PROFESSIONAL: [Signature] [Signature] By: By: [Name] [Name] Title: Title: Date: Date: Approved as to form: City Attomey's Office Agreement for Professional Services Page 9 of 11 EXHIBIT A Scope of Wolk Agreement for Professional Services Page 10 of 11 EXHIBIT B Request for Proposals Agreement for Professional Services Page 11 of 11 ]r3 v ,,, 0 . 4 ..... ,i,y.-i. .,... „ ..... ,,, --,. 'ti t, a) , , , UI) (I I 13 • ■I O i ft ':i. I f = cn ._ I 1 - a) l d. ( 11111111 s L‘ (III) o E t 0 C N ( III) CD C • ■ M H 03 Z Ce C >% 0 .0 11111111% IN= N C CU m s C 0 = a) >, , . ai (1) c) c ri (� N ce E ad >, 0 }� . v V/ M N 0) a. 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A (i) • • • • Tim r .. r • CD r r 0 0 r 0 0 N N N N N CD N , CO , d' c ♦-+ 'd' 4 4' r N_ N r �z.� x- N N N M M ii MEMORANDUM TO: Mayor and Council FROM : Scott Chism, Parks Planner 011 Jessica Garrow, Long Range Planner THRU: Chris Bendon, Community Development DirecAor Jeff Woods, Manager Parks and Recreation CC: Steve Barwick, City Manager John Worcester, City Attorney Stephen Ellsperman, Director of Parks and Open Space DATE OF MEMO: December 30 2010 MEETING DATE: January 3r 2011 RE: Theatre Aspen Lease and Infrastructure Improvements in Rio Grande Park SUMMARY: Theatre Aspen is seeking a ten (10) year lease agreement with the City that would allow the continued presence of the Theatre Aspen tent in Rio Grande Park. As part of the lease discussion, Theatre Aspen and City Staff are seeking Council guidance on tent and infrastructure improvements. Staff from the Parks Department has reviewed the proposed theatre tent reconstruction and supports the continued presence of an improved Theatre Aspen tent in Rio Grande Park. Staff from the Community Development Department has also reviewed the proposal and has a series of questions for Council regarding potential tent and ticketing area improvements which will inform the appropriate land use process. PREVIOUS COUNCIL ACTION The last Council Action on Theatre Aspen was taken in 1995 when City Council approved an amendment to the Rio Grande Park Master Plan allowing Theatre Aspen to be located in the park. BACKGROUND: Theatre Aspen has maintained a seasonal tented performance venue at Rio Grande Park since 1989, when a first "circus" tent was erected: Page 1 of 5 • it , • troge Theatre Aspen was established by Kent Reed in 1983 and moved to Rio Grande Park in 1989 when Pat Fallin and Carol Loewenstern managed the organization. A few years later, approximately in 1992, funds were raised to purchase the tent that is currently in place in the park. That current tent has existed at Rio Grande Park under the terms of Ordinance 24, Series of 1995 (attached as Exhibit 4). Under the terms of the Ordinance, the tent may be erected in mid -May and must be removed by mid- September of each year. Theatre Aspen has been using the same tent since the original approval in 1995. Theatre Aspen's proposed improvements will further build upon the positive relationship between this cultural arts organization and Rio Grande Park. DISCUSSION: To date the original Ordinance has constituted the Theatre Aspen's lease. Community Development staff have a series of questions for City Council regarding the lease and future development on the property. 1. Does City Council wish to continue to have Theatre Aspen in the Rio Grande Park? a. If Council is interested in maintaining Theatre Aspen in the park staff recommends entering into a formal lease. Both Staff and Theatre Aspen believe a formal lease with the City is necessary and would provide a benefit to both parties. The proposed lease is attached as Exhibit 1. 2. Does City Council endorse structural and infrastructure improvements to Theatre Aspen? a. The current Theatre Aspen tent requires replacement due to weathering and wear and tear resulting from seasonal set -up and take -down. The comprehensive proposed scope of Theatre Aspen tent improvements includes: • Re -grade the tent site to prevent flooding of the tent platform during heavy rains. • Coordinate with City of Aspen Parks Department staff to utilize existing pond basins in Rio Grande Park to better detain storm water for enhanced mitigation of storm water flows passing through the park and adjacent to the tent site. • Increase electrical capacities to the tent site • Replace existing ancillary park structure with a new ancillary park structure. The new park structure would contain Theatre Aspen water and electric meters, City park irrigation pumps and a bear -proof trash dumpster. Page 2 of 5 • Replace the existing tent with a new tent in the same footprint. The tent would remain a `temporary' structure that would be set up before and taken down after each summer performance season. • Construct ticketing and concessions `lobby' structures adjacent to and in front of the new tent. The existing shed structure that currently houses concessions and storage would be removed. The ticketing and concessions structures would stay up year round and serve as a lobby area to the tent, but have a modular design that could allow deconstruction on an annual basis. b. Theatre Aspen is proposing to replace the existing tent, which has been in use since 1995. The replacement of the tent with a new tent of the same size and footprint can be approved through an administrative SPA amendment. In addition, Theatre Aspen is proposing to improve the ticketing and concessions stand area. If this is a seasonal structure, like the tent, it can be reviewed administratively. If it is a structure that is up year- round, a major SPA amendment and City Council approval in a noticed public hearing is required. Other improvements, including to utilities and stormwater facilities, do not require a land use review but will be reviewed as part of the building permit. Staff recommends that the lease enable Theatre Aspen to conduct regular maintenance as needed. 3. Would City Council like to see Theatre Aspen use year -round structures or limit them to seasonal structures? a. The current SPA approval received in Ordinance 24, Series of 1995 allows for a seasonal tent to be erected each year (May — Sept). Year -round structures, such as the ticketing and concessions area are proposed to be, could be approved through a major SPA Amendment. Staff believes that portions of the structure could be up year- round, lessening operational and logistical issues. Staff recommends that if Council would allow the structures to be up year -round that this be included in the terms of the lease. Staff can then process a major SPA amendment. The proposed year -round structures would provide a clearer presence for Theatre Aspen in the Rio Grande Park. The structures would also provide them with additional storage space for equipment that is currently left out in the open during the off- season, improving the park aesthetics in the area. Parks Department staff has reviewed the design proposal and believes that the concept will work and will be a significant improvement over the current collection of small structures and worn-out tent. The proposed ticketing and concessions `lobby' structure provides a visual cue to park users year -round suggesting the festive theatre activity in the park even when the tent will be down in the autumn and winter months. Staff believes opportunity exists this spring to coordinate some minor site work around the park pond basins with the proposed Theatre Aspen improvements to create an improved park aesthetic in the area that will benefit the visitor experience to both the Theatre Aspen tent as well as to the John Denver Sanctuary. Enhancement to the entrance of the John Denver Sanctuary could be achieved in association with the proposed tent infrastructure improvements. Page 3 of 5 The Community Development Department has reviewed the proposal to determine what land use process the Theater must go through to allow the proposed changes. Staff believes that the lease will help formalize the ability of Theatre Aspen to operate in the park. If Council is interested in seeing the ticketing /concessions area remain up year -round staff recommends a phased land use review process to ensure Theatre Aspen is able to begin their operations on time: 1. Process an administrative review for the proposed replacement tent, and for a temporary ticketing and concessions area. This review could be conducted relatively quickly, and would allow Theatre Aspen to apply for a building permit in a timely fashion. 2. Process a major SPA amendment for a year -round ticketing /concessions area. If approved this would replace the temporary approval granted in step one. This requires a public hearing with P &Z (currently booking into April) and a public hearing with City Council. Staff does not believe this would be completed by May, when the Theatre Aspen season begins. However, it would likely be completed before the end of the summer. FINANCIAL IMPLICATIONS: The proposed tent reconstruction has minimal capital cost implications to the City. Theatre Aspen has been conducting a fundraising campaign in 2010 to replace the tent in 2011 and has raised $1,082,813.30 out of their fundraising goal of $1.5 million. The private fund raising campaign includes approximately $400,000 in annual operating fundraising goals in addition to the proposed project cost of approximately $1.1 million. Theatre Aspen has a goal to have $1.5 million in pledges by April 30 2011. An improved Theatre Aspen facility in Rio Grande Park would potentially improve attendance and enhance the visitor experience to Aspen in the summer. The positive visitor experience has the potential to benefit other businesses in town. Theatre Aspen sold 8,678 tickets in 2010 and has documented an increase of 43% in ticket sales between the 2007 and 2010 seasons, which could increase further with a better facility in the park. The proposed minor site work outlined above would be completed by Parks Department staff utilizing Parks Operations and General Parks Improvement funds. If Council approves lease and infrastructure improvements by Theatre Aspen in Rio Grande Park, staff can return to Council with a site work cost estimate for the minor site work to be completed by Parks Department staff and resources. ENVIRONMENTAL IMPLICATIONS: The proposed scope of work includes a reconfiguration of ancillary park structures and addition of a concessions /storage structure that would provide better storage and utility housing/ containment. The structures will allow the storage of an increased amount of theatre production equipment without visual detraction to the park area. The increased storage capacity will result in a decreased volume of set -up and take -down vehicular truck traffic through the park, which is a benefit to park users and park infrastructure. The proposed improvements will also become a catalyst for the City Parks Department to implement storm water basin enhancements in Rio Grande Park. The storm water improvements will not be as comprehensive as has been planned in the Rio Grande Park Master Plan, but will improve the water quality of storm water passing through Rio Grande Park. Page 4 of 5 RECOMMENDATION: Staff recommends approval of the proposed ten (10) year lease agreement between the City of Aspen and Theatre Aspen to allow the continued presence of the Theatre Aspen tent in Rio Grande Park. Parks staff also supports the proposed seasonal tent replacement and associated ancillary structures. ALTERNATIVES: Council could choose not to approve the proposed lease agreement between the City of Aspen and Theatre Aspen. CITY MANAGER COMMENTS: Attachments: 1. Lease Agreement between City of Aspen and Theatre Aspen 2. Theatre Aspen tent Site Plan 3. Theatre Aspen tent proposed sketches 4. Ordinance 24, Series of 1995 Page 5 of 5 Attachment 1 LEASE AGREEMENT BETWEEN THE CITY OF ASPEN AND THEATER ASPEN THIS AGREEMENT entered into at Aspen, Colorado, this _ day of , 2011, by and between the CITY OF ASPEN, COLORADO, a municipal corporation and home -rule city ( "hereinafter "City "), and THEATER ASPEN a Colorado non- profit corporation (hereinafter "Tenant "). WITNESSETH: WHEREAS, the City is the owner of the Rio Grande Park in Aspen, Colorado and desires to lease to Tenant certain space within the Rio Grande Park, as further described herein; and WHEREAS, Tenant desires to lease that certain space within the Rio Grande Park for the purposes set forth below and upon the terms and conditions set forth herein; and WHEREAS, the City of Aspen Land Use Code requires that a change to or expansion of the existing tent structure requires land use approval by the City; and WHEREAS, the parties hereto understand that this Lease Agreement is specifically conditioned upon the City of Aspen granting the requisite land use approvals for the proposed uses within the Rio Grande Park. NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions contained herein, the parties agree as follows: 1. Term. The term of this Lease Agreement shall be for a period of ten (10) years and nine (9) months, effective January 1, 2011, and terminating at the conclusion of Tenant's 2021 season on October 1, 2021. The parties hereto agree to discuss the continuation of the Lease Agreement no less than six (6) months before its termination. Negotiations for the continuation of this Lease Agreement shall be subject to review by the City council, and shall proceed upon good faith by both parties. 2. Premises. The Premises subject to this Lease Agreement shall be the area outlined within the Rio Grande park as shown on Exhibit la ppended hereto and by this reference made a part hereof as if fully set forth here. 3. Use. The Premises may be used by Tenant solely for the purpose of temporarily placing a tent in substantially the area shown on Exhibit 1, and constructing or placing a ticketing and concessionaire's structure to remain on the Premises during the duration of this Lease Agreement. The uses permitted on the Leased Premises shall comply in all respects with any and all conditions required by the City Council in any approvals that may be granted to the Tenant by the Aspen City Council pursuant to the Aspen Municipal Code. Page 1 Prompt clean-up of the Premises after each summer season shall be conducted by Tenant. Materials kept within the Premises should be contained to the tent site under protective cover and within existing enclosed structures on property which total approximately 250 sq ft. Any improvements or replacements planned to these existing structures should not cause total enclosed sq footage to exceed 500 sq ft total or maximum height for any enclosed structure to exceed 15 ft. Any unenclosed structures that remain onsite of the Premises year- round, including but not limited to framework for theatre's lobby structure, shall also be subject to the prior written approval of the Community Development Director and the Director of the Parks Department. Tenant shall not use the Premises for any other purposes without the City's written consent. Tenant's use and occupancy of the above - described Premises shall comply with the rules, regulations and ordinances of any governmental authority having jurisdiction over the Premises or the activities performed thereon. Additionally, Tenant shall not use the Premises in any manner that will create an increase in the rate of insurance or a cancellation of any insurance policy, even if such use may be in furtherance of Tenant's retail sales. Tenant shall not keep, use or sell anything prohibited by any policy of fire insurance covering the Premises. 4. Time of Occupancy, Acceptance and Surrender of Premises. Tenant shall be entitled to use and occupy the Premises during all times as set forth in the land use approvals granted by the City of Aspen. At all other times Tenant may use the Premises only with the prior approval of the City. 5. Rent. Tenant agrees to pay a total of $10.00 per year to the City as rent for the Premises, payable on the first day of each calendar year. 6. Access to Premises. City shall be entitled to enter upon the Premises at all reasonable hours for the purpose of inspecting the same, preventing waste or loss, or enforcing any of City's rights hereunder. 7. Maintenance and Repairs. Tenant, at its sole expense, shall keep the Premises in a good, clean and safe condition. Tenant shall be responsible for the repair and maintenance of the Premises. 8. Utilities and Security System. Tenant shall be responsible for all utilities used on the Premises. 9. Personal Property. All personal property and trade fixtures placed on the Premises shall be at Tenant's sole risk and City shall not be liable for damage to or loss of such personal property or trade fixtures arising from the acts or neglect of Tenant, its agents or employees. Any personal property or trade fixtures of Tenant or anyone claiming under Tenant, which shall remain on the Premises after the date upon which the Premises shall be surrendered shall be deemed to have been abandoned and may be retained by City as its property or disposed of by City in such a manner as City sees fit. Page 2 10. Taxes. In the event any taxes are levied and assessed upon the Premises or upon the improvements, fixtures or personal property of the Tenant during the term of Tenant's occupancy of the Premises or arising therefrom, or upon the leasehold or possessory interests as created through this lease, Tenant shall be solely responsible to satisfy and pay all such taxes in a timely fashion. Tenant shall not allow any liens for taxes or assessments to exist with respect to the Premises, except that Tenant may permit such taxes or assessment to remain unpaid while pursuing any good faith contest or appeal of same. 11. Indemnification. Tenant agrees to indemnify and hold harmless the City, its officers and employees, 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 similar loss, which arise out of or are in any manner connected with Tenant's occupancy of the Premises pursuant to this 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 omission, error, or negligence of the Tenant, any subcontractor of the Tenant, or which arises out of any workmen's compensation claim of any employee of the Tenant or of any employee of any subcontractor of the Tenant. 12. Public Liability Insurance. Tenant agrees to furnish City with certificate(s) of insurance as proof that it has secured and paid for a policy of public liability insurance covering all standard risks related to the leasing, use, or occupancy, of the Premises. The insurance shall be procured from a company authorized to do business in the State of Colorado and be satisfactory to City. The amount of this insurance, without co- insurance clauses, shall not be less than the maximum liability that can be imposed upon the City of Aspen under the laws of the State of Colorado found at C.R.S. 24 -10 -101 et seq., as amended. At present, such amounts shall be as follows: $150,000.00 for any injury to one person in any single occurrence; $600,000.00 for any injury to two or more persons in any single occurrence. In no event shall such insurance amounts fall below those maximum liability limits as set forth at C.R.S. 24 -10 -114, as amended. 13. Premises Insurance. During the full term of this Agreement, Tenant, at its sole cost and expense, and at Tenant's discretion, may also cause all of the furniture, fixtures, and equipment in the premises to be kept insured, without co- insurance clauses, to the full insurable value against the perils of wind, storm, hail, lightning, explosion, fire and like perils. "Full insurance value" means the cost, as of the date of loss, for replacement of the damaged or destroyed property in a new condition with materials of like size, kind and quality. The insurance shall stand as primary insurance for the furniture, fixtures, and equipment in the Premises to be procured from a company authorized to do business in the State of Colorado and be satisfactory to the City. All policies as required herein shall contain a waiver of subrogation by the insurer against City. Page 3 14. Termination Due to Fire or Similar Catastrophe. If, absent negligence or fault on the part of Tenant, the Premises shall be damaged by fire or other catastrophe so as to render said Premises wholly untenantable, and if such damage is so great that a competent licensed architect in good standing in Pitkin County, Colorado, as selected by the City within fourteen (14) days from the date of Toss, shall certify in writing to the City and Tenant that the Premises, with reasonable diligence, cannot be made fit for occupancy within ninety (90) days from the happening of the occurrence of the damage, then this Lease Agreement may be terminated by the City, at its sole discretion, and City may re -enter and take possession. Such a termination of the Lease Agreement shall not forgive Tenant's obligations to return the Premises to City in as good repair as when Tenant originally assumed possession thereof, regular and ordinary wear and tear excepting. Alternatively, at City's sole discretion, Tenant shall subordinate its rights and interests in any insurance proceeds as provided for in any insurance policy as required by this Lease Agreement. If, however, the damage is not such as to prevent reoccupation and use of the Premises within ninety (90) days, then repairs thereto shall be undertaken by Tenant with all reasonable speed to restore the Premises to its former condition and the Lease Agreement shall remain in effect. . 15. City to be Named a Co- Insured or Additional Insurance. Tenant shall name City as co- insured or additional insured on all insurance policies and such policies shall include a provision that written notice of any non - renewal, cancellation or material change in a policy by the insurer shall be delivered to City thirty (30) days in advance of the effective date. 16. Repairs and Alterations by Tenant. Tenant, pursuant to any land use approvals received from the City, or upon City's written consent, may, at its own expense, make reasonable and necessary alterations or improvements to the Premises. All alterations, additions and improvements shall be performed in a workmanlike manner, in accordance with all applicable building and safety codes, and shall not weaken or impair the structural strength or lessen the value of the Premises. All alterations, additions and improvements made in or to the Premises shall be the property of Tenant and remain the property of Tenant upon termination of this Lease Agreement. Tenant agrees that prior to any construction or installation of alternations, additions or improvements, Tenant shall post on the Premises in a conspicuous place a notice of non - liability for mechanic's lien as specified at C.R.S. Section 38 -22 -105 on behalf of the City and shall notify City of such posting and the exact location of same. Perfection of a mechanic's lien against the Premises as a result of Tenant's acts or omissions may be treated as a material breach of this Lease Agreement. 17. Repairs and Alterations by City. City reserves the right, from time to time, at its own expense and by its officials, employees and contractors, to make such alterations, maintenance activities, renovations or repairs in and about the Rio Grande Park, other than those noted above as required by Tenant, as City deems necessary or desirable and Tenant covenants to make no claim against City for any interference with its interest as herein provided in the Premises. City shall provide reasonable notice to Tenant in advance of any intent to undertake any work in the Rio Grande Park as authorized in this paragraph and all work shall be performed at such times as may be mutually agreed to between the parties so as to eliminate or minimize Page 4 any disruption of Tenant's business. The City shall, however, have the final decision making authority as to what time is reasonable under the circumstances. 18. Condemnation. If during the term of this Lease Agreement, or any renewal of it, the whole or part of the Premises, or such portion as will make the Premises unusable for the purpose leased, or the leasehold interest, be condemned by public authority, including City, for public use, then this Agreement shall cease as of the date of the vesting of title in the Premises in such condemning authority, or when possession is given to such authority, whichever event occurs first. Tenant shall not be entitled to any part of any condemnation award for the value of the unexpired term of this Agreement or for any other estate or interest in the Premises, such amount belonging entirely to City. 19. Assignment of Agreement. Tenant shall not assign, pledge, sublease or otherwise dispose of or encumber this lease, or the leased Premises, without the prior written consent of the City. Such consent shall not be unreasonably withheld. Tenant shall, likewise, not permit any third party to occupy or use the Premises absent the prior written consent of the City. 20. Signs. Tenant shall not place any signs upon the Premises or upon the Rio Grande Park except of such design and construction as may be permitted by City. It is understood by the parties that placement of an identification sign or signs is important and necessary to Tenant's business. Any sign permitted by City shall at all times comply with applicable ordinances, rules and regulations. 21. Breach by Tenant Defined. If Tenant shall fail to timely comply with any of the terms or conditions of this Agreement, any term or condition of the land use approvals granted by the City Council, or any notice given under it, or shall become insolvent, or shall have or attempt to make an assignment for the benefit of creditors, or if any of its property be attached and such attachment is not promptly released, or if an execution be issued against it, or, if a petition be filed by or against it, to have it adjudicated a bankrupt, or if a trustee or receiver shall be created or appointed to take charge of its assets, or if it shall abandon the Premises for a period of more than seven (7) days then at any time afterwards City may treat such act or omission as a breach of this Lease Agreement and, at its option, enter into the Premises and remove all persons and take and retain possession thereof either with or without process of law. 22. City's Remedy for Breach. Any breach, default or failure by Tenant to perform any of the duties or obligations assumed by Tenant under this Lease Agreement shall be cause for termination of the Lease Agreement by City in the manner set forth in this paragraph. City shall deliver to Tenant thirty (30) days' prior written notice of its intention to terminate this Lease Agreement, including in the notice a reasonable description of the breach, default or failure. If within that thirty (30) days Tenant shall fail or refuse to cure, adjust or correct the breach, default or failure to the reasonable satisfaction of City, the City shall have the right to declare this Lease Agreement terminated and all rights, powers and privileges of Tenant as provided through the Lease Agreement shall cease, and Tenant shall immediately vacate the entire Premises and shall make no claim of any kind against City by reason of the termination. The thirty (30) days' prior written notice shall be conclusively determined to have been delivered to Tenant by the posting Page 5 of same upon the main business entrance to the Premises, or at the time it is deposited in the U.S. Mail, certified, postage prepaid, addressed to the address set forth herein. 23. Non - Waiver of Rights. Any failure by City to so terminate this Lease Agreement as herein provided after the breach, default or failure by Tenant to adhere to the terms of the Lease Agreement shall not be deemed or construed to be a waiver or continuing waiver by City of any rights to terminate the Lease Agreement for any present or subsequent breach, default or failure. 24. Non - Discrimination. Tenant agrees to comply with all laws, ordinances, rules and regulations that may pertain or apply to the Premises and its use. In performing under the Lease Agreement, Tenant shall not discriminate against any worker, employee or job applicant, or any member of the public, because of race, color, creed, religion, ancestry, national origin, sex, age, marital status, physical handicap, affectional or sexual orientation, family responsibility or political affiliation, nor otherwise commit an unfair employment practice. 25. Notice. Whenever this Agreement calls for or provides for notice and notice is not otherwise specified, the same shall be provided in writing and shall be served on the person(s) as designated by the parties below, either in person or by certified mail, postage prepaid and return receipt requested. For City: Aspen City Manager 130 South Galena Street Aspen, Colorado 81611 For Tenant: Managing Director Theater Aspen 110 E. Hallam St., Ste 103 Aspen, CO 81611 The parties may change or add such designated person(s) or addresses as may be necessary from time to time in writing. 26. Binding Effect. All of the terms and conditions as contained in this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties. 27. Controlling Law. This Lease Agreement shall be enforced and interpreted in accordance with the laws of the State of Colorado. Any action brought to enforce or interpret this Agreement shall be brought in the District Court in and for Pitkin County, Colorado. In the event of litigation between the parties concerning this Agreement or matters arising therefrom, the prevailing party shall be awarded its costs and reasonable attorney's fees. 28. Entire Agreement. This instrument constitutes the entire Lease Agreement by the parties concerning the Premises and shall supplant and supersede any previous agreements Page 6 between the parties pertinent to the Premises. Any prior or contemporaneous oral or written agreement that purports to vary from the terms as set forth herein shall be void and of no effect. 29. .Amendments. Except as otherwise provided herein, this Lease Agreement and all of its terms and conditions may not be amended or modified absent a written agreement duly executed by the parties. 30. Condition Precedent. This Lease Agreement is specifically conditioned upon the Aspen City Council granting the requisite land use approvals to Tenant for the proposed uses on the Leased Premises. Furthermore, this Lease Agreement is hereby subject to all the terms and conditions that may be required by the Aspen City Council in any land use approvals granted to Tenant for the proposed uses described herein. WHEREFORE, the parties, through their duly authorized representatives, have executed this Agreement upon the dates as forth herein. THE CITY OF ASPEN, COLORADO _ By: Steve Barwick, City Manager ATTEST: Kathryn S. Koch, City Clerk TENANT: Theater Aspen By: Emily Zeck, Managing Director Page 7 EXHIBIT 1 LEASE =MARY e 5 3 �. 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CC 2 4 IPIIPI a o : x cc c 1, ,, 14::: w ;4 � - i ; , 4 - ii _ � t t: r ,,-- . 0. , , :et 1 if . , t - +_Ir __ - g % t i i . 4 q i : * , t , 41111011* s r.. .. + A s r T. • ■ 11 i ri 4J� f 11 , I f' r : i ll y, - i 7 a.) 4‘1,74-4041t c ee �. [n cu ra te a , � w :.a M M � 0.� rri + o- a • �, ' O Z A A a 7 V7 UI- q W ILEIa QU UQ Attachment 4 ORDINANCE N0.24 (SERIES OF 1995) AN ORDINANCE OF THE ASPEN CITY COUNCIL GRANTING TO THE ASPEN THEATRE IN THE PARK AN AMENDMENT TO,THE RIO GRANDE FINAL SPA DEVELOPMENT, FINAL SPA PLAN APPROVAL,, AND GROWTH MANAGEMENT EXEMPTION FOR THE PURPOSE OF YEARLY CONSTRUCTION OF THE THEATRE TENT AND THEATRE PRODUCTIONS AT THE CITY -OWNED RIO GRANDE PARK IN THE CITY OF ASPEN, PITKIN COUNTY, COLORADO. WHEREAS, the Rio Grande Master Plan and SPA Development Plan were approved in 1993; and WHEREAS, the Planning Director did receive from the Aspen Theatre in the Park (Applicant) and has reviewed and recommended for approval an application (the "Plan ") for an amendment to the Rio Grande SPA Final Development Plan, Final SPA Development Plan, and Growth Management Exemption for an Essential Public Facility to undertake its yearly tent construction and theatre production at the area historically used for this purpose; and WHEREAS, the Planning and Zoning Commission reviewed the development proposal in accordance with those procedures set forth at Section 24- 6- 205(A)(5) of the Municipal Code and did conduct a public hearing thereon on May 2, 1995; and WHEREAS, upon review and consideration of the plan, agency and public comment thereon, and those applicable standards as contained in Chapter 24 of the Municipal Code, to wit, Division 8 of Article 7 (Specially Planned Area) and Division 1 of Article 8 (Growth Management Exemption) the Planning and Zoning Commission has recommended approval of the Aspen Theatre in the Park's amendment to the Rio Grande SPA Final Development Plan and exemption from growth management competition and mitigation subject to conditions, 1 to the City Council; and WHEREAS, the Aspen City Council has reviewed and considered the Plan under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered those recommendations and approvals as granted by the Planning and Zoning Commission, and has taken and considered public comment at public hearing; and WHEREAS, the City Council finds that the Plan meets or exceeds all applicable development standards and that the approval of the Plan, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and WHEREAS, the City Council finds that this Ordinance furthers and is necessary for public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO as follows: Section 1: Pursuant to Section 24 -7 -804 B. of the Aspen Municipal Code, and subject to those conditions of approval as specified hereinafter, the City Council finds as follows in regard to the Plan's SPA development component: 1. The Applicant's final plan submission is complete and sufficient to afford review and evaluation for approval. 2. The Plan is compatible with and enhances the mix of development in the immediate vicinity. 3. Sufficient public facilities exist to serve the development. 4. The parcel is generally suited for development considering topography and natural hazards. 5. The Plan employs land planning techniques to limit impacts to the environment and provides public and private amenities. 2 6. The Plan is in compliance with the Aspen Area Community Plan. 7. The Plan does not require the expenditure of public funds for the subject parcel or the neighborhood. 8. No development is proposed on slopes of 20% or greater. 9. No GMQS allocations or exemption are necessary for the Plan except for as approved within this ordinance. Section 2: Pursuant to the findings set forth in Section 1 above, the City Council grants SPA Final Development Plan amendment approval for the Aspen Theatre in the Park subject to the following conditions: 1. All parking, handicap parking and handicap parking dropoffs will be consistent with the Rio Grande Master Plan as adopted by City Council. 2. Prompt clean -up of the site after each summer season is required. No storage of materials is allowed on the site in the off season except for the tent structure, under protective cover. Materials and props stored on site shall be kept out of view in accordance wiht a landscaping plan including fencing if necessary to be approved by the Community Development Director with the ablility of Council to review if it is not working. 3. The tent will be erected in mid May and removed in mid September of each year. 4. The amended Rio Grande SPA Development Plan shall be recorded in the office of the Pitkin County Clerk and Recorder. Failure on the part of the applicant to record the amended SPA Development Plan within a period of one hundred and eighty (180) days following approval by the city Council shall render the PUD Plan approval invalid and reconsideration and approval of both by the Commission and City Council will be required before their acceptance and recording, unless an extension or waiver is granted by City Council for a showing of good cause. 5. Any overhead utility wires shall be undergrounded by the applicant within three years. The applicant shall work with the Parks Department on and appropriate digging schedule. Section 3: Pursuant to Section 24 -8 -104 (C)(1)(b)(i -iii) of the Municipal Code, the City Council finds as follows in regard to the 3 Applicant's request for Growth Management Quota System development exemption for essential public facilities: 1) The Applicant's annual tent construction is essential for their continued use of the Rio Grande property. 2) The programs and activities sponsored and or hosted by the Applicant at the Rio Grande facilities have historically provided cultural enrichment to the citizens of the City, of Aspen without which the City would not have attained its present character. Furthermore, the Applicant's programs have served and continue to serve important community needs and continuation of same will only enhance their value and accessibility to the citizens of the City of Aspen and the general public. 3) The Applicant's proposed development involves essential public facilities, will enhance existing essential public facilities, and is not - for - profit in nature. Section 4: Pursuant to Section 24 -8 -104 (C)(1)(b)(i -iii) of the Municipal Code, and the findings set forth in Section 6 above, the City Council awards and grants growth Management Quota System . development exemptions from competition and affordable housing impact mitigation for the theatre tent and normal accessory uses of the tent on the basis that such development is for essential public facilities. Section 5: All material representations and commitments made by the developer pursuant to the Plan approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission and or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by other specific conditions. Section 6: This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding 4 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 7: If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 8: That the City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. Section 9: A public hearing on the Ordinance shall be held on the 22 4 day of ( , 1995 at 5:00 in the City Council Chambers, III Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same shall be 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 15 day of f/- , 1995. I eN Attest: GeOV 9eahh(i 4priat1 14 e-t( or VDT hi Kathryn Koch, City Clerk ry . Y 5 / � , F , � I � N , A , L � L � Y ) , adopted, passed and approved this 4 day of y ` , 1995. 1 0 , A ._st a WagRaFelagel, aft a_ i Main/ WO TEAM Kathryn 7 Koch, City Cler i 6