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CITY COUNCIL AGENDA
January 14, 2019
5:00 PM
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
a) Swear in new Police Officer - Audrey Radlinsky
IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues
NOT scheduled for a public hearing. Please limit your comments to 3 minutes)
V. Special Orders of the Day
a) Councilmembers' and Mayor's Comments
b) Agenda Amendments
c) City Manager's Comments
d) Board Reports
VI. Consent Calendar (These matters may be adopted together by a single motion)
a) Resolution #1, Series of 2019 - Designating the Public Place for the Posting of
Notices of Public Meetings
b) Resolution #7 and #8, Series of 2019 - Re-appointment of Brooke Peterson and
Ted Gardenswartz - Administrative Hearing Officers
c) Resolution #9 and #10, Series of 2019 - Appointment of Pete Strecker and Sara
Ott to Burlingame Housing, Inc. Board of Directors
d) Resolution #3, Series of 2019 - Reconstruction of existing golf bunkers
e) Resolution #4, Series of 2019 - 2018 Growth Management Allotment Carry
Forward Review
f) Minutes - December 10, 2018 and January 7, 2019
VII. Notice of Call-Up
VIII. First Reading of Ordinances
a) Ordinance #3, Series of 2019 - Refinancing Existing Castle Creek Energy Center
Debt to Achieve Interest Rate Savings and a Shorter Remaining Duration
IX. Public Hearings
X. Action Items
a) Short term City work priorities discussion
XI. Executive Session
a) C.R.S. 24-6-402 (4)(a) Conferences with an attorney for the local public body for
the purposes of receiving legal advice and (f)(I) Personnel matters
XII. Adjournment
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Next Regular Meeting January 28, 2019
COUNCIL’S ADOPTED GUIDELINES
· Make Decisions Based on 30 Year Vision
· Tone and Tenor Matter
· Remember Where We’re Living and Why We’re Here
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
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MEMORANDUM
TO: Mayor and City Council
FROM: Linda Manning, City Clerk
DATE OF MEMO: January 2, 2019
MEETING DATE: January 14, 2019
RE: Resolution #1, Series of 2019 - Designating the Public Place for the Posting of
Notices of Public Meetings.
SUMMARY: Each year City Council, by resolution, must designate the public place for
posting notices for public meetings.
BACKGROUND: The Colorado Open Meeting Law Section 26-4-6-402(2)(c) states City
Council is to annually designate for each calendar year a public place for the posting of
notices for meetings. By properly designating a place for posting meeting notices, a
public entity will be deemed to have given full and timely notice of any meetings so
long as the notice was posted in the designated place at least twenty-four hours in
advance of the meeting. Notices for City Council meetings and any other board,
committee, commission, authority, or other advisory, policy-making or rule-making
board shall be posted in the designated location.
Resolution #1, Series of 2019 designates the first floor front vestibule of City Hall as the
designated place for posting meeting notices.
RECOMMENDED ACTION: Staff is recommending approval of Resolution #1, Series
of 2019. Approval of the consent calendar will adopt this resolution.
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RESOLUTION NO. 1
(SERIES OF 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
DESIGNATING THE PUBLIC PLACE FOR POSTING NOTICES OF PUBLIC MEETINGS.
WHEREAS, The City Council of the City of Aspen, Colorado, deems it in the public interest to
provide full and timely notices of all its meetings; and
WHEREAS, the Colorado state legislature amended the Colorado Open Meetings Laws, Section
24-6-401, et seq., C.R.S. to require “all public bodies” subject to the requirements of the law to annually
designate the place for posting notices of public hearings no less than twenty-four hours prior to the
holding of the meeting; and
WHEREAS, “local public body” is defined by Section 24-6-401(1)(a) to include “any board,
committee, commission, authority, or other advisory, policy-making, rule-making, or formally constituted
body of any political subdivision of the state and any public or private entity to which a political
subdivision, or an official thereof, has delegated a governmental decision-making function but does not
include persons on the administrative staff of local public body”.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
Section 1
A public notice of each meeting held by the City Council of the City of Aspen and each meeting
of any other board, committee, commission, authority, or other advisory, policy-making, rule-making, or
formally constituted body of the City of Aspen, shall be posted by the City Clerk at least twenty-four
hours prior to the holding of the meeting in the front vestibule of City Hall, 130 South Galena Street,
Aspen, Colorado.
Section 2
The City Clerk shall notify each board, committee, commission, authority or other advisory,
policy-making, rule-making, or formally constituted body of the City of Aspen of the contents of this
resolution and the other general requirements of the Colorado Open Meeting Law, C.R.S., Section 24-6-
401 et seq.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of
January, 2019.
_________________________________
Steven Skadron, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate
copy of that resolution adopted by the City Council of the City of Aspen, at a meeting held January 14, 2019.
_________________________________
Linda Manning, City Clerk
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MEMORANDUM
TO: Mayor and City Council
FROM: Linda Manning, City Clerk
DATE OF MEMO: January 2, 2019
MEETING DATE: January 14, 2019
RE: Resolution #7 and #8, Series of 2019 – Re-appointing Brooke Peterson and Ted
Gardenswartz as Administrative Hearing Officers
SUMMARY: Administrative Hearing Officers may serve a term of four (4) years. This
resolution will re-appoint Brooke Peterson and Ted Gardenswartz.
BACKGROUND: Section 26.222 of the Municipal Code authorizes the appointment of
one or more Administrative Hearing Officer for the purpose of hearing certain appeals
within the Municipal Code.
Section 26.222.020 sets the Qualifications for membership as:
The officer shall be a qualified elector in the City and a resident of the City for one (1)
year prior to appointment. No member of the City Council, the Mayor, a City employee
or any appointed City official shall serve as the Officer except the Municipal Judge or
Deputy Municipal Judge. There are no limits on the number of terms any officer may
serve.
Currently, the City has two hearing officers.
RECOMMENDED ACTION: Staff is recommending approval of Resolution #7 and #8,
Series of 2019. Approval of the consent calendar will adopt this resolution and re-
appoint Brook Peterson and Ted Gardenswartz as an Administrative Hearing Officer.
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RESOLUTION NO. 7
(SERIES OF 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING
THE APPOINTMENT OF BROOKE A. PETERSON AS ADMINISTRATIVE HEARING OFFICER.
WHEREAS, Brooke A. Peterson is an attorney licensed in the State of Colorado and practicing
law in the City of Aspen, Colorado, is a qualified elector in the City of Aspen and has resided within the
City of Aspen for more than one year; and
WHEREAS, Brooke A Peterson has served continuously as the Municipal Court Judge for the
Municipal Court in and for the City of Aspen since April 1981; and
WHEREAS, Chapter 26.222 of the Aspen Municipal Code authorizes the appointment of one or
more Administrative Hearing Officers for the purposes of hearing certain appeals within the Municipal
Code. A hearing officer must be a qualified elector in the City of Aspen and a resident of the City for one
year prior to appointment; and,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
That Said Brooke A. Peterson be and hereby is appointed an Administrative Hearing Officer
pursuant to Chapter 26.222 of the Aspen Municipal Code.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of
January, 2019.
_________________________________
Steven Skadron, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate
copy of that resolution adopted by the City Council of the City of Aspen, at a meeting held January 14, 2019.
_________________________________
Linda Manning, City Clerk
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RESOLUTION NO. 8
(SERIES OF 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING
THE APPOINTMENT OF TED GARDENSWARTZ AS ADMINISTRATIVE HEARING OFFICER.
WHEREAS, Ted Gardenswartz is an attorney licensed in the State of Colorado and practicing
law in the City of Aspen, Colorado, is a qualified elector in the City of Aspen and has resided within the
City of Aspen for more than one year; and
WHEREAS, Ted Gardenswartz has served as the Deputy Municipal Court Judge for the
Municipal Court in and for the City of Aspen since 2000; and
WHEREAS, Chapter 26.222 of the Aspen Municipal Code authorizes the appointment of one or
more Administrative Hearing Officers for the purposes of hearing certain appeals within the Municipal
Code. A hearing officer must be a qualified elector in the City of Aspen and a resident of the City for one
year prior to appointment; and,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
That Said Ted Gardenswartz be and hereby is appointed an Administrative Hearing Officer
pursuant to Chapter 26.222 of the Aspen Municipal Code.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of
January, 2019.
_________________________________
Steven Skadron, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate
copy of that resolution adopted by the City Council of the City of Aspen, at a meeting held January 14, 2019.
_________________________________
Linda Manning, City Clerk
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MEMORANDUM
TO: Mayor and City Council
FROM: Linda Manning, City Clerk
DATE OF MEMO: January 3, 2019
MEETING DATE: January 14, 2019
RE: Resolution #9 & 10, Series of 2019 – Appointing Pete Strecker and Sara Ott to the
Burlingame Housing Inc. Board of Directors
SUMMARY: This is for the City Council to consider the appointment of board members
to the Burlingame Housing Inc. Board of Directors.
BACKGROUND: Burlingame Housing Inc. is a 99 unit seasonal housing project that the
City sponsored in partnership with the Aspen Music Festival in 1999. It is located at the
corner of Harmony Road and Highway 82. The project provides housing to music
students in the summer time and seasonal workers in the winter time. It employed
what is know as a 6320 corporation (IRS code provision that allows this) to finance the
project. The project reverts to the City once the debt is paid off.
The articles of incorporation provide that the City Council appoints four of the Directors
for the corporation and the Aspen Music Festival appoints One. Jenny Elliot, Finance
Director for the Aspen Music, is their appointee. The previous City appointed Directors
were Don Taylor, Jeff Pendarvis, Barry Crook and Jackie Kasabach.
DISCUSSION: The traditional Board of Directors make up has been the Finance Director
of the City and the AMF, an Asset department employee, a City Council member or
designee and an at large appointee. The advisory board for Marolt housing has a similar
makeup. The BHI project has been very successful and has developed a strong financial
position. Since the recent retirement of Don Taylor and resignation of Barry Crook there
are two vacancies to be filled. Staff is recommending Pete Strecker, the new Finance
Director fill one and Sara Ott, Assistant City Manager fill the other.
RECOMMENDED ACTION: Staff is recommending approval of Resolution #9 and #10,
Series of 2019. Approval of the consent calendar will adopt these resolutions and
appoint Pete Strecker and Sara Ott to the Burlingame Housing Inc Board of Directors.
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RESOLUTION NO. 9
(SERIES OF 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPOINTING
PETE STRECKER AS DIRECTOR FOR THE BURLING HOUSING, INC.
WHEREAS, the Burlingame Housing, Inc. non-profit corporation was duly incorporated under
the laws of the State of Colorado for the purposes, in part, of providing for seasonal housing needs, within
the City of Aspen; and
WHEREAS, the articles of incorporation and bylaws for Burlingame Housing, Inc., call for City
Council to appoint four (4) of five (5) directors to sit as the Board of Directors for the corporation and one
(1) member by the governing body of the Music Associates of Aspen; and
WHEREAS, the City Council desires to appoint Pete Strecker, City of Aspen Finance Director, to
the Burlingame Housing, Inc. Board of Directors; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
That said Pete Strecker shall be and is hereby appointed for a term of three (3) years to the Board
of Directors for Burlingame Housing, Inc.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of
January, 2019.
_________________________________
Steven Skadron, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate
copy of that resolution adopted by the City Council of the City of Aspen, at a meeting held January 14, 2019.
_________________________________
Linda Manning, City Clerk
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RESOLUTION NO. 10
(SERIES OF 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPOINTING
SARA OTT AS DIRECTOR FOR THE BURLING HOUSING, INC.
WHEREAS, the Burlingame Housing, Inc. non-profit corporation was duly incorporated under
the laws of the State of Colorado for the purposes, in part, of providing for seasonal housing needs, within
the City of Aspen; and
WHEREAS, the articles of incorporation and bylaws for Burlingame Housing, Inc., call for City
Council to appoint four (4) of five (5) directors to sit as the Board of Directors for the corporation and one
(1) member by the governing body of the Music Associates of Aspen; and
WHEREAS, the City Council desires to appoint Sara Ott, Assistant City Manager for the City of
Aspen, to the Burlingame Housing, Inc. Board of Directors; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
That said Sara Ott shall be and is hereby appointed for a term of three (3) years to the Board of
Directors for Burlingame Housing, Inc.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of
January, 2019.
_________________________________
Steven Skadron, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate
copy of that resolution adopted by the City Council of the City of Aspen, at a meeting held January 14, 2019.
_________________________________
Linda Manning, City Clerk
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VI.c
MEMORANDUM
To: Mayor and City Council
Thru: Steve Barwick, City Manager
Thru: Sara Ott, Assistant City Manager
Thru: Jeff Woods, Parks and Recreation Manager
From: Steve Aitken CGCS, Director of Golf
Re: Resolution #3, Series of 2019 - Contract with Golf Creations for Sand Bunker
Renovation Work
Date: January 2, 2019
Request of Council: Staff is requesting approval of a contract between the City of Aspen and
the company Golf Creations for sand bunker renovation work at the City of Aspen Golf Course.
Previous Council Action: Council approved the 2019 Golf Budget which included $700,000 for
sand bunker renovation.
Background: The City of Aspen Golf Course was the first Open Space purchase. This land
provides the community and its visitors multiple recreational opportunities. During spring,
summer, and fall, the golf course provides a championship golf facility for both beginners and
accomplished golfers. Winter offerings at the golf course include world class cross country
skiing, snowshoeing, fat tire biking, and hiking.
A master plan of improvements was developed in 1994 for this open space. This project meets
the goals of that master plan and the goals of the golfing community. In 1999, The City of Aspen
Golf Course became one of only five golf courses in the state of Colorado designated as a
Certified Audubon Cooperative Sanctuary. This work has reduced irrigation requirements as
well as expanded wildlife habitat and native flora. Renovation and project implementation from
the master plan, which benefits golf, winter sports, and other recreational activities include:
· Tree plantings
· Land forms
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· Additional tees
· Rebuilt greens
· Cart Paths
· Native areas
· Streams and ponds
· New maintenance facilities
· New Irrigation systems
· New Tennis Courts
· New Clubhouse
· Reduction in manicured turf.
· Expanded practice facilities
Discussion: The planned improvement to the golf course in 2019 is renovating our sand
bunkers. The current sand bunkers are from the original construction of the golf course in 1978.
These bunkers have been thoroughly cared for and have served the golf course well. Due to
age, improved construction techniques, and evolution within the game of golf, the old bunkers
are now in need of replacement, and in some cases, relocation. With the construction of the
new bunkers:
· Sand quality will be improved
· Playability of the golf course will be improved
· Overall golf course aesthetics improved
· Annual maintenance costs will be reduced
Design and location of the new bunkers was accomplished by working with our golf course
architect, Rick Phelps.
This project has unanimous approval from the Golf Advisory Board. It has been the most
requested improvement from our customer surveys for the past few years. The project has
been introduced at many meetings, and golf course masterplan displays.
A Request for Proposal was sent out in August 2018 to develop budget and select the most
qualified golf construction company. Five companies submitted proposals. All companies were
highly qualified and capable of the renovation work. Staff is pleased to announce that the
selected company, Golf Creations, was also the lowest bidder. Golf Creations has recently
completed the same bunker renovation work at the Jack Nicklaus-designed municipal golf
course in Breckenridge. A tour of this golf course was performed during the bunker renovation
process by Jeff Woods, Dominic Lanese, Rich Severy, and Steve Aitken. All were impressed with
the quality, speed, and professionalism of the contractor.
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The project will start immediately in the Spring of 2019 (early April) with completion expected
by mid-June. Impacts from construction, to golf course play, will be reduced by creating shorter
golf holes or temporary greens as needed.
Financial Discussion: The bid for the entire bunker renovation from Golf Creations is
$654,355.60 and is within the approved budget of $700,000.
Staff Recommendation: Staff recommends the approval of the contract with Golf Creations for
Sand Bunker Renovation.
City Manager Comments:
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RESOLUTION #3
(Series of 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND GOLF CREATIONS AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a contract for
Sand Bunker Renovations, between the City of Aspen and Golf Creations, a true
and accurate copy of which is attached hereto as Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for Sand Bunker Renovations, between the City of Aspen and Golf Creations, a
copy of which is annexed hereto and incorporated herein, and does hereby
authorize the City Manager to execute said agreement on behalf of the City of
Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 14th day of January 2019.
Steven Skadron, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held, January 14, 2019.
Linda Manning, City Clerk
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CITY OF ASPEN GENERAL SERVICES AGREEMENT
Project Number: 2018-085
THIS AGREEMENT made this I 4th day of January 2019, by and between the City of
Aspen ("City") and the Contractor identified hereinbelow.
WITNESSETH, that whereas the City wishes to purchase the services described
hereinbelow and Contractor wishes to provide said services to the City as specified herein.
NOW THEREFORE, in consideration of the following covenants, the parties agree as
follows:
CONTRACTOR
Midwest Golf Development Inc. Oba Golf Creations
18250 Beck Road
Marengo, IL 60152
815-923-1868
DESCRIYfION OF SERVICE
The general scope of work includes complete reconstruction of each of the existing sand bunkers
on the golf course per the plans and specifications as indicated on the Bid Proposal form, with
the exception of the bunkers on hole #2. Bunker construction includes shaping, drainage, liner,
sand and sod installation.
DURATION OF AGREEMENT AND SCHEDULE OF SERVICES TO BE PROVIDED
Work must be scheduled to begin no later than April 1, 2019, weather permitting.
Anticipated completion date is June 21, 2019. Final completion July I, 2019.
DESCRIYfION OF AMOUNT, METHOD OR MANNER OF COMPENSATION
Total compensation is $654,355.60 as indicated on the Bid Proposal form and additional bunker
work.
AMENDMENTS TO GENERAL CONDITIONS
The City will remove existing sand from all bunkers at least two or three holes ahead of
contractor; is responsible to mark all irrigation, temporary capping, relocation and repairs.
Contractor assumes the course will be closed for the first two to three weeks of construction, then
open to limited play until the project is finished.
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EXHIBIT "A"
CITY OF ASPEN GENERAL CONDITIONS
FOR
SERVICE AGREEMENTS
These General Conditions have been prepared by the City of Aspen to be incorporated by
reference into Service Agreements entered into between service providers ("Contractor") and the
City of Aspen ("City"). The provisions herein may be interrelated with standard provisions of the
Service Agreement customarily used by the City of Aspen to contract for services. A change in one
document may necessitate a change in the other.
Any amendments to the following terms and conditions mutually agreed to by the
Contractor and the City shall be specifically noted on the Service Agreement.
1. Completion. Contractor shall commence the provision of services as described in the
Service Agreement in a timely manner. Upon request of the City, Contractor shall submit, for the
City's approval, a schedule for the performance of Contractor's services which shall be adjusted as
required. This schedule, when approved by the City, shall not, except for reasonable cause, be
altered by the Contractor.
2. Payment. In consideration of the services provided, City shall pay Contractor the
amounts set forth in the Service Agreement. Contractor shall submit, in timely fashion, invoices for
services performed. The City shall review such invoices and, if they are considered incorrect or
untimely, the City shall review the matter with Contractor within ten days from receipt of the
Contractor's billing. Contractor's invoice shall be for the period ending the last day of each month
and submitted to the City no later than the 5th day of each month.
3. Non-Assignability. Both parties recognize that this Service 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 Contractor of any of the
responsibilities or obligations under this Service Agreement. Contractor shall be and remain solely
responsible to the City for the acts, errors, omissions or neglect of any subcontractor's officers,
agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee
of the Contractor to the extent of the subcontract. The City shall not be obligated to pay or be liable
for payment of any sums due which may be due to any subcontractor unless agreed to in writing
beforehand by the City.
4. Termination. The Contractor or the City may terminate this Service Agreement upon
thirty (30) days notice, without specifying the reason therefor, by giving notice, in writing,
addressed to the other party, specifying the effective date of the termination.
The City shall have the right to terminate the Service Agreement upon three (3) days notice if
Contractor fails to comply with the terms and conditions set forth in Sections 1, 3, 5, 6, 7, 10, 13,
14, 16, 19 or 21. For breach of any other term and condition of the Service Agreement, City may
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terminate the Service Agreement with ten (10) days prior notice to cure and failure by Contractor to
so cure.
No compensation shall be earned after the effective date of the termination. Notwithstanding the
above, Contractor shall not be relieved of any liability to the City for damages sustained by the City
by virtue of any breach of this Agreement by the Contractor, and the City may withhold any
payments to the Contractor for the purposes of set-off until such time as the exact amount of
damages due the City from the Contractor may be determined.
5. Covenant Against Contingent Fees. The Contractor warrants that s/he has not been
employed or retained any company or person, other than a bona fide employee working for the
Contractor, to solicit or secure this Service Agreement, 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 Service Agreement.
6. Equipment, Materials and Supplies. Unless otherwise agreed to by the City, Contractor
shall acquire, provide, maintain, and repair at Contractor's expense such equipment, materials,
supplies, etc., as necessary for the proper conduct of the services to be provided in accordance with
the Service Agreement.
7. Contract Monitoring. Contractor agrees to allow City to reasonably monitor the services
to be provided in accordance with the Service Agreement.
8. Independent Contractor Status. It is expressly acknowledged and understood by the
parties that nothing contained in this Service Agreement shall result in, or be construed as
establishing an employment relationship. Contractor shall be, and shall perform as, an independent
contractor who agrees to use his or her best efforts to provide the said services on behalf of the City.
No agent, employee, or servant of Contractor shall be, or shall be deemed to be, the employee,
agent or servant of the City. City is interested only in the results obtained under this Service
Agreement. The manner and means of conducting the work are under the sole control of
Contractor. None of the benefits provided by City to its employees including, but not limited to,
workers' compensation insurance and unemployment insurance, are available from City to the
employees, agents or servants of Contractor. Contractor shall be solely and entirely responsible for
its acts and for the acts of Contractor's agents, employees, servants and subcontractors during the
performance of this Service Agreement. Contractor shall indemnify City against all liability and
loss in connection with, and shall assume full responsibility for payment of all federal, state and
local taxes or contributions imposed or required under unemployment insurance, social security and
income tax law, with respect to Contractor and/or Contractor's employees engaged in the
performance of the services agreed to herein.
9. Indemnification. Professional agrees to indemnify and hold harmless the City, its
officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and
demands, on account of injury, loss, or damage, including without limitation claims arising from
bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of
any kind whatsoever, which arise out of or are in any manner connected with this contract, to the
extent and for an amount represented by the degree or percentage 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 wrongful act,
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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.
10. Contractor's Insurance. (a) Contractor agrees to procure and maintain, at its own expense,
a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other
obligations assumed by the Contractor pursuant to Section 9 above. Such insurance shall be in
addition to any other insurance requirements imposed by the Service Agreement or by law. The
Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed
pursuant to Section 9 above by reason of its failure to procure or maintain insurance, or by reason of
its failure to procure or maintain insurance in sufficient amounts, duration, or types.
(b) Contractor shall procure and maintain Workmen's Compensation insurance to cover
obligations imposed by applicable laws for any employee engaged in the performance of work
under the Service Agreement, and Employers' Liability insurance with minimum limits of FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOU-
SAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may
be substituted for the Workmen's Compensation requirements of this paragraph.
(c) If the Service Agreement requires any insurance in addition to that referenced above at
subsections (a) and (b), or a particular type of coverage, Contractor shall procure and maintain, and
shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance
coverages referenced in the Service Agreement. All insurance coverages shall be procured and
maintained with forms and insurance acceptable to the City. All coverages shall be continuously
maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor
pursuant to Section 9 above. In the case of any claims-made policy, the necessary retroactive dates
and extended reporting periods shall be procured to maintain such continuous coverage.
(d) The policy or policies required above shall be endorsed to include the City and the
City's officers and employees as additional insureds. Every policy required above shall be primary
insurance, and any insurance carried by the City, its officers or employees, or carried by or provided
through any insurance pool of the City, shall be excess and not contributory insurance to that
provided by Contractor. No additional insured endorsement to the policies required above shall
contain any exclusion for bodily injury or property damage arising from completed operations. The
Contractor shall be solely responsible for any deductible losses under any policy required above.
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(e) The certificate of insurance provided by the City shall be completed by the Contractor's
insurance agent as evidence that policies providing the required 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 form of certificate shall be used. The certificate shall
identify the Service Agreement 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.
(f) Failure on the part of the Contractor to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of Service
Agreement upon which City may terminate the Service Agreement as provided by Section 4 above,
or at its discretion City may procure or renew any such policy or any extended reporting period
thereto and may pay any and all premiums in connection therewith, and all monies so paid by City
shall be repaid by Contractor to City upon demand, or City may offset the cost of the premiums
against monies due to Contractor from City.
(g) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(h) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this Service Agreement, the monetary limitations (presently
$150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and
protection provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq.,
C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees.
11. City's Insurance. The parties hereto understand that the City is a member of the
Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA
Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen
Finance Department and are available to Contractor for inspection during normal business hours.
City makes no representations whatsoever with respect to specific coverages offered by CIRSA.
City shall provide Contractor reasonable notice of any changes in its membership or participation in
CIRSA.
12. Waiver of Presumption. The Service Agreement was negotiated and reviewed through
the mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the parties
in the negotiation, review or drafting of the Service Agreement.
13. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion.
Contractor certifies, by acceptance of the Service Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded
from participation in any transaction with a Federal or State department or agency. It further
certifies that prior to submitting its Bid that it did include this clause without modification in all
lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that vendor
or any lower tier participant was unable to certify to this statement, an explanation was attached to
the Bid and was determined by the City to be satisfactory to the City.
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14. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
Contractor warrants that no person or selling agency has been employed or retained to solicit or
secure this Service Agreement upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or
selling agencies maintained by the Contractor for the purpose of securing business.
Contractor agrees not to give any employee or former employee of the City a gratuity or any
offer of employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the content of
any specification or procurement standard, rendering advice, investigation, auditing, or in any other
advisory capacity in any proceeding or application, request for ruling, determination, claim or
controversy, or other particular matter, pertaining to this Service Agreement, or to any solicitation
or proposal therefor.
Contractor represents that no official, officer, employee or representative of the City during
the term of the Service Agreement has or one (1) year thereafter shall have any interest, direct or
indirect, in the Service Agreement or the proceeds thereof, except those that may have been
disclosed at the time City Council approved the execution of the Service Agreement.
In addition to other remedies it may have for breach of the prohibitions against contingent
fees, gratuities, kickbacks and conflict of interest, the City shall have the right to:
1. Cancel the Service Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a Contractor, vendor, or
sub-contractor under City contracts;
3. Deduct from the Service Agreement price or consideration, or otherwise
recover, the value of anything transferred or received by the Contractor; and
4. Recover such value from the offending parties.
15. Termination for Default or for Convenience of City. The services contemplated by the
Service Agreement may be canceled by the City prior to acceptance by the City whenever for any
reason and in its sole discretion the City shall determine that such cancellation is in its best interests
and convenience.
16. Fund Availability. Financial obligations of the City payable after the current fiscal year
are contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. If the Service Agreement contemplates the City utilizing state or federal funds to meet its
obligations herein, the Service Agreement shall be contingent upon the availability of those funds
for payment pursuant to the terms of the Service Agreement.
17. City Council Approval. If the Service Agreement requires the City to pay an amount of
money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City
Council of the City of Aspen.
18. Notices. Any written notices as called for herein may be hand delivered or mailed by
certified mail, return receipt requested to the respective person or address listed for the Contractor
in the Service Agreement.
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19. Non-Discrimination; penalty. No discrimination because of race, color, creed, sex,
marital status, affectional or sexual orientation, family responsibility, national origin, ancestry,
handicap, or religion shall be made in the employment of persons to perform services under this
Service Agreement. Contractor agrees to meet all of the requirements of City's municipal code,
Section 15.04.570, pertaining to non-discrimination in employment.
20. City of Aspen Procurement Code. Notwithstanding anything to the contrary contained
herein or in the Contract Documents, the Service Agreement shall be subject to the City of Aspen
Procurement Code, Chapter 3 of the Aspen Municipal Code.
21. Compliance With All Laws and Regulations. Contractor shall give all notices and
comply with all laws, regulations, and ordinances applicable to the provision of the services
contemplated by the Service Agreement. Contractor shall obtain all necessary business licenses and
permits, and shall pay all requisite occupation taxes levied by the City of Aspen upon persons
engaged in business within the City limits.
22. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not
operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or
condition of the Service Agreement can be waived except by the written consent of the City, and
forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any
term, covenant, or condition to be performed by Contractor to which the same may apply and, until
complete performance by Contractor of said term, covenant or condition, the City shall be entitled
to invoke any remedy available to it under the Service Agreement or by law despite any such
forbearance or indulgence.
23. Execution of Service Agreement by City. The Service Agreement shall be binding upon
all parties hereto and their respective heirs, executors, administrators, successors, and assigns.
Notwithstanding anything to the contrary contained herein, the Service Agreement shall not be
binding upon the City unless duly executed by the City Manager of the City of Aspen (or a duly
authorized official in his or her absence).
24. Illegal Aliens – CRS 8-17.5-101 & 24-76.5-101.
a. Purpose. During the 2006 Colorado legislative session, the Legislature passed
House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new
statutes relating to the employment of and contracting with illegal aliens. These new laws
prohibit all state agencies and political subdivisions, including the City, from knowingly hiring
an illegal alien to perform work under a contract, or to knowingly contract with a Contractor who
knowingly hires with an illegal alien to perform work under the Service Agreement. The new
laws also require that all contracts for services include certain specific language as set forth in the
statutes. The following terms and conditions have been designed to comply with the
requirements of this new law.
b. Definitions. The following terms are defined in the new law and by this reference
are incorporated herein and in any contract for services entered into with the City.
1. “E-verify program” means the electronic employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public Law
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156, 108th Congress, as amended, that is jointly administered by the United States
Department of Homeland Security and the social security Administration, or its successor
program.
2. “Department program” means the employment verification program
established pursuant to Section 8-17.5-102(5)(c).
3. “Public Contract for Services” means this Service Agreement.
4. “Services” means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than reports that
are merely incidental to the required performance.
c.By signing this document, Contractor certifies and represents that at this time:
1.Contractor shall confirm the employment eligibility of all employees who
are newly hired for employment to perform work under the Public Contract for Services;
and
2.Contractor has participated or attempted to participate in either the e-verify
program or the department program in order to verify that new employees are not illegal
aliens.
d. Contractor hereby confirms that:
1.Contractor shall not knowingly employ or contract with an illegal alien to
perform work under the Public Contract for Services.
2. Contractor shall not enter into a contract with a subcontractor that fails to
certify to the Contractor that the subcontractor shall not knowingly employ or contract
with an illegal alien to perform work under the Public Contract for Services.
3.Contractor has confirmed the employment eligibility of all employees who
are newly hired for employment to perform work under the public contract for services
through participation in either the e-verify program or the department program.
4. Contractor shall not use the either the e-verify program or the department
program procedures to undertake pre-employment screening of job applicants while the
Public Contract for Services is being performed.
5. If Contractor obtains actual knowledge that a subcontractor performing
work under the Public Contract for Services knowingly employs or contracts with an
illegal alien, Contractor shall:
i.Notify such subcontractor and the City within three days that
Contractor has actual knowledge that the subcontractor is employing or
subcontracting with an illegal alien; and
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ii.Terminate the subcontract with the subcontractor if within three
days of receiving the notice required pursuant to this section the subcontractor
does not stop employing or contracting with the illegal alien; except that
Contractor shall not terminate the Public Contract for Services with the
subcontractor if during such three days the subcontractor provides information to
establish that the subcontractor has not knowingly employed or contracted with an
illegal alien.
6. Contractor shall comply with any reasonable request by the Colorado
Department of Labor and Employment made in the course of an investigation that the
Colorado Department of Labor and Employment undertakes or is undertaking pursuant to
the authority established in Subsection 8-17.5-102 (5), C.R.S.
7. If Contractor violates any provision of the Public Contract for Services
pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the Owner may
terminate this Service Agreement. If this Service Agreement is so terminated, Contractor
shall be liable for actual damages to the Owner arising out of Contractor’s violation of
Subsection 8-17.5-102, C.R.S.
25.General Terms.
(a)It is agreed that neither the Service Agreement nor any of its terms,
provisions, conditions, representations or covenants can be modified, changed, terminated or
amended, waived, superseded or extended except by appropriate written instrument fully executed
by the parties.
(b)If any of the provisions of the Service Agreement shall be held invalid,
illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any
other provision.
(c)The parties acknowledge and understand that there are no conditions or
limitations to this understanding except those as contained herein at the time of the execution
hereof and that after execution no alteration, change or modification shall be made except upon a
writing signed by the parties.
(d)The Service Agreement shall be governed by the laws of the State of
Colorado as from time to time in effect.
26. Electronic Signatures and Electronic Records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
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record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
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CITY OF ASPEN - GOLF COURSE
2019 BUNKER PROJECT BID ADDITION - Hole 4 (bunker removal) and Hole 7 (bunker relocation)
Work Item - Description Unit Quantity Unit Price Extension
1. Mobilization -- including equipment, labor (housing) and
insurance to complete the project (see Technical Section -
Mobilization for information about how this line item will be paid).
LS n/a -$ -$
2. Bonding -- Cost to Owner for Performance and Payment Bonds LS n/a -$ -$
3. Thoroughly roto-till, or similar, existing sod from inside
disturbance limits for each bunker/tee complex/work area.
Contractor may, at his option, strip and bury the sod in approved
bury pits in lieu of tilling. In any case, price must include demo of
existing sod.
SF 6800 0.05$ 340.00$
4. Strip and stockpile topsoil in each work area to a depth of
approximately 6". Price to include respreading of at least 4" of
topsoil and picking rocks, as necessary, on approved sub-grade.
SF 8500 0.09$ 765.00$
5. Shape bunkers to approved sub-grade and prep for BBB
installation (drainage and gravel). Quantity reflects interior area,
but shaping should include entire disturbed area, as necessary, plus
the area of the three bunkers that are being filled in. The filled in
bunkers will be shaped to surface drain.
SF 1420 1.25$ 1,775.00$
6. Shape and laser level new tees (quantity is finished tee surface),
price shall include hauling of excess soil from bunkers to build the
tees, as necessary. Quantity indicated includes tee work on holes 8,
9, 10, 12 and 14. IF additional tees can be built (as soil is available),
any change order will use this unit price as a basis for payment.
SF n/a -$ -$
7. Furnish and install 4" perforated, smooth interior drain pipe
(HDPE) with gravel backfill in bunker cavity.LF 70 $ 13.00 $ 910.00
8. Furnish and install 4" solid, smooth interior drain pipe to daylight
or sump, as necessary. Price shall include either removal and
replacement of existing sod, or installation of new sod over the
drainage lines.
LF 60 10.00$ 600.00$
9. Furnish and install 2" gravel blanket per BBB manufacturer's
specifications.SF 1420 0.80$ 1,136.00$
10. Furnish and install BBB polymer to manufaturer's specifications,
including QC applications SF 1420 1.50$ 2,130.00$
11. Furnish and place 4" compacted depth (likely 5" to get 4") of
approved bunker sand (G & S)TN 28 92.00$ 2,576.00$
12. Furnish and place bluegrass sod on disturbed areas SF 5500 1.25$ 6,875.00$
TOTAL - BASE SCOPE $ 17,107.00
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TO: Mayor Skadron and City Council
FROM: Kevin Rayes, Planner
Phillip Supino, Principal Long
THRU: Jessica Garrow, Community Development Director
RE: Resolution #4, Series of 2019
Review
MEETING DATE: January 14, 2019
_________________________________________________________________________
SUMMARY:
The purpose of this memo and consent item is
2018 and a Council decision on the amount to “carry
Growth Management Quota System (GMQS) outlined in LUC Section
allotments for various development types in the City. The annual available allotment for each
development type is a combination of the standard annual allotment provided in GMQS and any carry
forward allotment from the previous year.
The City’s Land Use Code specifies the annual allotments in various land use categories as follows:
Development Type
Residential — Free-Market
Commercial
Residential — Affordable Housing
Lodging
Essential public facility
BACKGROUND:
Growth allotments granted in 2018 are summarized in Exhibit A. The 2018 growth allotments include no
carry-forward from 2017. The allotments received or applied for in 2018 included
units, 4,471 square feet of commercial net leasable
Essential Public Facility space and 1 free
According to Section 26.470.120.B of
the growth management year, shall review the prior year’s growth summary, consider a
recommendation from the Community Development Director, and shall, via adoption of a resolution,
establish the number of unused and unclaimed allotments to be carried forward and added to the
annual allotment. There is no limit, other than that implemented by the City Council, on the amount of
potential growth that may be carried forward to the next year.”
2019 annual allotment
Memorandum
Mayor Skadron and City Council
Kevin Rayes, Planner
Phillip Supino, Principal Long-Range Planner
Jessica Garrow, Community Development Director
Resolution #4, Series of 2019 - Growth Management Allotment Carry
January 14, 2019
_________________________________________________________________________
The purpose of this memo and consent item is Council review of the “unused” growth allotments from
decision on the amount to “carry-forward” to the 2019 development year. The
Growth Management Quota System (GMQS) outlined in LUC Section 26.470 provides specific annual
allotments for various development types in the City. The annual available allotment for each
development type is a combination of the standard annual allotment provided in GMQS and any carry
vious year.
The City’s Land Use Code specifies the annual allotments in various land use categories as follows:
Annual Allotment
18 units
33,300 net leasable square feet
Affordable Housing No annual limit
112 pillows
No annual limit
Growth allotments granted in 2018 are summarized in Exhibit A. The 2018 growth allotments include no
forward from 2017. The allotments received or applied for in 2018 included
square feet of commercial net leasable space, 20 lodge pillows, 13,000
and 1 free-market residential allotment.
of the Land Use Code, “The City Council, at its first regular meeting of
the growth management year, shall review the prior year’s growth summary, consider a
Community Development Director, and shall, via adoption of a resolution,
f unused and unclaimed allotments to be carried forward and added to the
There is no limit, other than that implemented by the City Council, on the amount of
potential growth that may be carried forward to the next year.”
+
discretionary 2018
carry-forward
allotment
= 2019 total development
allotments
agement Allotment Carry-Forward
_____________________________________________________________________________________
review of the “unused” growth allotments from
forward” to the 2019 development year. The
26.470 provides specific annual
allotments for various development types in the City. The annual available allotment for each
development type is a combination of the standard annual allotment provided in GMQS and any carry-
The City’s Land Use Code specifies the annual allotments in various land use categories as follows:
Growth allotments granted in 2018 are summarized in Exhibit A. The 2018 growth allotments include no
forward from 2017. The allotments received or applied for in 2018 included 9 affordable housing
13,000 square feet of
“The City Council, at its first regular meeting of
the growth management year, shall review the prior year’s growth summary, consider a
Community Development Director, and shall, via adoption of a resolution,
f unused and unclaimed allotments to be carried forward and added to the
There is no limit, other than that implemented by the City Council, on the amount of
2019 total development
allotments
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Page 2 of 2
In 2019, City Council may carry-forward from 2018 up to 17 free-market residential allotments, 28,829
square feet of commercial space, and 92 lodging pillows. The Land Use Code provides criteria for
Council to consider in determining whether to carry forward GMQS allotments. The City Council may
carry forward any portion of the previous year's unused allotment in any category, including all or none.
Land Use Code 26.470.120.B states: “The City Council shall consider the following criteria in determining
the allotments to be carried forward:
1. The community's growth rate over the preceding five-year period.
2. The ability of the community to absorb the growth that could result from a proposed
development utilizing accumulated allotments, including issues of scale, infrastructure capacity,
construction impacts and community character.
3. The expected impact from approved developments that have obtained allotments, but that have
not yet been built.”
The specific code language, including the above criteria, can be found in Exhibit B. Any allotments
carried forward into the 2019 development year, in addition to the annual allotments prescribed by the
Land Use Code, could be used by development in each category. Considering the above criteria, staff
recommends that none of the remaining 2018 GMQS allotments be carried forward to 2019.
RECOMMENDATION:
Staff recommends City Council approve Resolution No. 4, Series of 2019, carrying-forward none of the
unused 2018 growth management allotments.
RECOMMENDED MOTION:
“I move to approve Resolution No. 4, Series of 2019, on consent.”
ATTACHMENTS:
Proposed Resolution No. 4, Series 2019
Exhibit A – Summary of 2017 growth management allotments
Exhibit B – GMQS Carry Forward Code Language and Review Criteria
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Resolution No. 4, Series 2019
Page 1 of 1
RESOLUTION N0. 4
SERIES OF 2019
A RESOLUTION OF THE ASPEN CITY COUNCIL ESTABLISHING THE “CARRY-
FORWARD” GROWTH MANAGEMENT ALLOTMENT FROM 2018 TO 2019.
WHEREAS, pursuant to City of Aspen Land Use Code Section 26.470.120, the City Council
shall review the prior year's growth summary, consider a recommendation from the Community
Development Director, and shall, via adoption of a resolution, establish the number of unused and
unclaimed allotments to be carried forward and added to the annual allotment; and,
WHEREAS, pursuant to said sections and considering the following criteria, the Community
Development Director has provided a recommendation to carry-forward none of the unused growth
management allotments from 2018:
1. The community's growth rate over the preceding five-year period.
2. The ability of the community to absorb the growth that could result from a proposed
development utilizing accumulated allotments, including issues of scale, infrastructure capacity,
construction impacts and community character.
3. The expected impact from approved developments that have obtained allotments, but that have
not yet been built.
WHEREAS, on January 14, 2019 the City Council considered the recommendation by the
Community Development Director, and the above criteria and approved Resolution No. 4, Series of 2019,
by a __ to __ vote; and,
WHEREAS, the City Council finds that the decision to carry forward none of the unused growth
allotments from 2018 meets or exceeds all applicable standards and is consistent with the goals and
elements of the Aspen Area Community Plan; and,
WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion
of public health, safety, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO: That the City Council carries forward none of the unused growth management
allotments from 2018 to be available in 2019.
RESOLVED, APPROVED, AND ADOPTED FINALLY this 14th day of January, 2019.
Approved as to form: Approved as to content:
_______________________________ _______________________________
James R. True, City Attorney Steven Skadron, Mayor
Attest:
_________________________
Linda Manning, City Clerk
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City of Aspen
Growth Management Quota System - Annual Allotments
2018
Jan. 2018 thru Dec. 2018
Annual Allotment 18 33,300 112 N/A N/A
Carry-Forward from previous year N/A N/A
Total Available for Year 18 33,300 112 N/A N/A
405 Castle Creek Rd
(Ambulance Facility)0 0 0 0 13,000 Ordinance #9 Council
Aspen Hills 8
517 E. Hopkins 0 4,471 0 0 0 HPC Resolution #19 HPC
Lift One Lodge*1 0 20 1 0 Ordinance #38 Council
0 0 0
0 0 0 0
Remaining Allotments 17 28,829 92 N/A N/A
Source: City of Aspen Community Development Department
* Note: Affordable Housing Units and Essential Public Facilities are tracked, but are not subject to code prescribed allotment caps.
* Lift One Lodge has additional allotments granted previously from approvals in 2011 and 2016
Board ApprovalFree-Market Residential
Allotments
Commercial (square
feet net leasable)
Lodge
(pillows)
Affordable
Housing
Units*
Essential Public
Facilities (square
feet)*
Ordinance/ Resolution
Exhibit A
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Exhibit B
Growth Management Carry Forward Review Criteria
26.470.120.B, Yearly Allotment Carry-Forward Procedure:
“The City Council may carry forward any portion of the previous year's unused allotment,
including all or none. The City Council shall consider the following criteria in determining the
allotments to be carried forward:”
1. The community's growth rate over the preceding five-year period.
Staff Response: The community’s growth rate has remained fairly consistent over the
past few years. With the 2015-2016 land use moratorium, there was a slight decrease in
the number of applications for commercial project, compared to previous years. In
2017, there were a number of affordable housing and essential public facility projects
applied for and approved. With the exception of lodging pillows there have been
allotments available in all other categories when assessing the year in review. City
Council chose to not roll over the leftover allotments into 2014, 2015, 2016, 2017 and
2018. There has been no need to request multi-year allotments for free-market
residential or commercial projects for these years. Staff finds the number of yearly
allotments available to be more than sufficient for the current rate of requests and
approvals.
2. The ability of the community to absorb the growth that could result from a proposed
development utilizing accumulated allotments, including issues of scale, infrastructure
capacity, construction impacts and community character.
Staff Response: Prior to the approval of growth management allotments by P&Z or HPC,
Staff is required to review the availability of public infrastructure and scale of the
development proposed. A construction management plan is created and implemented for
each project that is approved. Based on current data, staff believes there is adequate
infrastructure to accommodate new development within the code-prescribed limits.
Additionally, with the land use moratorium code amendments, the growth that can now be
applied for is more in line with the existing community character.
3. The expected impact from approved developments that have obtained allotments, but that
have not yet been built.
Staff Response: Many of the projects listed on the GMQS Annual Allotments table
(Exhibit A) are affordable housing projects that are not yet under construction. The
commercial net leasable space for Lift One Lodge was accounted for in 2015, however,
the project has been amended in 2018 to include an additional free-market residential
allotment, 20 lodge pillows and 1 affordable housing unit. Given the number of projects
in the pipeline, including potentially Lift One Lodge, Gorsuch Haus, as well as Hotel
Aspen, Molly Gibson, Aspen Club, City Affordable Housing Projects, Crystal Palace,
517 E. Hopkins, 232 E. Main and the Popcorn Wagon, staff does not recommend rolling
over any unused 2018 Growth Management allotments.
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Regular Meeting Aspen City Council December 10, 2018
1
CITIZEN COMMENTS ............................................................................................................................... 2
CITY COUNCIL COMMENTS ................................................................................................................... 2
CONSENT CALENDAR ............................................................................................................................. 2
Resolution #149, Series of 2018 – Debt Issuance for Purposes of Funding Construction for New City
Municipal Office Building ............................................................................................................................ 8
Resolution #151, Series of 2018 – Wheeler Marketing & PR Service Contract .................................. 8
Resolution #152, Series of 2018 – King Street Infrastructure Improvements ...................................... 8
Resolution #145, Series of 2018 – 2018 Mill Levies ............................................................................ 8
Resolution #153, Series of 2018 – SHIFT Partnership Agreement ...................................................... 8
Minutes – December 3, 2018 ................................................................................................................ 8
................................................................................................................................................................... 8
ORDINANCE #38 SERIES OF 2018 – Lift One Lodge – Major Amendment and ..................................... 8
ORDINANCE #39, SERIES OF 2016 – Gorsuch Haus – Planned Development ........................................ 8
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Regular Meeting Aspen City Council December 10, 2018
2
At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Frisch, Myrin,
Mullins and Hauenstein present.
CITIZEN COMMENTS
1. Ruth Harrison said the Streets Department needs to plow the alleys. It is really bad behind the
fountain. The blinkers on main, the lights keep changing. She doesn’t see anything being done
with the parents taking their kids to and from school. There is a tremendous amount of traffic in
the round a bout because of it. Not sure how it fits in with the mobility lab.
2. Peter Fornell said regarding the affordable housing certificate program, we are in jeopardy of the
program turning into something no one will want to participate in. One thousand dollars in
affordable housing generates $300 in property taxes a year. We need the commercial core to be
the contributor to help the entire community, not for housing. If we tell a developer to build units
and sell the certificates, then I don’t know what my role is. HPCs job is to review what the box
looks like not what goes in the box. That decision should be made by council. If we tell a
developer they have to mitigate on the site we will lose faith in the certificate program. If
something isn’t done to support the program we won’t see anything built out of it.
3. Lee Mulcahy stated his constitutional rights have been violated. On July 17th the first notice of
violation was sent. He said the compliance letter was sent on August 25th, prior to the 60 days
required.
4. Paul Kennedy said he lives in Burlingame and is a friend of Lee. Lee is a good man.
CITY COUNCIL COMMENTS
Councilwoman Mullins wished everyone happy holidays and a great season to everyone. She went to
Denver to work with CML. They are trying to get a bill passed with the CO house to increase funding on
affordable housing.
Councilman Myrin thanked everyone for their public comment. It is our community comments that make
us unique. The issues that were raised are very real. School driving has been going on forever and we
haven’t put our foot down. Peter’s issue, we have the opportunity to lose a significant amount of housing
because of our process and our code.
Councilman Frisch said best wishes. As much as I feel proud when I’m going up or down the mountain
or spending time at the institute. Over the last week between attending Klug’s summit, the AEF
fundraiser, Aspen Chapel art opening, I don’t think I’ve ever had a more connected with the community
10 days. It’s great and humble to live here. Happy holidays.
Councilman Hauenstein wished everyone happy holidays. Thanks for your comments. I always
encourage people to make their thoughts known. As a town and a council, we are facing some important
issues for the future.
Mayor Skadron said happy holidays and be safe out there. Don’t forget why you live here.
CONSENT CALENDAR
Resolution 152 – King St improvements
Councilwoman Mullins asked has the location of the sidewalk been determined. Mike Horvath,
engineering, replied no. There is a work session on January 8th with council to discuss that with the
neighborhood. Councilwoman Mullins said we will be hearing from the public then. The construction
won’t be affected by that decision. Mr. Horvath replied no.
Resolution 153 - SHIFT
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Ashley Perl, environmental health, stated this is a contract with Lyft to deliver Shift. The plan is to run
this for next summer. The contract provides three things. It is a testing ground for some concepts from
the community transportation forum. The goal is to get the community out of their cars with more
mobility options and to understand what services will work in Aspen in the future. This contract is with
Lyft and includes a not to exceed of $800,000. It is in the current budget for 2019 and is under the
original estimate. It also includes a mobile application, outreach and marketing, electric bikes, electric
scooters, mini-busses and shared rides. The City is paying for the mini busses and shared rides. We are
excited the partnership includes the in kind app. A lot of the money is being passed through Lyft to the
local community. We need to sign the contract so they can contract with local providers and drivers.
Electric bikes and scooters are controlled through the contract and a city ordinance. The contract and
ordinance will regulate them. This is not subsidized by the city. The user will pay to unlock the device
then a per minute charge. Lyft will charge a penalty for trips over 30 minutes. You can reserve and pay
for the device using the app. They are not permitted on sidewalks and malls. The scooter test can be
ended at any time. Shared rides and passenger vehicles will be driven by Lyft drivers. The will use
passenger lanes not bus lanes. You will hail a ride using the app. Lyft will set the fare to the user. The
service area is to be determined but not to the airport. Mini busses would originate from the intercept lot.
They can use the bus lane. They will be free to the user and allow dogs. The service area is also to be
determined. There have been three big outreach efforts. We talked to over 600 people throughout the
valley. Traffic goes against quality of life. The general consensus is people would like the city to do
something about it. We met with the bike shops. The City is willing to subsidize a one day demo for E
bikes. We asked them what they thought of dockless E bikes. The reply was they don’t hurt our
business. The final outreach was to taxi and shuttle businesses. We would like to meet with these
companies in the coming weeks and put out an RFP for a possible late night shuttle service. We are in
conversations with the school about continuing Shift in to the school year.
Mayor Skadron said he was at city hall yesterday going through emails. My reply was the Shift program
is simply a 90 day experiment to try an integrated mobility system. It is the result of a year and a half
community meeting that will include multiple mobility means. It would be irresponsible for us not to try.
Councilman Myrin said he read that Lyft has the contract. Was there a reach out to the bike shops. Ms.
Perl said the bike shops, we have not reached out to since Lyft came on board. The meeting since the
local shuttles was scheduled so they heard about it prior. Councilman Myrin asked is there any reason
this has to happen tonight. Ms. Perl replied if we postpone this to late January or February we cannot
deliver Shift on time for next summer. Lyft can’t reach out to local providers until they know we are in a
contract with them. We are up against a pretty tight time line. Councilman Myrin said on page 87 it
mentions the possibility of discouraging use of longer than 30 minutes with a fee increase but there is
nothing binding. Can we do the same thing we’ve done with we cycle. Ms. Perl said we have a
confirmation that they will charge a penalty but we want it higher than the we cycle penalty.
Mayor Skadron opened the public comment.
1. Luke Wampler, Aspen Valley Bike Shop, said he has the same concerns as Councilman Myrin’s.
Lyft plans on charging a $1 set up fee and then a per minute charge. Without a more cemented
penalty they could very easily under cut the businesses in this town. Councilman Frisch replied
$9 an hour. Luke said $60 for 2 hours for E bikes. Councilman Frisch said there is discussion of
some type of penalty. Is there a hurdle to not try to cause we cycle or is it market rate. Ms. Perl
said we suggested a penalty of what the rental price is so people would be encouraged to rent a
bike. We are discussing not just a penalty but a slowing of the device. Luke said we want to
make sure if the contract is signed we are not locked in to that price.
2. Billy Taylor, Aspen E Bikes, said before a contract is signed all these little points should be in it.
We’ve had 2 work sessions with the city. There were boundary protections saying they could not
go up to the Bells and I don’t see that in here. It is not fair to the bike shops. The 90 days is our
season. Ms. Perl said the contract lays out the high level. We would need to come back to
council with an addendum. We would not release any money until we have those details. Billy
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said it seems like you are rushing in to things to get things signed and that is not fair to the bike
shops. Ms. Perl replied we want to support the bike shops above everybody else.
3. Charlie Tarver said Aspen is one of the most bike friendly bike communities in the world. Why
would you be in the bike business.
4. Eden Vardy said he is very sensitive to what the bike shops are saying. He thinks Shift is a
wonderful thing. It shares our community ethos. Keep the big picture in mind. It is a 3 month
trial. A lot of the details can be ironed out. What is the most sustainable option for the long term
for our town and citizens.
5. Whitney Justice said she would like help with the kids driving to school. The school gives the
kids a parking pass when they are a senior. I can’t compete with that pass. What can we do
better as a community. Scooters are dangerous.
6. Rick Galley said this is an expensive solution looking for a problem to solve. He has not seen a
traffic problem definition. 30 to 40 minute traffic back up and a parking lack. The solution is to
limit construction as a trial. Survey residents as to what upsets them, who they are to evaluate
options.
7. Ed Garland, Aspen Bikes partner, said he is concerned that the contract has a price structure of $9
per hour. What leverage does the city have to negotiate. It is their advantage to have longer
rentals. We have been able to coexist with we cycle with their penalty system. He would rather
have concerns in writing now. Jim True, city attorney, said if people are concerned with the
provision in 7.3, and you want to make it definitive you can make it as a provision of approval at
this point. Councilman Frisch said we are wordsmithing this in the middle of the consent. Is this
what we need to do to make this work.
8. Dan Perl, teacher at high school, said he lives here for the high quality of work. One of the most
important things is leaving his car at home. He supports council for taking some bold strokes and
supporting this issue. Shift represents the way that people want to get around. The transit
solutions we have are phenomenal.
9. Wendel Whiting said the community is often driven by a few people with loud voices. He
appreciates the Shift project. It is a good opportunity to see what works. It will generate a lot of
data that local businesses could use to their advantage.
10. Charlie Gardner, High Mountain Taxi, said we are at this point due to the lack of outreach by city
staff. First, we had the downtowner, then the expansion of the downtowner, now it is the
downtowner on steroids. If you were looking for subcontractors it should have been stated to
begin with. The more you take the harder it is to survive. The goal post keeps changing.
11. Roberto Ramira, said the goal is to reduce traffic. Who is bringing all the traffic. This is a tourist
town. You should consider the community first instead of a big corporation.
12. Charlie Bantis said have you considered if the E bikes take off contracting directly with the bike
shops.
13. Mirte Mallory, we cycle, said they launched in 2013 to reduce traffic as an alternate mode of
travel. We aligned with the goals of Shift. We are a public private partnership. She applauds the
city for a bold vision of the Shift initiative. We are committed to the same objectives. She
supports using one platform. While the contract represents ambition, it lacks detail for
collaborative implementation. It creates a framework for services. We cycle asks council to
delay signing of the contract until partners can provide input. We are here to partner and have
open discussion prior to signing a contract. We need time and a public forum to do so.
14. John Sarpa is here to talk about the community forum. It concluded there are quite a few things
that need to happen at the same time. When something this major comes along you have to find a
way for balance. He encouraged council to take a little more time. Signing the contract with all
these blanks doesn’t come across the way it should.
15. Kelly Murphy said the intercept lot needs to be connected with the bike path before this happens.
Bike racks need to be on all busses.
16. Paul Williams, Aspen Bike partner, said as a bike community we are not against bike sharing. It
has to be done correctly. The details need to be worked out for it to work properly and with us.
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Geofencing can work for the E bikes. The price structure needs to be looked at. We cycle has
worked with us.
17. Stacy Rothenberg, limousine provider, said they haven’t heard about what will happen after the
90 days. Once Lyft is here they are here. Ms. Perl stated after 90 days the city will not support
Lyft being here.
18. Ann hockey, Aspen Limo Service, said the biggest problem is the commuters. Lyft will become
your preferred provider because they are your partner. She asked council to delay the vote on
this.
19. Kevin Smitty, Smitty Limo, said what is there to stop my neighbor from contacting Lyft and
saying I want to be a driver. What is there to stop them from going to the airport.
20. Kit Mclynden, limo and bike outfitter service, said he is the middleman to outfitter and bike
services. We need more time before making a decision like this. There is also a safety issue here.
21. Skippy Mesirow said he doubts any of us live here for the worst parts of living in a big city.
Anything we can do to move to an automobile less future are good. Glad you are trying
something. Be brave, bold and stay the course. We have a ton of wonderful local businesses.
Reach out and come to a better solution.
22. Virka Ramira, limo service, said we never heard of this. She does not see a reason why we
should do this. We are here because we want to experience small town life.
23. Eddie asked what are the conditions to cancel after 3 months. Mr. True said the contract is only
for 3 months.
24. Lee Mulcahy said to look at the study by MIT.
25. John Gally, limo company owner said he is against subsidizing a company we are competing
against fair and square. Uber and Lyft don’t have a path to profitability here. I wish the money
would be spent with local companies. The outreach was not effective. If the details are not in the
contract they don’t matter.
26. Tom Coggins said all of us transportation operations are regulated by the state. We all need to be
safe and be able to make a living. Maybe the city has jumped the gun instead of dealing with it
locally.
Ms. Perl suggested removing the shared ride piece of the contract. She is not sure what a work session
gets us.
Councilwoman Mullins said she does not think that is what we should do here tonight. It is along the
same lines of wordsmithing. She would like to hear the rest of the comments and act on what is before
us.
27. Mick Ireland said what we are doing right now is not working. Demand transportation is not new
to Aspen. E bikes will expose people to something that is not competitive in the bike shops.
Maybe they will then go in to the bike shops. A graduated tax for use over half an hour might do
the trick.
28. Michelle, elite transportation, said you haven’t done enough homework on the ground
transportation side. Lyft is 180% more traffic on the roads. Lyft isn’t cyclical here. Ride hailing
has decimated taxi’s across the US.
29. Kevin Cordova, limo service, said it seems like the contract is not ready. It needs more
refinement.
30. Mike Maple said the most disturbing thing is the city process doesn’t engage the community early
enough in the process. The process doesn’t work. It is very clear this is being rushed. Where are
all the scooters and E bikes going to go.
Mayor Skadron closed the public comment.
Councilman Hauenstein said when I saw this all the public comment covered my objections. I don’t like
signing a contract where there are blank spaces. It is important we nail this down. I question the
wisdom of E scooters. I share the same concerns. I want Shift to be for transportation not recreation. I
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served on the forum on mobility and transportation and learned a lot. Shift is necessary to try. All the
pieces except the scooters have real possibilities to reduce traffic in the downtown. The key is to utilize
the intercept lot. If it can’t reduce traffic I don’t want to deal with it. We need more time spent on this.
My first thought was we need to table this. I agree with what you all have been saying. I fully support
the different aspects of this. The ride sharing has received some bad press. It does accomplish our
goals. Ride hailing, taxi services are nothing more than an analog ride hailing service. Ride hailing
increases traffic but ride sharing decreases it. Lyft is more than ride hailing and sharing. It incorporates
what we were going to have multiple vendors do. I have a fond place in my heart for the bike shops in
town. I want hard penalties in there so it is a disincentive for Lyft to come in and undermine our local
shops. I can’t sign a blank contract with so much left undetermined. We need a workshop with the
partners. I know this has been going on for a year and a half. We need to have it defined. Too much is
undefined to vote yes this evening.
Councilman Frisch said I want to talk about goals and process. For the last 40 years we have been
focusing on the supply of roads to fix traffic in Aspen. It is important that we signed up to take on this
goal. All the people that spoke in favor of progressive transportation and community values, are spot on.
The process has been troublesome to me to say the least. I shared some concerns in December of 2017 as
to how we were going to pull this off in 2018. Lots of public comments from me and others. The whole
thing has been focused on we need more outreach. This is the discussion we should have had in the first
month. What might be 90 days for city hall might be the last 90 days for boots on the ground for some
of our transportation workers. I think this process from early days has highlighted my prior stated
comments concerning the disconnect from city hall on truly how hard it is to run a small business in
town. Two few of us have had to make a pay roll, let alone in this town. The lack of humility from city
hall continues to worry me when it comes to the business. I’ve heard in this building on a few occasions
about old school transportation companies who need to get on board with the future. I find it a bit
unsettling that some people assume an industry is dying and we need to step in to turbo charge the
assumed inevitability. As I’ve said before, city hall has no to very little idea what it takes to be in the
transportation business. We should have reached out on day one saying we have mobility demands and
millions of mobility dollars. The focus on future data collection is great. We have people with years of
data. We have not reached out once for their feedback on ideas, what’s wrong or missing or how can we
get them involved. The downtowner has been going on for some time in the hopes of being a ride share
program. 70 to 80 % of rides are single point to point. It comes down to an issue of density. We do not
have a dense community. If we increase our ride service there is a view the probability of car pooling
will go up. My view is we will have less density and I don’t know how we will get car sharing. I spent a
year and a half sharing my concerns. I would love to try to see the goals of the Mayor and those we all
bought in to be realized.
Councilman Myrin said the process of announcing the contract less than a week of putting it on the
consent agenda is the wrong way to go. I will not support this. It is a process thing for me.
Councilwoman Mullins said I’ve been a really strong supporter of Shift and what came before it. There
have been years of work starting with the transportation forum and gathering data for what we can
possibly do to address the issue with congestion. We do have a problem with the congestion in town.
Shift is an attempt to work on that. We can’t just drop it and hope things fix itself. There are a lot of
elements that are logical. Maybe it answers the questions about the S curves finally. There are
significant environmental benefits. There are a lot of values to doing a program like this. Aspen prides
itself on innovative programs. We have this history of pushing the envelope and finding solutions to
clear obvious problems. We can’t keep guessing on what works or doesn’t work. I have never heard so
much push back on one initiative. Part of my job is to collect research and listen to staff but the other
part is to represent the people who elected me. I certainly cannot support approving the contract tonight.
I would like to continue to work on it. There has been quite a bit of outreach but clearly not enough. We
need to keep working with our transportation providers. We need to get support for the program if we
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want to go ahead with it. If we don’t have the community support, it won’t be successful. We need to
get as many specifics as we can.
Councilman Frisch said one question is, is today the go no go with Lyft for 2019. I’m not sure what you
need from us. Ms. Perl said she hesitates to come back for a work session where anything different
comes out of it. What I heard tonight is the majority of the pushback is on the shared rides. We can
negotiate a contract that eliminates the shared rides and move forward with some type of Lyft and see if
the community can deliver a shared ride piece. I think it is local companies provide the shared rides or it
is removed from the contract. I’m not sure where we go. Councilwoman Mullins asked what do you
mean by shared rides. Ms. Perl replied I’ve heard much more pushback from shared rides with Lyft.
Councilman Hauenstein said I think the shared rides have real value. I think ride hailing is in direct
competition with the taxi service. Ride sharing eliminates congestion by cutting down traffic. Ms. Perl
said in this particular agreement ride sharing and ride hailing are the same thing. Councilman Frisch
said there needs to be some minimal level of services to say we have a summer program. Getting people
to turn left at the intercept lot and hop on a point to point bus is worth a try. He is not sure if micro
transits and bikes are enough to make a go of it.
Mayor Skadron said we are all worried about change and the future. It is coming here whether we like it
or not. Shift gives us a snapshot of what it looks like or not. If we have a meeting in January it should
be focused on what additional services can be provided by local services. This wasn’t about bringing
Lyft here. This is a 3 month experience about how we move in and around Aspen. My hope has been
how we move people without relying on vehicles. My challenge to you as the transportation sector is to
understand the principles behind this. It is not about bringing in competition. We have a serious
problem and we need serious people to fix this problem. It is about maintaining our quality of life and
not defaulting to the status quo. All I’ve done and the council has done to this point is compare the
community we are today against the one we claim to want to be. If you are satisfied with traffic and
congestion at the entrance to Aspen, that is wholly antithetical to the entire notion of this place, then
fight this program. Don’t work with us. Because that is what you are going to get, more traffic. The
program as we know, is these new transportation things working together in a compressive app that
makes it easier for users to make smarter decisions about their commutes and errands. We hope that we
would revitalize the core with some pedestrian zones and public spaces. Our goal was to bring forward
thinking options. The outcome of a successful experiment, in my opinion, was a people first downtown
that aligned with an environmentally sustainable and socially equitable stronger community. That is the
place we want to live in but that is not what we are. We are suffering under the weight of our own
popularity. I’ve always argued we want the people in town, just not the cars. The lab has the
opportunity to provide to the community essential information not just to Aspen but the entire region.
The only other option is to build four lanes over the open space. If you are really interested in
addressing the status quo and really believe in a community that wants to be better and believe in the
promise of this place then get involve and do something. You have raised some legitimate concerns and
it gives council some real angst to move forward with the contract. The consensus is this will not be
supported to move forward tonight. I am also hearing there is general support to move forward with the
program that addresses the issues we all feel are a challenge to Aspen’s quality of life. The next step is
to see how we can bring in our local providers.
Councilman Frisch said he is not sure what types of meetings we are looking for. Ms. Perl said she
recommends amending the contract for the other pieces at the same time as working on the other
conversation. Councilwoman Mullins said that is a good approach. Take out the one piece and let us
know how effective that will be. It is really important that everyone here puts forth your ideas.
Councilman Frisch said he is not opposed to seeing the micro transit come back. The bikes and scooters
won’t take a lot of time. The ride share is the substance. Ms. Perl said she will speak with Lyft and see
if they have an option for us. In the mean time we will look at schedules to see if there is a local option.
Councilman Hauenstein said he would really value a round table discussion with the transportation
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people. Mayor Skadron asked if there is support to pull Resolution #153 from the consent agenda.
Council agreed to support adopting the consent agenda without Resolution #153.
· Resolution #149, Series of 2018 – Debt Issuance for Purposes of Funding Construction
for New City Municipal Office Building
· Resolution #151, Series of 2018 – Wheeler Marketing & PR Service Contract
· Resolution #152, Series of 2018 – King Street Infrastructure Improvements
· Resolution #145, Series of 2018 – 2018 Mill Levies
· Resolution #153, Series of 2018 – SHIFT Partnership Agreement
· Minutes – December 3, 2018
Councilman Hauenstein moved to adopt the consent calendar without Resolution #153; seconded by
Councilman Frisch. All in favor, motion carried.
ORDINANCE #38 SERIES OF 2018 – Lift One Lodge – Major Amendment and
ORDINANCE #39, SERIES OF 2016 – Gorsuch Haus – Planned Development
Jessica Garrow, community development, said this is the fourth public hearing for this project. We are
requesting direction on cost sharing. We are also requesting a continuance to January 7th for a special
meeting.
Mayor Skadron opened the public comment.
1. John Doyle said he has rented or owned a cabin on back of Aspen mountain since 1988. Where
will the scaffolding go for world cup if the lodge is there. He doesn’t see how this whole project
can be boiled down to one ballot question. The rezoning should be settled first. Slow the project
down. When the city manager warns against cost sharing it is time to listen.
2. Erik Skarvan said he is agreeable with a new lift and appropriate development. Lift One Lodge is
still towering and Gorsuch is still stretching to the sky. Lack of addressing a core community
value and making our built environment in line with our environment. We are not housing the
people to provide the services. Lack of affordable housing does not respect our number one
community goal. Not one dollar of public money should go towards this development.
3. Luke Van Arsdale, representing Robert Shearer, said over the last several meetings the developer
has entered on the record they have been working with my client on the scale and mass. They
will not be entering a statement today. The east building profile approved in 2011 did not extend
over the Gilbert Street corridor. Today the profile extends impeding my clients view. This does
not need to happen. We object to that. We request as part of the ordinance, section 14, which
addresses the amended plat, be amended to address the Gilbert Street view plane issue.
4. Alex Biel said he is enthusiastic about a lot of the changes to the 1A corridor. The mountain
shouldn’t become a slab of concrete. The conservation zone should be respected. Imagine all the
changes without Gorsuch Haus. I think there will be a new lift at some point.
5. Denis Murray said he participated in two Co-ops for this parcel. This development lacks the
resort/community overlap. This is a once in a lifetime development. Affordable housing is a
once in a life time obligation that should be on the table. The ability for net zero building is
available. Put the E back on Dean Street. It’s history and important. Highlands is ripe for world
cup. Maybe that is where it should go. Don’t let your decision be about money, it’s about Aspen
and what we can be. This is a small hotel in Vail but giant here. I look forward to a vote.
6. Casey Martin, Aspen Mountain townhomes, said they sent a letter about capacity and safety
issues related to Gilbert Street. They would like a retractable bollard system. It would keep
Gilbert Street clear for pedestrians, bikes and emergency vehicles. Open two way traffic can’t be
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accommodated there. More likely an emergency access issue if there was two way access on the
street.
7. Mike Maple said Aspen is based upon ski racing and the world championships of the 50’s. There
is amazing community interest in bringing the lift down the hill. The lift will not move unless
there is an economic engine to let that happen. Real estate development is really hard and risky.
This project is worthy of our community support. The city should pay for the park. The city
owns the historic lift and it their responsibility to maintain it. The city owns Dean Street and
should maintain it. The only contribution I would not support are to the underground parking
facility. The museum went to a vote once before and the community supported it. Recognize
what is being asked for are already community obligations. The world cup will not come back
without a new lift.
8. Chino Martinez, member of the ski school, said Aspen is one of the best ski areas in the world. I
use the mountain as a tool to support my family. World cup will not come here unless we do
something. We are getting behind the world. Clients won’t come back unless we develop the
mountain.
9. David Guthrie said ski racing is our birthright. The world cup has people clamoring to get their
events. At what point do we decide to get real. The return is not always tangible.
10. Scott Ledeau, Betteridge jewelry, said he is thrilled with the lift one corridor. It is intelligent and
forward thinking. It is a great opportunity for growth for his business. There is potential for
world cup to come back.
11. Bill Tomcich said there were 55 properties listed in 96/97 ski season. Only 20 are still here today
under the same name. 12 are gone. We have a ski town heritage that is deeply rooted in ski
heritage. This is an opportunity to go a long way to filing this void.
Mayor Skadron closed the public comment.
Ben Anderson, community development, said the issues that have a majority of council support include
general site planning and lift corridor, proposed uses on city parks, lot reconfiguration, height, massing
and scale for both projects, subdivision and rezoning of Gorsuch Haus. Affordable Housing mitigation,
we acknowledge the code that gives reductions. Project phasing, impact of Lift One operations. Winter
maintenance of S Aspen Street and defer and evaluate.
For the cost sharing proposal, the central question is does council support direct financial contributions
from the City of Aspen to the project outcomes. Does council support the use of project development
fees to be used on public facing aspects for the project. If yes, what.
Dean Street improvements
The estimated total project cost is 1.2 million. The proposed city contribution is $760,000. The Skiers
Chalet lodge is 5.6 million with 3.2 million from the city.
Winter street maintenance is a separate process that will be addressed in distinct sections of the ordinance.
Lift One Lodge will be responsible for any actual costs beyond the estimates. Improvements to parks
including Deans Street plaza, bathrooms and future development of Dolinsek gardens will be included in
the parks capital budget.
Possible options include no contribution. Contribute to cost sharing proposal of 1.36 million amount and
revenue source. Contribute 4.36 amount only. Contribute to Dean Street. Contribute to a fixed amount
the developers put forward.
If an agreement is reached, we will draft an ordinance in response. The city attorney will draft ballot
language.
Michael Brown, owner, said both Gorsuch and his family are local families. He appreciates all the
comments. We were hoping to redevelop the Mountain House lodge. We couldn’t because of the lodge
incentive plan that was taken away. Just because Erik pounded his fist doesn’t make what he said true.
To pretend that the request for housing is 35% mitigation. These projects generate well over 100%
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mitigation in terms of tax revenue. At what point is it too much. To suggest that the first payment at
building permit pick is the only payment is just false. We have a funding mechanism for 100%
affordable housing and it is the transfer tax and the percentage of the sales tax that generates the ongoing
money to more than exceed those affordable housing numbers. It is a bit unfair to strictly look at. We
support the suggestion for the retractable bollards.
Stan Clauson, representing Lift One Lodge, said P&Z did not have serious concerns. What they had was
serious enthusiasm and voted 7 to 0. This development is less than the allowable FAR for this zone
district. Related to the proposed funding mechanisms, he said benefits for historic properties have been
provided in the land use code for some time. Continued protection of the resource is the basic premise
supporting the creation of an innovative package of preservation tools that are unlike any other in the
country. They include waiver of impact fees, community initiated development and public/privately
funded rehabilitation efforts. The code is full of opportunities for the City to participate in historic
preservation. The steakhouse and the gantry are designated historic resources. The skier chalet building
is not. It is part of the Aspenmodern listing of potential resources. For any potential resource the City
and property owner may negotiate to reach a mutually acceptable agreement for the designation of the
property. The ski museum could reside along with skier services in a building that would cost much less
to build and develop. The relocation of the skier chalet is a very expensive proposition. Of all the issues,
funding for the skier chalet building is of most concern for the council. The code provides a clear
direction that funding for this kind of preservation is perfectly in line with the code.
Mr. Brown spoke about the tax generation from the project. Includes use, real estate transfer, lodging and
property taxes. Based off of 2017 mill levy and RFTA mill levy. The total tax generated over a 30 year
period is 147.4 million dollars. Of that, 35.7 million is affordable housing or 150 FTEs. City of Aspen
general fund, 7.1 million dollars. Open space and parks is 6.1 million dollars. Local transit is 10.7
million dollars. Gorsuch would be in addition to these numbers.
Mayor Skadron said John asked where would the world cup finish, why one ballot question and why the
rushed timeline.
Mr. Clauson said the world cup finish is pretty much where it has been in previous years. With respect to
a rushed process, we have had numerous work sessions with multiple boards and commissions. There is
still is a process moving forward. Mr. Brown said we hosted 6 open houses. Mayor Skadron said if the
community number one goal or value above all else is preservation of character, mass and scale, and this
is 300,000 square feet of development and has affordable housing that meets code but is far under 100 %.
You are juxtaposing that with dollars and asking council to put aside those values. Mr. Brown said he
appreciates that question. In respect to massing, it is still a wide open view plane. I understand the
concern.
Steve Barwick, city manager, asked for the calculations. Mr. Brown said every time a property sells there
is a 1% transfer tax that goes in to the coffers. We’ve estimated this generates 36 million into that fund.
Once every 7 years is the typical time period in which a unit sells. Mr. Barwick said with more people
and more time come more demands on new net. We would like to know your calculations and so would
the people voting on this. Mr. Brown said we would be happy to provide that to the public. Mayor
Skadron asked for a comment on the east building mass and scale objection. Mr. Brown said with respect
to the eastern building, it is a private matter we’ve been discussing with them. It meets code. We have
been trying to value their view planes. Mayor Skadron said we want to be equally sensitive to the
community. Mr. Brown said we support the idea of bollards. We are happy to support what they have
suggested. We think it is a descent solution. Trish Aragon, city engineer, said we are not supportive of
the permanent bollard system, privatizing the street and emergency services. The below ground street is
just as important as above ground. Ms. Garrow said at this point there is not direction on bollards.
Typically, this would be addressed at final review. To find a solution that engineering, fire and the
neighbors can agree on. Councilman Myrin said the other bollards in town, why can’t we duplicate those.
Ms. Aragon said those aren’t what they are suggesting. Gilbert is meant for vehicle traffic, Dean Street is
not. They are different issues.
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Councilman Frisch asked what are you expecting to get out of tonight’s meeting. Mr. Anderson replied if
we can get alignment tonight we can come back with firm ordinance language on the 7th. Ms. Garrow
said we think we have majority on the other topics.
Mr. Anderson said there were statements from some councilmembers of varying degrees of support for
the cost sharing proposal. From your comments these five options were things that we came up with to
try to represent that discussion. Councilman Frisch said no contribution is Dean Street and the assumed
cost. The cost to retrofit the skier chalet is not to cover the over. Mr. Anderson said as we’ve looked at
the proposal it boils down to these two requests, Dean Street improvements with an estimate of 1.2
million dollars. There are some contributions from Lift One Lodge and Dancing Bear. The City is being
asked for 760,000 dollars. Councilman Frisch asked who covers the overage. Mr. Anderson said there
have been representations that any overages for Lift One would cover those. Mr. Clauson replied that is
correct. Mr. Brown said option five, if easier, rather than funding to the museum the city could contribute
to public infrastructure. The money would only get contributed once the lift is built. We put it in and
after it is in we get paid back for it. You get the lift you bargained for. Councilman Frisch said when it
comes to the skier chalet, there are unknown costs, the assumption was the applicant is asking for the city
to pay 80 percent of the assumed costs. Ms. Garrow replied it was 80 percent of the development fees.
There is a commitment of 1 million from Lift One Lodge, 1 million from Gorsuch, 3.6 million from the
City and any overage would be paid by the applicant. Mr. Brown said the idea is not to give the city open
ended commitments. Councilman Frisch said the assumption of what staff is thinking what should be
final review, the bollards, managing Gilbert as well as the snow melt discussion is you are suggesting
they get handled at a later review process. Ms. Garrow said we feel we have clarity on snow melt. There
is a lot of new infrastructure on S. Aspen Street. See how it goes, do a traffic study and additional studies
then come back for a later discussion. That would be resolved in the ordinance. There was not unanimity
on is snow melt the right answer. It was let’s come back and talk about it once we see how the street
operates. Councilman Frisch said there are minimally five options. The applicant just offered a sixth
with tying it to delivery of the lift. I think number one came from the Mayor. Councilwoman Mullins
said your last suggestion is really important that the money not be contributed until the lift is done. If you
could amend three to include that. It is no secret that I support the city being a partner in this. This is
going to be an enormous community benefit in the end and we talk about the 30 year vision at the end of
the council agenda. This is a 30 year vision. Whether it is the ski racing coming back, the lodging that
we need or the historic resources. 30 years from now people will thank us for having done this.
Councilman Hauenstein said it is a larger discussion than just the cost sharing. It has been said for years
keep Aspen, Aspen. What does that really mean. To me Aspen was a leader in the ski industry. We had
the world championships here for the first time in the United States. We had the longest and most
advanced ski lifts. We have been a leader environmentally and with work force housing. To keep Aspen,
Aspen we have to continue to be a leader in those areas. There are a number of aspects we need to have
to make this work, one is the ski museum another is work force housing. The code has incentives for
density for lodges. If the full ask is given it goes from 114 to 67. It is about an 11 million dollar
concession. I understand when Michael says you will generate money to house people over 30 years but
in the short term there will be impacts. It is also important we have safe streets. I think it is our
responsibility to deliver a safe corridor both on Dean and S Aspen. There are multiple examples of
public/private partnerships. A role of government is to ensure the economic sustainability of the town. If
we are going to commit money to reduce traffic through a mobility experiment that will last for 3 months
then we should commit money to a project that is going to benefit the town for at least 30 years. I support
public dollars to help get this done. I don’t want to get in to how much money we are going to take from
each fee or fund. I would rather see some version of number 5 with Michael’s number 6, it is delivered
when the lift is delivered. I like that. I had penciled in 4 million dollars. I want this to succeed. I want
the whole town to benefit from this for 30 years. I think we owe it to the community to send it to a vote.
Councilman Myrin said 7.8 from the city managers memo and 11 million from the housing is a lot of
money. I can’t support the 11 on the housing side. On the 7.8, if we can buy a lift for that let’s buy a lift
and nothing more. Gorsuch seems like it is right where the staging was for the world cup races. It seems
like there were consequences threatened by the developer which were locating housing on site if there
wasn’t a contribution from the city. Maybe there is some advantage to that. I want to avoid what
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happened in Snowmass. I suggested the first day the property tax district to pay back anything that is
waived. Mayor Skadron said your general notion is the improvement district that would help fund the
city contributions. Councilman Myrin said it wouldn’t come in to effect until after any of this is built.
Councilman Frisch said over the 4.36 million dollars you want to revisit the housing discussion. Mr.
Brown said in respect to the employee housing it is false to say it is a waiver of fee if those employees are
not generated and it is subject to an audit. You are saying if the employees are not generated we still want
the money. Councilman Myrin said he thinks some of these deductions were designed for smaller
projects like the Mountain House Lodge or Chalet Lisel not for what is being considered here. Mr.
Brown said the employee generation review was not specific to a particular lodge. If you don’t like it is
unfair.
Mayor Skadron said he believes the city has already contributed above and beyond. Councilman Frisch
said he is open to have some type of discussion on Dean Street. He does not see the value of the
community throwing in millions of dollars for anything to do with the obligations the developer bought
on the skier chalet. I don’t buy there is no increased value to land. I appreciate the 30 year revenue
streams. I’m a little worried to start allowing these projections in a vacuum to be used as a common slide
to be used when we talk about benefits. My philosophy remains, that government money should be used
to stimulate things that the private sector is not going to take care of. I believe that this development
project is not going to hinge on the obligations that are there. My preference is to keep anything that has
to do with the historic society aspect off the table. On the housing stuff there were a lot of charts that
were explained a few weeks ago. We might have done a disservice to everyone when we put in those that
were going to be audited at a later date in the same category as those that were going to be completely
waived at the start. To back up Michael’s comment there are some fees that might be paid later only if
the employees are generated. Those were put in the same bucket as some other affordable housing asks
and I don’t think they belonged in the same bucket. There is a number that shows a minus and I think
Michael rightly pushed back. I think the number Bert is talking about is less than 19 but I appreciate he
wants all the affordable housing. With all the moving parts I prefer we take off the skier chalet
conversation and figure out if we need to have a Dean Street conversation. Michael asked about other
public infrastructure. Councilman Frisch said he would rather not put a dollar figure on the skier chalet.
Mr. Brown said a dollar amount is fine. It speaks to the viability of the project. We are seeking
something we are actually going to build. Councilman Frisch said you bought a project way back when
that did not have enough value to do right away. Part of the betterment for the community is the lift that
comes down and is great for you as well. I think there is money for you to pay for the project. I
appreciate there are benefits but there are benefits for everyone. Now we have the vote. I’m hoping it
passes. There are a lot of concerns about a lot of different areas. I think as we keep asking more from the
community we are losing support. Mayor Skadron said you are supporting option 4 with a contribution
towards Dean Street. Councilman Frisch said there is a maximum amount of money the city should put in
towards Dean Street and call it good.
Councilwoman Mullins said in opposition to the session before this where there was overwhelming
disagreement to what council was proposing I’ve only heard support for this project the way it is
presented. I think it is partly an obligation on the city to make it work. It is a complete package. If we on
council support this project for all the benefits that I think we will have in the future from it then we need
to put it in the best position to win the vote. Mr. Brown said if you are not in agreement on one of the two
options then we continue to a much later date and not discuss an ordinance. If there isn’t support we can’t
live with number four. We will have to come up with a different solution. Councilman Frisch asked are
you walking with anything less than Ann’s and Ward’s. Mr. Brown said if we can’t get to one of those
options we are going to have to think of something more creative that doesn’t include that ask. I don’t
know what that is right now. Mr. Clauson said the skier chalet building is not designated. It would be
possible for a developer to start a 90 day discussion to demolish that building. The museum and skier
services could be accommodated in a simple modern building for much less cost than the relocation pf the
skier chalet building. The two million contribution from the development partners plus a little more
money you could have something at the base of the lift that would function as a museum and skier
services but not the skier chalet. Mr. Brown said we will think through other options.
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Councilman Hauenstein said when he wanted to see the delta between the FTEs made up he thinks that
could be done through a special taxing district. I hate to see those FTEs going away. The applicants have
the right by code for these adjustments. The code was written to encourage keys and rooms and that is
what they are delivering. To lose that housing is painful and by having a taxing district we can get those
rooms back not at the applicant’s expense.
Councilman Myrin said there is a conversation over a few million dollars. The question I asked at the last
meeting is the project not going to work without that and if that is the case what do we need to do to make
it successful. If is it 3 million or 19 million to make it successful I don’t want to put something on the
ballot that is going to deliver something that is not going to actually happen. I guess I have my doubts
that little bit is going to derail it. Ms. Garrow said there are a couple of options. We can continue to talk
and see if there is some number around the 4.36. My sense is if council is willing to participate in cost
sharing for Dean Street tied to the delivery of the lift or not it is still not quite going to make it with this
proposal. One thing that Stan has brought up that is really important for council to remember is the
ordinance that Lift One Lodge has vesting under does not designate the skier chalet lode. Designation
only happens after certificate of occupancy as the ski museum on Wiloughby park. It is not protected
right now. My sense is if this is continued to a later date that aspect of the project changes dramatically
and council can make a decision if you like that project better. Councilman Frisch said what is going to
come back is a bigger building to generate more revenue or lower expenses. Mr. Brown said maybe we
don’t come back. There has been so much time and effort and support for this.
Councilman Hauenstein said this feels like a poker game and I’m not a gambler. I keep feeling like we
are calling somebody’s bluff. For a project that has been in the works for a couple of years and the
community clearly supports, I feel that we have a budget of 120 million dollars and if we can’t find 4
million dollars to make this work and give it to the voters to decide. I think it is short sighted of this
council to not do what is necessary to make this work and get it to the voters to let them decide.
Councilwoman Mullins said that is well said. If there is hesitation about spending that much money. Our
decision will either be validated or not validated at the vote. I suspect from what I’ve heard there is
support for this project and the city to be partnering at this level. Councilman Myrin said he will
absolutely put this on the ballot. He may vote against the land use approval. Ms. Garrow said for the
referral for the ballot council will be asked to refer these ordinances. You will not be asked to vote on
them in a land use capacity. It is a straight referral and that is part of why we need additional time to
make sure the ballot language lines up with the ordinances. It is not going to be two votes. Councilman
Myrin asked why can’t we have this a land use approval and then go to the voters. Ms. Garrow said this
is a unique process. Mr. True said there are two ways to go about it. You could approve the ordinances
yourselves then refer them to the voters or just refer it directly to the voters. For various reasons the
attorneys for the projects and I agree the best way under this circumstance is to get the ordinance in a
position where the council is comfortable of referring the ordinances to the voters without a formal
adoption of those two ordinances. They do involve some of the litigation rules that do exist under the
rules of civil procedure. Councilman Myrin said by avoiding a vote is that something to avoid a
referendum. Mr. True said it doesn’t avoid a referendum but it could avoid a Rule 106 action.
Councilman Myrin asked why are we trying to avoid process or shortcut something. Mr. True replied we
are just trying to do something as efficient and effective as possible by giving to the voters a final
decision on an ordinance that you have gotten the most comfortable with.
Councilman Frisch asked about tying the payment to the lift. Mr. Brown said the suggestion was rather
than funding the museum just fund infrastructure and once we deliver the lift that money be paid back to
us at that number. There is significant public infrastructure that has gone in, will go in and needs to go in.
Dean Street, sewer, S. Aspen Street, Gilbert Street, park preparation to get it to that. In turn, we would
have an incentive to deliver the lift. Councilman Frisch said the 4.36 is an estimate. Ms. Garrow replied
it would be a fixed number in the way it is being proposed. Councilman Frisch said what he is hearing
Stan say is they could leave now and never come back or they might need to come up with a less
expensive building for the skier chalet replacement. Councilwoman Mullins asked if there would be a
number he could accept that is less than the 4.3. Councilman Frisch said he does not have a number. In
trying to balance what we would do here if this was where the buck were to stop versus what we were to
support going forward to allow the voters to have a crack at it.
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Councilman Frisch said he will support option three just so we can stop this conversation. This will be
the ultimate referendum one question of let the voters decide. Mr. Barwick said the snow and ice melting
are to be determined and the funding related to it are to be determined. Ms. Garrow said on the 7th this
will be more discussion about the specific language in the ordinances. Snow melt is not a guarantee at
this point. The items related to Wiloughby park, there are some agreements between parks and the ski
company we need to work out. Those would come from the parks fund. That is consistent with the
original approval. Anything above turf grass is parks obligation. The ordinance will include cost sharing
for 4.36 million revenue source to be determined once the lift is delivered and operational. Mayor
Skadron said he wants to add a condition that it is fixed at 4.36 million dollars. Councilman Myrin added
that to change the amount in the future would require anther public vote.
Councilwoman Mullins moved to continue Ordinance #38, Series of 2018 to January 7, 2019; seconded
by Councilman Frisch. All in favor, motion carried.
Councilman Frisch moved to continue Ordinance #39, Series of 2016 to January, 2019; seconded by
Councilwoman Mullins. All in favor, motion carried.
Councilman Frisch moved to adjourn at 11:45 p.m.; seconded by Councilman Hauenstein. All in favor,
motion carried.
Linda Manning
City Clerk
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EXECUTIVE SESSION ............................................................................................................................... 2
RESOLUTION #2, SERIES OF 2019 – Ballot language for Gorsuch and Lift One Lodge project ............ 2
ORDINANCE #38 SERIES OF 2018 – Lift One Lodge – Major Amendment and ..................................... 2
ORDINANCE #39, SERIES OF 2016 – Gorsuch Haus – Planned Development ........................................ 2
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At 5:00 p.m. Mayor Skadron called the special meeting to order with Councilmembers Myrin, Mullins,
Frisch and Hauenstein present.
EXECUTIVE SESSION
Jim True, city attorney, stated staff recommends pursuant to C.R.S. 24-6-402 (4)(f) that Council go in to
executive session to discuss personnel matters related to the review of the city manager and city attorney.
At 5:10 p.m. Councilwoman Mullins moved to go in to executive session; seconded by Councilman
Hauenstein. All in favor, motion carried. At 5:45 p.m. Councilman Hauenstein moved to come out of
executive session; seconded by Councilman Frisch. All in favor, motion carried.
Mayor Skadron made a statement once the special meeting resumed. As everyone may know, Council
has direct oversight over two employees, the city manager and city attorney. The executive session was
to consider the review process of these employees. HR has directed the standard review process for the
city attorney. Regarding the city manager, the majority of Council has requested the resignation of the
city manager. He has agreed to do so. A final separation agreement will be entered at a later date
following the approval of Council.
RESOLUTION #2, SERIES OF 2019 – Ballot language for Gorsuch and Lift One Lodge project
ORDINANCE #38 SERIES OF 2018 – Lift One Lodge – Major Amendment and
ORDINANCE #39, SERIES OF 2016 – Gorsuch Haus – Planned Development
Jessica Garrow, community development, reviewed the community benefits of the project including direct
skier access from Dean Street, return skiing to Dean, improved skier facilities, revitalized portal to Aspen
mountain, year round parks amenity, restoration of historic resources, ski history museum, safety and
multi modal improvements, 50 public parking spaces and 185 new lodge keys. At the end of the last
meeting there was majority agreement on lot configuration and rezoning, site planning, mass, scale and
programming, skiers chalet lodge ski museum and skier services, Dean Street design and parking
configuration, affordable housing mitigation, cost sharing with a 4.3 million dollar contribution from the
city, council action with referral of the ordinances to the voters, not approval.
Issues of discussion in the final ordinance language include South Aspen Street maintenance including
snow melt. Included in both ordinances is a study over a few years. Safety and user patterns as well as
traffic then discussion if snow melt should happen. Each pay for one third of the cost related to
installation if it is needed. There is not a discussion of a taxing district. Cost sharing – TABOR
language. The commitment would now be in an escrow account. Third is the relationship of the
ordinances to the election. Council would approve a resolution that refers both ordinances. Fourth is Lot
2 has specific restrictions. Free market residential is not permitted without a vote. Finally, is changes to
engineering changes to the Lift One Lodge ordinances. One piece related to temporary and permanent
right of way easements. Lifting from an existing master easement where Lift One Lodge has specific
language added in for safe utility clearances for soil nailing. There is also some discussion as to how the
fees are to be paid. This is an area where some discussion still needs to happen. There has been some
additional language added to both ordinances that provides the best assurance of getting a lift at the lower
location. A future lower lift terminal will be delivered as quickly as Ski Co can, followed completion of
the garage, subgrade structures and foundation of Gorsuch and Lift One Lodge. If one project does not
move forward there is no default the lift gets completed.
Councilwoman Mullins asked for more explanation on the new cost sharing proposal. Mr. True said the
last meeting there was discussion about the 4.36 million offered for public benefit. As we looked at this,
in order to make it a commitment and comply with TABOR which require multi year obligations to be
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approved in a TABOR election or put aside in an irrevocable fund. We looked at this as the best choice.
It would be required to meet the obligations of TABOR. Councilwoman Mullins asked is there another
option to appropriate the funds annually. Mr. True replied to commit and not be subject to future
appropriation it would have to be this way. A future council could choose not to appropriate it. That has
not been acceptable to the applicants. It would have to be a committed irrevocable agreement, or put it in
a separate TABOR election. There is a third option to commit to the funds then allow a future council to
agree to it.
Councilman Hauenstein said as far as funding I think it should be this council that makes this decision.
We should fund the irrevocable fund this year to allow us to have one ballot issue to approve the whole
project without an additional TABOR ballot issue. He would like to see this sitting council approve and
commit through the project. If we were to fund this before the election it prevents a lame duck council
from making a decision. I don’t think it is right that we put off a funding decision.
Councilman Myrin said if the question had a TABOR question and the voters approved both it solves
everything without the escrow. Mr. True replied yes, if we meet the TABOR requirements. Councilman
Myrin said that would satisfy the requirements. It seems much cleaner and transparent to have two
questions. Mr. True said the resolution #2 would have to be conditioned that the TABOR issue is also
approved. Councilman Frisch said Bert is just asking the community to call their bluff. I’m not sure if
the applicants would allow it to still go on. One scenario is the project passes and the finance doesn’t.
Mayor Skadron said Ward is proposing one question. Bert is proposing a question about the development
and one about the funding.
Councilman Frisch said going back to December 10, Ward and Ann were supportive of the money going
to the applicant without any strings attached. Bert and the Mayor didn’t want any money going. I asked
about the money not going until the lift was spinning. It has always been the hope that there would be
one question.
Ms. Garrow said what we were not anticipating was the TABOR issue. The other option is to go back to
what we originally proposed and waive development fees. Councilman Frisch said the technical aspect of
the escrow is a rounding error. If they fulfill their obligation they get the money. As long as there is
clarity about what the voters are voting on, I’ll support it.
Councilwoman Mullins said I’ve supported partnering financially. I do not support the irrevocable
escrow account. I see us making decisions for a future council. It will be a great project two years from
now. I don’t want the money in an account. There is the option for the TABOR vote or development
fees. I will continue to support the project and would like to find ways to support the project other than
an escrow account. Councilman Frisch said why now are you concerned about a mechanism where this
council finds 4.36 million and puts it in a bank account. Councilwoman Mullins said it says here the
funds need to be set aside. Councilman Frisch replied I’m confused why you are concerned about setting
up a holding account. Councilwoman Mullins stated they are still asking us to partner. Whether it is not
collecting development fees or cash. It is frozen in an account until the project is done. I’m not for
pulling the funding. I think this is the incorrect way to do it. Councilman Hauenstein asked would you
support Bert’s proposal of two separate questions. Mr. True said it would be a vote of the public to
commit to some funds at a future date.
Stan Clauson, representing Lift One Lodge, said we understand your hesitation to make a commitment in
this amount. A separate TABOR vote would be inappropriate. We are all about transparency. One vote
because it is one project. Our clients fully need assurances if they go forward that some subsequent
council can’t change the deal. Ward is in the right direction that it provides assurances. If we do what we
are supposed to do the city will honor its commitment.
Mr. True said the TABOR election would be relatively simple. The voters would approve an ongoing
debt until it is paid for. It could be done and be voted on. The only way to get an obligation without a
specific TABOR election is through irrevocable funding.
Mayor Skadron said he thinks any city with a long standing history and a strong ethic of growth
management, I’m quite disturbed that city council is appropriating millions of dollars in an irrevocable
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account to the developer. Councilman Hauenstein said the money would not be payable until the lift is
ready to be turned on. Ultimately the future of this whole project if we decide it is in the voters hands,
they will be making a decision on the future of ski racing in Aspen and the western portal of the mountain
that will last at least 30 years. In defense of being a partner of a public private partnership the benefits
that the community get are bringing the lift down to Dean street. Lift One Lodge could have been built
with their existing development rights and there would have been no possibility of the community
benefiting from a lift coming down to Dean Street. The applicants negotiated in good faith to come up
with a solution that benefits the whole town and the future of Aspen. I think that justifies the city putting
some skin in the game.
Councilman Frisch said Bert and the Mayor last time were against any type of money. It was a minority
view at the time. Bert’s suggestion is the next best case scenario is to have a separation. One could go
down then it would put the onus back on the developer to figure out if the money really is the go no go
decision for them. I’m still a bit confused about why some people that are happy to allow the money
without conditions don’t like the irrevocable holding account.
Ms. Garrow said she does not believe that either applicant team will support or want to move forward
with two separate ballot questions.
Mayor Skadron said right now it is a two two split. Bert and I concur. He asked Ann for some clarity.
Councilwoman Mullins said she can’t support an irrevocable account which a future council has to honor.
The next best thing seems to be a TABOR vote unless we can find some other way to provide assurance.
Ms. Garrow said given where the applicants are and not having two ballot questions there are really two
options. One is the language that is proposed which has the irrevocable account or we go back to what
the applicant proposed as opposed to the city holding the money there is a reduction of the building
permit fees that would be due at the time the project moves forward. The impact to the city budget is
different in terms that we are not tying up money for up to 10 years.
Mayor Skadron said at this point there is not support for a consolidated ballot statement. Councilwoman
Mullins said reducing the fees makes more sense rather than pulling the money out of the 2019 budget in
an escrow account for an undetermined amount of time.
Mr. Barwick said I think you are suggesting this as a means of not impacting current budgets. The first
threshold question is, is it a legal obligation for you to do so or is it something that is subject to annual
appropriation in the future. Even a fee reduction in the future may be something that would need to be
accounted for now. TABOR states that you must account for and set aside dollars to fund any multi year
financial obligation what so ever. It is very broad language. I’m not sure that really gets us around the
notion of not accounting for this expenditure right now. Mr. True said he agrees that TABOR is very
broad.
Councilman Frisch said this council burdens and locks in future councils every day that we sit up here.
On the whole, most people get it right. That’s what we do. I’m confused about that. The second thing is
I thought Ann and Ward were the most understanding of this community partnership and just allowing the
4.36 million not to be collected and it was worth it to the community. I’m still confused as to why a fairly
simple technical solution gets worked. If we go the other way, staff did not assume there would be 4.3
less million dollars coming in and that has some ramifications as well. There is a higher level of
community benefit for that money to be paid. People are going to be voting on do you support giving the
development team 4.36 million dollars. I think the vast majority of people are going to say no. Mayor
Skadron asked why then are you supportive of the community contributing the money if you are fearful of
the voters saying no. Why sit here as a councilmember and support it. Mr. Brown said as far as we were
concerned at the last hearing this was settled. This issue was supported by this council. The semantics of
how it gets funded is nothing but semantics. To turn it in to a potential separate issue is unfair. We said
we would look at other options for the development of the project if you would not commit to that money.
It is only fair to figure out how the money gets appropriated based on the last meeting rather than make it
some ballot issue.
Councilwoman Mullins said it is rare that we do stuff that is irrevocable. Part of the agreement with
partnering with the 4.36 million was it wouldn’t be paid until the end of the project. What we are doing
now is taking it out of the 2019 money and setting it aside for an undetermined number of years. I’m not
pulling support for the project but I’m looking for a different mechanism than this irrevocable account.
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Bart Johnson, attorney for Lift One Lodge said though it is termed irrevocable the way the ordinance is
drafted it dies if the development order expires, which under the code has a life limit of 10 years. There is
a 10 year window that is set by the code. Councilwoman Mullins asked if the two questions were on the
ballot and the TABOR failed and the land use prevailed then wouldn’t the applicant come back looking
for funding. Mr. True said they could come back and look for funding but it would be subject to some
future council decision. I don’t know how this council or a newly seated council would look at that
request having just taken a vote to the public on a specific issue that was turned down. Councilman
Hauenstein said one of the reasons he did not support paying for this through reduced fees is the
precedent it sets for negotiations for any future development. It is a simpler solution to have the money
go to the developers and transfer after the lift is in a point where they can be turned on. By having one
question that clearly states the city will be contributing the money.
Councilman Frisch said if this was ending at the council table he wouldn’t be supporting it. It will all be
part of the package to what people vote. I’m willing to go to the voters and let them know about all the
different variables and let them make the decision.
Mr. True said to do it in one question is not a TABOR election so the only way to comply with TABOR is
the irrevocable fund. Ms. Garrow added it is no more than 10 years and paid upon the delivery of the lift.
Ms. Garrow said specific to the resolution and the actions in front of council we are requesting referral to
the ballot and not approval. Mayor Skadron asked why this recommendation. Mr. True said the attorneys
involved in this have discussed this and feel it is appropriate to simply refer a matter to the electorate. If
you approve it with a condition to refer then there is an approval that is subject to review by courts as rule
106 to determine if the decision of the council was not arbitrary and capricious or exceeded jurisdiction or
was not compliant with the law. That is just a legal step that comes with the fact that council approves a
land use ordinance. If it is referred directly to the voters, we believe that likelihood is lessened. It does
not mean it is not subject to collateral attack. Councilman Hauenstein said this has to go to the voters
because it transfers property. Mr. True said there are aspects that clearly have to go to the voters. For
instance, ordinance 39 has a specific rezoning that doesn’t have to go to the voters but is subject to
referendum but use of city property does. You can approve it conditioned on voter approval or refer it
directly. Mr. Johnson replied that is accurate. Our main concern is at the time the voters are asked to
vote on it, it is under judicial review in a lawsuit. The whole point is to make it as democratic as we can
get it. You could have a lawsuit that reverses everything the voters approved.
Councilwoman Mullins said if it goes as a referral and passes it is the same as if we passed the ordinance.
I would support that. It has to go to the voters anyways. Mr. Clauson said apart from the rule 106,
council has expressed concern about this project but I think all of you might feel comfortable saying let’s
let the voters decide what is good and beneficial about this project rather than make that decision yourself.
Councilman Myrin said I would support the referral to the voters but oppose the criteria in the land use
issue. My preference is the way it is traditionally done with the land use approval then the referral to the
voters. It seems like there are multiple attempts to get around the system whether it is the money or the
106.
Councilman Hauenstein said I think we are skirting our responsibility if we don’t send it to the voters
right away. We open it up to a referendum and inflated construction costs. I firmly believe the cleanest
way to approach this is one ballot issue that includes the funding.
Mayor Skadron said an up or down vote by council embodies the vote Bert referred to. Mr. True replied
yes, some are subject to referendum. It is ultimately a land use approval. Mayor Skadron said that is the
purpose of the council approval. Mr. True replied no, what we are suggesting and what you have the
authority to do is not vote on the specific ordinances. Mayor Skadron said if we chose to vote on the
approval it would have all the elements. Mr. True said there are quasi judicial approvals that are subject
to 106. Councilman Frisch said if people are thinking of activating 106 then someone will. That’s where
we should start this discussion. I think Ward is right from a clarity standpoint. Now I’m lost on the 106
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conversation. If we are thinking about passing an ordinance and letting fate take its course. Mr. True said
we are suggesting you pass resolution #2 which refers both ordinances and various other decisions
directly to the voters. The charter authorizes that. You don’t have to have a yes no vote on the
ordinances. You still have a right to direct us on the language in the ordinances.
Councilwoman Mullins said the resolution itself says a fixed amount. Ms. Garrow stated the ballot
question just references the ordinances which contain a lot of detail. Councilwoman Mullins said having
read the question which specifically says 4.36 and knowing the account is revocable after 10 years, I will
support the ballot question and the ordinances. Councilman Frisch asked about the distinction between
voting on and referring. Mr. True said the charter allows council to refer an ordinance directly to the
voters. You are not approving the ordinance that would potentially be considered be a determination by
council on a quasi judicial matter that is subject to review by the court by a 106. You are making
decisions based on the majority of you on what you are referring. We are doing our best to get consensus
as to what the ordinance says before it is referred to the voters. Councilman Frisch said I thought there
was going to be a vote if we are going to send this to the voters. Mr. True replied we are, that’s what
resolution #2 says. Mayor Skadron said I believe it is the responsibility of elected officials to vote on
land use approvals. Mr. True said we are not advocating one way or another. We are suggesting there
could be interesting dynamics if there is a vote that someone in 28 days files a 106 action. Ms. Garrow
said it sounds like there is consensus on voting to refer to the ballot and on how the cost sharing is
written. Mr. True said on the cost sharing there was one suggestion that was originally written and taken
out and it is when is the fund funded. Ward has suggested before the election. It would be helpful to
know that. Councilman Frisch said the voters should know where the money is coming from. The cash
flow is fairly irrelevant. The bigger question is should we let the voters know what part of the city coffers
the money coming from. Mr. Barwick said we haven’t had that discussion yet. Councilman Hauenstein
said my option was to borrow it with interest from the Wheeler. Councilwoman Mullins said why would
you create the fund before it was voted on. Mr. True replied to let the voters know where it is coming
from. It would be conditioned on the election. Councilman Frisch said he is not worried about the timing
of when the money moves but there is transparency of where the money is coming from. That is a valid
request. Mr. Barwick said there are three major areas it could come from. The simplest and easiest
would be an internal borrowing from the Wheeler of a 10 year loan. It is not a major impact unless you
are planning on using that to construct a facility. You could do an external loan or reduce other projects.
Councilwoman Mullins asked how soon would we need that specific information. Mr. Barwick replied
legally by the end of next year. Councilman Frisch said if the community is being asked for a 4.3 million
dollar commitment they may want to know where it is coming from and the impact of it. Councilman
Myrin said shouldn’t council have some idea of where the money is coming from. Councilman Frisch
said we never have before. Councilman Myrin said it is on us to figure out too, we approve the budget.
Ms. Garrow said there is direction on cost sharing. There needs to be discussion on how it is specifically
funded and when. Mayor Skadron said to Bert he is not comfortable leaving this meeting without some
identification as to where those funds come from. Councilman Myrin said ideally we would put it as a
separate question on the ballot. If the voters directed us to figure it out we would. Councilman
Hauenstein suggested having a discussion with Pete next week. Mr. True asked if there is consensus
about having it funded prior to the election. Councilwoman Mullins said it sounds like the Wheeler is the
best option. Councilman Frisch said it is an option. He does not want to turn the Wheeler fund into the
bank of the Wheeler. The bigger question is how much clarity do we want to have about where is the
money going to come from. Mayor Skadron said he needs specific direction from the council members
who want to support this. The longer we sit here the more he finds himself frustrated by this discussion.
He is not persuaded that a 350 million dollar private development will be derailed by any degree because
it lacks a few million dollars of public cost sharing. This cost sharing is an ask for the city to pay for
what the developer promised to pay for and they should deliver what they promised. I feel this
partnership between the city and the developers is becoming one where the developers take exactly what
they want and we so easily dismiss the burden that falls on the taxpayers. We are talking about real
money that comes out of taxpayers pockets and the coffers of the city. This is a huge gift and council is
bending over backwards to give away more. I don’t understand the direction of this council.
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Ms. Garrow said she believes there is a consensus on council to have cost sharing as written in the
ordinances. There is likely a conversation that needs to happen about when and how it is funded.
Councilman Frisch asked if staff can come back on the 14th with funding options. Mr. Barwick replied
yes.
Councilman Hauenstein said there is a precedent of the city being partners in public private partnerships.
Adam made the statement that we make decisions that do lock in future councils every day. We are duty
bound by the ordinances that are in place. I don’t like the idea that we gave away 11 million dollars in
work force housing but there is an ordinance in place that provides those concession. We are getting 185
keys. A previous council said deliver the rooms and we will give you these concessions. Mayor Skadron
said he is very sensitive to the comments Jim made at a previous meeting about a delicate tapestry. I hope
something gets done here but I hope it does with appropriate council scrutiny. Ms. Garrow said we are
moving forward with cost sharing and how it is being referred. We can continue to work between now
and the 14th as to the financing but that is not a prerequisite of the referral. Mayor Skadron said the
reason I believe council should vote on the approval is all those things are in the developers best interest.
The message can be controlled here where they are accountable or in front of city market where they can
make up anything they want. I think this project is the best we’ve seen, and we can facilitate the
conversation if the same level of scrutiny is held. Councilman Hauenstein said we are giving it to the
voters to decide. If we approve it then give it to the voters we are giving it to City Market to be referred.
We’ve spent a lot of time discussing it. I don’t feel we haven’t given it due consideration.
Councilman Hauenstein said I think it has a better chance of going forward as a land use without the pay
for. If the funding doesn’t move forward, then the developer will figure out how to move forward.
Councilman Hauenstein said for me it is like buying a pick up truck without an engine.
Councilman Frisch said getting back to the specifics, I would like to know more about services and
capital projects that would get held up.
Councilman Hauenstein said on page 88, Section 10 for Gorsuch 50% of the on site unit below grade. He
does not support. For snowmelt, it only includes S Aspen. He would like it to include Dean in front of
the ski museum. Ms. Garrow said she only thought there was consensus for S Aspen not Dean. Mr.
Barwick said depending on the selection the operating costs would dwarf the capital costs and both should
be included in the agreement. Councilman Myrin said he agrees with that and would support Ward’s
suggestion to include Dean Street in the analysis. Mayor Skadron said he does not want the city burdened
with the cost to design, build or maintain snowmelt. Ms. Garrow said it is a decision by council at the
time should snowmelt be implemented. There is no obligation within this ordinance that says there will
or will not be snowmelt. There is a lot of additional study that needs to be explored and understood.
Councilwoman Mullins asked who is paying for the study. Ms. Garrow replied some of it is the applicant
and some the city. Councilman Myrin said the installation would be dwarfed by the ongoing operation
costs and the ordinance should address the ongoing operation costs. The Mayor said he doesn’t want the
city burdened by the ongoing operation costs. It should be split as well. Councilwoman Mullins agreed
with Bert. Ms. Garrow posed the question to the applicants about those changes. Mr. Clauson said that is
an easy discussion to have down the line. Councilman Myrin said you said the operators would be on
board because it would help the product but to discuss it down the line. Why not just include it.
Councilman Hauenstein said I see it only benefiting Lift One Lodge and Gorsuch. Conceptually I agree
with Bert. Richard Shaw, representing Gorsuch, said we don’t know enough now as to what the safety
issue is. Mr. True said Section H paragraph 33 of Lift One Lodge and 30 of Gorsuch has an obligation of
one third for installation. What you are talking about is adding operation and maintenance. That change
could be done here. It is up to you. I’m not sure where the applicants are on that. Since there are other
users of S Aspen Street the city could be picking up their part. Councilman Frisch said it would be nice
to have that. Mr. True said what you do obligate them to do is contribute to it. I’m not too sure the
applicants are supportive of it. Councilwoman Mullins said my point is not just look at the cost of
installation but the cost of ongoing maintained. Aaron Brown, Lift One Lodge, said we are inclined to
accept it on principle.
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Ms. Garrow said we wanted to memorialize an existing easement. We have some slightly different
reading of what it says. It is for safe utility easements and waiver of encroachment fees related to soil
nailing. We can continue to work on the language. As is, there is now a payment of fees that are due
when you encroach in the right of way with soil nailing. Because the city did not collect payment at the
time, we waived those fees. We have a slightly different read on that. We tried to carve out a fair path
forward where the fees are waived for 8 months. Councilwoman Mullins said are they asking for more
money. Ms. Garrow replied not really. Mr. Barwick said when soil nails are put in and left in they
interfere with future construction. We instilled a pretty high fee for that. They are planning on taking
them out in this case. The purpose behind this fee was when they leave the nails in. Councilman Myrin
said this isn’t money the city is giving up or a cost to the city. It is a fee we had to do the right thing. The
incentive to do the right is what. Ms. Garrow said 8 months to do the construction and use this system.
Trish Aragon, city engineer, said I believe they will be leaving them in. We require them to be removed
to the 7 foot depth. Beyond that they will be kept. Ms. Garrow said beyond that they have done the
proper construction and the building will be braced. Councilman Myrin said if the first 7 feet don’t come
out what happens. Ms. Aragon replied after 8 months if they are still excavating and in a temporary
condition then the fee kicks in. Councilman Myrin said he does not see the downside to this.
Mayor Skadron said we have no objection to soil nails.
Ms. Garrow said the only other outstanding item is the Gorsuch Lot 2 restriction. Mike Kraemer,
community development, said Lot 1 is the Gorsuch development and Lot 2 is the remainder. We have
come up with some language for some development restrictions while acknowledging the uses. Staff
concerns with a carte blanch general recreation statement is we didn’t want to see zip lines and roller
coasters as an allowed use on the parcel. There is specific language about non-mechanized recreation.
To Ward’s concern about the public vote and free market use. For it to be amended it would have to be
done through a public vote. Councilman Myrin asked if there is anything that would prohibit world cup
staging. Mr. Kraemer said we specifically called out special events.
Ms. Garrow said we need to change the name of the tramway board in the ordinance.
Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public
comment.
Mr. True asked about Ward’s comment on the housing below subgrade for Gorsuch. Mr. Kraemer said
the project contains one on site housing unit. It is located more than 50% below grade and that requires a
special review. The unit is located on the western side of the lodge and that is where the skier return and
stairway is. The unit has direct access to the stairway. While it is below grade it does have direct access
to the outside. That is why staff is comfortable with the recommendation of approval.
Councilman Hauenstein moved to adopt Resolution #2, Series of 2019; seconded by Councilwoman
Mullins.
Mr. Clauson said there are a few typos and minor corrections that need to be made to the ordinances.
They also want to make some improvements to the sequencing issue where it is discussed about
construction staging and how the lift will occur. Ms. Garrow said not knowing what those minor
corrections are at this point they would have to be very minor and more scriveners errors or we can
continue to ensure all the parties are agreeing on those changes. Delivery of the lift is something that is
ultimately up to the Aspen Ski Company and they would also need to ensure approval. Mr. True said we
can recognize scriveners error but if there is something that is more substantive, and it is possible, we
would need to continue this consideration of the resolution until next week.
Council took a dinner break so the applicants could discuss further.
8:55p.m. back from dinner
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Mr. Clauson said they are aware there needs to be agreements made of all sorts related to easements. We
are prepared to agree to the language as written. They request one simple change related to a setback, a
five foot setback of the easterly side yard setback. Ms. Garrow said we’ve discussed other specific
changes like the tramway board change. She said we received an email from Kelly Murphy specific to
operation of the skier chalet lodge giving the city first right of refusal.
Councilman Myrin said he will not support this. He supports something going to the ballot. He wanted
to vote no on the land use and yes on something going to the ballot. He does not support the discretionary
employee reductions and he is concerned about where the money is coming from as outlined in the memo
by the city manager. This is not ready and is irresponsible for council to hand this to the voters in its
current form.
Councilwoman Mullins said we’ve worked on this for a really long time and this is the best project
possible. We’ve scrutinized it and accepted the code we may have found hard to accept. It is the most
complete beneficial project for the city. She is hoping the voters approve it.
Councilman Hauenstein said he is comfortable sending it to the voters.
Councilman Frisch said there was discussion earlier about getting information back about financial
tradeoffs. Will that still be worked on. This shows the difference about approvals that gets decided at the
table and the ballot box. He will stick to his belief that we need to send this to the voters and they need to
do a lot of homework. He hopes we get to see a project happen as soon as possible. I will support this.
Mayor Skadron said he will not support this because of the referral without council approval and the city
contribution. It is above and beyond our responsibility.
Councilman Myrin said the difference between council and ballot box approval. Why can’t we get this
where we are comfortable. Councilman Frisch said it is two different processes. The process would have
been a lot different and they would be reacting about different things if there was a need to accumulate
three votes. Councilman Myrin said we can require a majority of council to approve the land use then
refer it to the voters. We have that opportunity. There is another ballot in a month. There is no need to
get this out immediately. We should make it the best it can be before it goes to the ballot. Councilman
Frisch said I think as Ann and Ward said after all this time when you look at a multi component thing
looking at the conglomeration, while I wish there was less money on the table from the community, the
totality will be a benefit to the community. Based on the totality I still remain supportive of going to the
voters in March.
Roll call vote. Councilmembers Hauenstein, yes; Mullins, yes; Myrin, no; Frisch, yes; Mayor Skadron,
no. Motion carried.
At 9:05 p.m.; Councilman Hauenstein moved to adjourn; seconded by Councilman Frisch. All in favor,
motion carried.
Linda Manning
City Clerk
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MEMORANDUM
TO: Mayor and City Council
FROM: Pete Strecker, Assistant Finance Director
THRU: Sara Ott, Asst. City Manager
MEETING DATE: January 14, 2019
RE:
Ordinance #3, Series of 2019 - Refinancing Existing Castle Creek Energy
Center Debt to Achieve Interest Rate Savings and a Shorter Remaining
Duration
REQUEST OF COUNCIL: Staff is recommending the refinancing of existing debt associated
with the Castle Creek Energy Center (CCEC), to take advantage of a fixed interest rate of 2.90%,
thereby lowering the cost of this borrowing by roughly $113,000 on a net present value basis
along with shortening the outstanding term on this borrowing from ten years to seven years.
BACKGROUND: Voters approved the issuance of general obligation bonds for the Castle
Creek Energy Center in 2008. Conditions for this borrowing allowed for $5.5M in principal,
with an average coupon (interest) rate of 4.482% and term that extended through 2035.
Due to a change in voter sentiment around the Castle Creek Energy Center, the project was
cancelled before it was completed, and proceeds from the project were only partially consumed.
To address the balance of these debt proceeds following the project cancellation - as these funds
are restricted for a specific use - staff had been applying the proceeds toward annual debt service
for the CCEC.
In December 2018, the Council approved staff to exercise a partial call on the outstanding bonds
(this was the first available opportunity to exercise a call under the original bond issuance). This
partial call allowed the Finance Director to apply the remaining balance of debt proceeds ($1.97
million) to call term bonds with maturity dates in 2033 and 2035 and with interest rates of 4.75%
and 4.85% respectively. This partial call applied the restricted debt proceeds to lower the overall
outstanding principal by a like amount, and reduced associated interest, such that the net present
value savings to the Electric Fund was roughly $380K.
RECOMMENDED ACTION: There is still $2.09M in outstanding debt associated with the
Castle Creek Energy Center, that extends through 2028 and with interest rates of 3.85% to 4.50%
depending on the maturity of the bonds. Staff is proposing to refinance this debt at a fixed rate
of 2.90% and with a duration that will be three years sooner in 2025. This refinancing can be
done through a private placement agreement with a bank (ZMFU II, Inc. a subsidiary of Zions
Bancorporation) and achieve an additional $113K in net present value savings for the Electric
Fund. Total savings from the previous partial call plus this action will be approximately $505K.
PROPOSED MOTION: “I move to adopt Ordinance #3, Series of 2019, to proceed with the
refunding of existing Castle Creek Energy Center debt and take advantage of lower interest rates and
achieve net present value savings of $113K.”
CITY MANAGER COMMENTS:
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VIII.a
ORDINANCE NO. 3
(SERIES OF 2019)
AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY OF
ASPEN, COLORADO, OF ITS GENERAL OBLIGATION ELECTRIC
UTILITY REFUNDING LOAN, SERIES 2019; AND APPROVING A LOAN
AGREEMENT AND CERTAIN OTHER DOCUMENTS IN CONNECTION
THEREWITH; AND PROVIDING OTHER MATTERS RELATING
THERETO.
RECITALS
WHEREAS, the City of Aspen (the “City”), in the County of Pitkin and State of
Colorado, is a legally and regularly created, established, organized and existing municipal
corporation under the provisions of Article XX of the Constitution of the State of Colorado and
the home rule charter of the City (as more particularly defined in Section 1 herein, the “Charter”)
(all capitalized terms used and not otherwise defined in the recitals hereof shall have the meaning
assigned in Section 1 of this Ordinance); and
WHEREAS, under the Charter, the City is possessed of all powers which are necessary,
requisite or proper for the government and administration of its local and municipal matters, all
powers which are granted to home rule municipalities by the Colorado Constitution, and all
rights and powers that now or hereafter may be granted to municipalities by the laws of the State
of Colorado; and
WHEREAS, the City is authorized by Section 10.1 of the Charter to borrow moneys and
to issue general obligation bonds to evidence such borrowing, subject to the approval of a
question proposing their issuance at a general or special election by a majority of registered
electors of the City voting thereon; and
WHEREAS, at an election called on November 6, 2007 (the “Election”), the City
submitted the following question (the “Ballot Question”) to the registered electors of the City for
approval:
SHALL CITY OF ASPEN DEBT BE INCREASED BY UP TO $5,500,000,
WITH A MAXIMUM REPAYMENT COST OF $10,780,000 BY THE
ISSUANCE OF GENERAL OBLIGATION BONDS FOR THE PURPOSE OF
CONSTRUCTING AND EQUIPPING A NEW HYDROELECTRIC
FACILITY ON CASTLE CREEK, WHICH DEBT SHALL BE PAYABLE
FROM (1) ELECTRIC UTILITY FEES AND (2) TO THE EXTENT THE
CITY COUNCIL DETERMINES THAT THE REVENUES PROJECTED TO
BE AVAILABLE FROM SUCH ELECTRIC UTILITY FEES WILL BE
INSUFFICIENT TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND
INTEREST ON SUCH DEBT AND TO OTHERWISE COMPLY WITH THE
COVENANTS OF THE ORDINANCE OR OTHER INSTRUMENTS
GOVERNING SUCH DEBT IN ANY YEAR, FROM THE TAXES
DESCRIBED BELOW; SHALL CITY TAXES BE INCREASED BY UP TO
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VIII.a
2
$359,128 ANNUALLY IN ANY YEAR BY THE LEVY OF AD VALOREM
PROPERTY TAXES, WITHOUT LIMITATION AS TO RATE OR AMOUNT
OR ANY OTHER CONDITION, TO PAY THE PRINCIPAL OF, PREMIUM,
IF ANY, AND INTEREST ON SUCH DEBT AND TO OTHERWISE
COMPLY WITH THE COVENANTS OF THE ORDINANCE OR OTHER
INSTRUMENTS GOVERNING SUCH DEBT AND TO THE EXTENT THE
CITY COUNCIL DETERMINES THAT THE REVENUES PROJECTED TO
BE AVAILABLE FROM SUCH ELECTRIC UTILITY FEES WILL NOT BE
SUFFICIENT THEREFOR; SHALL SUCH DEBT MATURE, BE SUBJECT
TO REDEMPTION, WITH OR WITHOUT PREMIUM, AND BE ISSUED,
DATED AND SOLD AT SUCH TIME OR TIMES, AT SUCH PRICES (AT,
ABOVE OR BELOW PAR) AND IN SUCH MANNER AND WITH SUCH
TERMS, NOT INCONSISTENT HEREWITH, AS THE CITY COUNCIL
MAY DETERMINE; AND SHALL THE CITY BE AUTHORIZED TO
COLLECT, RETAIN AND EXPEND ALL OF THE REVENUES OF SUCH
TAXES, THE PROCEEDS OF SUCH BONDS AND THE EARNINGS
THEREON IN 2007 AND EACH SUBSEQUENT YEAR,
NOTWITHSTANDING THE LIMITATIONS OF ARTICLE X, SECTION 20
OF THE COLORADO CONSTITUTION (TABOR), SECTION 29-1-301,
COLORADO REVISED STATUTES, OR ANY OTHER LAW?
WHEREAS, pursuant to such Ballot Question as approved by the voters on November 6,
2007, the City issued its General Obligation Electric Utility Bonds, Series 2008, originally issued
in the aggregate principal amount of $5,500,000; and
WHEREAS, pursuant to Section 10.6 of the Charter, the City Council of the City (the
“City Council”) may authorize, by ordinance, without an election, the issuance of refunding
bonds or any like securities for the purpose of refunding and providing for the payment of the
City’s outstanding bonds; and
WHEREAS, Article X, Section 20 of the Colorado Constitution (“TABOR”) provides
that voter approval in advance is required for the creation of any district (as such term is defined
in TABOR, which includes governmental entities such as the City) direct or indirect debt or
other multiple-fiscal year financial obligation whatsoever except for refinancing district bonded
debt at a lower interest rate; and
WHEREAS, the 2008 Bonds maturing on and after December 1, 2019 are subject to
redemption prior to their maturity, at the option of the City, on December 1, 2018, or on any date
thereafter, at a redemption price equal to the principal amount of the bonds so redeemed, plus
accrued interest to the redemption date; and
WHEREAS, the City Council has determined that it is in the best interests of the City to
refund such portion of the outstanding 2008 Bonds as specified in the Sale Certificate (as more
particularly defined herein, the “Refunded Bonds”) for the purpose of refunding such Refunded
Bonds at a lower interest rate (the “Refunding Project”); and
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WHEREAS, the City Council has been presented with a proposal from ZMFU II, Inc.
(the “Lender”), for a loan to finance the costs of the Refunding Project; and
WHEREAS, such loan (the “Loan”) will be evidenced by a Loan Agreement (the “Loan
Agreement”) between the City and the Lender, and a promissory note (the “Note”) delivered by
the City to the Lender; and
WHEREAS, the Lender is a wholly-owned subsidiary of Zions Bancorporation, N.A.,
which is (a) an “accredited investor,” as defined in Rule 501(A)(1), (2), (3) or (7) of Regulation
D promulgated under the Securities Act of 1933, as amended (an “Institutional Accredited
Investor”) or (b) a “qualified institutional buyer,” as defined in Rule 144A promulgated under
the Securities Act of 1933, as amended (a “Qualified Institutional Buyer”); and
WHEREAS, Stifel Nicolaus & Company, Incorporated, is acting as Placement Agent to
the City with respect to the placement of the Loan with the Lender; and
WHEREAS, the City Council intends to pay the principal of and interest on the Loan
from: (a) customer usage fees and any other fees received from the operation of the City’s
Electric Utility system on deposit in the City’s Electric Fund (as defined herein) and available
for the payment of the Loan (as more particularly defined herein, “Available Electric Utility
Fees”); and (b) to the extent Available Electric Utility Fees are not sufficient, ad valorem
property taxes authorized in the Ballot Question; and
WHEREAS, notwithstanding the City’s intention to pay amounts due on the Loan from
Available Electric Utility Fees and ad valorem property taxes authorized in the Ballot Question,
the Loan is a general obligation of the City and the full faith and credit of the City are pledged to
its payment; and
WHEREAS, no member of the City Council has a potential conflict of interest in
connection with the authorization, issuance, sale or use of proceeds of the Loan; and
WHEREAS, there has been presented to the City Council, among other things,
substantially final forms of (a) the Placement Agent Agreement, and (b) the Loan Agreement,
including the form of Note; and
WHEREAS, subject to the limitations set forth in this Ordinance, the City Council
desires, as provided in the Supplemental Public Securities Act, Part 2 of Article 57 of Title 11 of
the Colorado Revised Statutes, as amended, to delegate the authority to the Mayor, the City
Manager, or the Finance Director, to identify the Refunded Bonds and to determine certain
provisions of the Loan to be set forth in the Sale Certificate, in accordance with the provisions of
this Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
Section 1. Definitions. The following tell is shall have the following meanings for
purposes of this Ordinance:
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“Acts” means, collectively, the State Constitution, the Charter, and Part 2 of Article 57 of
Title 11, Colorado Revised Statutes, as amended.
“Authorized Officer” means the person or persons authorized to execute the Financing
Documents, which shall be the Mayor and/or City Clerk, or in the absence of the Mayor and City
Clerk, the Mayor Pro-Tem and/or Deputy City Clerk, and the Finance Director.
“Available Electric Utility Fees” means, as of any particular date of determination, all
Electric Utility Fees and earnings thereon on deposit in the City’s Electric Fund and available for
payment of the principal of and interest on the Note after taking into account all administrative,
operation and maintenance expenses of the City payable from the Electric Fund, as determined
by the City.
“Ballot Question” means the ballot question approved by City voters on November 6,
2007, defined as such in the preambles hereto.
“Business Day” means any day other than (a) a Saturday or Sunday or (b) a day on
which banking institutions in the State are authorized or obligated by law or executive order to
be closed for business.
“Charter” means the Charter of the City of Aspen, adopted June 16, 1970, as amended.
“City” is defined in the recitals hereof.
“City Council” means the City Council of the City, and any successor body.
“Code” means the Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder and applicable to the Note or the use of proceeds thereof, unless
the context clearly requires otherwise.
“Dated Date” means the original dated date for the Note as established in the Sale
Certificate.
“Electric Fund” means the City’s Electric Enterprise Fund (formerly consisting of the
Electric Enterprise Fund and Ruedi Hydroelectric Enterprise Fund, which funds have been
combined), and any other fund created by City Council for the purpose of accounting for
revenues received in connection with its operation of electric utilities (including, but not limited
to, any fund created to account for revenues relating to the Hydroelectric Facility on Castle
Creek).
“Electric Utility Fees” means customer usages fees and any other fees received by the
City as a result of the City’s operation of its Electric Utility.
“Finance Director” means the Director of Finance, or his or her absence, the Assistant
Finance Director.
“Financing Documents” means the Loan Agreement and the Note.
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“Loan” means the General Obligation Electric Utility Refunding Loan, Series 2019,
made by Lender to the City pursuant to the Loan Agreement.
“Note” means the promissory note in the form attached to the Loan Agreement executed
by the City and delivered to the Lender evidencing the City’s obligations to pay the Loan.
“Ordinance” means this Ordinance, including any amendment or supplement hereto.
“Placement Agent” means Stifel, Nicolaus & Company, Incorporated.
“Placement Agent Agreement” means that agreement between the Placement Agent and
the City concerning the private placement of the Loan with the Lender.
“Pledged Revenue” means the moneys derived by the City from the following sources,
net of any costs of collection:
(i) the Available Electric Utility Fees;
(ii) the Ad Valorem Property Taxes; and
(iii) any other legally available moneys which the City determines, in its
absolute discretion, to transfer to the Trustee for application as Pledged Revenue.
“Redemption Date” means the first date or dates on which any Refunded Bonds may be
called for redemption as specified in the Sale Certificate
“Refunded Bonds” means any of the outstanding 2008 Bonds as specified in the Sale
Certificate.
“Refunding Project” means the execution and delivery of the Loan for the purpose of
defraying the costs of refunding the Refunded Bonds and payment of the costs of execution and
delivery of the Loan.
“Sale Certificate” means the certificate executed by the Sale Delegate, under the
authority delegated pursuant to this Ordinance, including, among other things, the aggregate
principal amount of the Note, the prices at which the Note will be sold, interest rates and annual
maturing principal for the Note, as well as the dates on which the Note may be redeemed and the
redemption price therefore.
“Sale Delegate” means any of the Mayor of the City, the Mayor Pro Tem and the
Finance Director.
“State” means the State of Colorado.
“2008 Bonds” means the City of Aspen, Colorado, General Obligation Electric Utility
Bonds, Series 2008, as further described in the recitals hereto.
Section 2. Approvals, Authorizations, and Amendments. The Financing
Documents and the Placement Agent Agreement are incorporated herein by reference and are
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hereby approved. The City shall enter into and perform its obligations under the Financing
Documents and the Placement Agent Agreement in the forms of such documents presented at
this meeting, with only such changes as are not inconsistent herewith. The Authorized Officers
are hereby authorized and directed to execute the Financing Documents and the Placement Agent
Agreement, and to affix the seal of the City thereto as appropriate, and to further execute and
authenticate such other documents, instruments or certificates as are deemed necessary or
desirable in order to secure the Loan. Such documents are to be executed in substantially the
forms presented at this meeting of the City Council, provided that such documents may be
completed, corrected or revised as deemed necessary by the parties thereto in order to carry out
the purposes of this Resolution. Copies of all of the Financing Documents and the Placement
Agent Agreement shall be delivered, filed and recorded as provided therein.
Upon execution and delivery of the Financing Documents and the Placement
Agent Agreement, the covenants, agreements, recitals and representations of the City therein
shall be effective with the same force and effect as if specifically set forth herein, and such
covenants, agreements, recitals and representations are hereby adopted and incorporated herein
by reference.
The proper officers of the City are hereby authorized and directed to prepare and
furnish to any interested person certified copies of all proceedings and records of the City
relating to the Loan and such other affidavits and certificates as may be required to show the
facts relating to the authorization and issuance thereof.
The execution of any instrument by an Authorized Officer of the City in
connection with the issuance, sale or delivery of the Financing Documents and the Placement
Agent Agreement not inconsistent herewith shall be conclusive evidence of the approval by the
City of such instrument in accordance with the terms thereof and hereof.
Section 3. Authorization. In accordance with the Constitution of the State of
Colorado; the Acts; and all other laws of the State of Colorado thereunto enabling, the City shall
execute and deliver the Financing Documents for the purpose of paying a portion of the costs of
the Refunding Project. The Loan shall constitute a general obligation of the City as provided in
the Loan Agreement. The Board hereby determines to apply all of the provisions of the
Supplemental Act to the Note and the Loan.
Section 4. Delegated Authority. Pursuant to Section 11-57-205, C.R.S., the City
Council hereby delegates to any Sale Delegate the authority to execute and deliver the Sale
Certificate setting forth the final terms of the Loan subject to the parameters contained in Section
9 below.
Section 5. Payment of Refunded Bonds. The proceeds of the Loan and the Notes
shall be promptly delivered to Wells Fargo Bank, National Association, as the paying agent for
the Refunded Bonds (the “Paying Agent”), and be applied to the payment of the Refunded Bond
Requirements as of the Redemption Date.
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Section 6. Permitted Amendments to Ordinance. The City may amend this
Ordinance in the same manner, and subject to the same terms and conditions, as apply to an
amendment or supplement to the Loan Agreement.
Section 7. Authorization to Execute Collateral Documents. Each City Council
member and each officer of the City is hereby authorized and directed to take all actions
necessary or appropriate to effectuate the provisions of this Ordinance, including but not limited
to the execution of such certificates and affidavits as may be reasonably required.
Section 8. Costs and Expenses. All costs and expenses incurred in connection with
the Loan, the Note, and the transactions contemplated by this Ordinance shall be paid from
legally available moneys of the City and such moneys are hereby appropriated for that purpose.
Section 9. Delegation and Parameters.
(a) The City Council hereby delegates to the Sale Delegate the authority to
determine and set forth in the Sale Certificate: (i) the matters set forth in subsection (b) of
this Section, subject to the applicable parameters set forth in subsection (c) of this
Section; and (ii) any other matters that, in the judgment of the Sale Delegate, are
necessary or convenient to be set forth in the Sale Certificate and are not inconsistent
with the parameters set forth in subsection (c) of this Section.
(b) The Sale Certificate shall set forth the following matters and other
matters permitted to be set forth therein pursuant to subsection (a) of this Section, but
each such matter must fall within the applicable parameters set forth in subsection (c)
of this Section:
(i) the date on which the Loan and Note will be executed and
delivered;
(ii) the Dated Date of the Note and, if not the date of delivery of the
Note, the amount of proceeds of the Note constituting accrued interest to be
deposited into the Note Account;
(iii) the aggregate principal amount of the Loan;
(iv) the principal amount of the Loan maturing in each year;
(v) the interest payment dates;
(vi) the rate of interest;
(vii) the dates upon which any prepayment of the Loan may occur, and
the prices at which such prepayment may occur;
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(viii) the principal amounts, if any, of the Note subject to mandatory
sinking fund redemption, and the years in which such Note will be subject to such
redemption;
(c) The authority delegated to the Sale Delegate by this Section shall be
subject to the following parameters:
(i) the aggregate principal amount of the Loan shall not exceed
$2,150,000;
(ii) the final maturity of the Loan shall be no later than December 1,
2025; and
(iii) the maximum annual repayment cost due and owing under the
Loan shall not exceed $356,970 and the maximum total repayment cost shall not
exceed $2,385,000;
(iv) the interest rate on the Loan shall not exceed 2.90%.
Section 10. Application of Supplemental Act. The City Council specifically elects to
apply all of the provisions of Title 11, Article 57, Part 2, C.R.S. (as previously defined, the
“Supplemental Act”), to the Note.
Section 11. Pledge of Revenues. The creation, perfection, enforcement, and priority
of the pledge of revenues to secure or pay the Loan as provided herein shall be governed by
Section 11-57-208 of the Supplemental Act and this Ordinance. The revenues pledged for the
payment of the Loan, as received by or otherwise credited to the City, shall immediately be
subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of
such pledge on the revenues pledged for payment of the Loan and the obligation to perform the
contractual provisions made herein shall have priority over any or all other obligations and
liabilities of the City. The lien of such pledge shall be valid, binding, and enforceable as against
all Persons having claims of any kind in tort, contract, or otherwise against the City irrespective
of whether such Persons have notice of such liens.
Section 12. No Recourse Against Officers and Agents. Pursuant to Section 11-57-
209 of the Supplemental Act, if a member of the City Council, or any officer or agent of the City
acts in good faith, no civil recourse shall be available against such member, officer, or agent for
payment of the principal, interest or prior redemption premiums on the Loan. Such recourse
shall not be available either directly or indirectly through the City Council, or otherwise, whether
by virtue of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the
acceptance of the Loan and as a part of the consideration of their sale or purchase, any Person
purchasing or selling such Note specifically waives any such recourse.
Section 13. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental
Act, the Note shall contain a recital that they are issued pursuant to the Supplemental Act. Such
recital shall be conclusive evidence of the validity and the regularity of the issuance of the Note
after their delivery for value.
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Section 14. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or
equitable action brought with respect to any legislative acts or proceedings in connection with
the authorization or issuance of the Loan shall be commenced more than thirty days after the
authorization of the Note.
Section 15. Events Occurring on Days That Are Not Business Days. Except as
otherwise specifically provided herein with respect to a particular payment, event or action, if
any payment to be made hereunder or any event or action to occur hereunder which, but for this
Section, is to be made or is to occur on a day that is not a Business Day, such payment, event or
action shall instead be made or occur on the next succeeding day that is a Business Day with the
same effect as if it was made or occurred on the date on which it was originally scheduled to be
made or occur.
Section 16. Ordinance Is Contract with Lender and Irrepealable. After the Note
has been issued, and the Loan and Loan Agreement executed and delivered, this Ordinance shall
be and remain a contract between the City and the Lender and shall be and remain irrepealable
until all amounts due with respect to the Loan shall be fully paid, satisfied and discharged and all
other obligations of the City with respect to the Loan shall have been satisfied in the manner
provided herein.
Section 17. Headings. The headings to the various sections and subsections to this
Ordinance have been inserted solely for the convenience of the reader, are not a part of this
Ordinance and shall not be used in any manner to interpret this Ordinance.
Section 18. Severability. It is hereby expressly declared that all provisions hereof and
their application are intended to be and are severable. In order to implement such intent, if any
provision hereof or the application thereof is determined by a court or administrative body to be
invalid or unenforceable, in whole or in part, such determination shall not affect, impair or
invalidate any other provision hereof or the application of the provision in question to any other
situation; and if any provision hereof or the application thereof is determined by a court or
administrative body to be valid or enforceable only if its application is limited, its application
shall be limited as required to most fully implement its purpose.
Section 19. Repeal of Inconsistent Ordinances. All ordinances, or parts thereof, that
are in conflict with this Ordinance, are hereby repealed.
Section 20. Ratification of Prior Actions. All actions heretofore taken (not
inconsistent with the provisions of this Ordinance, or the Charter) by the City Council or by the
officers and employees of the City directed toward the issuance of the Note for the purposes
herein set forth are hereby ratified, approved and confirmed.
Section 21. Recordation. A true copy of this Ordinance, as adopted by the City
Council of the City, shall be numbered and recorded, and its adoption and publication shall be
authenticated by the signatures of the Mayor and the City Clerk and by a certification of
publication.
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Section 22. Effective Date. This Ordinance shall be effective thirty (30) days after
final passage of the Ordinance upon second reading by the City Council, as provided in Section
4.9 of the Charter.
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INTRODUCED, READ AND PASSED ON FIRST READING by the City Council of the City
of Aspen at its regular meeting on January 14, 2019, as provided by the City’s Charter and
applicable law.
[SEAL] By
Mayor
Attest:
By
City Clerk
READ, PASSED ON SECOND READING, FINALLY ADOPTED AND APPROVED AND
ORDERED PUBLISHED BY TITLE AFTER SUCH FINAL PASSAGE by the City Council of
the City of Aspen at its regular meeting on January 28, 2019, as provided by the City’s Charter
and applicable law.
[SEAL] By
Mayor
Attest:
By
City Clerk
[signature page to Note Ordinance]
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STATE OF COLORADO )
) SS.
CITY OF ASPEN )
I, Linda Manning, the City Clerk of the City of Aspen, Colorado, do hereby
certify that:
1. The foregoing pages are a true and correct copy of an ordinance (the
“Ordinance”) passed and adopted by the City Council (the “Council”) at a regular meeting held
on January 14, 2019.
2. The passage of the Ordinance on first reading on January 14, 2019, was
duly moved and seconded and the Ordinance was approved by a vote of _____ to _____ of the
members of the Council as follows:
Name “Yes” “No” Absent Abstain
Steve Skadron, Mayor
Adam Frisch
Ward Hauenstein
Ann Mullins
Bert Myrin
3. The passage of the Ordinance on second and final reading was duly moved
and seconded at a regular meeting of the Council on January 28, 2019, and the Ordinance was
approved on second and final reading by a vote of a ___ of ___ of the members of the Council as
follows:
Name “Yes” “No” Absent Abstain
Steve Skadron, Mayor
Adam Frisch
Ward Hauenstein
Ann Mullins
Bert Myrin
4. The members of the City Council were present at such meetings and voted
on the passage of such Ordinance as set forth above.
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5. The Ordinance was authenticated by the signature of the Mayor, sealed
with the City seal, attested by the City Clerk, and recorded in the minutes of the City Council.
6. There are no bylaws, rules or regulations of the City Council that might
prohibit the adoption of the Ordinance.
7. Notices of the meetings of January 14, 2019, and January 28, 2019, in the
forms attached hereto as Exhibit A were posted at the City Hall not less than 24 hours prior to
each meeting in accordance with law.
8. The Ordinance was published by posting on the City’s internet website,
www.cityofaspen.com, as provided by Section 4.10(h) of the Home Rule Charter, on
__________, 2019.
WITNESS my hand and the seal of the City affixed this ____ day of __________, 2019.
City Clerk
(SEAL)
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EXHIBIT A
Notices of Meetings
45255460.v3
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LOAN PLACEMENT AGENT AGREEMENT
January 15, 2019
City of Aspen
130 S. Galena Street, 1st Floor
Aspen, Colorado 81611
Re: General Obligation Electric Utility Refunding Loan, Series 2019
Upon the terms and conditions and based upon the representations, warranties and
covenants set forth herein, Stifel, Nicolaus & Company, Incorporated (the “Loan Placement
Agent”) offers to enter into this Loan Placement Agent Agreement (this “Agreement”) with the
City of Aspen (the “Borrower”), which, upon acceptance of this offer, shall be binding upon the
Borrower and the Loan Placement Agent. This offer is made subject to acceptance of this
Agreement by the Borrower before or on January 15, 2019, and, if not so accepted, will be
subject to withdrawal by the Loan Placement Agent upon notice delivered to your office at any
time prior to acceptance hereof. If the obligations of the Loan Placement Agent shall be
terminated for any reason permitted hereby, neither the Loan Placement Agent nor the Borrower
shall be under further obligation hereunder.
The above-captioned Loan (the “Loan”) is to be issued pursuant to an authorizing
ordinance duly adopted by the City Council of the Borrower, and a Loan Agreement between the
Borrower and ZMFU II, Inc., (the “Bank”) dated as of February 28, 2019 (the “Loan
Agreement”). The obligation of the Borrower to repay the Loan is evidenced by a Promissory
Note (the “Note”) dated as of February 28, 2019.
1. Execution of the Loan Agreement and delivery of the Note. On the basis
of the representations and agreements contained herein, but subject to the terms and conditions
herein set forth, the Loan Placement Agent agrees, on a best efforts basis, to place the Loan with
the Bank on terms mutually agreeable to the Borrower and the Bank. The terms and conditions
of the Note shall be as set forth in the Loan Agreement.
For its services hereunder, and upon execution of the Loan Agreement by the Borrower
and the Bank (the date of such payment herein, the “Closing Date”), the Loan Placement Agent
shall receive compensation, payable by the Borrower, equal to $12,500.00, (the “Fee”). On the
Closing Date, the Borrower shall pay or cause to be paid the Fee to the Loan Placement Agent by
wire transfer or immediately available funds. The Fee does not include any services the Loan
Placement Agent may render in the future to the Borrower.
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2. Representations of the Borrower. The undersigned, on behalf of the
Borrower, but not individually, hereby represents that:
(a) any statements made by the Borrower to the Bank to induce it to execute
the Loan Agreement and deliver the Note (including any materials provided to the Loan
Placement Agent for that purpose) were accurate and not misleading;
(b) there shall be no CUSIP for the Note and the Note shall not be DTC-
eligible.
3. Intent of the Parties. It is the intent of the Parties, and the Lender has
stated in its commitment dated November 28, 2018, that (a) the Loan is not intended to be a
security, (b) the Lender will treat the Loan as a loan and not a security for accounting purposes,
and (c) the Note will neither be assigned a CUSIP number nor made DTC eligible; and (c) no
official statement or other offering document was prepared with respect to the Loan Agreement
and the Note.
4. Conditions to Closing. At or prior to the Closing Date, the Loan
Placement Agent shall have received:
(a) a Lender Letter, in the form attached to this Agreement as Exhibit A and
in form and substance acceptable to the Loan Placement Agent, executed by the Bank and
addressed to the Loan Placement Agent; and
(b) an opinion of counsel to the Borrower that is permissible under the laws of
the State of Colorado (the “State”) for the Borrower to enter into the Loan Agreement and to
execute the Loan Agreement and the Note.
5. Termination. This Agreement may be terminated by either party upon ten
(10) business days’ prior written notice; provided, however, that: (i) the Fee shall be immediately
due and payable by the Borrower if the Borrower terminates this Agreement and executes a Loan
with a bank identified by Stifel to the Borrower prior to such termination and such Loan is
executed within six (6) months after termination of this Agreement.
6. Expenses. There shall be paid by the Borrower promptly after closing the
following: (a) the fees and disbursements of Borrower’s counsel; and (b) the Fee. The Loan
Placement Agent shall be under no obligation to pay any expenses incident to this Agreement.
7. Regulatory Disclosure. The Borrower acknowledges that, in connection
with the placement of the Loan (a) the Loan Placement Agent has acted at arm’s length, is acting
solely for its own account and is not agent of or advisor (including, without limitation, a
Municipal Advisor (as such term is defined in Section 975(e) of the Dodd-Frank Wall Street
Reform and Consumer Protection Act)) and owes no fiduciary duty to, the Borrower or any other
person, (b) the Loan Placement Agent’s duties and obligations to the Borrower shall be limited to
those contractual duties and obligations set forth in this Agreement, (c) the Loan Placement
Agent may have interests that differ from those of the Borrower, and (d) the Borrower has
consulted its legal and financial advisors to the extent it deemed appropriate in connection with
the execution of the Loan Agreement and the Note. The Borrower further acknowledges and
agrees that it is responsible for making its judgment with respect to the execution of the Loan
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Agreement and the Note and the process leading thereto. The Borrower agrees that it will not
claim that the Loan Placement Agent acted as a Municipal Advisor to the Borrower or rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrower, in
connection with the execution of the Loan Agreement or the Note or the process leading thereto.
8. Survival of Certain Representations and Obligations. The respective
agreements, covenants, representations, warranties and other statements of the Borrower and its
officers set forth in or made pursuant to this Agreement shall survive the execution of the Loan
Agreement and the Note and shall remain in full force and effect, regardless of any investigation,
or statements as to the results thereof, made by or on behalf of the Loan Placement Agent.
9. Notices. Any notice or other communication to be given to the Borrower
under this Agreement may be given by delivering the same in writing to the Borrower at its
address set forth above. Any notice or other communication to be given to the Loan Placement
Agent under this Agreement may be given by delivering the same in writing to Stifel, Nicolaus
& Company, Incorporated, 1401 Lawrence Street, Suite 900, Denver, CO 80202, Attention:
Michael Lund, Director.
10. No Assignment. This Agreement has been made by the Borrower and the
Loan Placement Agent, and no person other than the foregoing shall acquire or have any right
under or by virtue of this Agreement.
11. Applicable Law. This Agreement shall be interpreted, governed and
enforced in accordance with the laws of the State of Colorado.
12. Effectiveness. This Agreement shall become effective upon its execution
by duly authorized officials of all parties hereto and shall be valid and enforceable from and after
the time of such execution.
13. Severability. In the event any provision of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof.
14. Counterparts. This Agreement may be executed in several counterparts
(including counterparts exchanged by email in PDF format), each of which shall be an original
and all of which shall constitute but one and the same instrument.
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Respectfully submitted,
STIFEL, NICOLAUS & COMPANY,
INCORPORATED
........................................................................
Michael Lund, Director
ACCEPTED this 15th of January, 2019.
CITY OF ASPEN
By:
______________________________________
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EXHIBIT A
FORM OF LENDER LETTER
City of Aspen
Finance Department
130 S Galena Street, 1st Floor
Aspen, CO 81611
Stifel, Nicolaus & Company, Incorporated
1401 Lawrence Street, Suite 900
Denver, CO 80202
Re: General Obligation Electric Utility Refunding Loan, Series 2019
Ladies and Gentlemen:
ZFMU II, Inc. (the “Lender”) hereby certifies as follows with regard to the Loan Agreement,
dated as of February 28, 2019 (the “Loan Agreement”), by and between the City of Aspen (the
“Borrower”) and the Lender and the Promissory Note executed by the Borrower, dated February
28, 2019 (the “Note”):
1. The Lender has full power and authority to carry on its business as now conducted,
deliver this letter and make the representations and certifications contained herein.
2. The Lender is a wholly-owned affiliate of Zions Bancorporation, N.A., which is a
nationally- or state-chartered bank that regularly extends credit to state and local governments by
making loans the repayment obligations under which are evidenced by obligations such as the
Note; has knowledge and experience in financial and business matters that make it capable of
evaluating the Borrower, the Loan Agreement and the Note and the risks associated with the
extension of credit evidenced by the Note; and has the ability to bear the economic risk of
extending the credit evidenced by the Note. The Lender is not acting as a broker, dealer,
municipal securities underwriter, municipal advisor or fiduciary in connection with its extension
of credit evidenced by the Note.
3. The Lender has conducted its own investigation of the financial condition of the
Borrower, the purpose for which the Loan Agreement and Note are being executed and delivered
and of the security for the payment of the principal of and interest on the Loan Agreement and
the Note, and has obtained such information regarding the Loan Agreement and the Note and the
Borrower and its operations, financial condition and financial prospects as the Lender deems
necessary to make an informed decision with respect to its extension of credit evidenced by the
Loan Agreement and the Note.
4. The Lender is extending credit to the Borrower evidenced by the Loan Agreement and
the Note, and is acquiring the Note for its own account and without any present intention of
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distributing, assigning, or selling any interest therein or portion thereof, provided that the Lender
retains the right at any time to dispose of the Note or any interest therein or portion thereof, but
agrees that any such sale, transfer or distribution by the Lender shall be made, in accordance with
applicable law and the provisions of the Note, the Loan Agreement, and related documents, to (a)
an affiliate of the Lender; (b) a “Bank” as defined in Section 3(a)(2) of the Securities Act of 1933
as amended (the “Securities Act”); (c) an “Accredited Investor” as defined in Regulation D under
the Securities Act; or (d) a “Qualified Institutional Buyer” as defined in Rule 144A under the
Securities Act.. The Lender and its assignees further retain the right to sell or assign
participation interests in the Note to one or more entities listed in (a) or (b) of this Section 4,
provided that any participation, custodial or similar agreement under which multiple ownership
interests in the Note are created shall provide the method by which the owners of such interests
shall establish the rights and duties of a single entity, owner, servicer or other fiduciary or agent
acting on behalf of all of the assignees to act on their behalf with respect to the rights and
interests of the registered owner of the Note, including with respect to the exercise of rights and
remedies of the registered owner on behalf of such owners upon the occurrence of an event of
default under the Loan Agreement or the Note.
5. The Lender acknowledges that (a) the Note (i) has not been registered under the
Securities Act of 1933, as amended, (ii) has not been registered or otherwise qualified for sale
under the securities laws of any state, and (iii) will not be listed on any securities exchange and
(b) there is no established market for the Note and that none is likely to develop. The Lender
understands and acknowledges that (a) the Note is not intended to be a security, (b) the Lender
will treat the Note as a loan and not a security for accounting purposes, and (c) the Note will
neither be assigned a CUSIP number nor made DTC eligible.
6. The Lender is acting solely for its own account and not as a fiduciary for the Borrower or
in the capacity of broker, dealer, placement agent, municipal securities underwriter, municipal
advisor, or fiduciary. The Lender has not provided, and will not provide, financial, legal
(including securities law), tax, accounting, or other advice to or on behalf of the Borrower
(including to any financial advisor or any placement agent engaged by the Borrower) with
respect to the structuring or delivery of the Loan Agreement or the Note. The Lender has no
fiduciary duty pursuant to Section 15B of the Securities Exchange Act of 1934 to the Borrower
with respect to the transactions relating to the structuring or delivery of the Loan Agreement or
the Note and the discussions, undertakings, and procedures leading thereto. Each of the Borrower
and its placement agent has sought and shall seek and obtain financial, legal (including securities
law), tax, accounting, and other advice (including as it relates to structure, timing, terms, and
similar matters and compliance with legal requirements applicable to such parties) with respect
to the Loan Agreement and the Note from its own financial, legal, tax, and other advisors (and
not from the undersigned or its affiliates) to the extent that the Borrower, its financial advisor, or
its placement agent desires to, should, or needs to obtain such advice. The Lender expresses no
view regarding the legal sufficiency of its representations for purposes of compliance with any
legal requirements applicable to any other party, including but not limited to the Borrower’s
financial advisor or placement agent, or the correctness of any legal interpretation made by
counsel to any other party, including but not limited to counsel to the Borrower’s placement
agent, with respect to any such matters. The transactions between the Borrower and the Lender
are arm’s-length, commercial transactions in which the Lender is acting and has acted solely as a
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principal and for its own interest, and the Lender has not made recommendations to the Borrower
with respect to the transactions relating to the Loan Agreement or the Note.
ZMFU II, INC.
By
Name
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LOAN AGREEMENT
by and between
THE CITY OF ASPEN, COLORADO
as Borrower
and
ZMFU II, INC.
as Lender
$2,150,000
City of Aspen, Colorado
General Obligation Electric Utility Refunding Loan
Series 2019
Dated as of February 28, 2019
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ........................................................................................................ 4
ARTICLE II LOAN ...................................................................................................................... 8
Section 2.01 Loan In General. ............................................................................................ 8
Section 2.02 Interest Rates; Interest Payments; Principal Payments. ................................. 8
Section 2.03 Manner of Payments ...................................................................................... 9
Section 2.04 Optional Prepayment of Loan ........................................................................ 9
Section 2.05 Costs and Expenses ........................................................................................ 9
Section 2.06 Obligations Unconditional ............................................................................. 9
Section 2.07 Pledge ........................................................................................................... 10
Section 2.08 Conditions to Closing .................................................................................. 10
ARTICLE III FUNDS AND ACCOUNTS ............................................................................... 12
Section 3.01 Creation of Funds and Accounts. ................................................................ 12
Section 3.02 Flow of Funds .............................................................................................. 12
Section 3.03 Loan Fund .................................................................................................... 13
Section 3.04 Transaction Costs Fund................................................................................ 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE CITY ..................... 15
Section 4.01 Due Organization ......................................................................................... 15
Section 4.02 Power and Authorization ............................................................................. 15
Section 4.03 No Legal Bar ................................................................................................ 15
Section 4.04 Consents ....................................................................................................... 15
Section 4.05 Litigation ...................................................................................................... 15
Section 4.06 Enforceability ............................................................................................... 16
Section 4.07 Changes in Law............................................................................................ 16
Section 4.08 Financial Information and Statements ......................................................... 16
Section 4.09 Accuracy of Information .............................................................................. 16
Section 4.10 Tax-Exempt Status ....................................................................................... 16
Section 4.11 Financing Documents .................................................................................. 16
Section 4.12 Regulations U and X .................................................................................... 16
Section 4.13 No Default .................................................................................................... 16
Section 4.14 No Filings..................................................................................................... 17
Section 4.15 Outstanding Debt ......................................................................................... 17
ARTICLE V COVENANTS OF THE CITY ........................................................................... 17
Section 5.01 Performance of Covenants, Authority ......................................................... 17
Section 5.02 Laws, Permits and Obligations .................................................................... 17
Section 5.03 Tax Covenants. ............................................................................................ 17
Section 5.04 Bonding and Insurance ................................................................................ 18
Section 5.05 Other Liabilities ........................................................................................... 18
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Section 5.06 Proper Books and Records ........................................................................... 18
Section 5.07 Reporting Requirements. ............................................................................. 19
Section 5.08 Visitation and Examination.......................................................................... 19
Section 5.09 Further Assurances....................................................................................... 19
Section 5.10 Covenant To Impose Ad Valorem Property Tax Mill Levy ........................ 20
Section 5.11 Continued Existence .................................................................................... 20
Section 5.12 Material Adverse Action .............................................................................. 20
Section 5.13 No Change in Financing Documents ........................................................... 20
Section 5.14 References to Lender ................................................................................... 21
Section 5.15 Termination of Agreement ........................................................................... 21
Section 5.16 No Lien or Security Interest in Pledged Revenue ........................................ 21
Section 5.17 Electoral Authorization ................................................................................ 21
ARTICLE VI REPRESENTATIONS OF LENDER; CONCERNING THE
ADMINISTRATIVE AGENT ................................................................................................... 22
Section 6.01 Accredited Investor ...................................................................................... 22
Section 6.02 Financial Institution or Institutional Investor .............................................. 22
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES .................................................. 22
Section 7.01 Events of Default ......................................................................................... 22
Section 7.02 Remedies ...................................................................................................... 22
Section 7.03 No Waiver of One Default to Affect Another; All Remedies Cumulative .. 23
Section 7.04 Other Remedies ............................................................................................ 23
Section 7.05 Sovereign Immunity..................................................................................... 23
ARTICLE VIII MISCELLANEOUS ........................................................................................ 23
Section 8.01 Loan Agreement and Relationship to Other Documents ............................. 23
Section 8.02 Assignments, Participations, etc. by the Lender .......................................... 23
Section 8.03 Defeasance ................................................................................................... 24
Section 8.04 Notices ......................................................................................................... 25
Section 8.05 Payments ...................................................................................................... 25
Section 8.06 Applicable Law and Jurisdiction; Interpretation; Severability .................... 25
Section 8.07 Copies; Entire Agreement; Modification ..................................................... 25
Section 8.08 Attachments ................................................................................................. 26
Section 8.09 No Recourse Against Officers and Agents .................................................. 26
Section 8.10 Conclusive Recital ....................................................................................... 26
Section 8.11 Limitation of Actions ................................................................................... 26
Section 8.12 Pledge of Revenues ...................................................................................... 26
Section 8.13 No Waiver; Modifications in Writing .......................................................... 27
Section 8.14 Payment on Non-Business Days .................................................................. 27
Section 8.15 Document Imaging....................................................................................... 27
Section 8.16 Redactions .................................................................................................... 27
Section 8.17 No Advisory or Fiduciary Relationship ....................................................... 27
Section 8.18 Execution in Counterparts............................................................................ 28
Section 8.19 Severability .................................................................................................. 28
Section 8.20 Headings ...................................................................................................... 28
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Section 8.21 Waiver of Rules of Construction ................................................................. 28
Section 8.22 Integration .................................................................................................... 28
Section 8.23 Patriot Act Notice ........................................................................................ 28
Section 8.24 No Registration; No Securities Depository; No CUSIP. ............................. 28
EXHIBIT A – FORM OF PROMISSORY NOTE
EXHIBIT B –PRINCIPAL PAYMENT SCHEDULE
EXHIBIT C – CLOSING MEMORANDUM
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement”) is made and entered into as February
28, 2019, by and between CITY OF ASPEN, COLORADO, a legally and regularly created,
established, organized and existing municipal corporation under the provisions of Article XX of
the Constitution of the State of Colorado and the home rule charter of the City, as borrower (the
“City”), and ZMFU II, INC., as lender (the “Lender”).
RECITALS
WHEREAS, the City of Aspen (the “City”), in the County of Pitkin and State of
Colorado, is a legally and regularly created, established, organized and existing municipal
corporation under the provisions of Article XX of the Constitution of the State of Colorado and
the home rule charter of the City (as more particularly defined in Section 1 herein, the “Charter”)
(all capitalized terms used and not otherwise defined in the recitals hereof shall have the meaning
assigned in Section 1 of this Ordinance); and
WHEREAS, under the Charter, the City is possessed of all powers which are necessary,
requisite or proper for the government and administration of its local and municipal matters, all
powers which are granted to home rule municipalities by the Colorado Constitution, and all
rights and powers that now or hereafter may be granted to municipalities by the laws of the State
of Colorado; and
WHEREAS, the City is authorized by Section 10.1 of the Charter to borrow moneys and
to issue general obligation bonds to evidence such borrowing, subject to the approval of a
question proposing their issuance at a general or special election by a majority of registered
electors of the City voting thereon; and
WHEREAS, at an election called on November 6, 2007 (the “Election”), the City
submitted the following question (the “Ballot Question”) to the registered electors of the City for
approval:
SHALL CITY OF ASPEN DEBT BE INCREASED BY UP TO $5,500,000,
WITH A MAXIMUM REPAYMENT COST OF $10,780,000 BY THE
ISSUANCE OF GENERAL OBLIGATION BONDS FOR THE PURPOSE OF
CONSTRUCTING AND EQUIPPING A NEW HYDROELECTRIC
FACILITY ON CASTLE CREEK, WHICH DEBT SHALL BE PAYABLE
FROM (1) ELECTRIC UTILITY FEES AND (2) TO THE EXTENT THE
CITY COUNCIL DETERMINES THAT THE REVENUES PROJECTED TO
BE AVAILABLE FROM SUCH ELECTRIC UTILITY FEES WILL BE
INSUFFICIENT TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND
INTEREST ON SUCH DEBT AND TO OTHERWISE COMPLY WITH THE
COVENANTS OF THE ORDINANCE OR OTHER INSTRUMENTS
GOVERNING SUCH DEBT IN ANY YEAR, FROM THE TAXES
DESCRIBED BELOW; SHALL CITY TAXES BE INCREASED BY UP TO
$359,128 ANNUALLY IN ANY YEAR BY THE LEVY OF AD VALOREM
PROPERTY TAXES, WITHOUT LIMITATION AS TO RATE OR AMOUNT
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OR ANY OTHER CONDITION, TO PAY THE PRINCIPAL OF, PREMIUM,
IF ANY, AND INTEREST ON SUCH DEBT AND TO OTHERWISE
COMPLY WITH THE COVENANTS OF THE ORDINANCE OR OTHER
INSTRUMENTS GOVERNING SUCH DEBT AND TO THE EXTENT THE
CITY COUNCIL DETERMINES THAT THE REVENUES PROJECTED TO
BE AVAILABLE FROM SUCH ELECTRIC UTILITY FEES WILL NOT BE
SUFFICIENT THEREFOR; SHALL SUCH DEBT MATURE, BE SUBJECT
TO REDEMPTION, WITH OR WITHOUT PREMIUM, AND BE ISSUED,
DATED AND SOLD AT SUCH TIME OR TIMES, AT SUCH PRICES (AT,
ABOVE OR BELOW PAR) AND IN SUCH MANNER AND WITH SUCH
TERMS, NOT INCONSISTENT HEREWITH, AS THE CITY COUNCIL
MAY DETERMINE; AND SHALL THE CITY BE AUTHORIZED TO
COLLECT, RETAIN AND EXPEND ALL OF THE REVENUES OF SUCH
TAXES, THE PROCEEDS OF SUCH BONDS AND THE EARNINGS
THEREON IN 2007 AND EACH SUBSEQUENT YEAR,
NOTWITHSTANDING THE LIMITATIONS OF ARTICLE X, SECTION 20
OF THE COLORADO CONSTITUTION (TABOR), SECTION 29-1-301,
COLORADO REVISED STATUTES, OR ANY OTHER LAW?
WHEREAS, pursuant to such Ballot Question as approved by the voters on November 6,
2007, the City issued its General Obligation Electric Utility Bonds, Series 2008, originally issued
in the aggregate principal amount of $5,500,000 and currently outstanding in the aggregate
principal amount of $2,090,000 (the “2008 Bonds”); and
WHEREAS, pursuant to Section 10.6 of the Charter, the City Council of the City (the
“City Council”) may authorize, by ordinance, without an election, the issuance of refunding
bonds or any like securities for the purpose of refunding and providing for the payment of the
City’s outstanding bonds; and
WHEREAS, Article X, Section 20 of the Colorado Constitution (“TABOR”) provides
that voter approval in advance is required for the creation of any district (as such term is defined
in TABOR, which includes governmental entities such as the City) direct or indirect debt or
other multiple-fiscal year financial obligation whatsoever except for refinancing district bonded
debt at a lower interest rate; and
WHEREAS, the 2008 Bonds maturing on and after December 1, 2019 are subject to
redemption prior to their maturity, at the option of the City, on December 1, 2018, or on any date
thereafter, at a redemption price equal to the principal amount of the bonds so redeemed, plus
accrued interest to the redemption date; and
WHEREAS, the City Council has determined that it is in the best interests of the City to
refund all of the currently outstanding 2008 Bonds (as more particularly defined herein, the
“Refunded Bonds”) for the purpose of refunding such Refunded Bonds at a lower interest rate,
and to executed and deliver this Agreement and a Promissory Note to the Lender for the
purposes of same; an
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WHEREAS, the Lender has agreed, subject to the terms and conditions of this
Agreement, to loan a total of $2,150,000 to the City, and such lending of funds is to be made in
the form of a General Obligation Electric Utility Refunding Loan in the original principal
amount of $2,150,000 (the “Loan”); and
WHEREAS, the Loan is evidenced by a Promissory Note as further described herein (the
“Note”); and
WHEREAS, the Lender is a wholly-owned subsidiary of Zions Bancorporation, N.A.,
which is (a) an “accredited investor,” as defined in Rule 501(A)(1), (2), (3) or (7) of Regulation
D promulgated under the Securities Act of 1933, as amended (an “Institutional Accredited
Investor”) or (b) a “qualified institutional buyer,” as defined in Rule 144A promulgated under
the Securities Act of 1933, as amended (a “Qualified Institutional Buyer”); and
WHEREAS, Stifel Nicolaus & Company, Incorporated, is acting as Placement Agent to
the City with respect to the placement of the Loan and the Note with the Lender; and
WHEREAS, the City Council intends to pay the principal of and interest on the Note
from: (a) customer usage fees and any other fees received from the operation of the City’s
Electric Utility system on deposit in the City’s Electric Fund (as defined herein) and available
for the payment of the Note (as more particularly defined herein, “Available Electric Utility
Fees”); and (b) to the extent Available Electric Utility Fees are not sufficient, ad valorem
property taxes authorized in the Ballot Question; and
WHEREAS, notwithstanding the City’s intention to pay amounts due on the Note from
Available Electric Utility Fees and ad valorem property taxes authorized in the Ballot Question,
the Note is a general obligation of the City and the full faith and credit of the City are pledged to
its payment; and
WHEREAS, the City Council specifically elects to apply all of the provisions of
Title 11, Article 57, Part 2, C.R.S., to the Loan and the Loan Agreement; and
WHEREAS, the proceeds of the Loan is for the purpose of refunding the Refunded
Bonds at a lower interest rate, and thus are permitted by Article X, Section 20 of the
Colorado Constitution; and
WHEREAS, the Charter authorizes the City to issue refunding bonds without an
election to refund, pay, and discharge all or any part of its outstanding bonds; and
WHEREAS, the proceeds derived from the execution and delivery of the Loan, after
payment of the costs of issuance properly allocable thereto, shall be used to fully pay,
defease and discharge the Refunded Bonds; and
WHEREAS, the City has duly authorized the execution and delivery of this Loan
Agreement to provide for the execution and delivery of the Loan; and
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WHEREAS, all things necessary to make the Loan, when executed by the City, a
valid obligation of the City, and to make this Agreement a valid agreement of the City, in
accordance with their and its terms, have been done; and
WHEREAS, the Lender is willing to enter into this Agreement and to make the Loan
to the City pursuant to the terms and conditions stated herein; and
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS
“Acts” means, collectively, the State Constitution, the Charter, and Part 2 of Article 57 of
Title 11, Colorado Revised Statutes, as amended.
“Agreement” means this Loan Agreement, as amended or supplemented from time to
time in the accordance with the provisions hereof.
“Authorized Person” means the Finance Director or any other individual authorized by
the City Council to act as an Authorized Person hereunder by a written instrument filed with the
Lender.
“Authorizing Ordinance” means the ordinance adopted by the City Council of the City on
January 28, 2019, authorizing the City to incur the indebtedness of the Loan and to execute and
deliver the Note and this Agreement, and any other documents to which the City may be a party.
“Available Electric Utility Fees” means, as of any particular date of determination, all
Electric Utility Fees and earnings thereon on deposit in the City’s Electric Fund and available for
payment of the principal of and interest on the Note after taking into account all administrative,
operation and maintenance expenses of the City payable from the Electric Fund, as determined
by the City.
“Ballot Question” means the ballot question approved by City voters on November 6,
2007, defined as such in the preambles hereto.
“Bond Counsel” means (a) as of the Closing Date, Butler Snow LLP, Denver, Colorado,
and (b) as of any other date, Butler Snow LLP, Denver, Colorado, or such other attorneys
selected by the City and acceptable to the Lender with nationally recognized expertise in the
issuance of tax-exempt debt.
“Business Day” means any day of the week on which the Lender is conducting its
banking operations nationally and on which day the Lender’s offices are open for business in
Denver, Colorado.
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“Certified Public Accountant” means a certified public accountant within the
meaning of Section 12-2-115, C.R.S., as the same may be amended from time to time,
licensed to practice in the State of Colorado.
“Charter” means the Charter of the City of Aspen, adopted June 16, 1970, as amended.
“City” is defined in the recitals hereof.
“City Council” means the City Council of the City, and any successor body.
“Closing” means the concurrent execution and delivery of the Notes and this Agreement,
by the respective parties thereto, the issuance and disbursement of the Loan, and application of
the proceeds thereof in accordance with the provisions hereof and the Closing Memorandum.
“Closing Date” means date on which the Closing occurs, estimated to be on or about
February 28, 2019.
“Closing Memorandum” means the closing memorandum, dated as of the Closing Date,
setting forth the uses of the proceeds of the Loan, including the application of a portion of such
proceeds to the payment of the costs, expenses and fees incurred in connection with the issuance
of the Loan and the deposit of proceeds thereof with the paying agent for the Refunded Bonds
for the purpose of defeasing the Refunded Bonds, which closing memorandum is attached as
Exhibit C hereto and by this reference incorporated herein.
“Collateral” means (a) the Pledged Revenue and (b) all amounts from time to time on
deposit in the Loan Fund.
“C.R.S.” means the Colorado Revised Statutes, as amended and supplemented as of the
date hereof.
“Debt” has the meaning set forth in Section 5.11 hereof.
“Default” means an event, act or occurrence which, with the giving of notice or the lapse
of time (or both), would become an Event of Default.
“Election” means the election held within the City November 6, 2007, pursuant to which
the Ballot Question was approved.
“Electric Fund” means the City’s Electric Enterprise Fund (formerly consisting of the
Electric Enterprise Fund and Ruedi Hydroelectric Enterprise Fund, which funds have been
combined), and any other fund created by City Council for the purpose of accounting for
revenues received in connection with its operation of electric utilities (including, but not limited
to, any fund created to account for revenues relating to the Hydroelectric Facility on Castle
Creek).
“Electric Utility Fees” means customer usages fees and any other fees received by the
City as a result of the City’s operation of its Electric Utility.
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“Event of Default” has the meaning set forth in Section 7.01 hereof.
“Federal Securities” means direct obligations of (including obligations issued or held in
book-entry form on the books of), or obligations the principal of and interest on which are
guaranteed by, the United States of America.
“Finance Director” means the Director of Finance or his or her absence, the Assistant
Finance Director.
“Financing Documents” means this Agreement and the Note.
“Fiscal Year” means January 1 through and including December 31 of the same year, or
any other fiscal year of the City as determined by applicable law.
“Fixed Interest Rate” has the meaning set forth in Section 2.02 hereof.
“Interest Payment Date” means June 1 and December 1 of each year, commencing on
June 1, 2019, through and including the Maturity Date.
“Interest Period” means the period commencing on the applicable Interest Payment Date
to (but not including) the next succeeding Interest Payment Date.
“Lender” means ZMFU II, Inc., in its capacity as lender of the Loan.
“Loan” means the General Obligation Electric Utility Refunding Loan, Series 2019,
made by the Lender to the City in an original principal amount equal to the Loan Amount.
“Loan Amount” means two million one hundred fifty thousand dollars ($2,150,000).
“Loan Balance” means, as of any relevant date, the 2019 Loan Amount less the sum of
all payments of principal received by the Lender for application to the 2019 Loan as of such date.
“Loan Fund” means the fund by that name established pursuant to the provisions of
Section 3.03(a) hereof, to be administered and maintained by the City in the manner and for the
purposes described therein.
“Maturity Date” means December 1, 2025.
“Note” means the promissory note evidencing the indebtedness of the Loan, dated of
even date herewith, from the City, as Maker, to the Lender, as Payee, issued in an original
principal amount equal to the Loan Amount in substantially the form of Exhibit A hereto.
“Participant” has the meaning set forth in Section 8.02 hereof.
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107-56
(signed into law October 26, 2001).
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“Payment Date” means a Principal Payment and/or an Interest Payment Date, as
applicable.
“Permitted Investments” means any investment or deposit permissible for the City under
then applicable law.
“Person” means an individual, a corporation, a partnership, an association, a joint
venture, a trust, an unincorporated organization or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
“Placement Agent” means Stifel, Nicolaus & Company, Incorporated, in its capacity as
placement agent to the City.
“Placement Agent Agreement” means the Placement Agent Agreement dated as of
January 15, 2019, between the City and the Placement Agent.
“Pledged Revenue” means the moneys derived by the City from the following sources,
net of any costs of collection:
i) the Available Electric Utility Fees;
ii) ad valorem property tax revenue; and
iii) any other legally available moneys which the City determines, in its
absolute discretion, to transfer to the Trustee for application as Pledged Revenue.
“Prepayment Date” means any date on which the Loan are prepaid, in whole or in part,
in accordance with the applicable provisions of Section 2.04 hereof.
“Principal Payment Date” means December 1 of each year, commencing December 1,
2019, through and including the Maturity Date.
“Redemption Date” means the first date or dates on which any Refunded Bonds may be
called for redemption as specified in the Sale Certificate
“Refunded Bonds” means all of the outstanding 2008 Bonds.
“Refunded Bond Ordinance” means the ordinance authorizing the issuance of the
Refunded Bonds.
“Refunding Project” means the execution and delivery of the Loan for the purpose of
defraying the costs of refunding the Refunded Bonds and payment of the costs of execution and
delivery of the Loan.
“Supplemental Public Securities Act” means Title 11, Article 57, Part 2, C.R.S.
“Tax Certificate” means the tax compliance certificate to be signed at Closing by the City
with respect to the Loan, in a form acceptable to Bond Counsel, relating to the requirements of
Sections 103 and 141-150 of the Code.
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“2008 Bonds” means the City of Aspen, Colorado, General Obligation Electric Utility
Bonds, Series 2008, as further described in the recitals hereto.
ARTICLE II
LOAN
Section 2.01 Loan In General.
(a) Agreement to Make Loan. The Lender hereby agrees to lend the Loan
Amount, subject to the terms and conditions of this Agreement. The Loan shall be
evidenced by the Note, the form of which is set forth in Exhibit A attached hereto.
(b) Funding of Loan. On the Closing Date, the Lender shall fund the entire
Loan Amount and such funds shall be transferred, credited, and disbursed in accordance
with the Closing Memorandum attached hereto as Exhibit C.
(c) Limitations of Electoral Authorization. The amounts payable to the
Lender as principal of and interest on the Loan shall not exceed the maximum annual
repayment costs or total repayment costs authorized by the qualified electors of the City
voting at the Election. Any amounts due and owing by the City pursuant to this
Agreement which do not constitute principal of or interest on the Loan or which exceed
such authorized repayment costs shall be subject to prior appropriation by the City
Council.
Section 2.02 Interest Rates; Interest Payments; Principal Payments.
(a) Interest Rate. Commencing on the Closing Date through and including
the Maturity Date, the Loan Balance shall bear interest at a fixed rate equal to 2.90% per annum
(the “Fixed Interest Rate”). Interest on the Loan shall be calculated on the basis of a 360-day
year of twelve 30-day months.
(b) Interest Payments. Interest payments on the Loan shall be due and
payable semi-annually on each Interest Payment Date, commencing June 1, 2019.
(c) Principal Payments. Principal payments on the Loan shall be due and
payable on each Principal Payment Date, commencing December 1, 2019, in the amounts set
forth below.
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Payment
Date
Principal
Amount Due
12/1/2019 $300,000
12/1/2020 300,000
12/1/2021 305,000
12/1/2022 315,000
12/1/2023 330,000
12/1/2024 335,000
12/1/2025* 265,000
*Maturity Date
Section 2.03 Manner of Payments. All principal, interest and other payments to be
made hereunder by or on behalf of the City to the Lender shall be made, and shall not be
considered made until received, in lawful money of the United States of America in immediately
available funds.
Section 2.04 Optional Prepayment of Loan. The City may, at its option, prepay the
Loan, in whole or in part, at any time, at a prepayment price equal to the sum of the principal so
prepaid together with accrued and unpaid interest thereon to the date of prepayment, with 30
days’ prior written notice to the Lender.
Section 2.05 Costs and Expenses. The City agrees to pay out of the proceeds of the
Loan all reasonable costs and expenses of the Lender in connection with (a) the preparation,
execution and delivery of this Agreement and any other documents relating to the Loan
including, without limitation, the other Financing Documents, which may be delivered by any
party in connection with the transactions contemplated under this Agreement and the other
Financing Documents; (b) the filing, recording, administration (other than normal, routine
administration), enforcement, transfer, amendment, maintenance, renewal or cancellation of this
Agreement and all amendments or modifications thereto (or supplements hereto), including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Lender and
the allocated cost of in-house counsel and legal staff and independent public accountants and
other outside experts retained by the Lender in connection with any of the foregoing; and (c) the
fees and expenses of any custodian appointed by the Lender to hold any collateral securing the
obligations of the City hereunder. In addition, but subject to prior appropriation by the City
Council, the City agrees to pay promptly all costs and expenses of the Lender, including, without
limitation, the reasonable fees and expenses of external counsel and the allocated cost of
in-house counsel, incurred in connection with (i) the enforcement of this Agreement or any of the
other Financing Documents against the City; and/or (ii) contesting any action or proceeding
relating to a court order, injunction, or other process or decree restraining or seeking to restrain
the City from paying any amount due to the Lender hereunder.
Section 2.06 Obligations Unconditional. The City’s obligation to repay the Loan and
all of its other obligations under this Agreement shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or defense to payment which
the City may have against the Lender, any Participant, or any other Person, including, without
limitation, any defense based on the failure of any nonapplication or misapplication of the
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proceeds of the Loan hereunder, and irrespective of the legality, validity, regularity or
enforceability of all or any of the Financing Documents, and notwithstanding any amendment or
waiver of (other than an amendment or waiver signed by the Lender explicitly reciting the
release or discharge of any such obligation), or any consent to, or departure from, all or any of
the Financing Documents or any exchange, release, or non-perfection of the Collateral securing
the obligations of the City hereunder or under the other Financing Documents and any other
circumstances or happening whatsoever, whether or not similar to any of the foregoing.
Section 2.07 Pledge. The City hereby assigns, transfers, pledges, hypothecates,
delivers and grants to the Lender a first priority security interest in and to the Pledged Revenue
and the other Collateral to secure the payment of the principal of and interest on the Loan when
due. The Loan constitutes a general obligation of the City secured by and payable solely from
and to the extent of the Pledged Revenue and the other Collateral.
Section 2.08 Conditions to Closing. The making by the Lender of the Loan is
conditioned upon the satisfaction of each of the following on or prior to the Closing Date:
(a) Financing Documents. All Financing Documents and other instruments
applicable to the Loan are in form and content satisfactory to the Lender; have been duly
executed and delivered in form and substance satisfactory to the Lender; have not been modified,
amended or rescinded and are in full force and effect on and as of the Closing Date; and executed
original or certified copies of each thereof shall have been delivered to the Lender.
(b) Certified Proceedings. The Lender is in receipt of an executed original or
certified copy of the Authorizing Ordinance of the City, which shall be in form and content
satisfactory to the Lender and shall duly and properly authorize the City to issue the Loan, to
execute and deliver this Agreement and the other Financing Documents to which the City is a
party, and perform all acts contemplated hereunder and thereunder, and as to other matters of
fact as shall reasonably be requested by the Lender.
(c) City Certificate. The City has provided the Lender with a certificate
certifying that on the Closing Date each representation and warranty on the part of the City
contained in this Agreement and in any other Financing Document to which the City is a party is
true and correct and no Event of Default, or event which would, with the passage of time or the
giving of notice, constitute an Event of Default, has occurred and is continuing and no Default
exists under any other Financing Document to which the City is a party, or under any other
agreement by and between the City and the Lender relating to the Loan and certifying as to such
other matters as the Lender might reasonably request.
(d) Other Proceedings. All proceedings of any party taken in connection with
the transactions contemplated by this Agreement and the other Financing Documents, and all
instruments, authorizations and other documents applicable thereto, are satisfactory to the Lender
and its counsel.
(e) Opinion of Bond Counsel. The Lender shall have received an opinion of
Bond Counsel dated as of the Closing Date and addressed to the Lender (or a reliance letter in
lieu thereof), to the effect that the Loan constitutes a valid and binding general obligation of the
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City; that the Note and this Agreement have been duly authorized and, assuming the due
execution of the Lender hereto and thereto, constitute valid and binding obligations of the City
legally enforceable against the City in accordance with their terms (provided, however, that no
opinion shall be expressed as to the enforceability of any provision whereby the City purports to
indemnify any party); and addressing the tax exempt nature of the interest on the Loan for
federal and State income tax purposes.
(f) Opinion of City Attorney. The Lender shall have received an opinion of
the City Attorney dated as of the Closing Date and addressed to the Lender, with respect to such
matters as the Lender may require, including opinions as to the organization of the City Council,
to the effect that all governmental approvals, if any, necessary for the City to execute, deliver
and perform its obligations under this Agreement and the other Financing Documents to which
the City is a party have been duly obtained; that the Authorizing Ordinance was duly and
properly adopted, is in full force and effect, and has not been rescinded as of the Closing Date;
that this Agreement and the other Financing Documents to which the City is a party have been
duly authorized, executed, and delivered by the City; and otherwise in form and substance
acceptable to the Lender and its counsel.
(g) No Change in Law. No law, regulation, ruling or other action of the
United States, the State of Colorado or any political subdivision or authority therein or thereof
shall be in effect or shall have occurred, the effect of which would be to prevent the City from
fulfilling its obligations under this Agreement or the other Financing Documents to which the
City is a party.
(h) Payment of Costs and Expenses. All fees and expenses due and payable
in connection with the execution and delivery of this Agreement and the other Financing
Documents and the transactions contemplated hereunder and thereunder shall have been paid by
the City.
(i) Due Diligence. The Lender shall have been provided with the opportunity
to review all pertinent financial information regarding the City; all agreements, documents, and
any other material information relating to the City or the Collateral; and any other pertinent data
relating to the City or the Collateral.
(j) Accuracy and Completion. All information provided by the City to the
Lender shall be, as of the Closing Date, complete and accurate in all respects.
(k) No Breach or Other Violation. The City shall not, as of the Closing Date,
be in violation or breach of any other agreement with the Lender or of any third party of any
nature or kind.
(l) No Material Adverse Change. No material adverse change has, in the
sole opinion of the Lender based on its business expertise, occurred with respect to the City’s
business operations, financial condition or performance, as reflected in the most recent financial
statements provided to the Lender or as otherwise known by the Lender.
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(m) Other Certificates and Approvals. The Lender shall have received such
other certificates, approvals, filings, opinions and documents as shall be reasonably requested by
the Lender.
(n) Other Legal Matters. All other legal matters pertaining to the execution
and delivery of this Agreement and the other Financing Documents and the full and timely
performance of the transactions contemplated hereunder and thereunder shall be reasonably
satisfactory to the Lender.
ARTICLE III
FUNDS AND ACCOUNTS
Section 3.01 Creation of Funds and Accounts.
(a) The following funds are hereby created and established, each of which
shall be administered by the City in accordance with the provisions hereof:
(i) the Loan Fund;
(ii) the Transaction Costs Fund.
(b) Immediately upon execution and delivery of the Loan and from the
proceeds thereof, and from other available money of the City, the City shall make the following
credits:
(i) to Wells Fargo Bank, National Association, as paying agent for the
Refunded Bonds, proceeds of the Loan sufficient, when combined with other legally
available moneys of the City which may be credited thereto, to fully pay, defease and
discharge the Refunded Bonds on the Redemption Date;
(ii) to the Transaction Costs Fund, $38,348.48.
Section 3.02 Flow of Funds. Following the Closing Date of the Loan, the City shall
transfer all amounts comprising Pledged Revenue to the Lender to be applied in the order of
priority set forth below:
FIRST: To the credit of the Loan Fund, the amounts required by
Section 3.03 hereof; and
SECOND: To the Lender, for application to any amounts due and owing
hereunder other than principal and interest payments on the Loan
pursuant to written notice from the Lender to the City;
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Section 3.03 Loan Fund. There is hereby established and the City covenants to
maintain in accordance with the provisions hereof a special fund designated as the City of Aspen,
Colorado, General Obligation Electric Utility Refunding Loan, Loan Fund (the “Loan Fund”).
(a) Use of Moneys in Loan Fund. Moneys in the Loan Fund shall be uses
solely for the purpose of paying the principal of and interest on the Loan.
(b) Interest Account. The Interest Account shall be used to pay the interest
on Loan. Not later than five Business Days prior to each Interest Payment Date, the City
shall credit to the Interest Account, from the Pledged Revenue (and any interest income
to be credited to the Interest Account), an amount equal to the interest to come due on the
Loan on the next succeeding Interest Payment Date.
(c) Principal Account. The Principal Account shall be used to pay the
principal of the Loan. Not later than five Business Days prior to each Principal Payment
Date, the City shall credit to the Interest Account, the City shall credit to the Principal
Account, from the Pledged Revenue (and any interest income to be credited to the
Principal Account), an amount equal to the principal coming due on the Loan on the next
succeeding Principal Payment Date.
(d) Levy of Ad Valorem Taxes. For the purpose of paying the principal of and
interest on the Note when due, respectively, the City Council shall, before such time
provided for by law for levying other City taxes, annually determine a rate of levy for
general ad valorem taxes, without limitation as to rate or amount, on all of the taxable
property within the City, that will be sufficient, when combined with amounts then on
deposit in the Loan Fund and the amounts projected to be deposited to the Loan Fund in
the immediately succeeding calendar year from Available Electric Utility Fees pursuant
to subsection (d) of this Section, and from other moneys pursuant to subsection (h) of this
Section, to pay the principal of and interest on the Note when due, respectively, whether
at maturity or upon earlier redemption, in the immediately succeeding calendar year.
Annually, at the time of certification of the general ad valorem taxes, the City Council
shall make specific findings with respect to the Available Electric Utility Fees projected
for the immediately succeeding calendar year and all other amounts described in the
preceding sentence projected to be transferred to the Loan Fund in the immediately
succeeding calendar year or then on deposit therein. The City Council shall, in certifying
annual levies for general ad valorem taxes, take into account the maturing indebtedness
of the Note for the ensuing year, deficiencies and defaults of prior years and any
reimbursement and shall make ample provision for the payment thereof. The general ad
valorem taxes levied pursuant to this subsection, when collected, shall be deposited into
the Loan Fund.
(e) Covenant Upon Deficiency in Note Account. Notwithstanding anything
else contained herein, the City hereby irrevocably covenants and agrees that, in the event
that amounts on deposit in the Loan Fund on any date on which the City is required to
deposit amounts with the Lender pursuant to this Section is less than the amount
sufficient to pay the principal of and interest on the Note on the corresponding Interest
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Payment Date, the City Council shall immediately transfer previously appropriated
moneys in the amount of such deficiency from the general fund or any other legally
available fund of the City to the Loan Fund for the payment of such amounts, and shall
promptly pass and adopt supplemental or emergency ordinances or resolutions as are
required to effectuate such transfer and use. Thereafter, such appropriations and transfers
shall continue to be made in such amounts and with sufficient frequency to assure that the
moneys on deposit in the Loan Fund shall be sufficient to pay the principal of and interest
on the Note when due. Upon the next succeeding levy of ad valorem property taxes for
the Note pursuant to subsection (e) of this Section, the taxes levied pursuant thereto shall
include amounts sufficient to reimburse the fund from which amounts were transferred
pursuant to this subsection and such reimbursement shall be made and appropriation
made therefor upon the collection of such taxes.
(f) Levy of Additional Ad Valorem Taxes. If the moneys on deposit in the
Note Account, including, but not limited to, moneys of the City deposited therein
pursuant to subsections (d), (e) and (h) of this Section, are not sufficient to pay punctually
the annual installments on the contracts or bonds of the City, and interest thereon, and to
pay defaults and deficiencies, the City Council shall make such additional levies of taxes
as may be necessary for such purposes, and such taxes shall be made and continue to be
levied until the indebtedness is fully paid. The general ad valorem taxes levied pursuant
to this subsection, when collected, shall be deposited into the Loan Fund.
(g) Use or Advance of Other Legally Available Moneys. Nothing herein shall
be interpreted to prohibit or limit the ability of the City to use legally available funds of
the City other than moneys required by this Agreement to be transferred to or deposited
into the Loan Fund to pay all or any portion of the principal of or interest on the Note. If
and to the extent such other legally available moneys are used to pay the principal of or
interest on the Note, the City may, but shall not be required to, (i) reduce the amount of
taxes levied for such purpose pursuant to subsection (d) of this Section or (ii) use
proceeds of taxes levied pursuant to subsection (d) of this Section to reimburse the fund
or account from which such other legally available moneys are withdrawn for the amount
withdrawn from such fund or account to pay the principal of or interest on the Note. If
the City selects alternative (ii) in the immediately preceding sentence, the taxes levied
pursuant to subsection (d) of this Section shall include amounts sufficient to fund the
reimbursement.
(h) Appropriation and Budgeting of Proceeds of Moneys. All amounts
transferred to or deposited into the Loan Fund pursuant to this Agreement are hereby
appropriated for that purpose, and all amounts required to pay the principal of and
interest on the Note when due, respectively, in each year shall be included in the annual
budget and appropriation ordinance to be adopted and passed by the City Council for
such year.
Section 3.04 Transaction Costs Fund. The Transaction Costs Fund shall be
maintained by the City in accordance with the terms of this Section 3.04. All moneys on deposit
in the Transaction Costs Fund shall be applied to the payment of the costs incurred in connection
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with the Financing Documents in accordance with invoices provided to the City. At such time as
no amounts remain in the Transaction Costs Fund, such fund shall terminate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE CITY
While any obligations hereunder or under any of the other Financing Documents are
unpaid or outstanding, the City continuously represents and warrants to the Lender as follows:
Section 4.01 Due Organization. The City is a legally and regularly created,
established, organized and existing municipal corporation under the provisions of Article XX of
the Constitution of the State of Colorado and the home rule charter of the City.
Section 4.02 Power and Authorization. The City has all requisite power and authority
to own and convey its properties and to carry on its business as now conducted and as
contemplated to be conducted under the Financing Documents; to execute, deliver and to
perform its obligations under this Agreement and the other Financing Documents; and to cause
the execution, delivery and performance of the Financing Documents.
Section 4.03 No Legal Bar. The City is not in violation of any of the provisions of the
laws of the State of Colorado or the United States of America or any of the provisions of any
order of any court of the State of Colorado or the United States of America which would affect
its existence or its powers referred to in the preceding Section 4.02. The execution, delivery and
performance by the City of this Agreement and of the other Financing Documents (a) will not
violate any provision of any applicable law or regulation or of any order, writ, judgment or
decree of any court, arbitrator or governmental authority; (b) will not violate any provisions of
any document constituting, regulating or otherwise affecting the operations or activities of the
City; and (c) will not violate any provision of, constitute a default under, or result in the creation,
imposition or foreclosure of any lien, mortgage, pledge, charge, security interest or encumbrance
of any kind other than liens created or imposed by the Financing Documents, on any of the
revenues or other assets of the City which could have a material adverse effect on the assets,
financial condition, business or operations of the City, on the City’s power to cause the
Financing Documents to be executed and delivered, or its ability to pay in full in a timely fashion
the obligations of the City under this Agreement or the other Financing Documents.
Section 4.04 Consents. The City has obtained all consents, permits, licenses and
approvals of, and has made all registrations and declarations with any governmental authority or
regulatory body required for the execution, delivery and performance by the City of this
Agreement and the other Financing Documents.
Section 4.05 Litigation. There is no action, suit, inquiry or investigation or proceeding
to which the City is a party, at law or in equity, before or by any court, arbitrator, governmental
or other board, body or official which is pending or, to the best knowledge of the City, threatened
in connection with any of the transactions contemplated by this Agreement or against or
affecting the assets of the City, nor, to the best knowledge of the City, is there any basis therefor,
wherein an unfavorable decision, ruling or finding (a) would adversely affect the validity or
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enforceability of, or the authority or ability of the City to perform its obligations under, the
Financing Documents; (b) would, in the reasonable opinion of the City, have a materially
adverse effect on the ability of the City to conduct its business as presently conducted or as
proposed or contemplated to be conducted; or (c) would adversely affect the exclusion of interest
on the Loan from gross income for federal income tax purposes or the exemption of such interest
from State of Colorado personal income taxes.
Section 4.06 Enforceability. This Agreement and each of the other Financing
Documents to which the City is a party constitute the legal, valid and binding obligations of the
City, enforceable against the City in accordance with their terms (except as such enforceability
may be limited by bankruptcy, moratorium or other similar laws affecting creditors’ rights
generally and provided that the application of equitable remedies is subject to the application of
equitable principles).
Section 4.07 Changes in Law. To the best knowledge of the City, there is not pending
any change of law which, if enacted or adopted could have a material adverse effect on the
assets, financial condition, business or operations of the City, on the City’s power to issue or its
ability to pay in full in a timely fashion the obligations of the City under this Agreement or the
other Financing Documents.
Section 4.08 Financial Information and Statements. The audited financial
statements and other information previously provided to the Lender or provided to the Lender in
the future are or will be complete and accurate and prepared in accordance with generally
accepted accounting principles. There has been no material adverse change in the City’s
financial condition since such information was provided to the Lender.
Section 4.09 Accuracy of Information. All information, certificates or statements
given to the Lender pursuant to this Agreement and the other Financing Documents will be, to
the best of the City’s knowledge, true and complete when given.
Section 4.10 Tax-Exempt Status. The City has not taken any action or omitted to take
any action, and knows of no action taken or omitted to be taken by any other Person, which
action, if taken or omitted, would adversely affect the exclusion of interest on the Loan from
gross income for federal income tax purposes, or affect the exemption of interest on the Loan
from State personal income taxes.
Section 4.11 Financing Documents. Each representation and warranty of the City
contained in any Financing Document is true and correct as of the Closing Date.
Section 4.12 Regulations U and X. The City is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U or X issued by the Board of Governors of the Federal Reserve System); and no
proceeds of the Loan will be or have been used to extend credit to others for the purpose of
purchasing or carrying any margin stock.
Section 4.13 No Default. The City is not in default in the performance, observance, or
fulfillment of any of the obligations, covenants or conditions contained in any Financing
Document or other resolution, agreement or instrument to which it is a party which would have a
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material adverse effect on the ability of the City to perform its obligations hereunder or under the
other Financing Documents, or which would affect the enforceability hereof or thereof.
Section 4.14 No Filings. No filings, recordings, registrations or other actions are
necessary to create and perfect the pledges provided for herein; the obligations of the City
hereunder are secured by the lien and pledge provided for hereby; and the liens and pledges
provided for herein constitute valid prior liens subject to no other liens.
Section 4.15 Outstanding Debt. Except for the Loan, the City has no Debt outstanding
as of the date hereof (other than the Refunded Bonds which are redeemed as of the Closing
Date).
ARTICLE V
COVENANTS OF THE CITY
While any obligations hereunder or under any of the other Financing Documents are
unpaid or outstanding, the City continuously warrants and agrees as follows:
Section 5.01 Performance of Covenants, Authority. The City covenants that it will
faithfully perform and observe at all times any and all covenants, undertakings, stipulations, and
provisions contained in this Agreement and the other Financing Documents to which it is a party
and all its proceedings pertaining thereto as though such covenants, undertakings, stipulations,
and provisions were set forth in full herein. The City covenants that it is duly authorized under
the constitution and laws of the State of Colorado, including, particularly and without
limitation, the City’s home rule charter, to issue the Loan and to execute and deliver the Notes,
this Agreement, and the other Financing Documents to which it is a party, and that all action on
its part for the issuance of the Loan and the execution and delivery of the Note, this Agreement,
and the other Financing Documents to which it is a party has been duly and effectively taken and
will be duly taken as provided therein and herein, and that the Loan, the Notes, this Agreement,
and the other Financing Documents to which the City is a party are and will be valid and
enforceable obligations of the City according to the terms hereof.
Section 5.02 Laws, Permits and Obligations. The City will comply in all material
respects with all applicable laws, rules, regulations, orders and directions of any governmental
authority and all agreements and obligations binding on the City, noncompliance with which
would have a material adverse effect on the City, its financial condition, assets or ability to
perform its obligations under this Agreement and/or the other Financing Documents to which it
is a party; provided that the City may in good faith contest such laws, rules, regulations, orders
and directions and the applicability thereof to the City to the extent that such action would not be
likely to have a material adverse effect on the City’s ability to perform its obligations hereunder.
Section 5.03 Tax Covenants.
(a) For purposes of ensuring that the interest on the Loan is and remains
excluded from gross income for federal income tax purposes, the City hereby covenants that it
will not take any action or omit to take any action with respect to the Loan, the proceeds thereof,
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any other funds of the City or any facilities financed or refinanced with the proceeds of the Loan
if such action or omission (i) would cause the interest on the Loan to lose its exclusion from
gross income for federal income tax purposes under Section 103 of the Code, or (ii) would cause
interest on the Loan to lose its exclusion from alternative minimum taxable income as defined in
Section 55(b)(2) of the Code, or (iii) would cause interest on the Loan to lose its exclusion from
Colorado taxable income and Colorado alternative minimum taxable income under present State
law. The foregoing covenant shall remain in full force and effect notwithstanding the payment in
full or defeasance of the Note until the date on which all obligations of the City in fulfilling the
above covenant under the Code have been met.
(b) In the event that at any time the City is of the opinion that for purposes of
this Section it is necessary to restrict or to limit the yield on the investment of any moneys held
by the Lender or held by the City, the City shall so restrict or limit the yield on such investment
or shall so instruct the Lender in a detailed certificate.
(c) The City specifically covenants to comply with the provisions and
procedures of the Tax Certificate.
(d) The covenants contained in this Section 5.03 shall remain in full force and
effect until the date on which all obligations of the City in fulfilling such covenants under the
Code and Colorado law have been met, notwithstanding the payment in full or defeasance of the
Loan.
Section 5.04 Bonding and Insurance. The City shall carry general liability coverage,
workers’ compensation, public liability, and such other forms of insurance on insurable City
property upon the terms and conditions, and issued by recognized insurance companies, as in the
judgment of the City would ordinarily be carried by entities having similar properties of equal
value, such insurance being in such amounts as will protect the City and its operations. In
addition, each City official or other Person having custody of any City funds or responsible for
the handling of such funds, shall be bonded or insured against theft or defalcation at all times.
Section 5.05 Other Liabilities. The City shall pay and discharge, when due, all of its
liabilities, except when the payment thereof is being contested in good faith by appropriate
procedures which will avoid financial liability and with adequate reserves provided therefor.
Section 5.06 Proper Books and Records. The City shall keep or cause to be kept
adequate and proper records and books of account in which complete and correct entries shall be
made with respect to the City, the Pledged Revenue, and all of the funds and accounts
established or maintained pursuant to any of the Financing Documents. The City shall
(a) maintain accounting records in accordance with generally recognized and accepted principles
of accounting consistently applied throughout the accounting periods involved; (b) provide the
Lender with such information concerning the business affairs and financial condition (including
insurance coverage) of City as the Lender may reasonably request; and (c) without request,
provide the Lender with the information set forth in Section 5.07 hereof.
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Section 5.07 Reporting Requirements.
(a) The City shall notify the Lender promptly of all interim litigation or
administrative proceedings, threatened or pending, against the City which would, if adversely
determined, in City’s reasonable opinion, have a material adverse effect on the City’s financial
condition arising after the date hereof.
(b) The City shall provide the following to the Lender at the times and in the
manner provided below:
(i) Audited Financial Statements – As soon as available, but not later
than September 30th of each year, the City shall furnish to the Lender its unqualified audited
financial statements prepared in accordance with generally accepted accounting principles
consistently applied, in reasonable detail and audited by a firm of independent Certified Public
Accountants selected by the City and satisfactory to the Lender;
(ii) Annual Budget – As soon as available, but in no event later than 30
days after the end of each Fiscal Year, the City shall furnish to the Lender the City’s annual
budget for such Fiscal Year and, as soon as available, shall furnish a copy of any proposed
amendments thereto; and
(iii) Requests for Information – Promptly upon request of the Lender,
the City shall furnish to the Lender such other reports or information regarding the Pledged
Revenue or the assets, financial condition, business or operations of the City, as the Lender may
reasonably request.
(c) The City shall promptly notify the Lender of any Default or Event of
Default of which the City has knowledge, setting forth the details of such Default or Event of
Default and any action which the City proposes to take with respect thereto.
(d) The City shall notify the Lender as soon as possible after the City acquires
knowledge of the occurrence of any event which, in the reasonable judgment of the City, is likely
to have a material adverse effect on the financial condition of the City or affect the ability of the
City to perform its obligations under this Agreement or under any other Financing Document.
Section 5.08 Visitation and Examination. Unless otherwise prohibited by law, the
City will permit any Person designated by the Lender to visit any of its offices to examine the
City’s books and financial records, and make copies thereof or extracts therefrom, and to discuss
its affairs, finances and accounts with its principal officers, all at such reasonable times and as
often as the Lender may reasonably request.
Section 5.09 Further Assurances. The City shall do, execute, acknowledge, and
deliver or cause to be done, executed, acknowledged and delivered, such amendments hereto and
such further acts, instruments, and transfers as the Lender may reasonably require for the better
assuring, transferring, and pledging unto the Lender the Pledged Revenue.
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Section 5.10 Covenant To Impose Ad Valorem Property Tax Mill Levy. The City
hereby covenants as follows:
(a) To impose an ad valorem property tax as provided in Section 3.03 hereof.
(b) Said direct annual taxes levied to pay said principal and interest shall be in
addition to any, and all other, taxes levied to effect the purposes of the City. No statutory or
constitutional provisions enacted after the delivery of the Loan herein authorized shall in any
manner be construed as limiting or impairing the obligation of the City to levy ad valorem taxes
for the payment of the principal of and interest on the Loan.
(c) The foregoing provisions of this Agreement are hereby declared to be the
certificate of the Board to the Board of County Commissioners of Pitkin County, showing the
aggregate amount of taxes to be levied for the purpose aforesaid by the Board of County
Commissioners of Pitkin County from time to time, as required by law, and for the purposes of
paying the principal of and interest on the Loan.
(d) The amounts necessary to pay all costs and expenses incidental to effecting
the transactions contemplated under the Financing Documents and paying the Principal of and
interest on the Loan are hereby appropriated for said purposes, and such amounts as appropriate
for each year shall also be included in the annual budget and appropriation resolutions to be
adopted and passed by the Board in each year, respectively, until the Loan have been fully paid,
satisfied, and discharged and the Notes, and this Agreement.
(e) Said taxes shall be levied, assessed, collected and enforced at the time and
in the form and manner and with like interest and penalties as other general taxes in the state, and
when collected said taxes shall be paid to the City as provided by law. The Board shall take all
necessary and proper steps to enforce promptly, or to cause the appropriate officials of the County
to enforce promptly, the payment of taxes levied.
(f) In the event any ad valorem taxes are not paid when due, the City shall
diligently cooperate with the appropriate county treasurer to enforce the lien of such unpaid taxes
against the property for which the taxes are owed.
Section 5.11 Continued Existence. The City shall maintain its existence and shall not
merge or otherwise alter its corporate structure in any manner or to any extent as might reduce
the security provided for the payment of the Loan, and will continue to operate and manage the
City and its facilities in an efficient and economical manner in accordance with all applicable
laws, rules and regulations.
Section 5.12 Material Adverse Action. The City shall not take any action nor consent
to any action that would materially adversely affect any portion of the Pledged Revenue.
Section 5.13 No Change in Financing Documents. The City shall not cancel,
terminate, amend, supplement, modify or waive any of the provisions of any of the Financing
Documents or consent to any such cancellation, termination, amendment, supplement,
modification or waiver, without the prior written consent of the Lender. The City shall take no
action under any of the Financing Documents to which it is a party inconsistent with the rights of
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the Lender under this Agreement including, without limitation, its obligations to make payments
to the Lender hereunder.
Section 5.14 References to Lender. The City shall not refer to the Lender in any
official statement, offering memorandum, or private placement memorandum without the
Lender’s prior written consent thereto; provided, however, that references to the Lender
contained in the City’s audited financial statements are permitted.
Section 5.15 Termination of Agreement. So long as the City’s obligations hereunder
remain unpaid or unperformed, the City shall not terminate this Agreement. At such time as no
amounts are due and owing to the Lender hereunder, this Agreement shall terminate.
Section 5.16 No Lien or Security Interest in Pledged Revenue. Except for the Loan, the
City shall not grant or permit to be granted any lien on or security interest in and to any portion of the
Pledged Revenue.
Section 5.17 Electoral Authorization. The City shall not take any action, or consent to any
action, which would have the effect of reducing the parameters of its electoral authorization, including,
without limitation, the interest rates, maturities, mill levies, tax increases, and maximum repayment cost
as approved by the qualified electors of the City voting at the elections held by the City as of the date
hereof.
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ARTICLE VI
REPRESENTATIONS OF LENDER; CONCERNING THE ADMINISTRATIVE AGENT
Section 6.01 Accredited Investor. The Lender is an organization that qualifies as an
“accredited investor,” as defined in § 11-59-110(1)(g) C.R.S.
Section 6.02 Financial Institution or Institutional Investor. The Lender is an
organization that qualifies as a “financial institution or institutional investor” as defined in §32-
1-103(6.5), C.R.S.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01 Events of Default. The occurrence of any one or more of the following
events or the existence of any one or more of the following conditions shall constitute an Event
of Default under this Agreement:
(a) Nonpayment of Principal or Interest. Failure to make any payment of
principal of or interest on the Loan when due;
(b) Breach or Nonperformance of Duties. Breach by the City of any material
covenant set forth herein or failure by the City to perform any material duty imposed on it
hereunder and continuation of such breach or failure for a period of 60 days after receipt
by the Mayor of written notice thereof from the Lender, provided that such 60 day period
shall be extended so long as the City has commenced and continues a good faith effort to
remedy such breach or failure;
(c) Bankruptcy or Receivership. An order of decree by a court of competent
jurisdiction declaring the City bankrupt under federal bankruptcy law or appointing a
receiver of all or any material portion of the City’s assets or revenues is entered with the
consent or acquiescence of the City or is entered without the consent or acquiescence of
the City but is not vacated, discharged or stayed within 30 days after it is entered.
Section 7.02 Remedies. Upon the occurrence and during the continuance of any Event
of Default, the Lender at its option, may do any one or more of the following:
(a) Remedies. Upon the occurrence and continuance of any Event of Default,
the Lender may proceed against the City to protect and to enforce its rights by
mandamus, injunction or by other suit, action or special proceedings in equity or at law,
in any court of competent jurisdiction: (i) for the payment of interest on any installment
of principal of the Loan that was not paid when due at the interest rate borne by such
Loan, (ii) for the specific performance of any covenant contained herein, (iii) to enjoin
any act that may be unlawful or in violation of any right of the Lender, (iv) for any other
proper legal or equitable remedy or (v) any combination of such remedies or as otherwise
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may be authorized by applicable law; provided, however, that acceleration of any amount
not yet due on the Loan according to their terms shall not be an available remedy.
(b) Failure to Pursue Remedies Not a Release; Rights Cumulative. The
failure of the Lender to proceed in accordance with subsection (a) of this Section shall
not relieve the City of any liability for failure to perform or carry out its duties under this
Agreement. Each right or privilege of the Lender is in addition and is cumulative to any
other right or privilege, and the exercise of any right or privilege by or on behalf of the
Lender shall not be deemed a waiver of any other right or privilege of the Lender.
Section 7.03 No Waiver of One Default to Affect Another; All Remedies
Cumulative. No waiver of any Event of Default hereunder shall extend to or affect any
subsequent or any other then existing Event of Default or shall impair any rights or remedies
consequent thereon. All rights and remedies of the Lender provided herein shall be cumulative
and the exercise of any such right or remedy shall not affect or impair the exercise of any other
right or remedy.
Section 7.04 Other Remedies. Nothing in this Article VII is intended to restrict the
Lender’s rights under any of the Financing Documents or at law or in equity, and the Lender may
exercise all such rights and remedies as and when they are available.
Section 7.05 Sovereign Immunity. Notwithstanding any other provisions of this
Agreement to the contrary, no term or condition of this Agreement or any other Financing
Document shall be construed or interpreted as a waiver, express or implied, of any of the
immunities, rights, benefits, protections or other provisions of the Colorado Governmental
Immunity Act, Title 24, Article 10, C.R.S., as now or hereafter amended.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Loan Agreement and Relationship to Other Documents. The
warranties, covenants and other obligations of the City (and the rights and remedies of the
Lender) that are outlined in this Agreement and the other Financing Documents are intended to
supplement each other. In the event of any inconsistencies in any of the terms in the Financing
Documents, all terms will be cumulative so as to give the Lender the most favorable rights set
forth in the conflicting documents, except that if there is a direct conflict between any preprinted
terms and specifically negotiated terms (whether included in an addendum or otherwise), the
specifically negotiated terms will control.
Section 8.02 Assignments, Participations, etc. by the Lender. This
Agreement and the Note shall be assignable by the Lender to any entity without the consent of
the City, provided that the Lender shall not assign or transfer this Agreement or the Note to any
Person who or which is not (i) an affiliate of the Lender; (ii) a “Bank” as defined in Section
3(a)(2) of the Securities Act of 1933 as amended (the “Securities Act”); (iii) an “Accredited
Investor” as defined in Regulation D under the Securities Act; or (iv) a “Qualified Institutional
Buyer” as defined in Rule 144A under the Securities Act. The Lender agrees that any
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assignment or transfer in violation of the foregoing shall be null and void and of no force or
effect, at the election of the City. In connection with any such assignment or participation, the
Lender may disclose to any proposed assignee or participant any information without the City’s
consent. Any such assignment or participation is also subject to the following conditions:
The rights, options, powers and remedies granted in this Agreement and the other
Financing Documents will extend to the Lender and to its successors and assigns, will be binding
upon the City and its successors and assigns and will be applicable hereto and to all renewals
and/or extensions hereof.
The Lender may at any time, without the consent of the City, sell to one or more
commercial banks or other Persons not affiliates of the City (a “Participant”) participating
interests in its rights and obligations hereunder or under the other Financing Documents;
provided, however, that (i) the Lender’s obligations hereunder shall remain unchanged, (ii) the
Lender shall remain solely responsible for the performance of such obligations, and (iii) the
participation of one or more Participants shall not reduce or alter the Lender’s obligations
hereunder or affect in any way the rights or obligations of the City hereunder and the City has the
right to continue to deal solely with the Lender. In the case of any such participation, the
Participant shall be entitled to the benefit of Section 8.03 (pertaining to litigation and
indemnification) hereof as though it were also the Lender hereunder. The Lender will give
notice of the sale of such participation and the name of the Participant to the City within 30 days
of the date of such sale.
Section 8.03 Defeasance When all principal of and interest on the Loan has been duly
paid, the lien of the Lender on the Pledged Revenue and the other Collateral created by this Loan
Agreement shall thereby be discharged and the Loan shall be deemed fully paid, satisfied and no
longer outstanding within the meaning of this Agreement. There shall be deemed to be such due
payment when:
(a) the City has placed in escrow and in trust with a commercial bank located
within or without the State of Colorado, and exercising trust powers, an amount sufficient
(including the known minimum yield from Federal Securities in which such amount may
be initially invested) to meet all requirements of the principal of and interest on the Loan
as the same become due to the Maturity Date or upon designated prior prepayment in
accordance with the provisions hereof, and such Federal Securities shall become due at or
prior to the respective times on which the proceeds thereof shall be needed, in accordance
with a schedule established and agreed upon between the City and such commercial bank
at the time of the creation of the escrow, or the Federal Securities shall be subject to
redemption at the option of the holders thereof to assure such availability as so needed to
meet such schedule; and
(b) (i) a firm of Certified Public Accountants shall have determined the
sufficiency of the escrow and delivered its report showing that the payment of principal
of and interest on the securities held in escrow for the payment of the Loan will be
sufficient without reinvestment to pay the principal of if any, and interest on the Loan
when due; or (ii) the escrow shall be fully funded with cash.
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Section 8.04 Notices. Notice of any record shall be deemed delivered when the record
has been (a) deposited in the United States Mail, postage pre-paid; (b) received by overnight
delivery service; (c) received by telex; (d) received by facsimile; (e) received through the
internet; or (f) when personally delivered at the following addresses:
if to the City: City of Aspen
ATTN: Finance Director
130 S. Galena St.
Aspen, Colorado 81611
Phone: 970-920-5007
Fax: 970-920-5197
if to the Lender: Vectra Bank
Municipal Finance
2000 S. Colorado Blvd, Ste. 2-1200
Denver, Colorado 80222
Phone: (720) 947-7799
ZMFU II, Inc.
One South Main, 18th Floor
Salt Lake City, Utah 84133
ATTN: Todd Harris
Section 8.05 Payments. Payments due on the Loan shall be made in lawful money of
the United States. All payments may be applied by the Lender to principal, interest and other
amounts due under the Notes and this Agreement in any order which the Lender elects.
Section 8.06 Applicable Law and Jurisdiction; Interpretation; Severability. This
Agreement and all other Financing Documents will be governed by and interpreted in
accordance with the internal laws of the State of Colorado, except to the extent superseded by
Federal law. Invalidity of any provisions of this Agreement will not affect any other provision.
THE CITY AND THE LENDER HEREBY CONSENT TO THE EXCLUSIVE
JURISDICTION OF THE DISTRICT COURT FOR PITKIN COUNTY, COLORADO, AND
WAIVE ANY OBJECTIONS BASED ON FORUM NON CONVENIENS, WITH REGARD TO
ANY ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING TO THIS
AGREEMENT, THE NOTES, THE PLEDGED REVENUE, ANY OTHER FINANCING
DOCUMENT, OR ANY TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT
AND/OR INTERPRETATION OF ANY OF THE FOREGOING. Nothing in this Agreement
will affect the Lender’s rights to serve process in any manner permitted by law. This Agreement,
the other Financing Documents and any amendments hereto (regardless of when executed) will
be deemed effective and accepted only at the Lender’s offices, and only upon the Lender’s
receipt of the executed originals thereof. Invalidity of any provision of this Agreement shall not
affect the validity of any other provision.
Section 8.07 Copies; Entire Agreement; Modification. The City hereby
acknowledges the receipt of a copy of this Agreement and all other Financing Documents.
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IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING,
EXPRESSING CONSIDERATION AND SIGNED BY THE PARTIES ARE ENFORCEABLE.
NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN TH IS WRITTEN
CONTRACT MAY BE LEGALLY ENFORCED. THE TERMS OF THIS AGREEMENT
MAY ONLY BE CHANGED BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE
SHALL ALSO BE EFFECTIVE WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS
NOW IN EFFECT BETWEEN THE CITY AND THE LENDER. A MODIFICATION OF
ANY OTHER CREDIT AGREEMENT NOW IN EFFECT BETWEEN THE CITY AND THE
LENDER, WHICH OCCURS AFTER RECEIPT BY THE CITY OF THIS NOTICE, MAY BE
MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR IMPLIED
MODIFICATIONS TO ANY SUCH CREDIT AGREEMENT ARE NOT ENFORCEABLE
AND SHOULD NOT BE RELIED UPON.
Section 8.08 Attachments. All documents attached hereto, including any appendices,
schedules, riders and exhibits to this Agreement, are hereby expressly incorporated by reference.
Section 8.09 No Recourse Against Officers and Agents. Pursuant to
Section 11-57-209 of the Supplemental Public Securities Act, if a member of the Board, or any
officer or agent of the City, acts in good faith in the performance of his duties as a member,
officer, or agent of the Board or the City and in no other capacity, no civil recourse shall be
available against such member, officer or agent for payment of the principal of and interest on
the Loan. Such recourse shall not be available either directly or indirectly through the Board or
the City, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement of
penalty, or otherwise. By the acceptance of the delivery of the Notes evidencing the Loan and as
a part of the consideration for such transfer, the Lender and any Person purchasing or accepting
the transfer of the obligation representing the Loan specifically waives any such recourse. This
Section 8.10 shall not limit recourse against any Person guarantying payment of the Loan, in his
capacity as guarantor, whether or not such Person is also a member or officer of the Board or the
City.
Section 8.10 Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental
Public Securities Act, this Agreement and the Notes are entered into pursuant to certain
provisions of the Supplemental Public Securities Act. Such recital in the Notes shall be
conclusive evidence of the validity and the regularity of the issuance of this Agreement after
delivery for value.
Section 8.11 Limitation of Actions. Pursuant to Section 11-57-212 of the
Supplemental Public Securities Act, no legal or equitable action brought with respect to any
legislative acts or proceedings in connection with the authorization or issuance of the Loan shall
be commenced more than 30 days after the authorization of the Loan.
Section 8.12 Pledge of Revenues. The creation, perfection, enforcement, and priority
of the pledge of revenues to secure the payment of the principal of and interest on the Loan as
provided herein and in the Notes shall be governed by Section 11-57-208 of the Supplemental
Public Securities Act, this Agreement, the Notes, and the Authorizing Ordinance. The amounts
pledged to the payment of the principal of and interest on the Loan shall immediately be subject
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to the lien of such pledge without any physical delivery, filing, or further act. The lien of such
pledge shall have a first priority. The lien of such pledge shall be valid, binding, and enforceable
as against all Persons having claims of any kind in tort, contract, or otherwise against the City
irrespective of whether such Persons have notice of such liens.
Section 8.13 No Waiver; Modifications in Writing. No failure or delay on the part of
the Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy preclude any other
right, power or remedy. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to the Lender at law or in equity or otherwise. No
amendment, modification, supplement, termination or waiver of or to any provision of this
Agreement, nor consent to any departure by the City therefrom, shall be effective unless the
same shall be in writing and signed by or on behalf of the Lender. Any amendment,
modification or supplement of or to any provision of this Agreement, and any consent to any
departure by the City from the terms of any provision of this Agreement, shall be effective only
in the specific instance and for the specific purpose for which made or given. No notice to or
demand on the City in any case shall entitle the City to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the right of the Lender to any other or
further action in any circumstances without notice or demand.
Section 8.14 Payment on Non-Business Days. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case be included in
the computation of the amount due.
Section 8.15 Document Imaging. The Lender shall be entitled, in its sole discretion, to
image all or any selection of the Financing Documents, other instruments, documents, items and
records governing, arising from or relating to the Loan, and may destroy or archive the paper
originals. The City hereby waives any right to insist that the Lender produce paper originals;
agrees that such images shall be accorded the same force and effect as the paper originals; and
further agrees that the Lender is entitled to use such images in lieu of destroyed or archived
originals for any purpose, including as admissible evidence in any demand, presentment or
proceedings.
Section 8.16 Redactions. In the event that District determines to voluntarily post
information concerning the Loan to the Electronic Municipal Market Access (“EMMA”) website
maintained by the Municipal Securities Rulemaking Board (the “MSRB”), as suggested by the
MSRB’s Notice 2012-18, upon request Lender shall provide to the City versions of this
Agreement and the other Financing Documents as amended that have been redacted in a manner
consistent with MSRB Notice 2011-17 (February 23, 2011) or any similar or successor MSRB
notice. The City shall only post on EMMA such redacted versions of the Financing Documents
as are provided by Lender.
Section 8.17 No Advisory or Fiduciary Relationship. In connection with any aspect
of the transactions contemplated by this Agreement (including in connection with any
amendment, waiver or other modification hereof or of any other Financing Document), the City
acknowledges and agrees that: (a) the Lender has not provided advice to or on behalf of a
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municipal entity or obligated person with respect to municipal financial products or the issuance
of municipal securities, including advice with respect to the structure, timing, terms and other
similar matters concerning such financial products or issues undertaken a solicitation of a
municipal entity, or otherwise acted in the capacity of a “municipal advisor” to the City, within
the meaning of Section 975 of the Dodd–Frank Wall Street Reform and Consumer Protection
Act, Section 15B of the Securities Exchange Act of 1934, as amended, and related rules,
including, without limitation, Municipal Securities Rulemaking Board (“MSRB”) Rule G-23; (b)
the Loan constitutes an arm’s-length commercial transaction between unrelated parties; (c) the
Lender has not assumed an agency or fiduciary responsibility in favor of the City with respect to
the Loan or the process leading thereto or any other obligation to the City except for the
obligations expressly set forth in the Agreement; (d) the Lender has financial and other interests
that differ from those of the City; and (e) the City has consulted with its own legal and financial
advisors to the extent it has deemed appropriate in connection with the solicitation and receipt of
the Loan.
Section 8.18 Execution in Counterparts. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and the same Agreement.
Section 8.19 Severability. Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or nonauthorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability or legality of such provision
in any other jurisdiction.
Section 8.20 Headings. Article and Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction of this Agreement.
Section 8.21 Waiver of Rules of Construction. The City hereby waives any and all
provisions of law to the effect that an ambiguity in a contract or agreement should be interpreted
against the party responsible for its drafting.
Section 8.22 Integration. This Agreement is intended to be the final agreement
between the parties hereto relating to the subject matter hereof and this Agreement and any
agreement, document or instrument attached hereto or referred to herein shall supersede all oral
negotiations and prior writings with respect to the subject matter hereof.
Section 8.23 Patriot Act Notice. The Lender hereby notifies the City that pursuant to
the requirements of the Patriot Act it is required to obtain, verify and record information that
identifies the City, which information includes the name and address of the City and other
information that will allow the Lender to identify the City in accordance with the Patriot Act.
The City hereby agrees that it shall promptly provide such information upon request by the
Lender.
Section 8.24 No Registration; No Securities Depository; No CUSIP. The City and
the Lender hereby agree as follows: (i) the Notes are not being registered under the Securities
Act of 1933; (ii) the Notes are not being registered or otherwise qualified for sale under the
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“Blue Sky” laws and regulations of any state; (iii) the Lender will hold the Note as a debt
instruments; (iv) no CUSIP number will be obtained for the Notes; (v) no official statement or
other offering document has been or will be prepared in connection with the private placement of
the Loan with the Lender; (iv) the Loan will not close through the Depository Trust Company or
any other securities depository and the Notes will not be in book entry form; (v) the Loan are not
listed on any stock or other securities exchange; and (vi) the Loan shall not be assigned a rating
by any rating agency.
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IN WITNESS WHEREOF, the undersigned have executed this Loan Agreement as of the
date set forth above.
ZMFU II, INC.
By
Authorized Officer
CITY OF ASPEN, COLORADO
By
Mayor
[SEAL]
Attest:
By
City Clerk
[Signature Page to Loan Agreement]
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EXHIBIT A
FORM OF PROMISSORY NOTE
This Note may only be transferred to: (i) an affiliate of the Lender; (ii) a
“Bank” as defined in Section 3(a)(2) of the Securities Act of 1933 as amended (the “Securities
Act”); (iii) an “Accredited Investor” as defined in Regulation D under the Securities Act; or
(iv) a “Qualified Institutional Buyer” as defined in Rule 144A under the Securities Act.
UNITED STATES OF AMERICA
STATE OF COLORADO
CITY OF ASPEN
PROMISSORY NOTE
IN THE AGGREGATE PRINCIPAL AMOUNT OF
$2,150,000
US $2,150,000
2.90% Interest Rate February 28, 2019
FOR VALUE RECEIVED, CITY OF ASPEN, COLORADO, a legally and regularly
created, established, organized and existing municipal corporation under the provisions of
Article XX of the Constitution of the State of Colorado (the “State”) and the home rule charter
of the City (the “Charter”) and political subdivision of the State (hereinafter referred to as
“Maker”), promises to pay to the order of ZMFU II, INC., its successors and assigns (hereinafter
referred to as “Payee”), at such place as Payee or its agent, designee, or assignee may from time
to time designate in writing, the principal sum of TWO MILLION ONE HUNDRED FIFTY
THOUSAND DOLLARS (US $2,150,000) (this “Note”) pursuant to the terms of the Loan
Agreement dated of even date herewith by and between Maker and Payee (the “Loan
Agreement”), in lawful money of the United States of America.
This Note shall bear interest, be payable, and mature pursuant to the terms and provisions
of the Loan Agreement. All capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed in the Loan Agreement.
Amounts received by Payee under this Note shall be applied in the manner provided by
the Loan Agreement. All amounts due under this Note shall be payable without setoff,
counterclaim or any other deduction whatsoever by Maker.
Unless payments are made in the required amount in immediately available funds in
accordance with the provisions of the Loan Agreement, remittances in payment of all or any part
of the amounts due and payable hereunder shall not, regardless of any receipt or credit issued
therefor, constitute payment until the required amount is actually received by Payee in funds
immediately available at the place where this Note is payable (or any other place as Payee, in
Payee’s sole discretion, may have established by delivery of written notice thereof to Maker) and
shall be made and accepted subject to the condition that any check or draft may be handled for
collection in accordance with the practice of the collecting bank or banks. Acceptance by Payee
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of any payment in an amount less than the amount then due shall be deemed an acceptance on
account only and any unpaid amounts shall remain due hereunder, all as more particularly
provided in the Loan Agreement.
In the event of nonpayment of this Note, Payee shall be entitled to all remedies under the
Loan Agreement and at law or in equity, and all remedies shall be cumulative.
It is expressly stipulated and agreed to be the intent of Maker and Payee at all times to
comply with applicable state law and applicable United States federal law. If the applicable law
(state or federal) is ever judicially interpreted so as to render usurious any amount called for
under this Note or under the Loan Agreement, or contracted for, charged, taken, reserved or
received with respect to the indebtedness evidenced by this Note, then it is Maker’s and Payee’s
express intent that all excess amounts theretofore collected by Payee be credited on the principal
balance of this Note (or, if this Note has been or would thereby be paid in full, refunded to
Maker), and the provisions of this Note shall immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of
any new document, so as to comply with the applicable law, but so as to permit the recovery of
the fullest amount otherwise called for hereunder and under the Loan Agreement. All sums paid
or agreed to be paid to Payee for the use, forbearance and detention of the indebtedness
evidenced hereby and by the Loan Agreement shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of such indebtedness until
payment in full so that the rate or amount of interest on account of such indebtedness does not
exceed the maximum rate permitted under applicable law from time to time in effect and
applicable to the indebtedness evidenced hereby for so long as such indebtedness remains
outstanding.
Maker and any endorsers, sureties or guarantors hereof jointly and severally waive
presentment and demand for payment, protest and notice of protest and nonpayment, all
applicable exemption rights, valuation and appraisement, notice of demand, and all other notices
in connection with the delivery, acceptance, performance, default or enforcement of the payment
of this Note and the bringing of suit and diligence in taking any action to collect any sums owing
hereunder or in proceeding against any of the rights and collateral securing payment hereof.
Maker and any surety, endorser or guarantor hereof agree (a) that the time for any payments
hereunder may be extended from time to time without notice and consent; (b) to the acceptance
of further collateral; (c) to the release of any existing collateral for the payment of this Note;
(d) to any and all renewals, waivers or modifications that may be granted by Payee with respect
to the payment or other provisions of this Note; and/or (e) that additional makers, endorsers,
guarantors or sureties may become parties hereto all without notice to them and without in any
manner affecting their liability under or with respect to this Note. No extension of time for the
payment of this Note shall affect the liability of Maker under this Note or any endorser or
guarantor hereof even though Maker or such endorser or guarantor is not a party to such
agreement.
Failure of Payee to exercise any of the options granted herein to Payee upon the
happening of one or more of the events giving rise to such options shall not constitute a waiver
of the right to exercise the same or any other option at any subsequent time in respect to the same
or any other event. The acceptance by Payee of any payment hereunder that is less than payment
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in full of all amounts due and payable at the time of such payment shall not constitute a waiver
of the right to exercise any of the options granted herein or in the Loan Agreement to Payee at
that time or at any subsequent time or nullify any prior exercise of any such option without the
express written acknowledgment of Payee.
Maker (and the undersigned representative of Maker, if any) represents that Maker has
full power, authority and legal right to execute, deliver and perform its obligations pursuant to
this Note and this Note constitutes the legal, valid and binding obligation of Maker.
All notices or other communications required or permitted to be given hereunder shall be
given in the manner and be effective as specified in the Loan Agreement, directed to the parties
at their respective addresses as provided therein.
This Note is governed by and interpreted in accordance with the internal laws of the State
of Colorado, except to the extent superseded by federal law. Invalidity of any provisions of this
Note will not affect any other provision.
Pursuant to Section 11-57-210 of the Colorado Revised Statutes, as amended, this Note is
entered into pursuant to and under the authority of certain provisions of the Supplemental Public
Securities Act, being Title 11, Article 57, Part 2 of the Colorado Revised Statutes, as amended.
Such recital shall be conclusive evidence of the validity and the regularity of the issuance of this
Note after delivery for value and shall conclusively impart full compliance with all provisions
and limitations of said statutes, and this Note shall be incontestable for any cause whatsoever
after delivery for value.
MAKER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE
DISTRICT COURT, PITKIN COUNTY, COLORADO, AND WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS,
DISPUTES OR PROCEEDINGS RELATING TO THIS NOTE, THE LOAN AGREEMENT,
THE PLEDGED REVENUE, ANY OTHER FINANCING DOCUMENT, OR ANY
TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT AND/OR
INTERPRETATION OF ANY OF THE FOREGOING.
THE PROVISIONS OF THIS NOTE MAY BE AMENDED OR REVISED ONLY BY
AN INSTRUMENT IN WRITING SIGNED BY MAKER AND PAYEE. THERE ARE NO
ORAL AGREEMENTS BETWEEN MAKER AND PAYEE WITH RESPECT TO THE
SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, an authorized representative of City of Aspen, Colorado, as
Maker, has executed this Note as of the day and year first above written.
P123
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CITY OF ASPEN, COLORADO
By
Mayor
[SEAL]
Attest:
By
City Clerk
[Signature Page to Promissory Note]
P124
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CERTIFICATE OF AUTHENTICATION
Date of Registration and Authentication:
____________________
This Promissory Note constitutes the “Note” or “Promissory Note” as defined in the
within-mentioned Loan Agreement.
ZMFU II, INC.
By
Authorized Signatory
P125
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EXHIBIT B
LOAN PRINCIPAL PAYMENT SCHEDULE
P126
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EXHIBIT C
CLOSING MEMORANDUM
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RE:A Call to Action
Dear City Council, City Planning and Zoning Commission and Citizens of Aspen,
Between two projects, 404 Park Avenue (already approved) and the proposed Aspen Hills Development,
the east-end neighborhoods will be under-parked by almost 50 parking spaces! To put this into
perspective,there are only 16 on-street parking spaces available for the total length of Midland Ave
from Highway 82 to where it dead ends into Midland Park Place ( affordable housing ). Where will 50
cars park? Midland Ave is the only street on the east side of the river that has on street public parking.
Here are facts:
404 Park Ave: 56 Bedrooms and 28 parking spaces
Aspen Hills: 26 Bedrooms and 17 parking spaces
That's 48 bedrooms without parking on a street with 16 spaces that are already totally utilized by
existing development. Picture this: Take a very dense neighborhood with existing parking challenges and
very narrow streets and then drop in 50 new cars without spaces.
Even if a project meets code it is not required to be approved. All approvals are discretionary. If a
project or projects harm the neighborhood or are inconsistent with the Aspen Area Community Plan the
project can be deemed to be premature for development until the issues (offsite or on site) can be
resolved.
In general, the dilapidated fixer upper units being deed restricted in order to infill with free market units
has its challenges throughout Aspen. We need a new model.The Planning and Zoning Commission (PZ)
has not been able to look at the bigger issues beyond code standards. Check out the purpose of the PZ
on the Aspen Web site....The Commission studies long-range planning matters, including the Aspen Area
Community Plan, and makes recommendations to the City Council
But,the real issue is the neighborhood. Please care about the healthy bigger picture vs the individual
gains of a single developer(not picking on this developer personally) who will not live with the erosion
of neighborhood character and the resulting daily struggles which will pit neighbors against neighbors
who just need a place to park their car.
ATTEND the February 5th PZ meeting at City Hall at 4:30 to express your astonishment at the
possibility of dumping 50 cars on a road that only has 16 parking spaces! This could happen to your
neighborhood (if it hasn't already).This has gone too far in the name of affordable housing- let us rethink
the balance of the needs in this community. YES, we desperately need affordable housing and YES, we
desperately need parking and YES we desperately need livable neighborhoods. We need better solutions
and the existing codes do not provide what we need. There are solutions and we need to participate in
adopting them. Otherwise we are no longer going to want to live here -even if it's IN affordable
housing.
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