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CITY COUNCIL AGENDA
January 28, 2019
5:00 PM
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
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) Minutes - January 14, 2019
b) Resolution #14, Series of 2019 - Separation, Release and Waiver Agreement for
Steve Barwick
VII. Notice of Call-Up
VIII. First Reading of Ordinances
a) Ordinance #1, Series of 2019 - Small Lodge Preservation Program Extension
IX. Public Hearings
a) Resolution #11, Series of 2019 - 730 E Cooper Ave (Base 1 Lodge) Extension of
Vested Rights
b) Resolution #12, Series of 2019 - 330 E Main St. - Hotel Jerome - Temporary Use
Request
c) Ordinance #3, Series of 2019 - Refinancing Existing Castle Creek Energy Center
Debt to Achieve Interest Rate Savings and a Shorter Remaining Duration
d) Resolution #13, Series of 2019 - Wireless Regulations Policy Resolution
X. Action Items
XI. Executive Session
a) C.R.S. 24-6-402 (a) purchase, acquisition, lease, transfer or sale of any real,
personal, or other property interest, (b) Conferences with an attorney for the local
public body for the purposes of receiving legal advice on specific legal questions,
(e) Determining positions relative to matters that may be subject to negotiations;
developing strategy for negotiations; and instructing negotiators - related to 312
W Hyman Ave; and (f) (I) Personnel matters
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XII. Adjournment
Next Regular Meeting February 11, 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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SCHEDULED PUBLIC APPEARANCES .................................................................................................. 2
CITIZEN COMMENTS ............................................................................................................................... 2
CITY COUNCIL COMMENTS ................................................................................................................... 2
BOARD REPORTS ...................................................................................................................................... 2
CONSENT CALENDAR ............................................................................................................................. 2
Resolution #1, Series of 2019 – Designating the Public Place for the Posting of Notices of Public
Meetings ........................................................................................................................................................ 3
Resolution #7 and #8, Series of 2019 – Re- appointment of Brooke Peterson and Ted Gardenswarts –
Administrative Hearing Officers ................................................................................................................... 3
Resolution #9 and #10, Series of 2019 – Appointment of Pete Strecker and Sara Ott to Burlingame
Housing Inc. Board of Directors ................................................................................................................... 3
Resolution #3, Series of 2019 – Reconstruction of existing golf bunkers ............................................ 3
Resolution #4, Series of 2019 – 2018 Growth Management Allotment Carry Forward Review ......... 3
Minutes – December 10, 2018 and January 7, 2019 ............................................................................. 3
ORDINANCE #3 SERIES OF 2019 – Refinancing Existing Castle Creek Energy Center Debt to Achieve
Rate Savings and a Shorter Remaining Duration .......................................................................................... 3
ACTION ITEM – Short term City work priorities discussion ...................................................................... 4
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At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Hauenstein,
Myrin, Frisch and Mullins present.
SCHEDULED PUBLIC APPEARANCES
Swear in new Police Officer – Audrey Radlinsky.
Kirk Wheatly, APD, said it is an honor to introduce Audrey. She grew up in Michigan and is the oldest
of four. She moved here 8 years ago and started with the APD three years ago as a community response
officer. She was promoted to patrol and went through the CMC academy. She hit the road last week for
patrol. She is very motivated and a great asset to the department. Audrey said she is honored to serve the
city and the citizens. She is enthusiastic and grateful. Mayor Skadron swore in Audrey.
CITIZEN COMMENTS
1. Lee Mulcahy again asked council for a public hearing.
CITY COUNCIL COMMENTS
Councilwoman Mullins gave thanks to everyone who put on Winterskol. The sculptures were fabulous.
Bauhaus kicked off last week too. She attended a housing and stability summit. She lives on Hyman
across from the ice rink. I’ve been asked to see if the snow plow can pile up the snow some time other
than 3 in the morning. It is really loud.
Councilman Myrin said regarding the executive session last Monday. It was my mistake to not push for a
meeting sooner than a week outlining the city manager transition plan. I apologize for leaving everyone
hanging for a week. Tonight, I want to establish a process for naming an interim city manager and limit
the role for the current city manager in regard to hiring and personnel and map a process to put a new city
manager in place. It is a long overdue process to start anew with the culture of the city manager.
Regarding allowing the current city manager to stay in his home for an additional 6 months and receive
health coverage for 6 months, I’m following the golden rule on this.
Councilman Hauenstein welcomed everyone that is here for gay ski week. The interest expressed at the
Bauhaus meeting was phenomenal. It was a great kick off to a year long process. He also attended the
homelessness meeting. It was well attended by valley people in an attempt to try to unite our efforts.
Councilman Frisch gave a hats off to ACRA and Winterskol. Thanks to the Mayor for hosting some of
the Sister Cities kids. It was a great trip. Keep up the good work Jim True.
Mayor Skadron gave thanks to the Winterskol team. Congrats to Lissa and the Bauhaus team. Welcome
gay ski week.
BOARD REPORTS
Councilman Frisch said for Nordic the snow is skiing great. No fare. Lots of great skiing.
Mayor Skadron said RFTA approved a resolution for posting notices. There are also two new members,
The Mayor of New Castle is the chair and the Mayor of Snowmass is the vice chair.
CONSENT CALENDAR
Reso #4 – Growth Management carry forward
Councilman Myrin said last year the memo mentioned nothing was carried forward. Can we do same this
year. Phillip Supino, community development, replied that is the recommendation.
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Councilwoman Mullins said she supports the recommendation. She asked for a deeper look at what is
still in the pipeline or close to coming up.
Councilman Frisch said he is fully supportive.
Reso #9 – BHI board appointments
Councilwoman Mullins asked why there is not a council member on this board. Linda Manning, city
clerk, replied there has never been a council person. Councilwoman Mullins said she wants to make sure
we are proactive if it needs to be a council member.
· Resolution #1, Series of 2019 – Designating the Public Place for the Posting of Notices of
Public Meetings
· Resolution #7 and #8, Series of 2019 – Re- appointment of Brooke Peterson and Ted
Gardenswartz – Administrative Hearing Officers
· Resolution #9 and #10, Series of 2019 – Appointment of Pete Strecker and Sara Ott to
Burlingame Housing Inc. Board of Directors
· Resolution #3, Series of 2019 – Reconstruction of existing golf bunkers
· Resolution #4, Series of 2019 – 2018 Growth Management Allotment Carry Forward
Review
· Minutes – December 10, 2018 and January 7, 2019
Councilman Frisch moved to adopt the consent calendar; seconded by Councilman Hauenstein. All in
favor, motion carried.
ORDINANCE #3 SERIES OF 2019 – Refinancing Existing Castle Creek Energy Center Debt to
Achieve Rate Savings and a Shorter Remaining Duration
Pete Strecker, finance, said this will refinance 2 million in outstanding debt that was issued in 2008. It
has an interest rate of 3.85 to 4.75 depending on the bond. We can refinance to 2.9 at a fixed rate for the
next 7 years. It will have a savings of 113,000 dollars.
Mayor Skadron said it is purely a cost savings. Mr. Strecker replied correct.
Councilman Myrin asked has council ever objected to these refinancings where we save money. Mr.
Strecker replied he didn’t think so.
Councilman Hauenstein said these were bought down previously. Mr. Strecker replied yes. That saved
roughly $380,000 in December. With this the total will save around 500,000 dollars. We are retiring the
bonds and taking out a loan with a private placement bank.
Councilwoman Mullins moved to read Ordinance #3, Series of 2019; seconded by Councilman Frisch.
All in favor, motion carried.
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.
Councilman Frisch moved to adopt Ordinance #3, Series of 2019 on first reading; seconded by
Councilwoman Mullins. Roll call vote. Councilmembers Myrin, yes; Frisch, yes; Hauenstein, yes;
Mullins, yes; Mayor Skadron, yes. Motion carried.
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ACTION ITEM – Short term City work priorities discussion
Mayor Skadron said we are amidst a change of leadership and have to make sure the city functions. I
want us to discuss what we believe our top three to five priorities are. In reality, we can’t do everything
we ask staff to do for us. I desire now to give direction as to what the city’s priorities are. 1. Start the
process to hire a firm to manage the hiring process for the city manager. 2. APCHA governance. 3.
Ensure day to day operations are running. 4. Small cell 5G issue. 5. Continue with capital projects
including the city hall project. These are in no particular order.
Councilwoman Mullins said taking a step back for city hall and senior management. We need to develop
a detailed transition plan and develop criteria of what we will be asking for a city manager. Rather than
jumping into hiring a head hunter do some deep analysis as to what we are looking for. Secondly day to
day priorities as to what is going on. APCHA should be up there and getting the database done. Lastly,
after talking to Andrea today the 5G cell issue needs addressed much sooner than later.
Councilman Hauenstein said level 1 should be appointing an interim city manager and establishing a
process for hiring a new one. Formalizing the terms of Steve’s departure and agreement so it is
memorialized. Second level is review of the call up procedures, 5G, APCHA governance, day to day
operations and capital projects.
Councilman Myrin said it would be great to have a list of current priorities as to what the city is working
on. He is not sure why there isn’t a list constantly in progress. It is really difficult for me to provide
guidance without knowing what the city is working on.
Councilman Frisch said we were sent an open ended inquiry. It would be helpful to get some advice from
staff as to what they can realistically tackle. I would love to see in priority what they want to work on.
It took eight years to get an APCHA conversation going and we are dancing with the county. I would like
to continue that discussion. There are two tracks that we can concurrently take. I would like to get a
contract for an interim city manager then see what our options are. I think we should get going on that
fairly soon knowing it will take some time. My number one disappointment in July was lack of outreach
and communication and six month later it still is. This is not 100 percent on staff’s shoulders.
Mayor Skadron said the process around hiring the city manager has two parts. What are we working on
and the second question is who is getting us there. This speaks to appointing an interim city manager.
We have basically two options. The first is to negotiate with Sara Ott, assistant city manager. If we have
confidence with her I would ask, Jim, Steve and Alissa to help us going forward. The first order of
business would be Steve’s separation agreement would get signed then Sara’s agreement would be
signed. If council chooses not to appoint Sara, we would then ask staff to come back to council with a
plan as to how to recruit an interim city manager.
Councilman Hauenstein asked does Sara want to be interim city manager. Sara Ott, assistant city
manager said it is important the community have a smooth transition and I am happy to help with that.
Councilman Hauenstein said he has confidence Sara can fill that position.
Councilman Frisch said Steve, you laid out a pretty good process. This is really in Alissa’s and Jim
True’s hands. I’m supportive of whatever the team comes up with. It would be great to have Sara as an
interim city manager.
Councilwoman Mullins said she has great confidence in Sara. Can we do this simultaneously. Jim True,
city attorney, said we do envision a simultaneous discussion process. What we would hope to do is bring
the documents necessary as soon as we can. The goal is the 28th at the latest.
Councilman Myrin said there is some value in trying to get some clarity in this before Tuesday so there is
stability in both the community and government. What is the process. Mayor Skadron said each parties’
lawyers will work together to go through the interest of each party. Mr. True said we can get clarity
tonight. Sara wants these discussions in an open meeting. There are terms we need to negotiate and get
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in writing. Getting the documents by Tuesday may be challenging. Councilman Myrin asked what terms
would we discuss privately versus in public.
Councilman Frisch said there is the Barwick package and the Ott package. What we’ve heard talked
about with Mr. Barwick, is there anything that gives us pause. Now is the time to flush that out. We are a
little less certain as to what may be in a Sara thing.
Councilman Myrin said the big question becomes from with Steve I support the extra 6 months of
housing and health insurance. Mr. True said you said an extra 6 months. Health care would be 6 months
from his date of separation. Councilman Myrin said I’m suggesting 6 months beyond that so it aligns
with his rate of pay. Mr. True said as I understood Steve’s request for the insurance, the city would be
paying Cobra amounts. His request was 6 months of cobra payments, not a year. The agreement
acknowledges the prior contract of 1 year salary and PTO payouts. The additional terms are the 1 year,
additional 6 months of housing and the 6 moths of Cobra. The only relevant thing is the date of
separation. Mr. Barwick said we left the date open ended. I think we will come up with a no later than
date. I think we will leave it 3 weeks on either side. I’m thinking March 1st. Mr. True said does Sara
step in to the interim position before March 1st.
Mayor Skadron said the question is getting the interim in place. If we have confidence in Sara.
Councilman Myrin said I have confidence in Sara. It is awkward being presented with one person and
being asked if we have confidence in them. Councilman Hauenstein said she has been with us for a year
and a half. If we are presented with someone from outside it would extend the time. Councilman Myrin
said I was suggesting a deeper bench from inside. I support Sara.
Mayor Skadron said council is expressing confidence in Sara serving as an interim.
Ms. Ott said regarding the transition, Steve and I have committed that we will make this as smooth as we
can. We need to put a hard date on this for this to work. She is asking to fill the other assistant city
manager position as an interim position. We need to fill the CBO position by a specific date. We also
need to fill the communications director position.
Councilman Frisch said I appreciate you sharing those thoughts. I agree for some of these senior spots
balancing the work that needs to be done and allowing the city manager to look for these top people. I’m
pretty sure the positions you want to fill, I’ll support. I firmly believe one person should have the final
say on a lot of issues and we need to have one boss. That date needs to happen sooner rather than later.
Councilwoman Mullins said for an interim assistant city manager, I think you definitely need to have that.
Are you thinking within the organization. Ms. Ott said I think we have talent within the organization.
My leadership philosophy is really simple. It is give people work worth doing. I view the city
manager’s job to be a facilitator. This is not my first time running an organization. Councilwoman
Mullins said she supports filling the CBO. When is he leaving. Ms. Ott replied as CBO, March 1. He is
staying on to do some updates to the building code. Councilwoman Mullins said I support the
communications director as well. Mr. Barwick said on January 28th you do both documents. At that
time, we will transfer all power to Sara and I will be here in an advisory role.
Councilman Hauenstein said there are three processes, the Sara piece, the Barwick piece and the process
piece. He would like to see the additional 6 months of housing and insurance contingent on Barwick
actively seeking a new position. Mr. Barwick replied that he does not have a problem with that.
Councilman Frisch said the next step is getting input on the work plan. Staff is looking for some clarity.
We have to put together a job description on behalf of the community.
Councilman Myrin said what Adam closed with is most important. We need to have that conversation as
to what a successful profile is.
Alissa Farrell, human resources, said we will be recommending an RFP process to develop a profile to
move this forward.
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Councilman Frisch said normally Alissa would be moderating that conversation. One option is for you to
moderate that for the five of us. Another option is to have other people involved. Ms. Farrell said that
will be included. Councilman Hauenstein said it is our responsibility to make the hire.
Mayor Skadron said it is very likely the final decision will be made by the new city council. No
candidate is taking the job not knowing who is on the city council. Our responsibility is to get the process
in place.
Councilman Frisch said he is not worried about what will happen in March or April. We need to get a
timeline in place and go from there.
Councilman Hauenstein said it looks like a minimum four month process. After the election as people
become Mayor elect or City Council person elect he suggested they become involved in the process as
well.
Councilman Myrin said until the 28th, the community raised some issues particularly around the chief
building official hiring. Have the members changes. Mr. Barwick said I stepped off and Sara stepped on.
Councilman Myrin said the more things like that that staff and we know the better. Mr. True said I
drafted a proposed separation agreement that needs to be reviewed. At this point there would be a set end
date, no later than March 1st. Either party could terminate it with 3 weeks notice before then. We are
recognizing as soon as an interim city manager is in place I am using the term advisor to the interim city
manager. Councilman Hauenstein said I don’t sense any areas of contention on this. Mr. True replied I
don’t either. I think we are on the same page.
Councilman Frisch moved to adjourn at 6:40 p.m.; seconded by Councilwoman Mullins. All in favor,
motion carried.
Linda Manning
City Clerk
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City Attorney’s Office
MEMORANDUM
TO: MAYOR and COUNCIL MEMBERS
FROM: JAMES R. TRUE
DATE: January 24, 2019
RE: Separation, Release and Waiver Agreement for Steve Barwick
══════════════════════════════════════════════════════════════════
REQUEST OF COUNCIL: Resolution No. 14 (Series of 2019) is presented to Council for
consideration of the adoption of the Separation, Release and Waiver Agreement for Steve
Barwick as a result of his resignation following a request for such from Council.
DISCUSSION: Following discussions in executive session and at a public meeting held on
January 14, 2019, Council directed staff to prepare and submit to Council a Separation, Release and
Waiver Agreement with the current City Manager Steve Barwick. The attached agreement provides
the specific terms specified by the previously adopted Employment Agreement with Mr. Barwick,
as well as other terms proposed by Council and Mr. Barwick and terms addressing certain legal
requirements. The agreement has been reviewed by Mr. Barwick and his attorney and staff believes
that it is consistent with the direction of Council.
In addition, because additional consideration beyond the Employment Agreement is being offered
pursuant to this agreement, specifically extended occupation of his residence and payment of
COBRA premiums, in order to comply with certain federal and state regulations, a revocation
period is included in the separation agreement. In the event that the separation agreement was
revoked by Mr. Barwick, the agreement for the additional consideration would be deemed revoked
and separation could become immediate with only payment pursuant to the Employment
Agreement.
Finally, based on the Agreement, Mr. Barwick will continue to serve as City Manager until an
interim city manager is in place or until he is otherwise separated from the City, which shall be no
later than March 1, 2019.
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RESOLUTION # 14
(Series of 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A SEPARATION, RELEASE AND WAIVER
AGREEMENT BETWEEN THE CITY OF ASPEN AND STEVE BARWICK
AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT ON
BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a Separation,
Release and Waiver Agreement between the City of Aspen and Steve Barwick, 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
Separation, Release and Waiver Agreement between the City of Aspen and
Steve Barwick, a copy of which is attached hereto and incorporated herein and
does hereby authorize the Mayor 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 28th 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 28, 2019.
________________________
Linda Manning, City Clerk
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SEPARATION, RELEASE AND WAIVER AGREEMENT
FOR
STEVE BARWICK
The following Separation, Release and Waiver Agreement (“Agreement”) between
Steve Barwick, the undersigned Employee (referred to as “Barwick”) and the City of
Aspen together with its past and present officers, directors, employees,
predecessors, successors and assigns, concerns Barwick’s employment with the
City of Aspen and separation from employment.
Section A – Separation
Barwick’s separation from employment with the City of Aspen shall be effective upon
three weeks’ notice by either party but no later than March 1, 2019. Until separation,
Barwick shall receive all compensation to which he is entitled, including but not
limited to continued wages at the current annualized rate of $195,229, and accrued
paid time off (PTO) leave less appropriate payroll and withholding tax deductions
required by law. Barwick acknowledges that he is not aware of any fact that would
support a claim for unpaid wages under the Fair Labor Standards act or state laws
as all compensation has been paid to him. The parties acknowledge that upon the
hiring and placement of an Interim City Manager, Barwick will be deemed an advisor
to the Interim City Manager, although his pay shall continue as if he continued as
City Manager until the date of separation set forth above.
Section B – Consideration
1. The City of Aspen will, pursuant to the contract dated April 26, 2010, by and
between Barwick and the City of Aspen, and as consideration for the promises set
forth in this Agreement, pay:
a. All benefits to which Barwick is entitled as set forth in the City of Aspen
Policy Manual, which shall be paid upon separation.
b. A lump sum payment of $195,229, equivalent to one year’s salary,
shall be due and payable to Barwick no later than twenty (20) days
following the effective date of separation set forth above, less
deductions for federal and state withholding and payroll taxes as
required by law. The City of Aspen shall treat such payment as
compensation from which appropriate federal and state withholding
and payroll taxes shall be deducted.
2. In addition, as further consideration for this agreement, the City agrees to the
following:
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a. If Barwick elects timely continued coverage under COBRA, the City
will pay Barwick's health and dental COBRA payments on behalf of
Barwick and Barwick’s spouse to continue both parties’ coverage for a
period of six months from the effective date of separation set forth
above. The City's provision of such COBRA payments will
immediately cease if during the COBRA payment period Barwick
becomes eligible for group health insurance coverage through a new
employer or Barwick ceases to be eligible for COBRA continuation
coverage for any reason, including plan termination. In the event
Barwick becomes covered under another employer's group health plan
or otherwise ceases to be eligible for COBRA during the COBRA
payment period, Barwick shall immediately notify the City.
b. The date of sale set forth in the Occupancy and Resale Deed
Restriction, Agreement, and Covenant dated February 14, 1996, is
hereby extended for a period of six months, so long as Barwick is
actively pursuing other employment. If Barwick accepts employment
outside of the City of Aspen, the extended period shall last no greater
than three months following acceptance of employment outside of the
City of Aspen.
Section C - Release of City of Aspen and Covenant Not to Sue
In consideration for the payments set forth in Section B above, Barwick agrees to
forever, unequivocally, and unconditionally release the City of Aspen from and
covenants not to sue or assert against the City of Aspen and all of its related entities,
directors, members, trustees, officers, current and former employees, agents,
insurers, attorneys, predecessors, successors, and assignees (the City of Aspen and
all the foregoing other persons and entities are referred to collectively in this
agreement as the “Releasees”), any and all causes of action, whether at law or in
equity, pertaining to or arising from the employment relationship of the parties and
the termination of such employment relationship based in whole or in part upon any
act or omission occurring on or prior to the date of termination of employment,
whether negligent or intentional, without regard to Barwick’s present actual
knowledge of any such act or omission. By signing this Agreement, Barwick is
expressly waiving Barwick’s right to any relief, recovery, attorneys’ fees, or other
monies in connection with any such complaint, charge, or proceeding brought
against the Releasees. This restriction applies only to civil claims that may be filed
in court directly by Barwick, or anyone acting on Barwick’s behalf, including suits
brought on Barwick’s behalf by Government Agencies (as defined below).
The Agreement does not affect Barwick’s right to file a charge with or participate in
an investigative proceeding before the Equal Employment Opportunity Commission,
state civil rights agency, or another federal, state, or local government agency or to
communicate or cooperate with any such agency in its investigation, none of which
shall constitute a breach of this Agreement. However, Barwick is expressly waiving
Barwick’s right to any relief, recovery, attorneys’ fees, or other monies in connection
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with any such complaint, charge, or proceeding brought against the Releasees,
regardless of who filed or initiated any such complaint, charge, or proceeding.
Causes of action as used in this Section shall mean all claims, causes, judgments,
damages, losses, liabilities, and demands of any kind and nature whatsoever,
whether intentional or negligent, known or unknown, in law or in equity, individually
or as part of a class action, occurring on or prior to the date of execution of this
Agreement, arising under any constitution, federal, state, or local law(s), including
but not limited to:
1. All claims or demands, directly or indirectly, relating to or arising out of
Barwick’s employment relationship with the City of Aspen, or the termination
of that relationship;
2. All claims for violation of any federal, state or municipal statute, including but
not limited to:
a. Title VII of the Civil Rights Act of 1964, as amended;
b. the Colorado Anti-Discrimination Act (CADA);
c. the Family and Medical Leave Act (FMLA);
d. the Americans with Disabilities Act (ADA);
e. the Age Discrimination in Employment Act (ADEA);
3. All claims arising from any theory under common law such as breach of
contract, express or implied, promissory estoppel, detrimental reliance,
wrongful discharge, tortious interference with contract rights, infliction of
emotional distress, and defamation;
4. All claims for violation of any federal, or any state, constitution, law, or statute;
5. All claims arising out of any other laws and regulations relating to
employment or employment discrimination, including claims arising under
common law including any tort, contract, or equitable theory; and
6. All claims for attorneys’ fees and costs.
This General Release and Covenant not to sue does not apply to claims under
federal, state, or local law (statutory, regulatory, or otherwise) that may not be
lawfully waived and released, such as vested retirement benefits (if any), COBRA
rights, unemployment compensation, and workers’ compensation.
Section D – ADEA and Older Workers Benefit Protection Act Release
In addition to the General Release contained in Section C, Barwick knowingly,
voluntarily, and irrevocably discharges and releases Releasees and each of them
from any claims arising under the ADEA. Barwick acknowledges that Barwick has
been informed pursuant to the federal Older Workers Benefit Protection Act of 1990
that:
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1. Barwick is advised to and has consulted with an attorney before signing
this Agreement.
2. Barwick does not waive rights or claims under the federal Age Discrimination
in Employment Act that may arise after the date this Agreement is executed.
3. Barwick has twenty-one (21) days from the date of receipt of this Agreement
to consider this Agreement. Barwick acknowledges that if Barwick signs this
Agreement before the end of the twenty-one (21) day period, it will be
Barwick’s personal, voluntary decision to do so and that Barwick has not
been pressured to make a decision sooner.
4. Barwick has seven (7) days after signing this Agreement to revoke the
Agreement and the Agreement will not be effective until that revocation period
has expired. The rescission must be hand delivered within the seven days to
Alissa Farrell, Human Resources Director, 130 South Galena Street, Aspen,
CO 81611.
5. This agreement shall not be effective or enforceable until after the seven (7)
day revocation period has expired. Barwick understands that Barwick will not
receive any the benefits set forth in Section B.2., if Barwick voids his
signature or revokes this Agreement. Further, Barwick acknowledges that if
the agreement is revoked, Council may request immediate separation, in
which case the benefits set forth in Section B.1., will be paid pursuant to his
contract of employment dated April 26, 2010.
Section E – Non-Disparagement
Barwick agrees not to make any false remarks about the City of Aspen pertaining to
or arising from the employment relationship of the parties and the termination of
such employment relationship.
Section F – Miscellaneous
1. Severability. If any provision of this Agreement is declared by any court of
competent jurisdiction to be invalid for any reason, such invalidity shall not
affect the remaining provisions. Such remaining provisions shall be fully
severable, and this Agreement shall be construed and enforced as if such
invalid provisions never had been inserted in the Agreement.
2. Receipt of Agreement. Barwick acknowledges that Barwick received this
Agreement on January 29, 2019.
3. Entire Agreement: This Agreement represents the entire agreement and
understanding between Barwick and the City of Aspen, Barwick’s
employment with and separation from the City of Aspen, and the events
leading thereto and associated therewith. This Agreement supersedes and
replaces all prior agreements and understandings concerning Barwick’s
P14
VI.b
5 | P a g e
relationship with the City of Aspen. This Agreement cannot be amended
unless said amendment is reduced to writing and signed by Barwick and an
authorized representative of the City.
4. Colorado Open Records Act. This document may be deemed public record
under the Colorado Open Records Act.
5. Choice of Law. The parties agree that the laws of the State of Colorado shall
govern this Agreement.
Barwick hereby acknowledges the following:
I have carefully read the above and I execute it voluntarily, fully understanding and
accepting the provisions of this Agreement in its entirety and without reservation after
having had sufficient time and opportunity to consult with my legal advisors prior to
executing this Agreement. I have been advised to consult with an attorney prior to
executing this Agreement. In agreeing to sign this Agreement I have not relied on any
statements or explanation made by the City of Aspen. I have had at least twenty-one
(21) days to consider this Agreement. I understand that if I do not return this
Agreement signed by me to the City of Aspen within the twenty-one (21) day
consideration period this offer will expire. I understand that I may revoke and cancel
the Agreement within seven (7) days after signing it by serving written notice upon City
of Aspen.
Employee:
_________________________________ ________________________
Steve Barwick Date
For the City of Aspen:
_________________________________ ________________________
Steven Skadron, Mayor Date
ATTEST:
__________________________________
Linda Manning
P15
VI.b
First Reading, Ordinance No. 1, Series 2019
Small Lodge Preservation Program Extension
January 28, 2019
Page 1 of 3
MEMORANDUM
TO: Mayor and City Council
FROM: Phillip Supino, Principal Long-Range Planner
THRU: Jessica Garrow, Community Development Director
RE: Ordinance #1, Series of 2019 - Small Lodge Preservation Program 5-Year
Extension
MEETING DATE: January 28, 2019
SUMMARY:
The proposed ordinance will extend the existing Small Lodge Preservation Program for five years.
The current program, authorized by Ordinance 15, 2015, is set to expire in May of 2020. Given the
popularity and success of the program, staff received direction from Council in October 2018 to
extend the program. The proposed ordinance would authorize that five-year extension while
preserving the existing benefits and financial authorization.
STAFF RECOMMENDATION:
Staff recommends approval of Ordinance 1, Series 2019, on First Reading.
BACKGOUND
The Small Lodge Preservation Program (SLPP) was adopted in May 2015. The program is the
result of extensive outreach to small lodge operators and a City policy objective to incentivize the
preservation and continued success of the remaining small lodges in Aspen. Small Lodges were
identified as an important component of Aspen’s tourist bed base. They are also particularly
challenging to operate in competition with larger lodges and private vacation rental properties. The
attractiveness of residential redevelopment for many small lodge properties poses another ongoing
challenge to these important, community character defining lodges.
With these challenges and the small lodges’ role in diversifying Aspen’s bed-base in mind, Council
adopted Ordinance 15, Series 2015, creating the SLPP. The program is incentive-based, offering a
range of benefits in exchange for agreements from participating lodges to continue to operate as a
lodge for an agreed-upon period. The following incentives are included in the program (see
Ordinance 1, 2019 for additional information):
· Planning Assistance – one-on-one consultations with Community Development staff to help
guide and navigate the develop, planning, and permitting process;
· Express Lane for Land Use Reviews – expedite land use reviews to cut down project time
and costs;
· Express Lane for Building Permit Reviews – expedite building permit reviews to cut down
project time and costs;
P16
VIII.a
First Reading, Ordinance No. 1, Series 2019
Small Lodge Preservation Program Extension
January 28, 2019
Page 2 of 3
· Building Code Assessment – assistance in identification of suggested and required building
and energy code upgrades to improve structural safety and efficiency;
· Small Lodge Energy Efficiency Program – administered in partnership with the Climate
Action Office and CORE, offers free energy audits and subsidies for energy efficiency
improvement to improve building energy efficiency and reduce operating costs;
· Building Permit Fee Discounts – discounted building permit fees on a sliding scale, from 25
to 75 percent, relative to the length of City agreement to continue lodge operations, from
five to 20 years;
· Right-of-Way Improvements – reimbursement of a portion of the cost to make right-of-way
improvements in accordance with the Engineering Design Standards.
Collectively, these incentives represent significant project cost savings for lodges enrolled in the
program. These cost savings are intended to lower the financial barrier for small lodges to make
improvements while continuing to operate. To the extent that some require legal commitments to
remain a small lodge for a specified amount of time, the program delivers on Council’s long-term
goal of preserving the existing small lodge bed base.
The program was established by ordinance in 2015. At the time, the program was scheduled to
sunset in May of 2020, five years after adoption. At an October work session, Council directed staff
to extend the program sunset for five years from the original sunset date to 2025. Ordinance 1,
Series 2019 provides that extension, as well as making some minor amendments described below.
DISCUSSION
To date, the program has secured commitments from two lodges to remain operating lodges for five
years in exchange for program benefits. Additionally, the Energy Efficiency portion of the
program, administered by the Climate Action Office staff in partnership with CORE, has financed
hundreds of thousands of dollars in efficiency upgrades of small lodges. In 2018 alone, the energy
efficiency program has allocated $73,726 in CoA and CORE funds to finance $143,726 in projects
across six lodges. Without the SLPP program, many of these efficiency improvements would not
have been undertaken. In addition to incentivizing small lodges to remain, the resulting energy
savings and emissions reductions have the ancillary benefit of delivering on Council’s climate
action goals.
The proposed ordinance includes a handful of minor amendments. First, the two lodges which
enrolled after the creation of the program, the Prospector Lodge and Shadow Mountain Lodge, were
added to the list of approved program participants. Second, the size threshold for eligible lodges
was amended from 50 “rooms” to “keys”. This change ensures that lodges eligible to enroll in the
program meet the intent of being “small”, as keys represent a smaller room configuration than
rooms. Third, an additional criterion for eligibility in the program was added, preventing new
Boutique Lodges (which are lodges with between 10 and 14 units) from being eligible to participate.
This change ensures that program resources are targeted at those lodge properties which best deliver
on the community’s lodging preservation goals.
SLPP is a highly successful and popular program. In outreach efforts over the previous two months,
Community Development staff has received only positive comments from member lodges. (See
P17
VIII.a
First Reading, Ordinance No. 1, Series 2019
Small Lodge Preservation Program Extension
January 28, 2019
Page 3 of 3
Exhibit A, Small Lodge Operator Comments.) Since the program was created in 2015, two
additional lodges which meet the qualifying criteria have enrolled in the program. Extending the
SLPP for an additional five years provides Council with an established means of supporting the
existing city bed base and delivers on several Council goals, City policies and community benefits.
This is particularly true given the relatively low annual budget allocation of $141,000 to fund the
program (much of which goes unspent in each budget year), and the high level of participation.
Extending the program would extend the current budget authority through the same five-year time
period.
STAFF RECOMMENDATION
Staff recommends Council approve Ordinance 1, Series 2019 to extend the Small Loge Preservation
Program for five years, expiring in 2025. Should Council approve the ordinance at first reading,
staff will return with final ordinance language for Council consideration at the February 11, 2019
Council meeting.
RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE):
“I move to approve Ordinance 1, Series of 2019, on First Reading.”
CITY MANAGER COMMENTS:
______________________________________________________________________________
______________________________________________________________________________
ATTACHMENTS:
Exhibit A – Ordinance 1, Series 2019
Exhibit B – Small Lodge Operator Comments
P18
VIII.a
Small Lodges Preservation Program Extension
Ordinance 1, Series 2019
Page 1 of 3
ORDINANCE No. 1
(Series of 2019)
AN ORDINANCE OF THE ASPEN CITY COUNCIL EXTENDING THE SMALL LODGE
PRESERVATION PROGRAM TO ASSIST SMALL LODGES TO CONTINUE
OPERATING AS SMALL LODGES.
WHEREAS, pursuant to Section 26.310.020(A), the Community Development
Department received direction from City Council to explore code amendments related to the
creation of a small lodge preservation program to bolster the bed base in both traditional hotel
units, particularly in small lodges; and,
WHEREAS, the Community Development Department conducted existing conditions
research to understand Aspen’s existing lodge inventory, the occupancy and rate characteristics
of Aspen’s bed base, the economics of upgrading, expanding, or developing lodge products, the
latest visitor demographics, and the types of lodging product most in demand; and,
WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development
Department conducted extensive Public Outreach with community members, the Aspen
Chamber Resort Association, condominium and lodging owners, managers, and stakeholders, the
Planning & Zoning Commission, the Historic Preservation Commission, and City Council
regarding lodging; and,
WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing
on December 1, 2014 and December 8, 2014, the City Council directed staff to draft a code
amendment to assist small lodges to continue operating as small lodges; and,
WHEREAS, the Community Development Director recommended approval of the
proposed amendments to Title 26, the City of Aspen Land Use Code to implement a small lodge
preservation program; and,
WHEREAS, the Aspen City Council reviewed the proposed code amendments and finds
that the amendments met or exceeded all applicable standards pursuant to Chapter 26.310.050; and,
WHEREAS, the City Council found that the proposed ordinance properly implemented the
City’s goals related replenishing and diversifying the lodging inventory, as articulated in the 2012
Aspen Area Community Plan; consequently, Council adopted Ordinance 15 (Series of 2015); and,
WHEREAS, Ordinance 15 (Series of 2015) is set to expire in 2020; and,
WHEREAS, this Ordinance is proposed to extend the Small Lodge Preservation Program
for five (5) years beyond Ordinance 15’s initial term; and,
WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for
the promotion of public health, safety, and welfare; and
P19
VIII.a
Small Lodges Preservation Program Extension
Ordinance 1, Series 2019
Page 2 of 3
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO THAT:
Section 1: Ordinance 15 (Series of 2015) shall be and is hereby extended for a period of five (5)
years beyond its initial term.
Section 2: Any scrivener’s errors contained in the code amendments approved by Ordinance 15
(Series of 2015) or set forth herein, including but not limited to mislabeled subsections or titles,
may be corrected administratively following adoption of the Ordinance.
Section 3: Effect Upon Existing Litigation.
This ordinance shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 4: Severability.
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 5: Effective Date.
In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this Ordinance shall
become effective thirty (30) days following final passage.
Section 6: Public Hearing
A public hearing on this ordinance shall be held on the 11th day of February 2019, at a meeting of
the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall,
Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall
be published in a newspaper of general circulation within the City of Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council
of the City of Aspen on the 28th day of January 2019.
Attest:
__________________________ ____________________________
Linda Manning, City Clerk Steven Skadron, Mayor
FINALLY, adopted, passed and approved this 11th day of February, 2019.
Attest:
__________________________ ___________________________
Linda Manning, City Clerk Steven Skadron, Mayor
P20
VIII.a
Small Lodges Preservation Program Extension
Ordinance 1, Series 2019
Page 3 of 3
Approved as to form:
___________________________
James R. True, City Attorney
P21
VIII.a
From:Jeff Bay
To:Phillip Supino
Subject:RE: Small Lodge Preservation Program - Update
Date:Friday, December 21, 2018 3:20:32 PM
Attachments:image001.png
Hi Phillip,
We are supporters of the SLPP and SLEEP initiatives, we are glad to hear that they are potentially
continuing. Please let me know if I can assist in supporting your efforts!
Jeff
—
Jeff Bay C.H.A.
Managing Director
HayMax Hotels
Hotel Aspen | Molly Gibson Lodge | Hotel Ketchum | Tamarack Lodge
(P) 970.205.7006
(F) 970.920.1379
jeff.bay@haymaxhotels.com
From: Phillip Supino <phillip.supino@cityofaspen.com>
Sent: Friday, December 21, 2018 3:05 PM
To: charley@annabelleinn.com; jeanine@aspenmountainlodge.com; mneiley@comcast.net;
aml@aspenmountainlodge.com; mhunt@mdevco.com; sstunda@aol.com; chaletlisl@yahoo.com;
lodge@chaletlisl.com; scott@hearthstonehouse.com; hoteldurant@sopris.net;
bschaefer@sopris.net; Jeff Bay <jeff.bay@haymaxhotels.com>; michael@haymax.com;
Aaron@haymax.com; craig@themelvilles.com; craig@mca.travel; sqlodge@rof.net;
michael@stmoritzlodge.com; stay@tyroleanlodge.com; shadowmt@comcast.net;
wally.wilson@comcast.net; janet@prospectorcondos.com
Subject: Small Lodge Preservation Program - Update
Dear Lodge Owners and Operators:
Greetings from City Hall, and happy holidays. I hope you are all well and enjoying a busy holiday
season. Given how busy this time of year is, I will be brief.
Two months ago, City Council directed the Planning staff to extend the Small Lodge Preservation
Program with all of its financial benefits and incentives in place for an additional five years. The
original program was scheduled to expire in 2020. Council cited the success of and community
support behind the program as strong reasons for extending it.
P22
VIII.a
I wanted to reach out to all of you, inform you of Council’s direction, and seek any feedback you
may have about staff’s plans to begin the process of extending to program in January of 2019.
With your support, we plan on presenting an ordinance for Council in late January. If any of you
feel that the program does not have sufficient value to extend, or have other comments about the
program, we would love to hear from you. Please feel free to email, call, or meet with me in
person after the New Year to discuss any of the above. Happy New Year!
Cheers,
Phillip Supino, AICP
Principal Long-Range Planner
130 S. Galena St.
Aspen, CO 81611
p: 970.429.2767
c: 970.319.0833
www.cityofaspen.com
www.aspencommunityvoice.com
Notice and Disclaimer:
This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential
and exempt from disclosure pursuant to applicable law. If you are not the intended recipient, please reply to the sender that you
have received the message in error and then delete it. Further, the information or opinions contained in this email are advisory in
nature only and are not binding on the City of Aspen. If applicable, the information and opinions contain in the email are based on
current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The
opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance.
P23
VIII.a
From:WALTER WILSON
To:Phillip Supino; sml
Subject:Re: Small Lodge Preservation Program - Update
Date:Friday, December 21, 2018 3:26:47 PM
Attachments:image009.png
Phillip,
Your program has been very helpful to Shadow Mountain Lodge for several energy
efficient improvements. The cost savings help us to continue to offer low priced
condominium rental opportunities to literally hundreds of guests, each year.
Happy to see the program extended.
Best regards and Happy holidays!
Wally Wilson
Board president
On December 21, 2018 at 4:05 PM Phillip Supino
<phillip.supino@cityofaspen.com> wrote:
Dear Lodge Owners and Operators:
Greetings from City Hall, and happy holidays. I hope you are all well and
enjoying a busy holiday season. Given how busy this time of year is, I will be
brief.
Two months ago, City Council directed the Planning staff to extend the Small
Lodge Preservation Program with all of its financial benefits and incentives in
place for an additional five years. The original program was scheduled to expire
in 2020. Council cited the success of and community support behind the program
as strong reasons for extending it.
P24
VIII.a
I wanted to reach out to all of you, inform you of Council’s direction, and seek
any feedback you may have about staff’s plans to begin the process of extending
to program in January of 2019. With your support, we plan on presenting an
ordinance for Council in late January. If any of you feel that the program does
not have sufficient value to extend, or have other comments about the program,
we would love to hear from you. Please feel free to email, call, or meet with me
in person after the New Year to discuss any of the above. Happy New Year!
Cheers,
Phillip Supino, AICP
Principal Long-Range Planner
130 S. Galena St.
Aspen, CO 81611
p: 970.429.2767
c: 970.319.0833
www.cityofaspen.com
www.aspencommunityvoice.com
Notice and Disclaimer:
This message is intended only for the individual or entity to which it is addressed and may contain information that is
confidential and exempt from disclosure pursuant to applicable law. If you are not the intended recipient, please reply
to the sender that you have received the message in error and then delete it. Further, the information or opinions
contained in this email are advisory in nature only and are not binding on the City of Aspen. If applicable, the
P25
VIII.a
information and opinions contain in the email are based on current zoning, which is subject to change in the future, and
upon factual representations that may or may not be accurate. The opinions and information contained herein do not
create a legal or vested right or any claim of detrimental reliance.
P26
VIII.a
MEMORANDUM
TO: Mayor Skadron and City Council
THRU: Jessica Garrow, Community Development Director
FROM: Mike Kraemer, Senior Planner
MEETING DATE: January 28, 2019
RE: 730 E. Cooper Ave (Base 1 Lodge), Extension of Vested Rights –
Resolution No. 11, Series 2019 – Public Hearing
APPLICANT/OWNER:
730 E. Cooper, LLC
REPRESENTATIVE:
Chris Bendon, BendonAdams LLC
LOCATION:
730 E. Cooper Ave. Commonly
known as the Buckhorn Lodge.
PID#: 273718227004
CURRENT ZONING & USE
Located in the Commercial
Lodge (CL) zone district which
includes a previously approved
Planned Development (PD)
overlay. The site is developed
with a mixed used building
constructed in the 1960’s.
PROPOSED LAND USE:
The Applicant requests an 18 month extension of vested
rights for land use approvals associated with the Base 1
mixed-use lodge.
STAFF RECOMMENDATION:
Staff recommends a 12 month extension of vested rights
for the project.
Figure 1. 730 E. Cooper Ave, existing Buckhorn Lodge,
looking north.
P27
IX.a
Page 2 of 5
REQUEST OF COUNCIL:
The Applicant is requesting the following land use approval:
• Extension or Reinstatement of Vested Rights to extend the vested rights associated with the
Base 1 development, pursuant to Land Use Code Section 26.308.010 C., Extension or
Reinstatement of Vested Rights. (City Council is the final review authority who may
approve or deny the proposal).
BACKGROUND:
The subject property is located at 730 E. Cooper Avenue on the northwest corner of the S. Original
Street and E. Cooper Avenue intersection. The subject property is approximately 6,927 square
feet in size and is located within the Commercial Lodge (CL) Zone District. The property is
developed with a mixed use lodge building commonly known as the Buckhorn Lodge. The
Buckhorn Lodge building was constructed in the 1960’s and contains 1st floor commercial space,
2nd floor lodge units, and a small amount of subgrade commercial net leasable space.
In 2015, the subject property received Conceptual Planned Development Review (PD), Growth
Management approval for lodge pillow allotments, and Commercial Design approval for a 3
story mixed-use lodge building pursuant to Ordinance No. 2, Series 2015. At the time of this
approval, the proposed lodge contains 42 lodge units that average approximately 200 square
feet in size, accessory lodge unit space in three (3) subgrade basement levels, rooftop deck, and
23 onsite subgrade parking spaces. Approved interior programming for the building includes
4,592 square feet of commercial net leasable space for retail and restaurant uses and 12,051
square feet of total lodge floor area. Total floor area for the project is approximately 17,260
square feet. This approved floor area amount does not include 3 separate subgrade levels that
are exempted from floor area calculations. This ordinance also approved a number of variations
from the underlying CL zone district regulations relating to increased height for rooftop
bathrooms, off-street parking, and reduced employee generation rates for affordable housing.
Figure 2. Base 1 Rendering from corner of Cooper Ave & Original St:
P28
IX.a
Page 3 of 5
The Conceptual approval was rendered void due to a Planned Development Detail submission
deadline that was not met. The Applicant filed an application and City Council passed
Resolution No. 28, Series 2016, approving a reinstatement of this ordinance and, as a condition of
the approval, removed any zoning variations that were previously granted. To memorialize these
changes, Ordinance 6, Series 2016 was approved and amended Ordinance 2, Series 2015 to
eliminate the zoning variations consistent with the reinstatement resolution. Detailed PD and Final
Commercial Design approval was granted pursuant to Planning and Zoning Commission
Resolution No. 4, Series 2016. This approval included minor modifications to project dimensions
relating to lodge unit size and reduced commercial net leasable floor area. A condition of this
Detailed approval required the applicant to enter into a Development Agreement with the City.
This agreement was executed and recorded pursuant to Reception No. 636058. Currently, Base
1 complies with all dimensional requirements in the underling CL Zone District and the project is
vested until July 7th, 2019. At the conclusion of this vesting period, current land use regulations
become applicable unless an extension or reinstatement is granted by City Council.
For reference, the Applicant has included all relative ordinances, resolutions, and plan sets with
the application submittal.
STAFF COMMENTS:
Vested Rights Extension:
The Applicant is requesting an 18 month extension of vested rights. Approval of the request would
provide the Applicant the ability to continue to rely on the existing approvals that are in place
for the project and to submit for a building permit within the extended vesting period. I f the 18
month extension is approved, vesting would extend for the property until January 7th, 2021. If the
extension request is not approved and the Applicant does not submit for a building permit within
the established vesting period, the existing approvals would become invalid and further City
review under new Land Use Code standards would be required. An extension of vested rights is
solely at the discretion of the City Council pursuant to the standards outlined in Land Use Code
Section 26.308.010(C). Staff responses to the criterion in this code section can be viewed in Exhibit
A.
The Applicant has stated that the request to extend vested rights will provide the ability to further
analyze the details of the project in preparation for building permit submittal. To date, the
Applicant has paid the costs associated with the land use review for the Base 1 project and has
undertaken surveying, engineering, and architecture expenditures to record the plat and the
approved plan set. The previous approvals did not include any additional performance
requirements of the project.
Current Land Use Code Analysis:
Since the approval of the 2016 Base 1 ordinances, a moratorium was enacted that resulted in
several Land Use Code amendments that changed parking requirements, commercial design
standards, affordable housing mitigation requirements, and dimensional standards in certain
zone districts. The following provides an outline of Land Use Code amendments that have been
enacted since the Base 1 Lodge approvals and their effect on the project:
Dimensions and Uses:
Certain commercial zone districts received dimensional and use alterations at the conclusion of
the moratorium. None of these changes effected the CL zone district. As a result, if reviewed
P29
IX.a
Page 4 of 5
under the current Land Use Code, the approved Base 1 Lodge dimensions and uses would not
change and compliance with the current CL Zone District standards has been achieved.
Commercial Design Standards:
• The Land Use Code was amended to include standards for replacement of second tier
commercial space located in a basement, above a ground floor, or with an alley or
courtyard access. Minimum and maximum 2nd tier replacement requirements apply to
certain commercial zone districts when a remodel or new construction is proposed. While
the existing Buckhorn Lodge contains 2nd tier subgrade and 2nd tier alley commercial net
leasable spaces, the subject property is not located within a zone district that requires
replacement of this 2nd tier space. Regardless, the project has been approved for
accessory lodge uses and restaurant uses in the subgrade levels and meets the intent of
the 2nd tier replacement requirement.
• The current Land Use Code requires a minimum of 25% of the gross lot size be dedicated
to pedestrian amenity. The current Base 1 Lodge approvals provide for a courtyard and
rooftop amenity space in an amount that well exceeds the minimum pedestrian amenity
required in the current Code.
Parking:
• The Base 1 Lodge approvals permitted 23 onsite parking spaces in the 3rd sublevel of the
building. This amount of parking is compliant with the minimum Land Use Code parking
requirements and exceeds the minimum by 2 spaces.
Affordable Housing:
• The existing Base 1 approvals used a 60% employee generation rate for the mixed-use
Lodge in accordance with the Land Use Code in affect at the time of the approval. Taking
into account credits for the existing Buckhorn Lodge units, existing commercial space, and
the reduced employee housing mitigation incentives granted for small unit (approximately
201 square feet) lodge developments, the Base 1 Lodge is required to mitigate for 1.97
FTE’s. The current Land Use Code requires a 65% employee generation rate for both
commercial and lodge uses. Though nominal, the current Land Use Code dictates that
the mitigation requirement increase by 0.098 FTE’s, for a total of 2.068 FTE’s.
• The current Land Use Code requires that the existing Buckhorn Lodge commercial net
leasable space mitigate for employees generated at a rate of 18%. Existing commercial
net leasable space on the 1st floor and basement of the building totals 4,372 square feet.
The current Land Use Code employee housing mitigation calculation would require an
additional 0.369 FTE’s be mitigated.
STAFF DISCUSSION:
The Base 1 Lodge approvals are vested until July 7th, 2019. If the extension request is approved,
vested rights for the project would extend until January 7th, 2021 providing the Applicant the
ability to rely on the existing approvals and prepare for building permit submission. Base 1 Lodge
is compliant with CL zone district dimensions and no variations have been granted to the existing
project. Land Use Code amendments as a result of the recent moratorium would not
fundamentally change the approved project. It should be noted that the approved 201 square
foot lodge unit size can be considered small relative to other lodges in Aspen and would provide
diversification to the existing lodging base. If constructed, the Base 1 mixed use lodge satisfies a
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IX.a
Page 5 of 5
fundamental goal of the 2012 Aspen Area Community Plan (AACP) to “replenish our lodging
inventory to encourage a diverse visitor base” (Themes of the AACP, Page 7).
Staff is concerned about the length of the requested extension and the uncertainty of
construction commencing on the property for the approved project. Simply put, if the Applicant
does not intend to build the approved Base 1 Lodge, then Council should consider not approving
the extension request or severely limiting the timeframe of a potential extension. However, the
Applicant has represented that the extension of vested rights is needed to continue to work out
the details of the project in preparation for building permit submission. Staff is cognizant that
building permit preparation can take considerable amounts of time and resources in relation to
the detailed engineering and architectural drawings required for submittal. To this end, Staff
recommends that a more reasonable timeframe for an extension of vested rights be considered.
Staff recommends a 12 month extension of vested rights for the project to provide the Applicant
additional time to continue to work on a building permit application. If Council is amenable to a
12 month extension, vested rights for the project would extend until July 7th, 2020.
RECOMMENDATION:
Staff recommends that Council pass a motion to approve the Base 1 Extension of Vested Rights
request for a period of 12 months.
PROPOSED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE):
“I move to approve Resolution No. 11, Series of 2019, approving a 12 month extension of vested
property rights for the Base 1 Lodge.”
ATTACHMENTS:
Exhibit A – Review Criteria/Staff Findings
Exhibit B – Public comment
Exhibit C – Application
P31
IX.a
RESOLUTION NO. 11
(Series of 2019)
A RESOLUTION OF THE ASPEN CITY COUNCIL APPROVING A 12 MONTH EXTENSION OF
THE VESTED RIGHTS ASSOCIATED WITH ORDINANCE NO. 2 (SERIES OF 2015),
ORDINANCE NO. 6 (SERIES OF 2016), PLANNING AND ZONING RESOLUTION No. 4
(SERIES OF 2016), AND ASSOCIATED DEVELOPMENT AGREEMENT (RECEPTION No.
636058) FOR BASE 1 LODGE, LEGALLY DESCRIBED AS THE EASTERLY 9.27 FEET OF LOT Q,
AND ALL OF LOTS R AND S, BLOCK 105, CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY
COLORADO
Parcel No. 273718227904 and 273718227004
WHEREAS, the Community Development Department received an
application from 730 E. Cooper LLC (represented by Chris Bendon of
BendonAdams, LLC) for property located at 730 E. Cooper Ave, requesting an
extension of vested rights for the previously approved Base 1 Lodge; and,
WHEREAS, the Applicant has submitted a request to extend the vested
rights for the property for a period of 18 months. Current vested rights for the
subject property expire on July 7th, 2019.
WHEREAS, pursuant to Section 26.308.010 Vested Property Rights of the
Land Use Code, City Council may grant a reinstatement or extension of vested
rights after a public hearing is held and a resolution is adopted; and,
WHEREAS, the Community Development Director has reviewed the
application and finds that from the time of the adoption of the Base 1 Lodge
Ordinances, the Land Use Code has not been amended in such that it would
significantly or fundamentally change the Base 1 Lodge development from its
current vested approval; and, the Director further finds that a more reasonable
timeframe be considered for extending the vested rights and recommends
approval for a 12 month extension; and,
WHEREAS, the Aspen City Council has reviewed and considered the
extension of vested rights for the Base 1 Lodge under the applicable provisions of
the Municipal Code as identified herein, has reviewed and considered the
recommendation of the Community Development Director, and has taken and
considered public comment at a public hearing; and,
WHEREAS, the City Council finds that the extension of vested rights proposal
meets or exceeds all applicable land use standards and that approval of a 12
month extension of vested rights proposal meets regulatory requirements; and,
WHEREAS, the City Council finds that this Resolution furthers and is necessary
for the promotion of public health, safety, and welfare.
P32
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN, COLORADO,
THAT:
Section 1:
The Aspen City Council does hereby approve a 12 month extension of the
vested rights for the Base 1 Lodge granted by Ordinance No. 2, (Series of 2015),
Ordinance 6, (Series 2016), Planning and Zoning Commission Resolution No. 4
(Series 2016), and the associated Development Agreement recorded at
Reception No. 636058. Vesting for these approvals shall expire on July 7th, 2020.
The following condition applies to the property:
1. That the reinstatement and extension herein of a vested property right
shall not preclude the applications or regulations which are general in
nature and are applicable to all property subject to land use regulation
by the City of Aspen including, but not limited to, building, fire, plumbing,
electrical and mechanical codes, and all adopted impact fees (with the
exception of the vested rights noted in the subject ordinances regarding
affordable housing mitigation during the vesting period) that are in effect
at the time of building permit, unless an exemption therefrom is granted in
writing.
Section 2:
All material representations and commitments made by the Applicant pursuant to
the development proposal approvals as herein awarded, whether in public
hearing or documentation presented before the City Council, are hereby
incorporated in such plan development approvals and the same shall be
complied with as if fully set forth herein, unless amended by an authorized entity.
Section 3:
This Resolution shall not affect any existing litigation and shall not operate as an
abatement of any action or proceeding now pending under or by virtue of the
ordinances repealed or amended as herein provided, and the same shall be
conducted and concluded under such prior ordinances.
Section 4:
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is
for any reason held invalid or unconstitutional in a court of competent jurisdiction,
such portion shall be deemed a separate, distinct and independent provision and
shall not affect the validity of the remaining portions thereof.
Section 5:
A duly noticed public hearing on this Resolution was held on the 28th day of
January 2019 at 5:00 PM in the City Council Chambers, Aspen City Hall, Aspen,
Colorado.
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FINALLY, adopted, passed, and approved by a ___to___ (_-_) vote on this ____ day
of _________, 2019.
Approved as to form: Approved as to content:
__________________________ ______________________________
James R. True, City Attorney Steven Skadron, Mayor
Attest:
_______________________
Linda Manning, City Clerk
P34
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Exhibit A – Extension of Vested Rights
EXTENSION OR REINSTATEMENT OF VESTED RIGHTS REVIEW CRITERIA & STAFF FINDINGS
Section 26.308.010.C., Extension or Reinstatement of Vested Rights, of the City Land Use
Code provides that development applications for an extension of vested rights may be
approved in accordance with the following standards and requirements.
1. In reviewing a request for the extension or reinstatement of vested rights the City
Council shall consider, but not limited to, the following criteria:
a. The applicant’s compliance with any conditions requiring performance prior
to the date of application for extension or reinstatement;
Staff Finding:
No items are required to be accomplished prior to applying for an extension of
vested rights. The Applicant has executed and recorded the necessary
documents associated with the Base 1 Lodge approvals and is in good standing.
b. The progress made in pursuing the project to date including the effort to obtain
any other permits, including a building permit, and the expenditures made by
the applicant in pursuing the project;
Staff Finding:
Legal representation and associated expenditure were required to develop the
approved and recorded development agreement for the project. Expenditures
were also made to develop the engineering and design for the approved plan
set recorded at BK 18 PG 38. The Applicant has not indicated an amount
associated with these expenditures.
c. The nature and extent of any benefits already received by the city as a result
of the project approval such as impact fees or land dedications;
Staff Finding:
The Applicant, thus far, has paid the costs associated with the land use review of
the Base 1 Lodge land use review and has undertaken surveying and engineering
to record the approval documents. To date, no other benefits (impact fees or
land dedications) were required of the development.
d. The needs of the city and the applicant that would be served by the approval
of the extension or reinstatement request.
Staff Finding:
The 2012 AACP identifies a need for a diverse visitor base through replenishing the
lodging inventory that has been lost in recent history. The Base 1 Lodge would
provide this inventory identified in the AACP. Given the required time and
resources associated with building permit preparation for a mixed-use lodge
project, a 12 month extension of vested rights would allow the Applicant to
continue to work on details of the project in anticipation of a future building permit
submission. Staff does not feel that an extension of vested beyond 12 months
P35
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serves the needs of the City and that consideration for an extension should be
limited.
2. An extension or reinstatement may be in the form of a written agreement duly
authorized and executed by the applicant and the City. Reasonable conditions
may be imposed by the City Council including, but not limited to, compliance with
any amendments to this Title adopted subsequent to the effective date of the
development order and associated vested rights.
Staff Finding:
Staff has not included any conditions in the draft resolution.
3. If the request is for reinstatement of a revoked development order, the City Council
shall determine the financial impacts of the investigation and may require the
applicant to pay the reasonable costs of investigation, enforcement and reporting
by City staff.
Staff Finding:
This is not a request for reinstatement of a revoked development order.
P36
IX.a
From:Matt Moran
To:Mike Kraemer
Subject:FW: Public Hearing for 730 E Cooper AVe
Date:Wednesday, January 16, 2019 1:05:35 PM
Let’s try it with your proper last name this time……….
Sorry,
Matthew J. Moran, Principal
GreatStreet Realty Partners, LLC
1701 Golf Rd., Ste. 3-203
Rolling Meadows, IL 60008
Phone: 847-981-8090
Fax: 847-981-0047
Web: www.greatstreetrealty.com
An Illinois, Indiana,and Minnesota Licensed Broker
From: Matt Moran
Sent: Wednesday, January 16, 2019 2:03 PM
To: 'mike.kramer@cityofaspen.com' <mike.kramer@cityofaspen.com>
Cc: 'Moran' <mmmjm@aol.com>
Subject: Public Hearing for 730 E Cooper AVe
Mike, I am the trustee for the MJM Amended & Restated Trust and the MJM Holdings II LLC which
are the unit owners of 2 condominiums at Aspen Square Condominium Hotel. I just received a
notice of public hearing regarding the extension of vested rights for this proposed redevelopment to
be held on January 28th. I will be travelling and unavailable to attend the hearing at that date.
However I want to state my objection to the proposed extension of vested rights. In addition to
believing this proposed development is too dense for this property and area, I believe the fact the
developer has been unable to commence construction within the stipulated time period is only
further evidence of the non-viability for this type of development. I would urge the Plan Commission
and City Council to reject this extension request.
The City of Aspen and its residents, including property owners who may not be full time residents,
do not need more high density developments; We need less.
Thank you for your consideration.
Sincerely,
Matthew J. Moran, Principal
GreatStreet Realty Partners, LLC
1701 Golf Rd., Ste. 3-203
Rolling Meadows, IL 60008
Phone: 847-981-8090
Fax: 847-981-0047
Web: www.greatstreetrealty.com
An Illinois, Indiana,and Minnesota Licensed Broker
Exhibit B
P37
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P38
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300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
October 1, 2018
Ms. Jessica Garrow, AICP
Community Development Director
City of Aspen
130 So. Galena St.
Aspen, Colorado 81611
RE: 730 East Cooper Avenue (BASE) Extension of Vested Rights
Ms. Garrow:
Please accept this request to extend the period of statutory vested rights for the 730 E. Cooper
Avenue (Base) project. The Project received land use approvals to redevelop as a lodge project.
The property is located at 730 East Cooper Avenue and is owned by 730 E. Cooper, LLC, a
Colorado limited liability company. Mark Hunt is the Manager. The property is legally described
as the Easterly 9.27 feet of Lot Q, and all of Lots R and S, Block 105, City and Townsite of Aspen,
with parcel ID no. 2737-182-27-004.
Final approval for the project was granted by the Planning & Zoning Commission on June 21,
2016 via Resolution No. 4, Series of 2016. The project is currently vested until July 7, 2019. We
are requesting the vested rights be extended for an eighteen month period to January 7, 2021.
The project team needs more time to iron out the details and logistics associated with the project
approvals.
Attached please find the project approvals and relevant documents required for a complete
application. We look forward to discussing this request with you and the City Council. Please
contact us with any questions or concerns.
Sincerely,
Chris Bendon, AICP
BendonAdams LLC
Exhibit C
P39
IX.a
730 E. Cooper (Base)
Extension of Vested Rights
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Attachments:
1. City Council Ordinance No. 2, Series of 2015
2. City Council Ordinance No. 6, Series of 2016
3. P&Z Resolution No. 4, Series of 2016
4. Pre-Application conference summary
5. Land Use Application and Dimensional Requirements Form
6. Response to Review Criteria
7. Vicinity Map
8. Authorization to represent
9. Disclosure of ownership
10. Agreement to pay form
11. HOA compliance form
12. List of owners within 300 ft.
P40
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exhibit 1
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exhibit 2
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exhibit 3
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ASLU
Extension of Vested Rights
730 E. Cooper Avenue
1
CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY
PLANNER: Justin Barker, 429.2797 DATE: May 8, 2018
PROJECT: 730 E. Cooper (BASE Lodge)
REPRESENTATIVE: Chris Bendon, chris@bendonadams.com
DESCRIPTION:
The applicant would like to extend the vested rights for a lodge project that received approval through Ordinance 2,
Series of 2015, Ordinance 6, Series of 2016, and P&Z Resolution 4, Series of 2016. The Development Agreement
(reception #636058) states that the vesting expiration date is July 7, 2019. The applicant has initially suggested an
extension request of three (3) years. After the period of vested rights, current land use regulations become
applicable to the project, unless an extension of vested rights is granted.
Below are links to the Land Use Application form and Land Use Code for your convenience:
Land Use Code:
https://www.cityofaspen.com/276/Title-26-Land-Use-Code
Land Use Application:
https://www.cityofaspen.com/DocumentCenter/View/1835/Land-Use-Application-Packet-2017
Relevant Land Use Code Section(s):
26.304 Common Development Review Procedures
26.308 Vested Rights
Review by: Staff for complete application and recommendation, City Council for decision
Public Hearing: Yes, City Council
Planning Fees: $1,300 for up to 4 billable hours. Lesser/additional hours will be refunded or billed at a
rate of $325 per hour.
Referral Fees: NA
Total Deposit: $1,300
To apply, submit 1 copy of the following information:
Completed Land Use Application and signed fee agreement.
Pre-application Conference Summary (this document).
Street address and legal description of the parcel on which development is proposed to occur,
consisting of a current (not older than 6 months) certificate from a title insurance company, an
ownership and encumbrance report, or attorney licensed to practice in the State of Colorado, listing the
names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and
exhibit 4 P138
IX.a
2
agreements affecting the parcel, and demonstrating the owner’s right to apply for the Development
Application.
Applicant’s name, address and telephone number in a letter signed by the applicant that states the
name, address and telephone number of the representative authorized to act on behalf of the applicant.
HOA Compliance form (Attached)
A written description of the proposal and an explanation in written, graphic, or model form of how the
proposed development complies with the review standards relevant to the development application and
relevant land use approvals associated with the property.
Written responses to all review criteria.
A written explanation of how the request complies with the review standards relevant to extension of
vested rights.
Copies of prior approvals.
An 8 1/2” by 11” vicinity map locating the parcel within the City of Aspen.
Once the application is determined to be complete, submit:
A digital copy of the application.
Total deposit for review of the application.
Disclaimer:
The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on
current zoning, which is subject to change in the future, and upon factual representations that may or may not
be accurate. The summary does not create a legal or vested right.
P139
IX.a
November 2017 City of Aspen|130 S. Galena St.|(970) 920 5090
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE APPLICATION
Project Name and Address:_________________________________________________________________________
Parcel ID # (REQUIRED) _____________________________
APPLICANT:
Name: ______________________________________________________________________________________________
Address: _______________________________________________________________________________________________
Phone #: ___________________________ email: __________________________________
REPRESENTIVATIVE:
Name: _________________________________________________________________________________________________
Address:________________________________________________________________________________________________
Phone#: _____________________________ email:___________________________________
Description: Existing and Proposed Conditions
Review: Administrative or Board Review
Have you included the following?FEES DUE: $ ______________
Pre-Application Conference Summary
Signed Fee Agreement
HOA Compliance form
All items listed in checklist on PreApplication Conference Summary
Required Land Use Review(s):
Growth Management Quota System (GMQS) required fields:
Net Leasable square footage _________ Lodge Pillows______ Free Market dwelling units ______
Affordable Housing dwelling units_____ Essential Public Facility square footage ________
exhibit 5
BASE - 730 East Cooper Avenue
2737-182-27-004
730 E. Cooper, LLC
730 East Cooper Ave., Aspen CO 81611
312850-1680 mhunt@mdevco.com
BendonAdams
300 S. Spring St. #202, Aspen CO 81611
925-2855 chris@bendonadams.com
Extension of vested rights.
City Council
Vested Rights Extension
1300
P140
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Exhibit 6
Response to Review Criteria
26.308.010.C.1 In reviewing a request for the extension or reinstatement of vested rights the City
Council shall consider, but not be limited to, the following criteria:
a. The applicant’s compliance with any conditions requiring performance prior to the date of
application for extension or reinstatement;
Response: We have secured all required land use approvals and fulfilled all conditions of the development
order. All remaining matters are detailed issues typically addressed as part of the building permit review
or construction observation.
b. The progress made in pursuing the project to date including the effort to obtain any other
permits, including a building permit and the expenditures made by the applicant in
pursuing the project;
Response: We have made substantial investment in the approvals in order to record the development
agreement and the development documents including complete engineering plans to the City of Aspen’s
requirements, site utility plans, demolition plans, tree protection and removal plans, planting and
landscaping details, public amenity plans and complete architectural plans.
c. The nature and extent of any benefits already received by the City as a result of the
project approval such as impact fees or land dedications;
Response: No benefits have been received by the City as a result of the project.
d. The needs of the City and the applicant that would be served by the approval of the
extension or reinstatement request.
Response: The applicant requests additional time to work out the logistics associated with the BASE
approval. The approval adds up to 40 lodging bedrooms, with an average of less than 300 sf, to Aspen’s
lodge inventory.
P141
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730 East Cooper Vicinity Map
CityofAspenGIS
Structures
Parcels Label: Unit Number
Federal Lands
BLM
STATE OF CO
USFS
Addresses Label: Number
Water Polygons
Water Line Zoomed Out
Water Line Zoomed In
UGB
10/1/2018, 1:36:18 PM 0 0.01 0.030.01 mi
0 0.03 0.050.01 km
1:1,200
City of Aspen GIS
CityofAspenGIS |
exhibit 7
P142IX.a
exhibit 8P143IX.a
Active/48464835.1
730 East Durant Avenue, Suite 200, Aspen, Colorado 81611-1557
Telephone: 970.925.6300 Fax: 970.925.1181 www.shermanhoward.com
Curtis B. Sanders
Sherman & Howard L.L.C.
Direct Dial Number: 970.300.0114
E-mail: csanders@shermanhoward.com
May 16, 2018
City of Aspen
Community Development Department
130 South Galena Street
Aspen, Colorado 81611
Re: 730 E. Cooper, LLC, a Colorado limited liability company; Certificate of Ownership
Dear Sir or Madam:
I am an attorney licensed by the State of Colorado to practice law.
This letter shall confirm and certify that 730 E. Cooper, LLC, a Colorado limited liability
company, is the owner of all improvements (collectively, the “Improvements”) currently located
on the Easterly 9.27 feet of Lot Q, and all of Lots R and S, Block 105, City and Townsite of
Colorado (the “Real Property”), and that further, 730 E. Cooper, LLC is also the tenant under a
Net Ground Lease dated March 13, 2000 (“Net Ground Lease”) with respect to the Real
Property, between The Simon P. Kelly Trust and the Nora D. Kelly Trusts Dated January 4,
1993, as Landlord and The Buckhorn Arms, LLC as Tenant, a Short Form of which was
recorded on March 13, 2000 as Reception No. 441336, Pitkin County, Colorado, and which Net
Ground Lease was assigned to and assumed by 730 E. Cooper, LLC pursuant that certain Bill of
Sale, Assignment and Assumption Agreement dated March 5, 2013, between The Buckhorn
Arms, LLC as assignor and 730 E. Cooper, LLC as assignee, and recorded April 2, 2013 as
Reception No. 598272, Pitkin County, Colorado.
730 E. Cooper, LLC’s interest in the Real Property pursuant to the Net Ground Lease is
subject to the following matters of record:
1. Reservations and exceptions as set forth in the Deed from the City of Aspen recorded
in Book 59 at Page 330, 461 and Book 79 at Page 54.
2. Mineral and mineral rights as set forth in Deeds recorded in Book 98 at Page 517,
Book 125 at Page 1, Book 106 at Page 481, Book 106 at Page 482 and Book 131 at Page 81.
3. Terms, conditions, provisions and obligations as set forth in Short Form of Net Ground
Lease recorded March 13, 2000 as Reception No. 441336.
exhibit 9 P144
IX.a
2
Active/48464835.1
4. Easements, rights of way and all matters as disclosed on Improvement Survey Plat of
the Real Property recorded September 5, 2008 in Survey Plat Book 88 at Page 34.
5. Terms, conditions, provisions, obligations and all matters as set forth in Ordinance No.
2, Series of 2009 by City of Aspen Council recorded April 14, 2009 as Reception No. 558000.
6. Terms, conditions, provisions and obligations as set forth in Covenant Agreement in
Association with Aspen City Council Ordinance No. 2 (Series of 2009) recorded April 14, 2009
as Reception No. 558001.
7. Terms, conditions, provisions and obligations as set forth in Bill of Sale, Assignment
and Assumption Agreement recorded April 2, 2013 as Reception No. 598272, Pitkin County,
Colorado.
8. Notice of Lien of City of Aspen Water Department recorded October 22, 2014, as
amended by Notice of Lien recorded December 10, 2015 as Reception No. 625472.
9. Terms, conditions, provisions and obligations as set forth in Resolution No. 1, Series
of 2015 recorded January 13, 2015 as Reception No. 616672.
10. Terms, conditions, provisions and obligations as set forth in Ordinance No. 2, Series
of 2015 recorded March 2, 2015 as Reception No. 617733.
11. Terms, conditions, provisions and obligations as set forth in Aspen City Council
Ordinance No. 6 (Series of 2016) recorded May 4, 2016 as Reception No. 629132, and re-
recorded to replace “Exhibit B” on May 23, 2016 as Reception No. 629514, and re-recorded to
correct parcel identification number, common address, and legal description on June 27, 2016 as
Reception No. 630225.
12. Terms, conditions, provisions and obligations as set forth in Aspen City Council
Ordinance No. 2 (Series of 2015) recorded June 27, 2016 as Reception No. 630224.
13. Terms, conditions, provisions and obligations as set forth in Aspen City Council
Resolution No. 4 (Series of 2016) recorded July 15, 2016 as Reception No. 630675.
14. Approved Plan Set for BASE recorded February 9, 2017 as Reception No. 636057.
15. Development Agreement for Base Lodge Planned Development recorded February 9,
2017 as Reception No. 636058.
Sincerely,
Curtis B. Sanders
P145
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exhibit 10P146IX.a
exhibit 11P147IX.a
Pitkin County Mailing List of 300 Feet Radius
Pitkin County GIS presents the information and data on this web
site as a service to the public. Every effort has been made to
ensure that the information and data contained in this electronic
system is accurate, but the accuracy may change. Mineral
estate ownership is not included in this mailing list. Pitkin County
does not maintain a database of mineral estate owners.
Pitkin County GIS makes no warranty or guarantee concerning
the completeness, accuracy, or reliability of the content at this
site or at other sites to which we link. Assessing accuracy and
reliability of information and data is the sole responsibility of the
user. The user understands he or she is solely responsible and
liable for use, modification, or distribution of any information or
data obtained on this web site.
This document contains a Mailing List formatted to be
printed on Avery 5160 Labels. If printing, DO NOT "fit to
page" or "shrink oversized pages." This will manipulate the
margins such that they no longer line up on the labels
sheet. Print actual size.
From Parcel: 273718227904 on 10/01/2018
Instructions:
Disclaimer:
http://www.pitkinmapsandmore.com
P148
IX.a
KN ASPEN CORE LLC
ASPEN, CO 81611
0133 PROSPECTOR RD #4102B
COOPER AVE GREYSTONE CONDO ASSOC
ASPEN, CO 81611
COMMON AREA
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
IACONO FAMILY INVESTMENTS LLC
TUCSON, AZ 85750-1242
5845 E PLACITA DE LA ZUERENCIA
GRAY DALE F REV TRST
BETHESDA, MD 20816
5921 SEARL TER
BAUM ROBERT E
STOCKBRIDGE, MA 01262
PO BOX 1518
ASPEN MTN PARTNERS LLC
ASPEN, CO 81611
730 E DURANT AVE
KASHINSKI MICHAEL R
ASPEN, CO 81611
715 E HYMAN AVE #2
HUNT SARAH J
ASPEN, CO 81611
715 E HYMAN AVE #22
CHATEAU ASPEN CONDO ASSOC
ASPEN, CO 81611
630 E COOPER
KN ASPEN CORE LLC
ASPEN, CO 81611
0133 PROSPECTOR RD #4102B
KN ASPEN CORE LLC
ASPEN, CO 81611
0133 PROSPECTOR RD #4102B
CORREIA JOHN E
HURRICANE, UT 84737
2642 W 250 N
SESTIC ZORAN
ASPEN, CO 81611
715 E HYMAN AVE #12
M & M INVESTMENTS
ASPEN, CO 81611
679 BRUSH CREEK RD
HALL MURRAY B REVOCABLE TRUST
PALM DESERT, CA 92260
348 METATE PL
MAYER WILLIAM E
ASPEN , CO 81612
PO BOX 4462
COMBO VENTURE LLC
DALLAS, TX 752011551
2651 N HARWOOD ST #525
SILVERBELL RENTALS LLC
HOUSTON, TX 77055
1500 N POST OAK RD #190
DAILY CONNIE M
ASPEN, CO 81611
715 E HYMAN AVE #14
SAGARIA SABATO DOMINIC III
NEW YORK, NY 10014
756 GREENWICH ST
GADA 777 REV LIVING TRUST
ASPEN, CO 81612
PO BOX 2061
AJAX INVESTMENTS LLC
ASPEN, CO 81611
730 E DURANT AVE
DANIELE ROBIN
ASPEN, CO 81612
PO BOX 1023
AJAX INVESTMENTS LLC
ASPEN, CO 81611
730 E DURANT AVE
IDS PARTNERS LLC
GWYNEDD VALLEY, PA 19437
PO BOX 642
DAMASO PAULA M TRUST
ASPEN, CO 81612
PO BOX 1225
ASPEN MTN PARTNERS LLC
ASPEN, CO 81611
730 E DURANT AVE
T STREET LLC
ASPEN, CO 81612
PO BOX 2648
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
P149
IX.a
KLIKA YVONNE TRUST
DENVER, CO 80202
1551 LARIMER ST #1303
SOUTH SPRING LLC
ASPEN, CO 81611
623 E HOPKINS
BUYERS BRUCE
EAST AURORA, NY 140522651
11 NYE HILL RD
GADA 777 REV LIVING TRUST
ASPEN, CO 81612
PO BOX 2061
JOSHUA & CO
ASPEN, CO 81611
520 E DURANT AVE
BATTLE GERALD LIVING TRUST
NEWPORT BEACH, CA 92659
PO BOX 2847
SOUTH SPRING LLC
ASPEN, CO 81611
623 E HOPKINS
NETHERY BRUCE
ASPEN, CO 81611-2063
715 E HYMAN AVE #25
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
LEWIS MARITAL TRUST
HILLSBOROUGH, CA 94010
524 EL CERRITO AVE
DAMASO PAULA M TRUST
ASPEN, CO 81612
PO BOX 1225
ASPEN LIVING WELL LLC
SALT POINT, NY 12578
2517 ROUTE 44 #11-104
SHACKELFORD MARK
ASPEN, CO 81611
805 E COOPER AVE #5
SOUTH SPRING LLC
ASPEN, CO 81611
623 E HOPKINS
MCMURRAY WILLIAM & HELEN
AUSTRALIA,
29 MIDDLE HEAD RD
MOSMAN NSW 2088
GADA 777 REV LIVING TRUST
ASPEN, CO 81612
PO BOX 2061
BUYERS BRADLEY M
EAST AURORA, NY 14052
11 NYE HILL RD
POLICARO JOANNA
COLUMBUS, OH 43220
4292 CHAUCER LN
SOUTH SPRING LLC
ASPEN, CO 81611
623 E HOPKINS
AJAX INVESTMENTS LLC
ASPEN, CO 81611
730 E DURANT AVE
DECK WARREN PRESTON LIVING TRUST
DENVER, CO 80235
3972 S PINEHURST CIRCLE
ART MUSEUM LLC
TULSA, OK 74119
15 W 6TH ST #2400
IDS PARTNERS LLC
GWYNEDD VALLEY, PA 19437
PO BOX 642
SHUMATE ASPEN LLC
ASPEN, CO 81611
421 AABC #G
MOY JANE W
ASPEN, CO 81611
39 MOUNTAIN LAUREL DR
DEVLIN KAREN RUBEY
ASPEN, CO 816111087
6 TUMBLEDOWN LN
KANTAS NICOLETTE
ASPEN, CO 81611
715 E HYMAN AVE #15
IACONO FAMILY INVESTMENTS LLC
TUCSON, AZ 85750-1242
5845 E PLACITA DE LA ZUERENCIA
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
CITY MARKET INC
CINCINNATI , OH 45202
1014 VINE ST 7TH FL
P150
IX.a
MCLAUGHLIN WILLIAM R & MARTHA S
MANCHESTER, VT 05254
PO BOX 679
SOUTH SPRING LLC
ASPEN, CO 81611
623 E HOPKINS
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
VALERIO JAMES & LANETTE
ASPEN, CO 81612
PO BOX 1376
ROGERS RICHARD R
ADDISON, TX 75001
16251 DALLAS PKWY
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
LEINER MICHAEL & ROSE ANN
ASPEN, CO 81612
PO BOX 11539
450 RIGINAL LLC
BASALT, CO 81621
132 PARK AVE
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
DALLAS ASPEN LLC
PARKER, CO 80138
11020 S PIKES PEAK DR # 210
COOPER ORIGINAL LLC
MIAMI, FL 33180
20801 BISCAYNE BLVD #431
MONTGOMERY JOHN R & HELEN WALDRUM
BIRMINGHAM, AL 35243
2113 CALDWELL MILL TRACE
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
BOULANGEE ERICA
ASPEN, CO 81611
300 S SPRING ST #203
ROCKHILL BRITTANIE
ASPEN, CO 81612
PO BOX 10261
BRADLEY EDWARD JR
BROOKLYN, NY 11209
263 80TH ST
SILVER DIP EQUITY VENTURE LLC
PARKER, CO 80138
11020 S PIKES PEAK DR #210
ETTLIN ROSS L
ASPEN, CO 81611
715 E HYMAN AVE # 7
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
FIGHTLIN JONATHAN D
ASPEN, CO 81611-2063
715 E HYMAN #46
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
LIEB MADELINE TRUST
ASPEN, CO 81611
800 E HYMAN AVE #A
SCHNURMAN ALAN J & JUDITH
NEW YORK, NY 10017
870 UNITED NATIONS PLZ STE 20E
SILVER BELL CONDO ASSOC
ASPEN, CO 81611
COMMON AREA
805 E COPPER AVE
KN ASPEN CORE LLC
ASPEN, CO 81611
0133 PROSPECTOR RD #4102B
DAVIS ALTON T REVOCABLE TRUST
HINSDALE, IL 605213132
11 S ADAMS ST
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
ROBINSON F GEORGE JR
ASPEN, CO 81612
PO BOX 7906
PT HOLDINGS II LLC
MISSION, KS 66205
2001 SHAWNEE MISSION PKWY #200
KN ASPEN CORE LLC
ASPEN, CO 81611
0133 PROSPECTOR RD #4102B
P151
IX.a
MCATAMNEY KENNETH TRUST
WINNETKA, IL 60093
639 SPRUCE ST
BELL MOUNTAIN RESIDENCES CONDO ASSOC
ASPEN, CO 81611
720 E COOPER AVE
CASTRO JOSEPH
EVANSTON, IL 60201
305 DAVIS ST
BLOCK DAYNA B
EVANSTON, IL 60201
305 DAVIS ST
GREWAL JASJIT SINGH
PAGOSA SPRINGS, CO 81147
1 ECHO CANYON RD
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
PARTRIDGE JEAN INS TRUST
NAPLES, FL 34102
3495 GIN LN
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
PERRY JAMES H & MARGERY DEUTZ
ASPEN, CO 81612-3382
PO BOX 3382
AJAX INVESTMENTS LLC
ASPEN, CO 81611
730 E DURANT AVE
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
SB-H FAMILY 1 LLC
ASPEN, CO 81611
0316 PFISTER DR
WILLIAMS CRAIG & LEE FAM PTNRSHP LTD
HOUSTON, TX 77056
5577 CEDAR CREEK
OATES WILLIAM D & B MARILYN
DALLAS , TX 75205
4900 LAKESIDE DR
BG SPRING LLC
ASPEN, CO 81611
300 S SPRING ST #202
SAHR KAREN M
ASPEN, CO 81611
715 E HYMAN AVE #8
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
DURANT MALL PROP LLC
ASPEN, CO 81611
39 MOUNTAIN LAUREL DR
SEAY GERALD R
PALM BEACH, FL 334803518
320 TANGIER AVE
GRAY CHERYL W REV TRST
BETHESDA, MD 20816
5921 SEARL TER
KRANS ROSEMARY
SAN FRANCISCO, CA 94118
298 4TH AVE #429
BG SPRING LLC
ASPEN, CO 81611
300 S SPRING ST #202
HEWINS SAMUEL
ASPEN, CO 81611
715 E HYMAN AVE #23
DEVINE RALPH R
WASHINGTON, DC 20008
3003 VAN NESS ST NW # S916
PT HOLDINGS II LLC
MISSION, KS 66205
2001 SHAWNEE MISSION PKWY #200
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
KN ASPEN CORE LLC
ASPEN, CO 81611
0133 PROSPECTOR RD #4102B
HAYLES THOMAS
ASPEN, CO 81611
715 E HYMAN AVE #5
ALEXANDER THOMAS L
ASPEN, CO 81611
715 E HYMAN AVE #27
MAYER WILLIAM E
ASPEN , CO 81612
PO BOX 4462
P152
IX.a
LEINER MICHAEL
ASPEN, CO 81612
PO BOX 11539
SHIFRIN GEORGE
BASALT, CO 81621
PO BOX 3434
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
SHAFFER MARGARET REV TRUST
NORTH PALM BEACH, FL 33408
11300 US HWY ONE
KENNEDY JUSTIN
MIAMI, FL 33156
5001 HAMMOCK LAKE DR
MALLARD ENTERPRISES LP
KERRVILLE, TX 78028
317 SIDNEY BAKER S #400
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
WILLIAMSON CHERYL EXEMPT TRUST
WASHINGTON, DC 200072316
1601 35TH ST NW
CHATELET CONDO ASSOC
ASPEN, CO 81611
250 S ORIGINAL ST
GODFREY BRUCE FAM TRST
DENVER, CO 80209
1041 S HIGH ST
STERLING TRUST COMP
LOS ANGELES, CA 90049
2091 MANDEVILLE CYN RD
HY WEST CONDO ASSOC
ASPEN, CO 81611
835 E HYMAN AVE
ART MUSEUM LLC
TULSA, OK 74119
15 W 6TH ST #2400
MCATAMNEY JEANNE TRUST
WINNETKA, IL 60093
639 SPRUCE ST
ORIGINAL ENTERPRISE LLC
WESTPORT, CT 06880
77 MAPLE AVE S
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
DURANT MALL CONDO ASSOC
ASPEN, CO 81611
710 E DURANT AVE #W10
DAVIS MARTIN
ASPEN, CO 81611-2603
835 E HYMAN AVE APT G
LIVINGSTON DAVID R
GRAND RAPIDS, MI 49546
7100 GLADYS DR SE
NK REAL ESTATE INVESTMENTS LLC
MALIBU, CA 90265
22254 PACIFIC COAST HWY
ASPEN MTN PARTNERS LLC
ASPEN, CO 81611
730 E DURANT AVE
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
630 E COOPER 13 ASSOCIATES LLC
ASPEN, CO 81611
257 PARK AVE
730 DURANT G12 LLC
MINNEAPOLIS, MN 55416
1233 EDLIN PL
WEIDEL LAWRENCE W
MONROE, GA 30655
PO BOX 1007
CROCKETT RUFUS
ASPEN, CO 81612
PO BOX 3837
RYERSON GEORGE W JR
ASPEN, CO 81611
715 E HYMAN AVE #17
IACONO FAMILY INVESTMENTS LLC
TUCSON, AZ 85750-1242
5845 E PLACITA DE LA ZUERENCIA
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
ASPEN MTN PARTNERS LLC
ASPEN, CO 81611
730 E DURANT AVE
P153
IX.a
KELLY SIMON P TRUST
ASPEN, CO 816112061
732 E COOPER AVE
SCHNITZER LISA L
DALLAS, TX 75220
4939 BROOKVIEW DR
BORGIOTTI CLAUDIO
VIENNA, VA 22192
10509 HUNTING CREST LN
300 SOUTH SPRING 303 LLC
ASPEN, CO 81611
610 E HYMAN
2012 TRUST FBI RHODA ISRAEL
NEW YORK, NY 10017
708 3RD AVE
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
LONG MONA HAYLES TRUST
ASPEN, CO 81612
BOX 3849
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
CARRILLO ASSET MANAGEMENT TRUST
BROOKLYN, NY 11201
236 HENRY ST #6
MOUNTAN VIEW CONDO ASSOC
ASPEN, CO 81611
COMMON AREA
819 E HYMAN AVE
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
BELKOVA DASHA
ASPEN, CO 81611-2092
819 E HYMAN AVE #7
ASPEN BROWNSTONES CONDO ASSOC
ASPEN, CO 81611
707 E HYMAN AVE
CJAR LLC
LAFAYETTE, CO 80026
2514 LAKE MEAD DR
300 SOUTH SPRING ST CONDO ASSOC
ASPEN, CO 81611
300 S SPRING ST
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
JACOBY JON E M
LITTLE ROCK, AR 72203
PO BOX 3417
COMBO VENTURE LLC
DALLAS, TX 752011551
2651 N HARWOOD ST #525
GROSFELD ASPEN PROP PART LLC
LOS ANGELES, CA 90024
10880 WILSHIRE BLVD #2222
ZGKIDS LLC
SNOWMASS VILLAGE, CO 81615
PO BOX 6627
POAG COMPANY LLC
GREENSBOW, NC 27429
PO BOX 9316
SMITH RON
HAMPTON, VA 23669
133 KINGS WY #300
ASPEN ART MUSEUM
ASPEN, CO 81611
590 N MILL ST
FAATH CARLOS M & MOLLY G
ASPEN, CO 81611
715 E HYMAN AVE #1
HIMAN LLC
AUSTRALIA ,
PO BOX 6159
SWANBOURNE WA 6010
RAYMOND KIMBERLY A
ASPEN, CO 816112259
1280 S UTE AVE #5
SHAPIRO REGINA
TOWN & COUNTRY, MO 63017
14024 MONTRACHET LN
BRYANT NANCY
ASPEN, CO 81611
555 E DURANT AVE STE 5A
HIXSON BURT LVG TRUST
NEWPORT BEACH, CA 92659
PO BOX 2847
FERRY JAMES H III
GLENCOE, IL 600220166
BOX 166
P154
IX.a
LEINER MICHAEL & ROSE ANN
ASPEN, CO 81612
PO BOX 11539
820 EAST HYMAN CONDO ASSOC
ASPEN, CO 81611
820 E HYMAN AVE
ADELSON ANDREW S REV TRUST
KATONAH, NY 10536
PO BOX 810
EQUITUS CAPITAL LLC
ASPEN, CO 816112071
720 E DURANT # E8
SATKUNAS THOMAS P
CARBONDALE, CO 81623
0096 HOPI
COOPER SPRINGS LLC
AVENTURA, FL 33180
20801 BISCAYNE BLVD #431
LANDIS JOSHUA B
ASPEN, CO 81611
715 E HYMAN AVE #4
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
SKLAR LEONARD EDWARD REV TRUST
PEMBROKE PINES, FL 33084
PO BOX 848603
BESTERFIELD LLC
HAMILTON ONTARIO CANADA L8P3A9,
200 JAMES ST S #202
MATTHEWS ZACHARY
ASPEN, CO 81612
PO BOX 10582
KOUTSOUBOS TED
ASPEN, CO 81612
PO BOX 12383
JANKOWSKI CYNTHIA
ASPEN, CO 81611
715 E HYMAN AVE #3
AJAX INVESTMENTS LLC
ASPEN, CO 81611
730 E DURANT AVE
COMBO VENTURE LLC
DALLAS, TX 752011551
2651 N HARWOOD ST #525
ASPEN MTN PARTNERS LLC
ASPEN, CO 81611
730 E DURANT AVE
700 E HYMAN CONDO ASSOC
ASPEN, CO 81611
700 E HYMAN AVE
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
DURANT MALL PROP LLC
ASPEN, CO 81611
39 MOUNTAIN LAUREL DR
COLOSI THOMAS W
ASPEN, CO 81611-2099
715 E HYMAN AVE #6
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
HJ HOLDINGS LLC
GLENWOOD SPRINGS, CO 81601
1112 GRAND AVE
SOUTH SPRING LLC
ASPEN, CO 81611
623 E HOPKINS
YERAMIAN CHARLES REV TRUST
ASPEN, CO 81612
PO BOX 12347
COERDT CLINTON
ASPEN, CO 81611
705 SPRUCE ST
WEBB MARSHALL B ASPEN QPRT
OKATIE, SC 29909
53 OSPREY CIR
SOUTH SPRING LLC
ASPEN, CO 81611
623 E HOPKINS
P155
IX.a
ASPEN MTN PARTNERS LLC
ASPEN, CO 81611
730 E DURANT AVE
MT ASPEN LLC
ASPEN, CO 81611
730 E DURANT AVE #G1
SHAPIRO LAND LLC
ASPEN, CO 81611
2438 JUNIPER HILL RD
BELL MOUNTAIN QUALIFIED RESIDENCES
ASPEN, CO 81611
320 S SPRING ST
BARTLETT KATY I
ASPEN, CO 81611-2066
715 E HYMAN AVE #18
LEINER ROSE ANN
ASPEN, CO 81612
PO BOX 11539
LANDRY ELIZABETH J
ASPEN, CO 81611
715 E HYMAN AVE #24
NIELSON COL STEVE & CAROL
ALEXANDRIA, VA 22314
501 S FAIRFAX
LEINER MICHAEL
ASPEN, CO 81612
PO BOX 11539
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
RUST TRUST
BEVERLY HILLS, CA 902123896
233 S BEVERLY DR#B
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
BERKOWITZ KAREN
BROOKLANDVILLE, MD 21022
PO BOX 826
DURANT MALL PROP LLC
ASPEN, CO 81611
39 MOUNTAIN LAUREL DR
GOLDMAN MICHAEL VICTOR & GLORIA ANNA
TUCSON, AZ 85718
6919 GLENEAGLE DR
LIGURIA LLC
VAIL, CO 81658
PO BOX 3149
WISE JOSEPH
RALEIGH, NC 27604-1414
1320 HODGES ST
ASPEN ATHLETIC CLUB
ASPEN, CO 81611
COMMON AREA
720 E HYMAN AVE
283 ASPEN LLC
DALLAS, TX 75205
4809 COLE AVE #347
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
BOUTON REV TRUST
SAN FRANCISCO, CA 941081967
1170 SACRAMENTO ST #11A
SOUTH SPRING LLC
ASPEN, CO 81611
623 E HOPKINS
RUDD WAYNE
BASALT, CO 81621
132 PARK AVE
JOYCE EDWARD
CHICAGO, IL 60610
1310 RITCHIE CT
SMITH ALICIA M
ASPEN, CO 81611
715 E HYMAN AVE #16
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
CWG HOLDINGS LLC
ASPEN, CO 81611
720 E DURANT AVE #E8
SOUTH SPRING LLC
ASPEN, CO 81611
623 E HOPKINS
KRANS ROSEMARY
SAN FRANCISCO, CA 94118
298 4TH AVE #429
P156
IX.a
730 EAST DURANT CONDO ASSOC
ASPEN, CO 81611
730 E DURANT AVE
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
ELK CAMP TRIAGE LLC
CARBONDALE, CO 81623
201 MAIN ST #305
SCHUBINER CRAIG E
BLOOMFIELD HILLS, MI 48302
PO BOX 7067
812 E COOPER LLC
NEW YORK, NY 10065
201 E 62ND ST # 12A
KN ASPEN CORE LLC
ASPEN, CO 81611
0133 PROSPECTOR RD #4102B
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
SUNDSTROM JOHN
ASPEN, CO 81611
715 E HYMAN AVE #21
AJAX INVESTMENTS LLC
ASPEN, CO 81611
730 E DURANT AVE
BEAUDETTE PETER C
COLUMBIA, SC 29223
501 E SPRINGS RD
GADA 777 REV LIVING TRUST
ASPEN, CO 81612
PO BOX 2061
BERKOWITZ ALAN
BROOKLANDVILLE, MD 21022
PO BOX 35
450 ORIGINAL CONDO ASSOC
ASPEN, CO 81611
450 S ORIGINAL ST
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
KEATING R MARK TRUST
GLADWYNE, PA 19035
214 GLENMOOR RD
FORD JOHN STEPHEN JR
ASPEN, CO 81611
805 E COOPER AVE # 7
DANTE CANDI
HOLLYWOOD, FL 33019
1135 LINDEN ST
KOVACH MARY SUSAN REV TRUST
CHICAGO, IL 60610
1422 N LASALLE ST #101
IDS PARTNERS LLC
GWYNEDD VALLEY, PA 19437
PO BOX 642
814 GREYSTONE LLC
MIAMI BEACH, FL 33139
300 S POINTE DR #1506
GODFREY LESLI L FAM TRST
DENVER, CO 80209
1041 S HIGH ST
MAGGOS SUE P TRUST
LAKE FOREST, IL 60045
361 N AHWAHNEE RD
HJ HOLDINGS LLC
GLENWOOD SPRINGS, CO 81601
1112 GRAND AVE
CHATEAU ASPEN #21-A LLC
ASPEN, CO 81611
600 E HOPKINS AVE #203
LIBERATORE DOUGLAS
SARASOTA, FL 34230
PO BOX 1838
ASPEN MTN PARTNERS LLC
ASPEN, CO 81611
730 E DURANT AVE
LEINER MICHAEL
ASPEN, CO 81612
PO BOX 11539
TREUER CHRISTIN L
GREENWOOD VILLAGE, CO 801111955
5455 LANDMARKL PL #814
COLBY WARD
ASPEN, CO 81611
715 E HYMAN #20
ASPEN AVA 730 LLC
PARKER, CO 80138
11020 S PIKES PEAK DR # 210
P157
IX.a
ERGAS VENESSA BLAIR & CLAUDE
ASPEN, CO 81612
PO BOX 4316
630 E COOPER 6 ASSOCIATES LLC
ASPEN, CO 81611
257 PARK AVE
ART MUSEUM LLC
TULSA, OK 74119
15 W 6TH ST #2400
DURANT MALL PROP LLC
ASPEN, CO 81611
39 MOUNTAIN LAUREL DR
LEWIS MARITAL TRUST
HILLSBOROUGH, CA 94010
524 EL CERRITO AVE
ASPEN MTN PARTNERS LLC
ASPEN, CO 81611
730 E DURANT AVE
COMBO VENTURE LLC
DALLAS, TX 752011551
2651 N HARWOOD ST #525
OBERHOLTZER JORDAN
ASPEN, CO 81612
PO BOX 10582
PRICE GAIL
ASPEN, CO 81611
715 E HYMAN AVE #10
300 SOUTH SPRING ST CONDO ASSOC
ASPEN, CO 81611
418 E COOPER AVE #207
SAHN KAREN
ASPEN, CO 81611-2063
715 E HYMAN AVE #11
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
BELL MOUNTAIN QUALIFIED RESIDENCES
ASPEN, CO 81611
320 S SPRING ST
822 EAST HYMAN TOWNHOME CONDO ASSOC
ASPEN, CO 81611
822 E HYMAN AVE
CHAIKEN WILLIAM
HALLANDALE BEACH, FL 33009-6614
2030 S OCEAN DR #1723
DODEA NICHOLAS T
ASPEN, CO 81611-2063
715 E HYMAN AVE #19
CARBONA JOHN A
FORT MYERS, FL 33902
PO BOX 2568
BISCHOFF JOHN C
INPERIAL BEACH, CA 919321111
565 CITRUS AVE
ASPEN MTN PARTNERS LLC
ASPEN, CO 81611
730 E DURANT AVE
DURANT MALL PROP LLC
ASPEN, CO 81611
39 MOUNTAIN LAUREL DR
ENCLAVE AT ASPEN HOA
ASPEN, CO 81611
830 E DURANT AVE
MARTELL BARBARA
ASPEN, CO 81611
702 E HYMAN AVE
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
FORD JOHN STEPHEN JR
ASPEN, CO 81611
805 E COOPER AVE # 7
WILSON JOSEPH B
ASPEN, CO 81611
39 MOUNTAIN LAUREL DR
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
CLARY EDGAR D IV
ASPEN, CO 81611
715 E HYMAN AVE #9
802 EAST COOPER LLC
HIGHLAND BEACH, FL 33487
3715 S OCEAN BLVD
PACIFIC WEST INVEST LLC
BIRMINGHAM, MI 48009
320 MARTIN ST #100
ISRAEL KENNETH
GOLDEN BEACH , FL 33160
615 OCEAN BLVD
P158
IX.a
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
KELLY NORA D TRUST
ASPEN, CO 81611
732 E COOPER AVE
CCI-ASPEN I LP
AUSTIN, TX 78701
800 BRAZOS ST #600
GOFEN ETHEL CARO TRUST
CHICAGO, IL 60611
455 CITY FRONT PLAZA
REUSS/LIGHT LLC
SNOWMASS VILLAGE, CO 81615
PO BOX 5000
ORIGINAL STREET CONDO ASSOC
ASPEN, CO 81611
802 E COOPER AVE
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
BENEDICT COMMONS CONDO ASSOC
ASPEN, CO 81611
715 E HYMAN AVE
COMBO VENTURE LLC
DALLAS, TX 752011551
2651 N HARWOOD ST #525
ASPEN BROWNSTONES CONDO ASSOC
ASPEN, CO 81611
707 E HYMAN AVE
CM LLC
ASPEN, CO 816112068
117 S SPRING ST # 202
PT HOLDINGS II LLC
MISSION, KS 66205
2001 SHAWNEE MISSION PKWY #200
ASPEN ASSETS LLC
CLARWATER, FL 337614173
2519 N MCMULLEN BOOTH RD #510-307
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TO: Mayor Skadron and Aspen City Council
FROM: Garrett Larimer, Planner
THRU: Jessica Garrow, Community Development Director
RE: Resolution #12, Series of 2019
MEETING DATE: January 28, 2019
APPLICANT: Iconic Properties – Jerome L.L.C.,
1375 Enclave Pkwy, Houston, TX 77077
REPRESENTATIVE: Sunny Vann, Vann
Associates, LLC, PO Box 4827, Basalt, CO
81621
LOCATION: 330 E. Main Street
CURRENT ZONING: Commercial Core (CC) with
a PD Overlay
SUMMARY: The applicant is seeking
temporary use approval for an “Ice Lounge”
on the Mill Street terrace. The applicant is
requesting as part of this application
approval for a total of one-hundred and six
(106) days per year and five annual
recurrences. This is in addition to the
Temporary Use Approval granted via
Resolution No. 174, Series of 2017 which
granted approval for seventy-four (74) days
for various tent structures on site.
REQUEST OF CITY COUNCIL: The applicant is requesting Temporary Use approval related to an Ice Lounge in the Mill
Street Terrace in accordance with Chapter 26.450, Temporary Uses, of the Land Use Code for a period of one
hundred and six (106) days. The Code allows City Council to
consecutive days within a calendar year. The applicant is also requesting City Council grant five (5) annual
recurrences for the Ice Lounge, starting January 2019 through December 2024.
authority.
MEMORANDUM
Mayor Skadron and Aspen City Council
Garrett Larimer, Planner
Jessica Garrow, Community Development Director
Resolution #12, Series of 2019 - Temporary Use Request – Hotel Jerome, 330
January 28, 2019
Jerome L.L.C.,
Sunny Vann, Vann
Associates, LLC, PO Box 4827, Basalt, CO
Commercial Core (CC) with
The applicant is seeking
temporary use approval for an “Ice Lounge”
e. The applicant is
requesting as part of this application
hundred and six
(106) days per year and five annual
recurrences. This is in addition to the
Temporary Use Approval granted via
Resolution No. 174, Series of 2017 which
four (74) days
STAFF RECOMMENDATION: Staff is recommending the City
Council approve the applicant’s request for a one
hundred and six (106) day temporary use approval for
the Ice Lounge. Staff recommends approval based on
the previous approval, the limited impact on the
surrounding area, and the proposed structure being
consistent with the allowed and expected uses of a
lodge. Staff also recommends Council grant three (3)
annual recurrences for the Ice Lounge, with the ability to
apply for administrative approval for an additional five
after the initial three-year period.
Current Image of the Hotel Jerome
The applicant is requesting Temporary Use approval related to an Ice Lounge in the Mill
Street Terrace in accordance with Chapter 26.450, Temporary Uses, of the Land Use Code for a period of one
hundred and six (106) days. The Code allows City Council to grant temporary use approval for up to 180
consecutive days within a calendar year. The applicant is also requesting City Council grant five (5) annual
recurrences for the Ice Lounge, starting January 2019 through December 2024. City Council is the final
Page 1 of 4
Hotel Jerome, 330 E. Main St.,
Staff is recommending the City
Council approve the applicant’s request for a one-
hundred and six (106) day temporary use approval for
Staff recommends approval based on
the previous approval, the limited impact on the
surrounding area, and the proposed structure being
consistent with the allowed and expected uses of a
lodge. Staff also recommends Council grant three (3)
s for the Ice Lounge, with the ability to
apply for administrative approval for an additional five
The applicant is requesting Temporary Use approval related to an Ice Lounge in the Mill
Street Terrace in accordance with Chapter 26.450, Temporary Uses, of the Land Use Code for a period of one-
grant temporary use approval for up to 180
consecutive days within a calendar year. The applicant is also requesting City Council grant five (5) annual
City Council is the final review
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Page 2 of 4
330 E Main St. / Temporary Use
City Council Hearing – January 28, 2019
LOCATION/BACKGROUND: The Hotel Jerome is located in the Commercial Core (CC) zone district. The Hotel occupies
a 47,735-square foot lot and includes a Planned Development Overlay. In 2006, the Hotel Jerome went through a
PUD review for an extensive renovation of the Hotel to enlarge the net leasable commercial area and reconfigure
the courtyards. In 2008, an office space was converted into a lodge room. In 2011, an insubstantial amendment
was approved for interior reconfigurations. More recently, in 2016, the Hotel Jerome received approval to
combine the Hotel Aspen and Hotel Jerome lots, partially vacate the alley, partially demolish and redevelop the
existing Aspen Times building, redevelop the Main Street courtyard and perform internal reconfigurations in the
main building of the Hotel Jerome. This approval added 3 lodge rooms, 9 keys, and 9 bedrooms.
The applicant applied for and received Temporary Use approval via Resolution No. 173, Series of 2017 that
granted approval for use of various temporary use structures on site for a total of seventy-four (74) days per year,
and five (5) annual recurrences. Included in the 2017 approval was approval for use of the Ice Lounge for one-
hundred and one (101) days with no annual recurrences.
Figure 1
CURRENT REQUEST:
Ice Lounge:
The applicant is requesting approval for use of an Ice Lounge (See Figure 2) on the Mill Street Terrace for one-
hundred and six (106) days per year, and five (5) annual recurrences. Resolution No. 173, Series of 2017 granted
Mill Street Terrace
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Page 3 of 4
330 E Main St. / Temporary Use
City Council Hearing – January 28, 2019
approval for various temporary use structures to be used on site throughout the year. The 2017 approval included
five (5) annual recurrences for the various tent structures. The approval also included the use of the Ice Lounge
for one-hundred and one (101) days, and no annual recurrences were requested for the Ice Lounge at that time.
The Ice Lounge was popular with guests and the Hotel Jerome is interested in continuing to utilize the Ice Lounge
during the winter season moving forward. The Land Use Code allows City Council to grant Temporary Use
approval for up to one-hundred and eighty (180) days per calendar year. The previous approval and current
request would bring the total number of days per year in which the Hotel Jerome could use temporary structures
to one-hundred and eighty (180). Temporary Use requests in excess of fourteen (14) days requires Commercial
Design review and affordable housing mitigation. The affordable housing mitigation calculation is included in
Exhibit B. A tent permit will be required for this structure, and mitigation for the Ice Lounge will be collected upon
issuance of that permit.
STAFF FINDINGS: Staff has reviewed the applicant’s request
against the relevant review criteria and finds the following:
The proposed temporary use structures at the Hotel Jerome
are consistent with what one would expect to see at a Lodge.
The intent of the Commercial Core zone district is to provide
commercial services and amenities that enhances Aspen’s
resort-based economy. The proposed Ice Lounge would
further enhance the Hotel Jerome’s ability to provide services
to their guests.
The proposed location of the Ice Lounge would have a
minimal impact on the surrounding area. The Mill Street
terrace, would have a limited visual impact as seen from Mill
St as it is surrounded on three side by the Hotel Jerome
building, and slightly raised from the grade of the sidewalk
along Mill Street, and set back from the façade of the building
of the Hotel Jerome along Mill St. The materials and designs
presented are consistent with the previously approved Ice
Lounge. Given the limited visual impact as seen from the
surrounding area, staff finds the materials used to be
consistent with the Design Guidelines.
The Ice Lounge is subject all applicable review criteria for Temporary and Seasonal Uses, Growth Management
Quota System, and Commercial Design Guidelines. The Ice Lounge is approximately twelve (12) feet by twelve (12)
feet, and the ice walls are about seven (7) feet tall. An image of the Ice Lounge is shown in Figure 3. Staff has
determined the limited size of the structure and the proposed materials comply with the applicable review
criteria.
Growth Management: The applicant has requested approval for one-hundred and six (106) days per year. The Ice
Lounge would be located on the Mill Street terrace and would measure approximately 144 sq. ft., requiring
$1,012.03 in mitigation for the 106 days of use (See Exhibit B for details). Affordable Housing mitigation fees for
the Ice Lounge will be calculated and must be paid when the tent permit for the Ice Lounge is pulled each year.
Figure 2
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Page 4 of 4
330 E Main St. / Temporary Use
City Council Hearing – January 28, 2019
The Affordable Housing Mitigation for the various tent structures approved via Resolution #173, Series of 2017
will be calculated and collected separately for each calendar year.
STAFF RECOMMENDATION: Staff recommends approval of the applicant’s temporary use request, finding that the
request does meet the review criteria. Staff recommends approval for three (3) year’s annual recurrences for the
Ice Lounge, with an ability to apply for an administrative extension for up to five (5) years so the approval
corresponds with the Resolution #173, Series of 2017. The administrative extension would allow a check in related
to design and visual impacts.
PROPOSED MOTION (WORDED IN THE AFFIRMATIVE): “I move to approve Resolution No. 12 Series of 2019 to allow the
erection of the Ice Lounge on site on the Mill Street Terrace at 330 E. Main St. for 106 days in each calendar year
from 2019-2022.”
Attachments:
Exhibit A – Staff Findings
Exhibit B – Affordable Housing Mitigation
Exhibit C – Application
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1
RESOLUTION NO. 12
(SERIES OF 2019)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING THE
TEMPORARY USE OF AN ICE LOUNGE AT 330 E. MAIN STREET, LEGALLY
DESCRIBED AS LOTS A - I AND LOTS O – S, AND THE EASTERLY 20 FEET OF
LOT N AND THE EASTERLY 170 FEET OF THE VACATED ALLEY ALL IN BLOCK
79, CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO.
Parcel ID: 273707321004
WHEREAS, the Community Development Department received an application from
Sunny Vann of Vann Associates, LLC, on behalf of Iconic Properties – Jerome, L.L.C.,
requesting Temporary Use approval to erect the Ice Lounge for one-hundred and six (106)
days per year and three (3) annual recurrences; and
WHEREAS, pursuant to Chapter 26.450.050 of the Land Use Code, City Council may
grant a temporary use approval for up to 180 days, and no more than ten (10) annual recurrences;
and,
WHEREAS, the applicant received approval via Resolution No. 173, Series of 2017 that
allowed for various temporary use structures to be erected on site for up to seventy-four (74)
days per year and five (5) annual recurrences, through 2022, with the ability to apply for an
administrative extension for the temporary use approval for another five (5) years, through 2027;
and,
WHEREAS, the City Council reviewed the application and considered the Temporary
Use proposal under the applicable provisions of the Municipal Code as identified herein, has
reviewed and considered the recommendation of the Community Development Director, and has
taken and considered public comment at a duly noticed public hearing; and,
WHEREAS, the City Council approves the Ice Lounge on the Mill Street terrace, allowing
for temporary use of this structure for up to one-hundred and six (106) days per year; and,
WHEREAS, the City Council finds that the request for the extended temporary use
proposal for the Ice Lounge to be in accordance with the applicable development standards
associated with the request, and has approved it for three (3) annual recurrences with the option
to apply for an administrative extension of up to five (5) years after the initial approval; 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:
Section 1:
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal
Code, the City Council hereby approves a Temporary Use request to allow the erection of the
Ice Lounge on the Mill Street Terrace, for one-hundred and six (106) days in each calendar
year for three (3) years, from January 2019 through December 2022. After three (3) years, the
applicant may submit an application to be reviewed administratively for an additional five (5)
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annual recurrences (2023-2027).
Section 2:
Temporary structures that are approved on a site for a period greater than fourteen (14) days are
subject to growth management review, resulting in affordable housing mitigation. The
applicant is required to provide housing mitigation for one-hundred and six (106) days for the
Ice Lounge. Staff has calculated the amount of affordable housing due, based on the fees in
2019, as $1012.13 Affordable Housing mitigation fees will be calculated at the current rate each
year. Affordable Housing Mitigation for the Ice Lounge will be collected upon issuance of the
tent permit for that structure. Each year, a new tent permit will be required. The methodology is
shown in Exhibit A.
Section 3:
All temporary use structures on site must comply with the Outdoor Lighting Requirements outlined
in Section 26.575.150 of the Land Use Code.
Section 4:
A tent permit approval, including verification from the Aspen Fire Department that the structure
meets all necessary safety requirements, is required prior to the erection of each temporary
structure. If the Fire Department is unable to approve a tent in a given location it may not be
erected.
Section 5:
All material representations and commitments made by the Applicant pursuant to the
temporary use proposal as herein awarded, whether in public hearing or documentation presented
before the City Council, are hereby incorporated in such plan development approvals and the
same shall be complied with as if fully set forth herein, unless amended by an authorized entity.
Section 6:
This resolution shall not affect any existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances repealed or
amended as herein provided, and the same shall be conducted and concluded under such prior
ordinances.
Section 7:
If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be
deemed a separate, distinct and independent provision and shall not affect the validity of the
remaining portions thereof.
APPROVED BY the City Council of the City of Aspen on this 28th day of January 2019.
Attest:
Linda Manning, City Clerk Steven Skadron, Mayor
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Approved as to form:
James R. True, City Attorney
Attachments:
Exhibit A – Affordable Housing Mitigation Methodology
Exhibit A
Affordable Housing Mitigation Requirements
Ice Lounge
· 144 sq. ft./ 1,000 sq. ft. = 0.144 sq. ft.
· 0.144 sq. ft. x 4.7 FTEs = 0.6768 FTEs
· 0.6768 FTEs x 65% mitigation rate = 0 .44 FTEs to be mitigated if structures are in use
100% of the year
· 0.44 FTEs / 365 days per year = .0012 daily rate
· 0.0012 x 106 days = 0.1272 FTEs
· 0.1272 x $238,687.04 cash-in-lieu rate = $30,360.99
· $30,360.99/30-year lifespan = $1,012.03 due for mitigation of the structure for a period
of 106 days.
TOTAL DUE $ 1,012.03
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Exhibit A
Staff Findings
Section 26.450.030. Criteria applicable to all temporary
uses.
When considering a development application for a temporary use or an insubstantial
temporary
use, the Community Development Director or City Council shall consider, among other
pertinent factors, the following criteria as they or any of them, relate thereto:
A. The location, size, design, operating characteristics and visual impacts of the
proposed use.
Staff Response: The ice lounge will be twelve (12) feet by twelve (12) feet, or 144 sq. ft.
The lounge will have approximately seven (7) foot tall walls, made of ice blocks, on
four sides with an opening on one side to access the lounge. The walls will be covered
by a canopy to shield the ice and guests from weather. The ice lounge will be used for
vodka tasting and will not contain a bar or general seating. The structure covering
will be similar to materials used in tradition temporary use structures. The size of
the structure is unobtrusive as viewed from Mill St. The Ice Lounge is available to
guests and the general public. Staff finds this criterion to be met.
B. The compatibility of the proposed temporary use with the character, density and use
of structures and uses in the immediate vicinity.
Staff Response: The proposed Ice Lounge is consistent with what one would expect to
see at a lodge in the Commercial Core. The location of the proposed structure has a
relatively limited impact on the surrounding area because the Mill St. Terrace is
surrounded on three sides by the Hotel. Staff finds this criterion to be met.
C. The impacts of the proposed temporary use on pedestrian and vehicular traffic and
traffic patterns, municipal services, noise levels and neighborhood character.
Staff Response: The proposed structure would not disrupt pedestrian or vehicular
traffic. The applicant has indicated they are aware of the City noise ordinance and will
comply with all regulations. There would be no increase on the demands of municipal
services. There will be no increase in traffic on Mill Street or Main Street as a result of
the proposed structure. Staff finds this criterion to be met.
D. The duration of the proposed temporary use and whether a temporary use has
previously been approved for the structure, parcel, property or location as proposed in the
application.
Staff Response: The Hotel Jerome received approval in 2017 for use of temporary use
structures in various locations on site for a total seventy-four (74) days per year with 5
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annual recurrences. City Council granted the ability to apply for another 5 years to be
reviewed and approved administratively for the 74 days. Approval was also granted for
the Ice Lounge through April 30th, 2018, weather permitting with no annual
recurrences. The applicant has indicated that the use of the Ice Lounge was well
received and are interested in applying for use of the Ice Lounge again in 2019 and are
requesting 5 annual recurrences. The applicant is requesting use of the Ice Lounge for
106 days per year. The total number of days in which the application is requesting use
of temporary structures on site is 180, the maximum allowed to be approved by City
Council. Staff finds this criterion to be met.
E. The purposes and intent of the zone district in which the temporary use is
proposed.
Staff Response: The purpose of the Commercial Core zone district is to serve as the
highest intensity commercial area in Aspen, and is geared to support the visitor based
economy. The mix of uses in this district include economic, cultural and social vitality.
The temporary use would enhance the Hotel Jerome’s ability to provide services to
locals and visitors alike. Staff finds this criterion to be met.
F. The relation of the temporary use to conditions and character changes which may
have occurred in the area and zone district in which the use is proposed.
Staff Response: The Hotel Jerome has received permission to erect special event tents on
site in the past. Granting approval for the Hotel to use the Ice Lounge this year, and in
subsequent years, will further the Hotel Jerome’s ability to accommodate guests and
events throughout the year. Staff finds this criterion to be met.
G. How the proposed temporary use will enhance or diminish the general public
health, safety or welfare.
Staff Response: The proposed use would help to enhance the Hotel Jerome’s ability to
accommodate guest and events throughout the year, and would enhance the general
welfare of the public. Staff finds this criterion to be met.
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Growth Management Quota System
26.470.040.7 Temporary uses and structures. The development of a temporary use or
structure shall be exempt from growth management, subject to the provisions of Chapter
26.450, Temporary and Seasonal Uses. Temporary external airlocks shall only be exempt
from the provisions of this Chapter if compliant with the applicable sections of Commercial
Design Review – Chapter 26.412, and approved pursuant to Chapter 26.450 Temporary and
Seasonal Uses. Tents, external airlocks, and similar temporary or seasonal enclosures
located on commercial properties and supporting commercial uses shall only be exempt
from the provision of this Chapter, including affordable housing mitigation requirements, if
compliant with the applicable sections of Commercial Design Review – Chapter 26.412, if
erected for 7 consecutive days or less in a 12-month period, and approved pursuant to
Chapter 26.450 – Temporary and Seasonal Uses. Erection of these enclosures for longer than
7 consecutive days in a 12-month period shall require compliance with the Commercial
Design Review – Chapter 26.412, and compliance with the provisions of this Chapter
including affordable housing mitigation.
Staff Response: The applicant is requesting approval for use of the Ice Lounge for 106
days per year for five years, requiring compliance with Commercial Design Guidelines
(below), and affordable housing mitigation. Staff has calculated the appropriate
affordable housing mitigation to be $1,012.03. The calculation may be found in Exhibit
B, to follow. Mitigation fees would be due at the time the tent permit for the Ice Lounge is
issued in each year of approval.
26.412.060. Commercial Design Review Criteria.
An application for commercial design review may be approved, approved with conditions or
denied based on conformance with the following criteria:
A. Guidelines and Standards
1. The Commercial, Lodging and Historic District Design Standards and Guidelines are
met as determined by the appropriate Commission. The Standards and Guidelines
include design review criteria that are to be used to determine whether the
application is appropriate.
Staff Response: Temporary Use applications do not require review by Planning and
Zoning or Historic Preservation. The application is considered by City Council and a
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determination on the appropriateness of the application. The review criteria for the
Commercial Design Review is below. Staff finds this to be not applicable.
2. All applicable standards in the Commercial, Lodging and Historic District Design
Standards and Guidelines shall be met unless granted a Variation pursuant to Section
26.412.040.D, Variations.
Staff Response: All standards and applicable Guidelines have been met. Staff finds this
criterion to be met.
3. Not every guideline will apply to each project, and some balancing of the guidelines
must occur on a case-by-case basis. The applicable Commission must:
a. determine that a sufficient number of the relevant guidelines are adequately
met in order to approve a project proposal;
Staff Response: Application not subject to review by commission. City Council to provide
direction.
b. weigh the applicable guidelines with the practicality of the measure.
Staff Response: Subject to direction from City Council.
Commercial Design Guidelines:
General
1.22 Complete and accurate identification of materials is required.
Staff Response: The canopy material is consistent with tent materials approved for other
events in similar locations. The ice lounge is made of unique materials, but is not a
significant variation from the appearance of other approved tent structures in town.
Staff finds this criterion to be met.
Commercial Core
2.4 Respect adjacent iconic historic structures.
Staff Response: The Mill Street Terrace is surrounded by the Historic Hotel Jerome. The
proposed structure would not detract from the historic landmarks and would enhance
the image of the Hotel Jerome as a staple for lodging and guest services downtown. Staff
finds this criterion to be met.
2.14 Architectural details should reinforce historic context and meet at least two of the
following qualities: color or finish traditionally found downtown, texture to create visual
interest, traditional material, traditional application.
Staff Response: The materials proposed for the temporary use structure is consistent
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with materials approved at for other special event structures throughout town, and the
structure is virtually identical with the structure approved via Resolution 173, Series of
2017. Staff finds this criterion to be met.
Pedestrian Amenity
Street Level
PA1.5 Street level pedestrian amenity areas shall be open to the sky.
Staff Response: The recently revised Main Street courtyard was designed using current
Pedestrian Amenity requirements. The Ice Lounge will not occupy the entire Mill Street
terrace area and the remaining area will remain open to the sky. When the Ice Lounge is
in place, there will be additional pedestrian amenity space on site available to the public.
Staff finds this criterion to be met.
PA 1.7 Design amenity space that enhances the pedestrian experience and faces the street.
Staff Response: The Ice Lounge will be set back from the Mill St. facade and will not
consume the entire pedestrian amenity space, still providing a space that contributes to
the pedestrian experience. The proposed structure has limited visibility and has a low
impact to the pedestrian experience and overall appearance of the Hotel Jerome. Staff
finds this criterion to be met.
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Exhibit B
Growth Management Affordable Housing Calculation
Section 26.470.090(I) Temporary uses and Structures. The development of a temporary use or
structure shall be exempt from growth management, subject to the provisions of Chapter 26.450,
Temporary and Seasonal Uses. Temporary external airlocks shall only be exempt from the provisions of
this Chapter if compliant with applicable sections of Commercial Design Review – Chapter 26.412, and
approved pursuant to Chapter 26.450 Temporary and Seasonal Uses. Tents, external airlocks, and similar
temporary or seasonal enclosures located on commercial properties and supporting commercial use
shall only be exempt from the provisions of this Chapter, including affordable housing mitigation
requirements, if compliant with applicable sections of Commercial Design Review – Chapter 26.412, if
erected for 14 days or less in a 12-month period, and approved pursuant to Chapter 26.450 – Temporary
and Seasonal Uses. Erection of these enclosures for longer than 14 days in a 12-month period shall
require compliance with Commercial Design Review – Chapter 26.412, and compliance with the
provisions of this Chapter including affordable housing mitigation. Affordable housing mitigation shall be
required only for the days in excess of 14 in a 12-month period. Cash-in-lieu may be paid by-right. The
mitigation calculation shall include the expected lifespan of a building, which is currently 30 years. For
instance, a 500-sq. ft. tent proposed to be up for 21 days shall only require mitigation for seven (7) days.
The calculation would be as follows:
Staff Response: The fourteen-day credit was applied to the previous approval, so the credit will not be
applied to the mitigation required for the Ice Lounge. One-hundred and six (106) days are requested as
part of this application for use of a 144 square foot structure. The mitigation for the Ice Lounge
approval will be calculated when the tent permit for the Ice Lounge is submitted each year. The
mitigation required as part of Resolution No. 173, Series of 2017 will be calculated and collected
separately upon issuance of the first tent permit for any other tent structure to be used for the various
special events at the Hotel Jerome in each calendar year. If Council grants annual recurrences, the
affordable housing mitigation fees will be calculated using that year’s applicable fees.
Methodology:
Ice Lounge
· 144 sq. ft./ 1,000 sq. ft. = 0.144 sq. ft.
· 0.144 sq. ft. x 4.7 FTEs = 0.6768 FTEs
· 0.6768 FTEs x 65% mitigation rate = 0 .44 FTEs to be mitigated if structures are in use 100% of
the year
· 0.44 FTEs / 365 days per year = .0012 daily rate
· 0.0012 x 106 days = 0.1272 FTEs
· 0.1272 x $238,687.04 cash-in-lieu rate = $30,360.99
· $30,360.99/30-year lifespan = $1,012.03 due for mitigation of the structure for a period of 106
days.
TOTAL DUE $ 1,012.03
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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 28, 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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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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$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.
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CITY OF ASPEN, COLORADO
By
Mayor
[SEAL]
Attest:
By
City Clerk
[Signature Page to Promissory Note]
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A-5
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
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B-1
EXHIBIT B
LOAN PRINCIPAL PAYMENT SCHEDULE
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C-1
EXHIBIT C
CLOSING MEMORANDUM
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TO: Mayor Skadron and City Council
FROM: Jessica Garrow, Community Development Director
RE: Resolution #13, Series of 2019
DATE: January 28, 2019
SUMMARY:
The attached Resolution outlines Council policy direction for amendments to the City’s Land Use Code
regarding Wireless Regulations. Recent sta
regulations that the City’s current code does not address. This amendments established updated
regulations to ensure the city complies with these new rules, while also ensuring a review process that
responds to Aspen’s community aesthetics and small town character
A work session with City Council was held on Tuesday, January 22, 2019. This amendment is intended to
reflect that general direction. The work session memo, which outlines potential regulatory options, is
attached as Exhibit B. Potential code language is attached as Exhibit C.
If the Policy Resolution is approved, Staff will bring an Ordinance to City Council that amends the Land
Use Code. Staff recommends this occur prior to March 11
the timelines that have been established by the federal government, which requires that local
jurisdictions adopted updated rules by April 14
take effect before this deadline.
STAFF RECOMMENDATION:
Staff recommends approval of the proposed Resolution.
LAND USE REQUESTS AND REVIEW PROCEDURES
This meeting is to review potential changes to the City’s Land Use Code. Pursuant to Land Use Code
Section 26.310, City Council is the final
All code amendments are subject to a three
1. Public Outreach
2. Policy Resolution by City Council indicating if an amendment should be pursued
3. Public Hearings on Ordinance outlining specific code amendments.
DISCUSSION:
MEMORANDUM
Mayor Skadron and City Council
Community Development Director
Resolution #13, Series of 2019 - Policy Resolution: Wireless Regulations Code Amendment
The attached Resolution outlines Council policy direction for amendments to the City’s Land Use Code
Recent state legislation and federal rules making have created new
regulations that the City’s current code does not address. This amendments established updated
regulations to ensure the city complies with these new rules, while also ensuring a review process that
esthetics and small town character.
A work session with City Council was held on Tuesday, January 22, 2019. This amendment is intended to
reflect that general direction. The work session memo, which outlines potential regulatory options, is
s Exhibit B. Potential code language is attached as Exhibit C.
If the Policy Resolution is approved, Staff will bring an Ordinance to City Council that amends the Land
Staff recommends this occur prior to March 11th to ensure the new regulati
the timelines that have been established by the federal government, which requires that local
jurisdictions adopted updated rules by April 14th. The March date will ensure updated requirements
Staff recommends approval of the proposed Resolution.
ROCEDURES:
This meeting is to review potential changes to the City’s Land Use Code. Pursuant to Land Use Code
City Council is the final review authority for all code amendments.
All code amendments are subject to a three-step process. This is the second step in the process:
Policy Resolution by City Council indicating if an amendment should be pursued
on Ordinance outlining specific code amendments.
Page 1 of 2
Code Amendment
The attached Resolution outlines Council policy direction for amendments to the City’s Land Use Code
making have created new
regulations that the City’s current code does not address. This amendments established updated
regulations to ensure the city complies with these new rules, while also ensuring a review process that
A work session with City Council was held on Tuesday, January 22, 2019. This amendment is intended to
reflect that general direction. The work session memo, which outlines potential regulatory options, is
If the Policy Resolution is approved, Staff will bring an Ordinance to City Council that amends the Land
to ensure the new regulations meet some of
the timelines that have been established by the federal government, which requires that local
. The March date will ensure updated requirements
This meeting is to review potential changes to the City’s Land Use Code. Pursuant to Land Use Code
step process. This is the second step in the process:
Policy Resolution by City Council indicating if an amendment should be pursued
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Page 2 of 2
Both state and federal regulations regarding the powers local government have related to wireless
regulations have evolved over the last year. Specific timeframes related to a local government’s review
of wireless facilities have been imposed. State laws have evolved to allow wireless facilities to locate in
the right-of-way on city infrastructure, such as traffic lights and light poles. Exhibit B outlines these
issues and potential options in more details.
Attached is draft code language that attempts to address the immediate need to comply with state and
federal regulations. This language is not finalized, but gives an idea of the complexity and
comprehensive nature these amendments will need to be in order to address the changing regulatory
landscape. Additional work to ensure this technology meets Aspen’s community aesthetic standards will
be needed and can be completed following the initial code amendment.
REFERRALS:
A work session with City Council was held on January 22, 2019. City staff have also been in
communication with wireless providers. Referral meetings with P&Z and HPC are scheduled in February.
STAFF RECOMMENDATION:
Staff recommends adoption of the attached Policy Resolution.
RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE):
“I move to approve Resolution No. 13 Series of 2019, approving a Policy Resolution regarding Wireless
Regulations.”
ATTACHMENTS:
Exhibit A – Staff Findings
Exhibit B – January 22, 2019 Work Session Memo
Exhibit C – Draft code language
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Resolution No. 13, Series 2019
Page 1 of 2
RESOLUTION NO. 13,
(SERIES OF 2019)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REQUESTING
AMENDMENTS TO THE LAND USE CODE FOR WIRELESS REGULATIONS.
WHEREAS, pursuant to Section 26.310.020(A), the Community Development
Department received direction from City Council to amend the Wireless Regulations
Sections of the Land Use Code to respond to changing state and federal regulations; and,
WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development
Department conducted Public Outreach to known wireless providers and City Council,
with subsequent public outreach scheduled prior to adoption of and code amendments;
and,
WHEREAS, City Council has reviewed the proposed code amendment policy
direction, and finds it meets the criteria outlined in Section 26.310.040; and,
WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public
hearing on January 28, 2019, the City Council approved Resolution No. 13, Series of 2019,
by a ____ - ____ (_-_) vote, requesting code amendments to the Land Use Code; and,
WHEREAS, this Resolution does not amend the Land Use Code, but provides
direction to staff for amending the Land Use Code; 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 AS FOLLOWS:
Section 1: Code Amendment Objective and Direction
The objective of the proposed Land Use Code amendment is to bring the Land Use Code
into compliance with state and federal regulations related to wireless facilities.
Section 2:
This resolution shall not affect any existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the resolutions or ordinances
repealed or amended as herein provided, and the same shall be conducted and concluded
under such prior resolutions or ordinances.
Section 3:
If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the
validity of the remaining portions thereof.
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Resolution No. 13, Series 2019
Page 2 of 2
FINALLY, adopted this ___ day of _______, 2019.
_______________________________
Steven Skadron, Mayor
ATTEST: APPROVED AS TO FORM:
_______________________________ ______________________________
Linda Manning, City Clerk James R True, City Attorney
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26.310.040. Amendments to the Land Use Code standards of review
In reviewing a request to pursue an amendment to the text of this Title, per Section
Step Two – Public Hearing before City Council
A. Whether there exists a community interest to pursue the amendment.
Staff Findings:
There is a community interest in updating the code in order to comply w
regulations. The proposed update creates a review process that satisfies these requirements
this criterion to be met.
B. Whether the objectives of the proposed amendment furthers an adopted policy, community
goal, or objective of the City including, but not limited to, those stated in the Aspen Area
Community Plan.
Staff Findings:
The proposed amendment creates a review process that balances regulations that protect Aspen’s
community character, while complying with state an
goals and objectives of the City. Staff finds this criterion to be met.
C. Whether the objectives of the proposed amendment are compatible with the community
character of the City and in harmony with the
this Title.
Staff Findings:
The objective of the proposed amendment is
federal regulations. Staff finds this criterion to be met.
Amendments to the Land Use Code standards of review – Initiation
In reviewing a request to pursue an amendment to the text of this Title, per Section
Public Hearing before City Council, the City Council shall consider:
Whether there exists a community interest to pursue the amendment.
There is a community interest in updating the code in order to comply with state and federal
regulations. The proposed update creates a review process that satisfies these requirements
Whether the objectives of the proposed amendment furthers an adopted policy, community
ive of the City including, but not limited to, those stated in the Aspen Area
The proposed amendment creates a review process that balances regulations that protect Aspen’s
community character, while complying with state and federal requirements. This is in line with the
goals and objectives of the City. Staff finds this criterion to be met.
Whether the objectives of the proposed amendment are compatible with the community
character of the City and in harmony with the public interest and the purpose and intent of
The objective of the proposed amendment is to bring the Land Use Code into compliance with
. Staff finds this criterion to be met.
Page 1 of 1
EXHIBIT A
STAFF FINDINGS
Initiation
In reviewing a request to pursue an amendment to the text of this Title, per Section 26.310.020(B)(2),
ith state and federal
regulations. The proposed update creates a review process that satisfies these requirements. Staff finds
Whether the objectives of the proposed amendment furthers an adopted policy, community
ive of the City including, but not limited to, those stated in the Aspen Area
The proposed amendment creates a review process that balances regulations that protect Aspen’s
d federal requirements. This is in line with the
Whether the objectives of the proposed amendment are compatible with the community
public interest and the purpose and intent of
to bring the Land Use Code into compliance with state and
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Small Cell Wireless Infrastructure
Page 1 of 6
MEMORANDUM
TO: Mayor Skadron and Aspen City Council
FROM: Andrea Bryan, Assistant City Attorney
Paul Schultz, Information Technology Director
THRU: Sara Ott, Assistant City Manager
Jessica Garrow, Community Development Director
RE: Small Cell & Wireless Infrastructure Update
DATE: January 22, 2019
PURPOSE & REQUEST OF COUNCIL:
The purpose of this work session is to provide City Council an update regarding small cell
technology and federal and state rules changes that necessitate updates to the City’s wireless
infrastructure regulations, and to get initial direction on next steps.
SMALL CELL BACKGROUND:
Wireless Communications Service Providers (e.g., AT&T, Sprint, T-Mobile, Verizon) are
“densifying” their wireless networks by installing many additional smaller cell sites. The
demand for more bandwidth, desire to improve wireless coverage and capacity, and the ability to
more efficiently use wireless spectrum are driving wireless network densification. The latest
generation of wireless technology, called “5G” (for Fifth Generation) promises faster wireless
data rates, reduced latency (i.e., the time it takes for data to get from one place to another) and
the ability to support many more wireless connections (e.g., supporting Smart Cities and the
“Internet of Things”).
5G deployments began in 2018 and are accelerating around the world, creating an even greater
demand for denser wireless networks and more small cells. These “small cells” can be on
buildings, light poles, mono-poles and can even be underground using special manhole covers. A
small cell site typically includes one or more antennas, radios, electrical connections and fiber
optic cable connections. Two out of four of the major wireless communications service providers
have already approached City of Aspen regarding small cell deployment.
Small cell infrastructure can be deployed tastefully and unobtrusively, or haphazardly and
intrusively. Community aesthetics, the integrity of historic districts, the character of commercial
and residential areas, and the natural character of parks may be undermined by the installation of
this above-grade infrastructure. Communities have approached regulations in a variety of ways,
some of which could be used as models for the City of Aspen, and others are a lesson in what
waiting to address the changing wireless landscape could result in.
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IX.d
SMALL CELL EXAMPLES:
Staff is concerned that waiting to address this emerging technology could result in wireless
infrastructure that is inconsistent with Aspen’s small town and historic character. A potential
worst-case scenario would be unsightly
lowest priced contractor for each
traditional block length in Aspen is 270 feet. Additionally, e
cable (to carry the wireless data to and from the Small C
and/or boring for conduit, fiber optic cabling and electrical cabling
significant construction impacts.
The images below illustrate how th
implemented.
With some updates to the City’s review process and design requirements, it is possible to allow
5G small cell technology that is more consistent with Aspen’s
result in improved wireless communication services
Small Cell Wireless Infrastructure
Staff is concerned that waiting to address this emerging technology could result in wireless
infrastructure that is inconsistent with Aspen’s small town and historic character. A potential
case scenario would be unsightly wireless infrastructure installed every 150
lowest priced contractor for each wireless communications service provider.
traditional block length in Aspen is 270 feet. Additionally, each cell site requires fiber optic
wireless data to and from the Small Cell) and electricity, as well as trenching
and/or boring for conduit, fiber optic cabling and electrical cabling which can
The images below illustrate how this technology can look when updated regulations are not
Unsightly Small Cells
With some updates to the City’s review process and design requirements, it is possible to allow
5G small cell technology that is more consistent with Aspen’s community character. This could
wireless communication services delivered via compact wireless
Small Cell Wireless Infrastructure
Page 2 of 6
Staff is concerned that waiting to address this emerging technology could result in wireless
infrastructure that is inconsistent with Aspen’s small town and historic character. A potential
wireless infrastructure installed every 150 feet by the
For reference, a
ach cell site requires fiber optic
as well as trenching
which can all result in
is technology can look when updated regulations are not
With some updates to the City’s review process and design requirements, it is possible to allow
community character. This could
compact wireless
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IX.d
infrastructure that leverages existing built infrastructure,
communications service providers
Camouflaging or “stealthing” wireless infrastructure may be accomplished using technologies
including radio frequency (RF) “transparent” materials that can be matched to a wide variety of
textures and colors. The images below illustrate how other communities have achieved this type
of camouflaging.
Camouflaged Building
Pole-mounted wireless infrastructure
or underground next to poles, as illustrated in the images below
palate or style of pole that providers would be
method. For instance, this could become part of the City’s standard light pole des
Small Cell Pole Concealment & Example Poles
Small Cell Wireless Infrastructure
existing built infrastructure, that is shared by all wireless
roviders, and that is appropriately hidden and/or camouflaged
Camouflaging or “stealthing” wireless infrastructure may be accomplished using technologies
including radio frequency (RF) “transparent” materials that can be matched to a wide variety of
images below illustrate how other communities have achieved this type
Camouflaged Building-Mounted Small Cells
mounted wireless infrastructure may be concealed by locating wireless infrastructure inside,
, as illustrated in the images below. The City could adopt a standard
palate or style of pole that providers would be “pre-approved” to use if utilizing this location
method. For instance, this could become part of the City’s standard light pole des
Small Cell Pole Concealment & Example Poles
Small Cell Wireless Infrastructure
Page 3 of 6
ireless
appropriately hidden and/or camouflaged.
Camouflaging or “stealthing” wireless infrastructure may be accomplished using technologies
including radio frequency (RF) “transparent” materials that can be matched to a wide variety of
images below illustrate how other communities have achieved this type
may be concealed by locating wireless infrastructure inside,
The City could adopt a standard
to use if utilizing this location
method. For instance, this could become part of the City’s standard light pole design.
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IX.d
In some cases, like smaller areas
infrastructure can be implemented entirely underground
special manhole cover.[1] This may be an option
pedestrian malls, where pole mounted or building camouflage applications are more difficult or
less appropriate given historic and community context
Underground Small Cell Components &
Additional creative camouflaged Small Cell designs include “rocks”, flagpoles and
towers” in addition to more common “pine trees”, “cactuses”, etc.
considered for open space or landscaped areas.
Creative
Small Cell Wireless Infrastructure
In some cases, like smaller areas where wireless users congregate, low power wireless
infrastructure can be implemented entirely underground using an antenna module underneath a
This may be an option to explore in Aspen for areas such as the
pedestrian malls, where pole mounted or building camouflage applications are more difficult or
less appropriate given historic and community context.
Underground Small Cell Components & Example Location
Additional creative camouflaged Small Cell designs include “rocks”, flagpoles and
in addition to more common “pine trees”, “cactuses”, etc. These options could be
considered for open space or landscaped areas.
Creative Camouflaged Small Cells
Small Cell Wireless Infrastructure
Page 4 of 6
, low power wireless
an antenna module underneath a
in Aspen for areas such as the
pedestrian malls, where pole mounted or building camouflage applications are more difficult or
Example Location
Additional creative camouflaged Small Cell designs include “rocks”, flagpoles and “water
These options could be
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IX.d
Small Cell Wireless Infrastructure
Page 5 of 6
LEGAL BACKGROUND:
The legal landscape surrounding rapidly-changing wireless infrastructure has also evolved in the
last few years. With respect to small cell infrastructure in particular, there have been several
recent developments in federal and state law under which Aspen must evaluate its wireless
infrastructure code, which was adopted before small cells existed.
First, state law, through HB 1193, was amended in 2017 to create a use-by-right for small cell
facilities in any zone district (subject to local police powers) and shortens the timeframe within
which the City must act on an application for a small cell facility to 90 days. It also gives
providers the right to locate or collocate small cell facilities on a City’s lights poles, traffic
signals, and similar infrastructure in the City’s rights-of-way, also subject to local police powers.
More recently, the Federal Communication Commission (FCC) approved new rules, which took
effect January 14, 2019 imposing new “shot clocks” for the processing of small cell applications
(within 90 days of the date the application is submitted for new stand-alone facilities or 60 days
for facilities collocated on city infrastructure) and limiting the permit fees municipalities can
charge providers, among other regulations. The new FCC order also clarifies that municipalities
are prohibited from adopting regulations that “materially inhibit” a particular small wireless
facility deployment.
This changing technology and legal landscape requires the City to quickly address wireless
regulations to be consistent with new laws while still protecting Aspen’s design and aesthetic
standards.
CODE AMENDMENT OPTIONS:
The City has engaged a telecommunications attorney to evaluate our current code and make
suggested changes. A first draft with his changes is attached as Exhibit A. This draft is in no
way intended to be a final draft, but merely a starting point to facilitate a discussion with Council
about where our wireless infrastructure code may need some change. Based upon feedback from
Council at the work session, staff will work with our attorneys to draft a code that addresses the
concerns and needs of Council, the community, and stakeholders. Staff will also be discussing
this issue with P&Z and HPC in February.
To summarize, the suggested code amendments mainly address the following:
- Adding and changing pertinent definitions to be consistent with state and federal law and
to reflect new technology like small cells
- Amending review procedures for specific wireless facilities requests, consistent with state
and federal law, including “Eligible Facilities Requests,” and requests for small cell
facilities in the public right-of-way, both of which require an expedited review process
pursuant to state and/or federal law. Based on direction from outside counsel, the review
process for these applications should be administrative.
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Small Cell Wireless Infrastructure
Page 6 of 6
- Adding additional design standards for wireless communications facilities, including
small cell facilities (see Section F. of proposed code amendments titled “Design
Standards”) that emphasize camouflaging and collocation of infrastructure. In addition to
adding design standards in our code, the City may also adopt additional supplemental
design guidelines, so long as they are published.
Notably, pursuant to the FCC order, local governments have until April 14, 2019 to adopt design
standards for small cell facilities, which means the City would need to pass an ordinance
adopting new code amendments with design standards by March 11, 2019 at the latest.
STAFF RECOMMENDATION:
Staff recommends that the city work with Wireless Communications Service and Technology
Providers to share/co-locate wireless infrastructure, leveraging existing city assets (e.g.,
buildings, electrical lines, fiber optic cables, conduit, light pole locations and manholes) for
wireless infrastructure and use appropriate wireless infrastructure stealthing technologies.
Staff also recommends continued work on code amendments to address small cell facilities, with
a goal of adopting the code amendments in late February/early March. In conjunction with the
code amendments, staff will also begin to review potential “master license agreements” (MLAs),
that would be executed between individual carriers and the City for use of the public rights-of-
way for small cells and which set forth the basic parameters for the application, permitting, and
designs that a carrier may use in the rights-of-way.
Staff also desires to meet with vendors to identify preferred designs that may be “pre-approved”
for small cells and begin the process of drafting design guidelines.
Attached is draft code language that addresses the immediate need to comply with state and
federal regulations. Additional work to ensure this technology meets Aspen’s community
aesthetic standards will be needed and can be completed following the initial code amendment.
To develop guidelines sufficient to protect community aesthetics, Community Development staff
will require outside assistance from consultants in the development of FCC-compliant design
guidelines to complement the design guidelines in the new wireless infrastructure code. This
will require a Spring 2019 Supplemental of at least $50,000 if Council desires this work to be
completed this calendar year.
QUESTIONS FOR COUNCIL:
· Does Council support moving forward with the development and adoption of updated
regulations for small cell infrastructure in the City of Aspen?
· What are Council’s primary questions and concerns with the potential impacts of small
cell deployment in the community?
References
[1] M:\city\IT\Projects\Primelime-Wireless_Infrastructure_Info\Aspen Wireless Network
Infrastructure Possibilities v3.pdf
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EXHIBIT C - Draft Wireless Regulations
1
Definitions from 26.104.100
Sec. : DEFINITIONS
All words used in this Section, except where specifically defined herein, shall carry their
customary meanings when not inconsistent with the context. Definitions contained elsewhere in
this Code shall apply to this Section unless modified herein.
Accessory Equipment. Any equipment serving or being used in conjunction with a Wireless
Communications Facility (WCF), including, but not limited to, utility or transmission
equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets and
storage sheds, shelters or other structures.
Alternative Tower Structure. Man-made trees, clock towers, water towers, bell steeples, light
poles, traffic signals, buildings, and similar alternative design mounting structures that are
intended to be compatible with the natural setting and surrounding structures, and camouflage or
conceals the presence of antennas or towers so as to make them architecturally compatible with
the surrounding area pursuant to this Section. This term also includes any antenna or antenna
array attached to an Alternative Tower Structure and a Replacement Pole. A stand-alone
Monopole in the Public Right-of-Way that accommodates Small Cell Wireless Facilities is
considered an Alternative Tower Structure to the extent it meets the camouflage and
concealment standards of this Chapter.
Antenna. Any device used to transmit and/or receive radio or electromagnetic waves such as,
but not limited to panel antennas, reflecting discs, microwave dishes, whip antennas, directional
and non-directional antennas consisting of one or more elements, multiple anten na
configurations, or other similar devices and configurations. Any exterior apparatus designed for
telephone, radio, or television communications through the sending and/or receiving of wireless
communications signals.
Base Station. A structure or equipment at a fixed location that enables Federal Communications
Commission ("FCC") licensed or authorized wireless communications between user equipment
and a communications network. The definition of base station does not include or encompass a
tower as defined herein or any equipment associated with a tower. Base station includes, without
limitation:
(1) Equipment associated with wireless communications services such as private broadcast,
and public safety services, as well as unlicensed wireless services and fixed wireless services
such as microwave backhaul that, at the time the relevant application is filed with the city
pursuant to this chapter has been reviewed and approved under the applicable zoning or siting
process, or under another state or local regulatory review process, even if the structure was not
built for the sole or primary purpose of providing such support; and
(2) Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power
supplied, and comparable equipment, regardless of technological configuration (including
distributed antenna systems and small-cell networks) that, at the time the relevant application is
filed with the city pursuant to title 26 of the Code has been reviewed and approved under the
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EXHIBIT A
2
applicable zoning or siting process, or under another state or local regulatory review process,
even if the structure was not built for the sole or primary purpose of providing such support.
The definition of base station does not include any structure that, at the time the application is
filed with the city under this chapter, does not support or house equipment described herein in
sub-paragraphs 1 and 2 of this definition.
Camouflage, Concealment, Or Camouflage Design Techniques. A Wireless Communication
Facility (“WCF”) is camouflaged or utilizes Camouflage Design Techniques when any measures
are used in the design and siting of Wireless Communication Facilities with the intent to
minimize or eliminate the visual impact of such facilities to surrounding uses. A WCF site
utilizes Camouflage Design Techniques when it (i) is integrated in an outdoor fixture such as a
flagpole, or (ii) uses a design which mimics and is consistent with the nearby natural, or
architectural features (such as an artificial tree) or is incorporated into (including, without
limitation, being attached to the exterior of such facilities and painted to match it) or replaces
existing permitted facilities (including without limitation, stop signs or other traffic signs or
freestanding light standards) so that the presence of the WCF is not readily apparent.
Collocation. (1) mounting or installing a WCF on a pre-existing structure, and/or (2) modifying
a structure for the purpose of mounting or installing a WCF on that structure. Provided that, for
purposes of Eligible Facilities Requests, “Collocation” means the mounting or installation of
transmission equipment on an Eligible Support Structure for the purpose of transmitting and/or
receiving radio frequency signals for communications purposes.
Director. The Community Development Director, or his or her designee.
Eligible Facilities Request. Any request for modification of an Existing Tower that does not
Substantially Change the physical dimensions of such Tower involving: (i) collocation of new
Transmission Equipment, (ii) removal of Transmission Equipment, or (iii) replacement of
Transmission Equipment.
Eligible Support Structure. Any Tower or Base Station as defined in this Section, provided
that it is existing at the time the relevant application is filed with the city under this Section.
Existing Tower or Base Station. A constructed Tower or Base Station that was reviewed,
approved, and lawfully constructed in accordance with all requirements of applicable law as of
the time of an eligible facilities request, provided that a tower that exists as a legal, non-
conforming use and was lawfully constructed is existing for purposes of this definition.
Micro Cell Facility. A small wireless facility that is no larger than 24 inches in length, 15
inches in width, 12 inches in height, and that has an exterior antenna, if any, that is no more than
eleven inches in length.
Monopole. A single, freestanding pole-type structure supporting one or more Antennas.
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Public right-of way. A dedicated strip or other area of land on or over which the City and/or
public may travel or use for passage and within which public utilities and/or streets, alleys,
trails, sidewalks and other ways may be installed.
Replacement Pole. A newly constructed and permitted traffic signal, utility pole, street light,
flagpole, electric distribution, or street light poles or other similar structure of proportions and
of equal height or such other height that would not constitute a Substantial Change to a pre-
existing pole or structure in order to support a WCF or Small Cell Facility or to accommodate
collocation and remove the pre-existing pole or structure.
Setback. An area commencing and extending horizontally and vertically from a lot line,
property line or other boundary which shall be unoccupied and unobstructed from the ground
upward, excepting trees, vegetation and/or fences or other structures or projections as allowed.
(See Supplementary Regulations — Section 26.575.040, Yards).
Small Cell Facility. A WCF where each Antenna is located inside an enclosure of no more than
three cubic feet in volume or, in the case of an Antenna that has exposed elements, the antenna
and all of its exposed elements could fit within an imaginary enclosure of no more than three
cubic feet; and primary equipment enclosures are no larger than seventeen cubic feet in volume.
The following associated equipment may be located outside of the primary equipment enclosure
and, if so located, is not included in the calculation of equipment volume: electric meter,
concealment, telecommunications demarcation box, ground-based enclosure, back-up power
systems, grounding equipment, power transfer switch and cut-off switch. Small cells may be
attached to Alternate Tower Structures, Replacement Pole, and Base Stations.
Substantial Change to a WCF. A modification substantially changes the physical dimensions
of an Eligible Support Structure if after the modification, the structure meets any of the following
criteria:
(i) For Towers, other than Alternative Tower Structures or Towers in the Right-of-Way, it
increases the height of the Tower by more than ten percent (10%) or by the height of one
(1) additional antenna array, with separation from the nearest existing antenna not to
exceed twenty feet, whichever is greater; for other Eligible Support Structures, it
increases the height of the structure by more than ten percent (10%) or more than ten (10)
feet, whichever is greater;
(ii) For Towers, other than Towers in the Right-of-Way, it involves adding an appurtenance
to the body of the Tower that would protrude from the Tower more than twenty (20) feet,
or more than the width of the Tower Structure at the level of the appurtenance, whichever
is greater; for Eligible Support Structures, it involves adding an appurtenance to the body
of the structure that would protrude from the side of the structure by more than six (6)
feet;
(iii) For any Eligible Support Structure, it involves installation of more than the standard
number of new equipment cabinets for the technology involved, but not to exceed four
cabinets; or
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(iv) For Towers in the Right-of-Way and Base Stations, it involves installation of any new
equipment cabinets on the ground if there are no pre-existing ground cabinets associated
with the structure, or else involves installation of ground cabinets that are more than ten
percent (10%) larger in height or overall volume than any other existing, individual
ground cabinets associated with the structure;
(v) For any Eligible Support Structure, it entails any excavation or deployment outside the
current Site;
(vi) For any Eligible Support Structure, it would defeat the concealment elements of the
Eligible Support Structure. For purposes of this definition, any change that undermines
concealment elements of an eligible support structure shall be interpreted as defeating the
concealment elements of that structure; or
(vii) For any Eligible Support Structure, it does not comply with conditions associated with
the siting approval of the construction or modification of the Eligible Support Structure
equipment, unless the non-compliance is due to an increase in height, increase in width,
addition of cabinets, or new excavation that would not exceed the thresholds identified in
paragraphs (i), (ii), (iii) and (iv) of this Definition. For purposes of determining whether a
Substantial Change exists, changes in height are measured from the original support
structure in cases where deployments are or will be separated horizontally, such as on
buildings’ rooftops; in other circumstances, changes in height are measured from the
dimensions of the tower or base station, inclusive of originally approved appurtenances
and any modifications that were approved prior to February 22, 2012.
Tower. Any structure that is designed and constructed for the sole or primary purpose of
supporting one or more any FCC-licensed or authorized Antennas and their associated facilities,
including structures that are constructed for wireless communications services including, but not
limited to, private, broadcast, and public safety services, as well as unlicensed wireless services
and fixed wireless services such as microwave backhaul, and the associated site. The term
includes self-supporting lattice towers, guyed towers, monopole towers, radio and television
transmission towers, microwave towers, common carrier towers, cellular telephone towers,
Alternative Tower Structures and the like.
Transmission Equipment. Equipment that facilitates transmission for any FCC licensed or
authorized wireless communication service, including, but not limited to, radio transceivers,
antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes
equipment associated with wireless communications services including, but not limited to,
private, broadcast, and public safety services, as well as unlicensed wireless services and fixed
wireless services such as microwave backhaul.
Wireless Communications Facility Or WCF. A facility used to provide personal wireless
services as defined at 47 U.S.C. Section 332 (c)(7)(C); or wireless information services
provided to the public or to such classes of users as to be effectively available directly to the
public via licensed or unlicensed frequencies; or Smart City, Internet of Things, wireless utility
monitoring and control services. A WCF does not include a facility entirely enclosed within a
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permitted building where the installation does not require a modification of the exterior of the
building; nor does it include a device attached to a building, used for serving that building only
and that is otherwise permitted under other provisions of the Code. A WCF includes an
Antenna or Antennas, including without limitation, direction, omni-directional and parabolic
antennas, support equipment, Alternative Tower Structures, and Towers. It does not include the
support structure to which the WCF or its components are attached if the use of such structures
for WCFs is not the primary use. The term does not include mobile transmitting devices used
by wireless service subscribers, such as vehicle or hand-held radios/telephones and their
associated transmitting Antennas, nor does it include other facilities specifically excluded from
the coverage of this Section.
26.575.130 Wireless communications facilities and equipment
Intent and purpose: The purpose of this chapter is to regulate the placement, construction, and
modification of towers and wireless communications facilities to protect the health, safety and
welfare of the public, while at the same time not unreasonably interfering with the development
of a competitive wireless communications marketplace in the city.
A. In order to accommodate the communications needs of residents and businesses while
protecting the public health, safety, and general welfare of the community, the City Council
finds that these regulations are necessary to:
1. Provide for the managed development and installation, maintenance, modification, and
removal of wireless communications infrastructure in the City with the fewest number of
WCFs to complete a network without unreasonably discriminating against wireless
communications providers of functionally equivalent services including all of those who
install, maintain, operate, and remove WCFs;
2. Promote and protect the public health, safety, and welfare by reducing the visibility of
WCFs to the fullest extent possible through techniques including, but not limited to,
camouflage design techniques, collocation and undergrounding of WCFs and the
equipment associated therewith;
3. Encourage the deployment of smaller, less intrusive WCFs to supplement existing larger
WCFs;
4. Encourage strongly the collocation of WCFs at new and existing locations; and
5. Effectively manage WCFs in the public Right-of-Way.
6. Preserve the character and aesthetics of areas which are in close proximity to WCFs and
equipment by minimizing the visual, aesthetic and safety impacts of such facilities
through careful design, siting and screening; placement, construction or modification of
such facilities;
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7. Protect the health, safety and welfare of persons living or working in the area
surrounding such WCFs and equipment from possible adverse environmental effects
(within the confines of the Federal Telecommunications Act of 1996) related to the
placement, construction or modification of such facilities;
8. Provide development which is compatible in appearance with allowed uses of the
underlying zone;
9. Facilitate the City's permitting process to encourage fair and meaningful competition
and, to the greatest extent possible, extend to all people in all areas of the City high
quality wireless telecommunication services at reasonable costs to promote the public
welfare; and
10. Encourage the joint use and clustering of antenna sites and structures, when practical, to
help reduce the number of such facilities which may be required in the future to service
the needs of customers and thus avert unnecessary proliferation of facilities on private
and public property.
B. Applicability. All applications for the installation or development of WCFs and/or equipment
must receive building permits, prior to installation. Prior to the issuance of appropriate
building permits, WCFs and/or equipment shall be reviewed for approval by the Community
Development Director in conformance with the provisions and criteria of this Section. WCFs
and equipment subject to the provisions and criteria of this Section include without limitation,
WCFs within the Public Rights of Way, cellular telephone, paging, enhanced specialized
mobile radio (ESMR), personal communication services (PCS), commercial mobile radio
service (CMRS) and other wireless commercial telecommunication devices and all associated
structures and equipment including transmitters, antennas, monopoles, towers, masts and
microwave dishes, cabinets and equipment rooms. These provisions and criteria do not apply
to noncommercial satellite dish antennae, radio and television transmitters and antennae
incidental to residential use. All references made throughout this Section, to any of the
devices to which this Section is applicable, shall be construed to include all other devices to
which this Section 26.575.130 is applicable.
C. Operational Standards
1. Federal Requirements. All WCFs shall meet the current standards and regulations of the
FAA, the FCC and any other agency of the federal government with the authority to regulate
WCFs, including, without limitation, the requirement that WCFs shall not present a hazard to
air navigation under Part 77, Federal Aviation, Federal Aviation Regulations. If such
standards and regulations are changed, then the owners of the WCF shall bring such facility
into compliance with such revised standards and regulations within the time period mandated
by the controlling federal agency. Failure to meet such revised standards and regulations shall
constitute grounds for the removal of the WCF at the WCF owner’s expense.
2. Radio Frequency Standards. All WCFs shall comply with federal standards for radio
frequency emissions. If concerns regarding compliance with radio frequency emissions
standards for a WCF have been made to the City, the City may request that the owner or
operator of the WCF provide information demonstrating compliance. If such information
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suggests, in the reasonable discretion of the City, that the WCF may not be in compliance, the
City may request and the owner or operator of the WCF shall submit a project implementation
report which provides cumulative field measurements of radio frequency emissions of all
antennas installed at the subject site, and which compares the results with established federal
standards. If, upon review, the City finds that the facility does not meet federal standards, the
City may require corrective action within a reasonable period of time, and if not corrected,
may require removal of the WCF pursuant to paragraph (A) above. Any reasonable costs
incurred by the City, including reasonable consulting costs to verify compliance with these
requirements, shall be paid by the owner of the WCF.
3. Signal Interference. All WCFs shall be designed and sited, consistent with applicable
federal regulations, so as not to cause interference with the normal operation of radio,
television, telephone and other communication services utilized by adjacent residential and
non-residential properties; nor shall any such facilities interfere with any public safety
communications. The Applicant shall provide a written statement from a qualified radio
frequency engineer, certifying that a technical evaluation of existing and proposed facilities
indicates no potential interference problems and shall allow the City to monitor interference
levels with public safety communications during this process. Additionally, the Applicant
shall notify the City at least ten calendar days prior to the introduction of new service or
changes in existing service, and shall allow the City to monitor interference levels with public
safety communications during the testing process.
4. License to Use. The Applicant shall execute a license agreement with the City, granting
a non-exclusive license to use the Public Right-of-Way. Attachment of WCFs on an existing
traffic signal, street light pole, or similar structure shall require written evidence of a license,
or other legal right or approval, to use such structure by its owner.
5. Operation and Maintenance. To ensure the structural integrity of WCFs, the owner of a
WCF shall ensure that it is maintained in compliance with the standards contained in
applicable local building and safety codes. If upon inspection, the City concludes that a WCF
fails to comply with such codes and constitutes a danger to persons or property, then, upon
written notice being provided to the owner of the WCF, the owner shall have 30 days from the
date of notice to bring such WCF into compliance. Upon good cause shown by the owner, the
City’s Chief Building Official may extend such compliance period not to exceed 90 days from
the date of said notice. If the owner fails to bring such WCF into compliance within said time
period, the City may remove such WCF at the owner’s expense.
6. Abandonment and Removal. If a WCF has not been in use for a period of three months,
the owner of the WCF shall notify the City of the non-use and shall indicate whether re-use is
expected within the ensuing three months. Any WCF that is not operated for a continuous
period of six months shall be considered abandoned. The City, in its sole discretion, may
require an abandoned WCF to be removed. The owner of such WCF shall remove the same
within 30 days of receipt of written notice from the City. If such WCF is not removed within
said 30 days, the City may remove it at the owner’s expense and any approved permits for the
WCF shall be deemed to have expired. Additionally, the City, in its sole discretion, shall not
approve any new WCF application until the Applicant who is also the owner or operator of
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any such abandoned WCF has removed such WCF or payment for such removal has been
made to the City.
7. Hazardous Materials. No hazardous materials shall be permitted in association with
WCFs, except those necessary for the operations of the WCF and only in accordance with all
applicable laws governing such materials.
8. Collocation. No WCF owner or operator shall unreasonably exclude a
telecommunications competitor from using the same facility or location. Upon request by the
Community Development Department, the owner or operator shall provide evidence
explaining why Collocation is not possible at a particular facility or site.
D. Review Procedures and Requirements. No new WCF shall be constructed and no
Collocation or modification to any WCF may occur except after a written request from an
applicant, reviewed and approved by the City in accordance with this Chapter. All WCFs
except Eligible Facilities Requests which are reviewed under subsection [XX] of this Section,
shall be reviewed pursuant to the following procedures.
1. Review Procedures for certain WCFs, including Base Stations, Alternative Tower
Structures, and Alternative Tower Structures within Public Rights-of-Way, but excepting
Eligible Facilities Requests, and Small Cell Facilities in the Right-of-Way. In all zoning
districts, applications for these WCF facilities shall be reviewed by the Community
Development Department for conformance to this Section and using the Design Review
procedures set forth in Section _______. For WCFs in the rights-of-way that are found to have
a significant visual impact (e.g.. proximity to historical sites, obstructing views), be
incompatible with the structure or surrounding area, or not meet the intent of these provisions,
the Community Development Department may refer the application to Planning Commission
for a Use by Special Review determination.
2. Review Procedures for Towers. In all zoning districts, Towers, other than those defined
or excepted in (1) above, must apply for Use by Special Review approval. These WCFs shall
be reviewed for conformance using the procedures set forth in Section ________. All
applications for Towers shall demonstrate that other alternative design options, such as using
Base Stations or Alternative Tower Structures, are not viable options as determined by the
City.
3. Review Procedures for Eligible Facilities Requests.
a) In all zoning districts, Eligible Facilities Requests shall be considered a
permitted use, subject to administrative review. The City shall prepare, and
from time to time revise, and make publicly available, an application form
which shall require submittal of information necessary for the City to consider
whether an application is an Eligible Facilities Request. Such required
information may include, without limitation, whether the project:
i Constitutes a Substantial Change;
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ii Violates a generally applicable law, regulation, or other rule
codifying objective standards reasonably related to public health and
safety.
The application shall not require the applicant to demonstrate a need or
business case for the proposed modification or Collocation.
b) Upon receipt of an application for an Eligible Facilities Request pursuant
to this Section, the Community Development Department shall review such
application to determine whether the application so qualifies.
c) Timeframe for Review. Subject to the tolling provisions of subparagraph
d. below, within 60 calendar days of the date on which an applicant submits an
application seeking approval under this Section, the City shall approve the
application unless it determines that the application is not covered by this
Subsection, or otherwise in non-conformance with applicable codes.
d) Tolling of the Timeframe for Review. The 60-day review period begins
to run when the application is filed, and may be tolled only by mutual
agreement of the City and the applicant, or in cases where the Community
Development Department determines that the application is incomplete:
i To toll the timeframe for incompleteness, the City must provide
written notice to the applicant within 30 business days of receipt of
the application, specifically delineating all missing documents or
information required in the application;
ii The timeframe for review begins running again the following
business day after the applicant makes a supplemental written
submission in response to the City’s notice of incompleteness; and
iii Following a supplemental submission, the City will notify
the applicant within ten (10) business days that if the supplemental
submission did not provide the information identified in the original
notice delineating missing information. The timeframe is tolled in
the case of second or subsequent notices pursuant to the procedures
identified in paragraph (d)(1). In the case of a second or subsequent
notice of incompleteness, the City may not specify missing
information or documents that were not delineated in the original
notice of incompleteness.
e) Failure to Act. In the event the City fails to act on a request seeking
approval for an Eligible Facilities Request under this Section within the
timeframe for review (accounting for any tolling), the request shall be deemed
granted. The request becomes effective when the applicant notifies the City in
writing after the review period has expired (accounting for any tolling) that the
application has been deemed granted.
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f) Interaction with Telecommunications Act Section 332(c)(7). If the City
determines that the applicant’s request is not an Eligible Facilities Request as
delineated in this Chapter, the presumptively reasonable timeframe under
Section 332(c)(7) of the Telecommunication Act, as prescribed by the FCC’s
Shot Clock order, will begin to run from the issuance of the City’s decision that
the application is not a covered request. To the extent such information is
necessary, the City may request additional information from the applicant to
evaluate the application under Section 332(c)(7) reviews.
4. Review Procedures for Small Cell Facilities in the Public Right-of-Way.
a) Small Cell Facilities in the Public Right-of-Way may be approved
pursuant to a Master License Agreement or similar form of
authorization or individually in accordance with the provisions of this
subsection.
b) Within thirty (30) days of receipt of the application, the Director shall
provide written comments to the applicant determining completeness of
the application and setting forth any modifications required to complete
the application bring the proposal into full compliance with the
requirements of this Chapter.
c) The Director shall review the completed application for conformance with
the provisions in this Chapter may approve or deny an application within
90 days of the date the application is submitted for new stand-alone
facilities or 60 days for facilities collocated on city infrastructure.
1. To toll the timeframe for incompleteness, the City must provide
written notice to the Applicant within thirty (30) days of receipt of
the application, specifically delineating all missing documents or
information required in the application;
2. The timeframe for review continues running again when the
Applicant makes a supplemental written submission in response to
the City’s notice of incompleteness; and
3. Following a supplemental submission, the City will notify the
Applicant within ten (10) days that the supplemental submission
did not provide the information identified in the original notice
delineating missing information. The timeframe is tolled in the
case of second or subsequent notices pursuant to the procedures
identified in paragraph (b.)(1.). In the case of a second or
subsequent notice of incompleteness, the City may not specify
missing information or documents that were not delineated in the
original notice of incompleteness.
d) Consolidated applications. The City shall allow a wireless provider to file
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a consolidated application for up to twenty small cell facilities and receive
a single permit for the small cell network. The City’s denial of any
individual small cell facility is not a basis to deny the application as a
whole or any other small cell facility incorporated within the consolidated
application.
5. General. Except for applications under subsections 3 and 4 above, pursuant to Section
26.304.020, the applicant shall conduct a pre-application conference with staff of the
Community Development Department. The planner shall then prepare a pre-application
summary describing the submission requirements and any other pertinent land use material,
the fees associated with the reviews and the review process in general.
6. Administrative review. Except for applications under subsections 3 and 4 above, after the pre-
application summary is received by the applicant, said applicant shall prepare an application
for review and approval by staff and the Community Development Director, respectively. In
order to proceed with additional land use reviews or obtain a development order, the
Community Development Director shall find the submitted development application consistent
with the provisions, requirements and standards of this Chapter.
7. Decision. Any decision to approve, approve with conditions, or deny an application for a
WCF, shall be in writing and supported by substantial evidence in a written record. The
applicant shall receive a copy of the decision.
8. Appeal of Director's determination. The Community Development Director may apply
reasonable conditions to the approval as deemed necessary to ensure conformance with
applicable review criteria in Subsection 26.575.130.F. If the Community Development
Director determines that the proposed WCFs and equipment do not comply with the review
criteria and denies the application or the applicant does not agree to the conditions of approval
determined by the Community Development Director, the applicant may apply for special
review (Chapter 26.430) by the Planning and Zoning Commission or, if applicable, by the
Historic Preservation Commission, and such application must be made within fifteen (15)
calendar days of the day on which the Community Development Director's decision is
rendered. All appeals shall require public hearings and shall be noticed by the applicant in
accordance with Paragraphs 26.304.060.E.3.a, b and c of this Code.
9. Historic Preservation Commission review. Proposals for the location of WCFs or equipment
on any historic site or structure or within any historic district, shall be reviewed by the Historic
Preservation Commission (HPC). Review of applications for WCFs and/or equipment by the
HPC shall replace the need for review by the Community Development Director. Likewise, if
the Historic Preservation Commission determines that the proposed WCFs and equipment do
not comply with the review criteria and denies the application or the applicant does not agree
to the conditions of approval determined by the Historic Preservation Commission, the
applicant may appeal the decision to the City Council, and such appeal must be filed within
fifteen (15) calendar days of the day on which the Historic Preservation Commission's
decision is rendered. All appeals shall require public hearings and shall be noticed by the
applicant in accordance with Paragraphs 26.304.060.E.3.a, b and c of this Code.
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10. Building permit. A building permit application cannot be filed unless and until final land use
approval has been granted and a development order has been issued. When applying for
building permits, the applicant shall submit a signed letter acknowledging receipt of the
decision granting land use approval and his/her agreement with all conditions of approval, as
well as a copy of the signed document granting the land use approval for the subject building
permit application.
11. Right of Way permit. A Right of Way permit application cannot be filed unless and until final
land use approval has been granted and a development order has been issued. When applying
for Right of Way permits, the applicant shall submit a signed letter acknowledging receipt of
the decision granting land use approval and his/her agreement with all conditions of approval,
as well as a copy of the signed document granting the land use approval for the subject
building permit application.
12. Special review. An application requesting a variance from the review standards for height of
WCFs and/or equipment or an appeal of a determination made by the Community
Development Director, shall be processed as a special review in accordance with the common
development review procedures set forth in Chapter 26.304. The special review shall be
considered at a public hearing for which notice has been posted and mailed, pursuant to
Paragraphs 26.304.060.E.3.b and c.
Review is by the Planning and Zoning Commission. If the property is listed on the
Aspen inventory of historic landmark sites and structures or within a Historic
Overlay District and the application has been authorized for consolidation pursuant
to Chapter 26.304, the Historic Preservation Commission shall consider the special
review.
Such special review may be approved, approved with conditions or denied based on
conformance with the following criteria:
a) Conformance with the applicable review standards of Subsection 26.575.130.F.
b) If the facility or equipment is located on property listed on the Aspen
inventory of historic landmark sites and structures or within any historic district,
then the applicable standards of Chapter 26.415 (Development involving the
Aspen inventory of historic landmark sites and structures or development in an
"H," Historic Overlay District) shall apply.
13. Application. An application for approval of new WCFs and modified or additional
WCFs that are not Eligible Facilities Requests or Small Cell Facilities Requests shall comply
with the submittal requirements applicable to conditional use reviews pursuant to Chapter
26.304, Common development review procedures and Chapter 26.425, Conditional uses of the
Aspen Municipal Code. Also, WCFs and equipment applications shall contain at least the
following additional information:
a) Site plan or plans drawn to a scale of one (1) inch equals ten (10) feet or
one (1) inch equals twenty (20) feet, including "before and after" photographs
(simulations) specifying the location of antennas, support structures,
transmission buildings and/or other accessory uses, access, parking, fences,
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signs, lighting, landscaped areas and all adjacent land uses within one hundred
fifty (150) feet. Such plans and drawings should demonstrate compliance with
the review standards of this Section.
b) Site improvement survey including topography and vegetation showing
the current status, including all easements and vacated rights of way, of the
parcel certified (wet ink signed and stamped and dated within the past twelve
(12) months) by a registered land surveyor, licensed in the State.
c) Landscape plan drawn to a scale of one (1) inch equals ten (10) feet or
one (1) inch equals twenty (20) feet, including "before and after" photographs
(simulations) indicating size, spacing and type of plantings and indicating steps
to be taken to provide screening as required by the review standards of this
Section. The landscape plans shall also indicate the size, location and species
of all existing vegetation and whether each of those indicated are proposed for
removal (indicate proposed mitigation), relocation (indicate from and to) or
preservation. The planner can determine if a landscape plan is necessary; for
instance, when an antenna is to be attached to a building, this requirement may
be waived.
d) Elevation drawings or "before and after" photographs/drawings
simulating and specifying the location and height of antennas, support
structures, transmission buildings and/or other accessory uses, fences and signs.
e) Lighting plan and photometric study indicating the size, height, location
and wattage of all proposed outdoor lighting sources. This study must also
include a graphic indicating backlight, up-light, and glare of light from each
source/fixture. This requirement can be waived by the Community
Development Director if little or no outdoor lighting is proposed.
f) Structural integrity report from a professional engineer licensed in the
State documenting the following:
i Tower height and design, including technical, engineering,
economic and other pertinent factors governing selection of the
proposed design;
ii Total anticipated capacity of the structure, including number and
types of antennas which can be accommodated;
iii Failure characteristics of the tower and demonstration that
site and setbacks are of adequate size to contain debris in the event
of failure; and
iv Specific design and reconstruction plans to allow shared
use. This submission is required only in the event that the applicant
intends to share use of the facility by subsequent reinforcement and
reconstruction of the facility.
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v Specific design considerations for impact or breakaway
characteristics as required in specific roadway right of ways
g) Evidence that an effort was made to locate on an existing wireless
telecommunication services facility site including coverage/ interference
analysis and capacity analysis and a brief statement as to other reasons for
success or no success.
h) Written documentation in the form of a signed affidavit demonstrating a
good faith effort in locating facilities in accordance with site selection order of
preference outline below.
i) Inventory of Existing Sites. Each applicant for a WCF shall provide to the
Community Development Department a narrative description and a map of the
applicant’s existing or currently proposed WCFs within the City, and outside of
the City within one mile of its boundaries. In addition, the applicant shall
inform the City generally of the areas in which it believes WCFs may need to be
located within the next three (3) years. The inventory list should identify the
site name, address, and a general description of the Facility (i.e., rooftop
Antennas and ground-mounted equipment). This provision is not intended to be
a requirement that the applicant submit its business plan, proprietary
information, or make commitments regarding locations of WCFs within the
City. This information will be used to assist in the City’s comprehensive
planning process, and promote Collocation by identifying areas in which WCFs
might be appropriately constructed for multiple users.
The Community Development Department may share such information with
other applicants applying for administrative approvals or conditional permits
under this section or other organizations seeking to locate WCFs within the
jurisdiction of the City, provided however, that the Community Development
Department, is not, by sharing such information, in any way representing or
warranting that such sites are available or suitable.
j) Abandonment and Removal. Affidavits shall be required from the owner
of the property and from the applicant acknowledging that each is responsible
for the removal of a WCF that is abandoned or is unused for a period of six (6)
months.
14. Compliance with Applicable Law. Notwithstanding the approval of an application for
new WCFs or Eligible Facilities Request as described herein, all work done pursuant to WCF
applications must be completed in accordance with all applicable building, structural,
engineering, electrical, and safety requirements as set forth in the Aspen Municipal Code and
any other applicable laws or regulations. In addition, all WCF applications shall comply with
the following:
a) Comply with any permit or license issued by a local, state, or federal
agency with jurisdiction of the WCF;
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b) Comply with easements, covenants, conditions and/or restrictions on or
applicable to the underlying real property;
c) Be maintained in good working condition and to the standards established
at the time of application approval; and
d) Remain free from trash, debris, litter, graffiti, and other forms of
vandalism. Any damage shall be repaired as soon as practicable, and in no
instance more than ten calendar days from the time of notification by the City or
after discovery by the owner or operator of the Site. Notwithstanding the
foregoing, any graffiti on WCFs located in the Public Rights-of-Way or on
Public Property may be removed by the City at its discretion, and the owner
and/or operator of the WCF shall pay all costs of such removal within 30 days
after receipt of an invoice from the City.
E. General provisions and requirements. The following provisions apply to all WCFs and
equipment applications, sites and uses.
1. Prohibitions. Lattice towers (a structure, with three or four steel support legs, used to
support a variety of antennae; these towers generally range in height from sixty (60) to two
hundred (200) feet and are constructed in areas where great height is needed, microwave
antennas are required or where the weather demands a more structurally sound design) are
prohibited within the City.
Towers (support structures) shall be prohibited in the following Zone Districts:
Medium-Density Residential (R-6); Moderate-Density Residential (R-15, R-15A, R-
15B); Low-Density Residential (R-30); Residential Multi-Family (RMF, RMFA);
and Affordable Housing/Planned Unit Development (AH-1/PUD); Conservation (C);
Agricultural (Ag); Park (P); Open Space (OS); Rural Residential (RR).
All WCFs and equipment not prohibited by the preceding statements shall be allowed
in all other zone districts subject to review and approval by the Community
Development Director pursuant to the provisions, requirements and standards of this
Chapter, including consistency with the dimensional requirements of the underlying
zone district.
2. Site selection. Except for Small Cell Facilities in the Public Rights-of-Way, Wireless
communication facilities shall be located in the following order of preference:
First: Collocated on existing structures such as buildings, communication
towers, flagpoles, church steeples, cupolas, ball field lights,
nonornamental/antique street lights such as highway lighting, etc.
Second: In locations where the existing topography, vegetation, buildings or other
structures provide the greatest amount of screening.
Least: On vacant ground or highly visible sites without significant visual
mitigation and where screening/buffering is difficult at best.
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3. Historic sites and structures. In addition to the applicable standards of Chapter 26.415, all of
the foregoing and following provisions and standards of this Chapter shall apply when
wireless telecommunication services, facilities and equipment are proposed on any historic site
or structure or within any historic district.
4. Public buildings, structures and rights-of-way. Leasing of public buildings, publicly owned
structures and/or public rights-of-way for the purposes of locating WCFs and/or equipment is
encouraged. In cases where a facility is proposed on City property that is not in the Public
Right-of-Way, specific locations and compensation to the City shall be negotiated in lease
agreements between the City and the provider on a case-by-case basis and would be subject to
all of the review criteria contained in this Section. Such agreements would not provide
exclusive arrangements that could tie up access to the negotiated sites or limit competition and
must allow for the possibility of Collocation with other providers as described in Subsection
F.2, below.
F. Design Standards. The requirements set forth in this Section shall apply to the location and
design of all WCFs governed by this Chapter as specified below; provided, however, that the
City may waive these requirements if it determines that the goals of this Chapter are better
served thereby. To that end, WCFs shall be designed and located to minimize the impact on the
surrounding neighborhood and to maintain the character and appearance of the City, consistent
with other provisions of this Code. Camouflage/Concealment. All WCFs and any Transmission
Equipment shall, to the extent possible, use Camouflage Design Techniques including, but not
limited to the use of industry best practices materials, colors, textures, screening,
undergrounding, landscaping, or other design options that will blend the WCF into the
surrounding natural setting and built environment.
a) Camouflage design may be of heightened importance where findings of
particular sensitivity are made (e.g. proximity to historic, natural, or aesthetically
significant structures or areas, views, and/or community features or facilities). In
such instances where WCFs are located in areas of high visibility, they shall (where
possible) be designed (e.g., placed underground, inside of existing structure,
depressed, or located behind earth berms) to minimize their profile.
b) The camouflage design may include the use of Alternative Tower Structures
should the Community Development Department determine that such design meets
the intent of this Code and the community is better served thereby.
c) All WCFs, such as Antennas, vaults, equipment rooms, equipment enclosures,
and tower structures shall be constructed out of non-reflective materials (visible
exterior surfaces only). And shall utilize a color palette that mimics or complements
adjacent structures.
2. Collation. Collocation of facilities with other providers is encouraged. Collocation can
be achieved as either building-mounted, roof-mounted or ground-mounted facilities. In
designing or retrofitting Towers, applicants are strongly encouraged to consider the
possibility of present or future co-location of other WCFs by structurally overbuilding in
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order to handle the loading capacity of additional WCFs, for the use of the applicant and
for other wireless service providers to use as well. Applicants shall use good faith efforts
to negotiate lease rights to other users who desire to use an approved WCF site.
Collocation on an existing support structure shall be permitted as an accessory use.
Projections of any type on the monopole, which are not antennas, are strongly discouraged.
a) Multiple use facilities are encouraged as well. WCFs and equipment may be
integrated into existing, replacement of existing, or newly developed facilities that
are functional for other purposes, such as ball field lights, flagpoles, church steeples,
highway lighting, etc. All multiple use facilities shall be designed to make the
appearance of the antennae relatively inconspicuous.
b) The collocation requirement may be waived by the Community Development
Director upon a showing that either federal or state regulations prohibit the use, the
proposed use will interfere with the current use, the proposed use will interfere with
surrounding property or uses, the proposed user will not agree to reasonable terms or
such co-location is not in the best interest of the public health, safety or welfare.
Time needed to review a colocation request shall not greatly exceed that for a single
applicant.
3. Setbacks. At a minimum, except for WCFs in the Public Right-of-Way all WCFs shall
comply with the minimum setback requirements of the underlying zone district; if the
following requirements are more restrictive than those of the underlying zone district, the
more restrictive standard shall apply.
a) All facilities shall be located at least fifty (50) feet from any property lines, except
when roof-mounted (above the eave line of a building). Flat-roof mounted facilities
visible from ground level within one-hundred (100) feet of said property shall be
concealed to the extent possible within a compatible architectural element, such as a
chimney or ventilation pipe or behind architectural skirting of the type generally
used to conceal HVAC equipment. Pitched-roof-mounted facilities shall always be
concealed within a compatible architectural element, such as chimneys or ventilation
pipes.
b) Monopole towers shall be set back from any residentially zoned properties a
distance of at least three (3) times the monopole's height (i.e., a sixty (60) foot
setback would be required for a twenty (20) foot monopole) and the setback from
any public road, as measured from the right-of-way line, shall be at least equal to the
height of the monopole.
c) No wireless communication facility may be established within one-hundred (100)
feet of any existing, legally established wireless communication facility except when
located on the same building or structure.
d) No portion of any antenna array shall extend beyond the property lines or into any
front yard area. Guy wires shall not be anchored within any front yard area, but may
be attached to the building.
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e) Any alternative tower utilizing existing facilities shall meet all Right-of-Way design
guidelines. Considerations should be given to the general safety of the traveling
public.
4. Height. The following restrictions shall apply:
a) WCFs not attached to a building shall not exceed twenty-five (25) feet in height
or the maximum permissible height of the given Zone District, whichever is more
restrictive.
b) Whenever a WCF antenna is attached to a building roof, the antenna and support
system for panel antennas shall not exceed five (5) feet above the highest portion of
that roof, including parapet walls and the antenna and support system for whip
antennas shall not exceed ten (10) feet in height as measured from the point of
attachment.
c) The Community Development Director may approve a taller antenna height than
stipulated in b. above if it is his or her determination that it is suitably camouflaged,
in which case an administrative approval may be granted.
d) If the Community Development Director determines that an antenna taller than
stipulated in b. above cannot be suitably camouflaged, then the additional height of
the antenna shall be reviewed pursuant to the process and standards (in addition to the
standards of this Section) of Chapter 26.430 (Special review).
e) Support and/or switching equipment shall be located inside the building, unless it
can be fully screened from view as provided in the "Screening" standards (26.475.130
and 26.575.130.F.5) below.
5. Architectural compatibility. WCFs shall be consistent with the architectural style of the
surrounding architectural environment (planned or existing) considering exterior materials,
roof form, scale, mass, color, texture and character. In addition:
a) If such WCF is accessory to an existing use, it shall be constructed out of materials
that are equal to or of better quality than the materials of the principal use and shall
exhibit compatible architectural characteristics to the principal use.
b) WCF equipment shall be of the same color as the building or structure to which or on
which such equipment is mounted or as required by the appropriate decision-making
authority (Community Development Director, Historic Preservation Commission,
Planning and Zoning Commission or City Council, as applicable).
c) Whenever WCF equipment is mounted to the wall of a building or structure, the
equipment shall be mounted in a configuration designed to blend with and be
architecturally integrated into a building or other concealing structure, be as flush to
the wall as technically possible and shall not project above the wall on which it is
mounted.
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d) Monopole support buildings, which house switching devices and/or other equipment
related to the use, operation or maintenance of the subject monopole, must be
designed to match the architecture of adjacent buildings. If no recent and/or
reasonable architectural theme is present, the Community Development Director may
require a particular design that is deemed to be suitable to the subject location.
e) All utilities associated with WCFs shall be underground (also see "Screening"
below).
6. Compatibility with the natural environment. WCFs shall be compatible with the
surrounding natural environment considering land forms, topography and other natural
features and shall not dominate the landscape or present a dominant silhouette on a ridge
line. In addition:
a) If a location at or near a mountain ridge line is selected, the applicant shall provide
computerized, three-dimensional, visual simulations of the WCF and other
appropriate graphics to demonstrate the visual impact on the view of the affected
ridges or ridge lines; an 8040 Greenline Review, pursuant to the provisions of
Section 26.435.030, may also be required.
b) Site disturbances shall be minimized and existing vegetation shall be preserved or
improved to the extent possible, unless it can be demonstrated that such disturbance
to vegetation and topography results in less visual impact to the surrounding area.
c) Surrounding view planes shall be preserved to the extent possible.
7. Screening. All WCF equipment, including accessory equipment, shall be screened from
adjacent and nearby public rights-of-way and public or private properties placing
equipment internal to the structure, by paint color selection, parapet walls, screen walls,
fencing, landscaping and/or berming in a manner compatible with the building's and/or
surrounding environment's design, color, materials, texture, land forms and/or topography,
as appropriate or applicable. In addition:
a) Whenever possible, if monopoles are necessary for the support of antennas, they
shall be located near existing utility poles while maintaining National Electric Safety
Code clearance and/or other governing regulations, trees or other similar objects;
consist of colors and materials that best blend with their background; and, have no
individual antennas or climbing spikes on the pole other than those approved by the
appropriate decision-making authority (Community Development Director, Historic
Preservation Commission, Planning and Zoning Commission or City Council, as
applicable).
b) For ground-mounted facilities, landscaping may be required to achieve a total
screening effect at the base of such facilities or equipment in order to screen the
mechanical characteristics; a heavy emphasis on coniferous plants for year-round
screening may be required. Landscaping shall be of a type and variety capable of
growing within one (1) year to a landscape screen which satisfactorily obscures the
visibility of the facility.
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c) Unless otherwise expressly approved, all cables for a WCF shall be fully concealed
from view underground or inside of the screening or monopole structure supporting
the antennas; any cables that cannot be buried or otherwise hidden from view shall be
painted to match the color of the building or other existing structure.
d) Chain link fencing shall be unacceptable to screen facilities, support structures or
accessory and related equipment (including HVAC or mechanical equipment present
on support buildings); fencing material, if used, shall be six (6) feet in height or less
and shall consist of wood, masonry, stucco, stone or other acceptable materials that
are opaque.
e) Notwithstanding the foregoing, the WCF shall comply with all additional measures
deemed necessary to mitigate the visual impact of the facility. Also, in lieu of these
screening standards, the Community Development Director may allow use of an
alternate detailed plan and specifications for landscape and screening, including
plantings, fences, walls, sign and structural applications, manufactured devices and
other features designed to screen, camouflage and buffer antennas, poles and
accessory uses. The plan should accomplish the same degree of screening achieved
by meeting the standards outlined above.
8. Lighting and signage. WCFs shall not be artificially lighted, unless required by the FAA or
other applicable governmental authority, or the WCF is mounted on a light pole or other
similar structure primarily used for lighting purposes. If lighting is required it shall
conform to other applicable sections of the code regulating signage or outdoor lighting.,
The following standards shall apply to WCFsand equipment:
a) The light source for security lighting shall feature down-directional, sharp cut-off
luminaries to direct, control, screen or shade in such a manner as to ensure that there
is no spillage of illumination off-site.
b) Light fixtures, whether free standing or tower-mounted, shall not exceed twelve (12)
feet in height as measured from finished grade.
c) The display of any sign or advertising device other than public safety warnings,
certifications or other required seals on any wireless communication device or
structure is prohibited.
d) The telephone numbers to contact in an emergency shall be posted on each facility in
conformance with the provisions of Chapter 26.510, Signs, of this Title.
9. Noise. Noise generated on the site must not exceed the levels permitted in this Code,
except that a WCF owner or operator shall be permitted to exceed Code noise standards for
a reasonable period of time during repairs, not to exceed two hours without prior
authorization from the City.
10. Additional design requirements shall be applicable to the various types of WCFs as
specified below:
a) Base Stations. If an antenna is installed on a structure other than a Tower or
Alternative Tower Structure, such as a Base Station (including, but not limited to the
antennas and accessory equipment) it shall be of a neutral, non-reflective color that is
identical to, or closely compatible with, the color of the supporting structure, or uses
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other camouflage/concealment design techniques so as to make the antenna and
related facilities as visually unobtrusive as possible, including for example, without
limitation, painting the Antennas and accessory equipment to match the structure.
Additionally, any ground mounted equipment shall be located in a manner necessary
to address both public safety and aesthetic concerns in the reasonable discretion of
the Manager, and may, where appropriate, require a flush-to-grade underground
equipment vault.
b) Alternative Tower Structures not in the Public Right-of-Way.
i Alternative Tower Structures shall be designed and constructed to look
like a building, facility, or structure typically found in the area.
ii Be camouflaged/concealed consistent with other existing natural or
manmade features near the location where the Alternative Tower Structure
will be located.
iii Such structures shall be architecturally compatible with the surrounding
area;
iv Height or size of the proposed alternative tower structure should be
minimized as much as possible;
v WCFs shall be sited in a manner that evaluates the proximity of the
facility to residential structures and residential district boundaries;
vi WCFs should take into consideration the uses on adjacent and nearby
properties and the compatibility of the facility to these uses;
vii Compatibility with the surrounding topography;
viii Compatibility with the surrounding tree coverage and foliage;
ix Compatibility of the design of the site, with particular reference to design
characteristics that have the effect of reducing or eliminating visual
obtrusiveness; and
x Impact on the surrounding area of the proposed ingress and egress, if any.
c) Alternative Tower Structures in the Public Right-of-Way. Alternative Tower
Structures and associated Small Cells, or Micro Cells may be deployed in the Public
Right-of-Way through the utilization of a street light pole, distribution lines, utility
poles, traffic signal or similar structure. Such facilities shall remain subject to the
Alternative Tower Structures standards of approval noted above, and subject to the
following additional design criteria below:
i To the extent that an Alternative Tower Structure is a vertical structure
located in the Public Right-of-Way, with respect to its pole-mounted
components, be located on or within an existing utility pole serving another
utility;
ii With respect to its pole components, such components shall be located on
or within a new utility pole, if there are no reasonable alternatives, and the
Applicant is authorized to construct the new utility poles; or
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iii To the extent reasonably feasible, be consistent with the size and shape of
the pole-mounted equipment installed by communications companies on
utility poles near the Alternative Tower Structure;
iv Be sized to minimize the negative aesthetic impacts to the Public Right-
of-Way;
v Be designed such that antenna installations on traffic signal standards are
placed in a manner so that the size, appearance, and function of the signal will
not be considerably altered.
vi Require that any ground mounted equipment shall be located in a manner
necessary to address both public safety and aesthetic concerns in the
reasonable discretion of the Director, and may, where appropriate, require a
flush-to-grade underground equipment vault.
vii Not alter vehicular circulation or parking within the Right-of-Way or
impede vehicular, bicycle, or pedestrian access or visibility along the Right-
of-Way. The Alternative Tower Structure must comply with the Americans
With Disabilities Act and every other local, state, and federal law and
regulations. No Alternative Tower Structure may be located or maintained in
a manner that causes unreasonable interference. Unreasonable interference
means any use of the Right-of-Way that disrupts or interferes with its use by
the City, the general public, or other person authorized to use or be present
upon the Right-of-way, when there exists an alternative that would result in
less disruption or interference. Unreasonable interference includes any use of
the Right-of-way that disrupts vehicular or pedestrian traffic, any interference
with public utilities, and any other activity that will present a hazard to public
health, safety, or welfare.
viii The pole or structure is not more than 5 feet taller (as measured from the
ground to the top of the pole) than any existing utility or traffic signal pole
within a radius of 500 feet of the pole or structure.
ix Any such pole shall in no case be higher than 25 feet in height or the
maximum permissible height of the given Zone District, whichever is more
restrictive .
x Any such pole shall be separated from any other wireless communication
facility in the Right-of-Way by a distance of at least 600 feet unless deployed
on an existing structure in the Public Right-of-Way.
xi To the extent reasonably feasible, Collocations are strongly encouraged to
limit the number of poles within the Right-of-Way.
xii Equipment enclosures shall be located out of view as much as possible
and shall comply with City criteria (e.g. sight line criteria).
xiii When placed near a residential property, the WCF shall be placed
adjacent to the common side yard property line between adjoining residential
properties, such that the WCF minimizes visual impacts equitably among
adjacent properties. In the case of a corner lot, the WCF may be placed
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adjacent to the common side yard property line between adjoining residential
properties, or on the corner formed by two intersecting streets. If these
requirements are not reasonably feasible from a construction, engineering or
design perspective, the applicant may submit a written statement to the
Director requesting the WCF be exempt from these requirements.
d) Towers
i Towers shall either maintain a galvanized steel finish, or, subject to any
applicable FAA standards, be painted a neutral color so as to reduce visual
obtrusiveness as determined by the City;
ii Tower structures should use existing land forms, vegetation, and
structures to aid in screening the facility from view or blending in with the
surrounding built and natural environment;
iii Monopole support structures shall taper from the base to the tip;
iv All Towers, excluding alternative tower structures in the Right-of-Way,
shall be enclosed by security fencing or wall at least 6 feet in height and shall
also be equipped with an appropriate anti-climbing device.
e) Director to adopt design standards: Pursuant to the powers and authority
conferred by the Charter of the City, the Director shall adopt additional small cell
infrastructure design guidelines, as may be amended from time to time. Said
guidelines are incorporated herein as if fully set forth and shall be published and at
least one (1) copy of the Small Cell Infrastructure Design Guidelines shall be
available for public inspection at the Community Development Department.
11. Related Accessory Equipment. Accessory equipment for all WCFs shall meet the
following requirements:
a) All buildings, shelter, cabinets, and other accessory components shall be grouped
as closely as technically possible;
b) The total footprint coverage area of the WCF’s accessory equipment shall not
exceed 350 square feet;
c) No related accessory equipment or accessory structure shall exceed 12 feet in
height;
d) Accessory equipment, including but not limited too remote radio units, shall be
located out of sight whenever possible by locating behind parapet walls or within
equipment enclosures. Where such alternate locations are not available, the
accessory equipment shall be camouflaged or concealed.
12. Access ways. In addition to ingress and egress requirements of the Building Code, access
to and from WCFs shall be regulated as follows:
a) No WCF shall be located in a required parking, maneuvering or vehicle/pedestrian
circulation area such that it interferes with or in any way impairs, the intent or
functionality of the original design.
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b) The WCF must be secured from access by the general public but access for
emergency services must be ensured. Access roads must be capable of supporting all
potential emergency response vehicles and equipment.
c) The proposed easements for ingress and egress and for electrical and
telecommunications shall be recorded at the County Clerk and Recorder's Office
prior to the issuance of building permits.
13. Conditions and limitations. The City shall reserve the right to add, modify or delete
conditions after the approval of a request in order to advance a legitimate City interest
related to health, safety or welfare. Prior to exercising this right, the City shall notify the
owner and operator in advance and shall not impose a substantial expense or deprive the
affected party of a substantial revenue source in the exercising of such right.
Approval by the Community Development Director for a wireless telecommunication
services facility and/or equipment application shall not be construed to waive any
applicable zoning or other regulations; and wherein not otherwise specified, all other
requirements of this Code shall apply, including Title 21(Street, Sidewalks, and other
public places, and Title 29 (Engineering Design Standards). All requests for modifications
of existing facilities or approvals shall be submitted to the Community Development
Director for review under all provisions and requirements of this Section. If other than
minor changes are proposed, a new, complete application containing all proposed revisions
shall be required.
(Ord. No. 1-2002 § 18; Ord. No. 52-2003, §§ 14, 15)
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