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HomeMy WebLinkAboutagenda.council.regular.20190225 CITY COUNCIL AGENDA February 25, 2019 5:00 PM I. Call to Order II. Roll Call III. Scheduled Public Appearances a) Black Diamond Award Presentation IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT scheduled for a public hearing. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Amendments c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters may be adopted together by a single motion) a) Resolution #23, Series of 2019 - Contract For Rubey Park Security Services b) Resolution #6 Series 2019 - Mobile License Plate Recognition systems c) Resolution #27, Series of 2019 - Parks Fleet: CAT 962 Wheel Loader Contract d) Resolution #26, Series of 2019 - USGS Contract for Roaring Fork River Gage e) Resolution #28, Series of 2018 - 312 W Hyman Avenue - Real Estate Purchase f) Minutes - February 11, 2019 VII. Policy Resolution a) Resolution #13, Series 2019 - Policy Resolution on Wireless Regulations VIII. First Reading of Ordinances a) Ordinance #5, Series 2019 - Wireless Regulations Code Amendment IX. Public Hearings a) Resolution #12, Series of 2019 - 330 E Main St - Hotel Jerome - Temporary Use Request b) Resolution #11, Series 2019 - Base 1 Lodge Extension of Vested Rights X. Action Items XI. Adjournment Next Regular Meeting March 11, 2019 COUNCIL’S ADOPTED GUIDELINES · Make Decisions Based on 30 Year Vision P1 · 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. P2 MEMORANDUM TO: Mayor & City Council FROM: Cory Vander Veen, Recreation Director THU: Jeff Woods, Parks and Recreation Manager DATE: February 25th, 2019 RE: Recreation Department Maintenance Team, Black Diamond Award The Recreation Department Maintenance Team is receiving a Black Diamond Award for their exceptional performance surrounding the overhaul of the Lewis Ice Arena refrigeration plant which took place in 2018. This team consists of Brad Fite, Oscar Contreras, Tony Codd, Patrick Derby, and Jose Serrano. Due to the maintenance team’s dedication, diligence, and professionalism, the plant overhaul project was completed significantly ahead of schedule and below budget. The maintenance team was able to complete most of the project themselves by utilizing the existing staff’s extensive skills, knowledge, and project management experience. The effort was significant as it helped to keep costs under $50,000 which was $100,000 less than outside vendors had estimated. This project also extended the longevity of the life of the Lewis Ice Arena. Some of the major tasks completed by this team during this project included: · Installation of new circulation pumps, pipe insulation, glycol storage containers, overflow tanks, and piping. · In-depth safety trainings were held to make sure all staff understood relevant safety aspects of the system. · An emergency action plan and preplan for anhydrous ammonia was created in collaboration with Pitkin County, multiple City Departments, police, fire, airport operations, and the Colorado State Patrol. · The Recreation Department Team, along with the Aspen Fire Department and the Aspen Police Department also performed a live emergency drill inside the plant. Industry experts were involved in the project as part of the completion and they had these words of praise for the maintenance team: “This team has maintained one of the best kept refrigeration systems that we have ever seen anywhere in the country. Your maintenance team has done a great job completing this major overhaul.” We are proud of our Recreation Department Maintenance Team and we want to take this opportunity to officially recognize them and say thank you for their hard and dedication. Congratulations to you all! P3 III.a 1 MEMORANDUM TO: Mayor and City Council FROM: John D. Krueger, Director of Transportation THRU: Tricia Aragon, City Engineer DATE OF MEMO: February 15, 2019 MEETING DATE: February 25, 2019 RE: Resolution #23, Series of 2019 - Contract for Rubey Park Security Services SUMMARY Staff requests the approval of Resolution #23-2019 authorizing the City Manager to execute a contract between the City of Aspen and Colorado Protective Services (CPS) for security services at the Rubey Park Transit Center. The contract amount is not to exceed $90,000.00 which is included in the 2019 Transportation Fund budget. PREVIOUS COUNCIL ACTION · The Rubey Park Transit Center remodel project was completed in December 2015. · An Intergovernmental Agreement (IGA) between the City and RFTA detailing facility responsibilities and cost-sharing was approved by Aspen City Council in February of 2016. · The most recent contract for Rubey Park Security was approved by City Council in 2017 with Colorado Protective Services. P4 VI.a 2 · The Transportation Fund budget for 2019 includes Rubey Park security services as approved by City Council as part of the 2019 budget approval process. BACKGROUND The Rubey Park Transit Center is the terminus for the entirety of Roaring Fork Transportation Authority (RFTA) services which carry up to 5-million riders annually. The Transit Center is open to the public for up to 20 hours daily and is quite busy in the evenings. An unfortunate side effect of Rubey Park’s heavy use is the vandalism, unruly behavior, and other unsafe situations that sometimes occur on site. As a means of creating a safe and welcoming environment for transit users and the general public, RFTA and the City of Aspen have shared the costs of security services for a number of years. When the IGA for the new transit center was developed, this cost sharing was formalized with the City and RFTA agreeing to share the costs of providing security at the site. DISCUSSION Colorado Protective Services has been approved by the City’s Procurement Officer as the sole source provider for Rubey Park security services based on RFTA’s selection of the vendor through its procurement process. It is beneficial for the City and RFTA to use the same provider for continuity of presence, knowledge of the RFTA system and familiarity with City and RFTA facilities, drivers and law enforcement. The attached contract is valid through December of 2020, which is when RFTA’s contract with Colorado Protective Service also ends. It is assumed that a new RFP process will be led by RFTA at that time with the participation of City staff. For 2019, Colorado Protective Services will be on site at Rubey Park between four and six evenings per week. Additional presence may be requested during large special events. Security staff are charged with monitoring behavior on the platform, inside the customer service building and within the public restrooms. Colorado Protective Services will contact Aspen Police as needed, should certain behaviors escalate. Reports provided by Colorado P5 VI.a 3 Protective Services assist RFTA and City Transportation staff with identifying trends or areas needing improvement. FINANCIAL IMPLICATIONS The attached contract is not to exceed $90,000.00 per year. The contract amount is included in the 2019 Transportation Fund budget. ENVIRONMENTAL IMPLICATIONS Offering a safe and welcoming transit center is an important component of Aspen’s trip reduction efforts. RECOMMENDATION Staff recommends approval of the attached resolution authorizing the City Manager to execute the contract for Rubey Park Transit Center security services between the City of Aspen and Colorado Protective Services. ALTERNATIVES Council could choose not to approve this contract, in which case staff will cease its security plan. PROPOSED MOTION “I move to approve Resolution #23 series 2019 allowing the City Manager to sign and execute the attached contract between the City of Aspen and Colorado Protective Services for security services.” CITY MANAGER COMMENTS: ___________________________________________________________________ ATTACHMENTS Attachment A: Resolution #23 series 2019 Attachment B: Contract Documents P6 VI.a RESOLUTION #23 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND COLORADO PROTECTIVE SERVICES, AUTHORIZING THE CITY MANAGER TO EXECUTE SAID PROFESSIONAL SERVICES AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract between the City of Aspen and Colorado Protective Services a true and accurate copy of which is attached hereto as Exhibit “A”; and WHEREAS, the City of Aspen and the Roaring Fork Transportation Authority (RFTA) find it necessary to provide security services at the Rubey Park Transit Center to ensure a safe environment for the public; and WHEREAS, the RFTA has selected Colorado Protective Services as its designated security provider and the City of Aspen is seeking to do the same; 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 said contract between the City of Aspen and Colorado Protective Services, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of February 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 February 25, 2019. Linda Manning, City Clerk P7 VI.a Agreement Professional Services Page 0 CITY OF ASPEN STANDARD FORM OF AGREEMENT V 2009 PROFESSIONAL SERVICES City of Aspen Project No.: 2019-023. AGREEMENT made as of 25th day of February, in the year 2019. BETWEEN the City: Contract Amount: The City of Aspen c/o Lynn Rumbaugh 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5079 And the Professional: Colorado Protective Services – Aspen Inc. c/o Tom Dalessandri 175 Oak Run Carbondale, Colorado 81623 Phone: 379-4201 For the Following Project: Security services for Rubey Park Transit Center facility, RFTA employees, and transit passengers. Exhibits appended and made a part of this Agreement: If this Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: February 25, 2019 Resolution No.23-2019 Exhibit A: Scope of Work. Exhibit B: Hourly Fee Schedule. Total: Not to exceed $90,000.00 per year P8 VI.a Agreement Professional Services Page 1 The City and Professional agree as set forth below. 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence Work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later than December 31, 2020. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit B appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed the amount set forth above. Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assignability. Both parties recognize that this Agreement is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors’ officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. 5. Termination of Procurement. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 6. Termination of Professional Services. The Professional or the City may terminate the Professional Services component of this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional P9 VI.a Agreement Professional Services Page 2 for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, to the extent and for an amount represented by the degree or percentage such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the wrongful act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The P10 VI.a Agreement Professional Services Page 3 Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers’ Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non- owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or P11 VI.a Agreement Professional Services Page 4 provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided to the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk Management Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. P12 VI.a Agreement Professional Services Page 5 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this Agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. Illegal Aliens – CRS 8-17.5-101 & 24-76.5-101. (a) Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. “Basic Pilot Program” means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. “Public Contract for Services” means this Agreement. P13 VI.a Agreement Professional Services Page 6 “Services” means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. (c) By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not illegal aliens. (d) Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and P14 VI.a Agreement Professional Services Page 7 (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional’s violation of Subsection 8-17.5-102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 16. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. (a) Professional warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Professional for the purpose of securing business. (b) Professional agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any P15 VI.a Agreement Professional Services Page 8 interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Professional, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Professional; and 4. Recover such value from the offending parties. 17. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 18. General Terms. (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. 19. Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement binding on the Parties, notwithstanding the possible event that all Parties may not have signed the same counterpart. Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope of Work, and any other documents requiring a signature hereunder, may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or P16 VI.a Agreement Professional Services Page 9 enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date first written above. CITY OF ASPEN, COLORADO: By: _____________________________ [Name] Title: ____________________________ Date: ___________________ Approved as to form: _______________________________ City Attorney’s Office P17 VI.a Agreement Professional Services Page 10 EXHIBIT A PROFESSIONAL SERVICES AGREEMENT CSP will provide security services for the Rubey Park Transit Center facility, Roaring Fork Transportation Authority employees, and all transit passengers. More specifically: · Contractor will provide a minimum of two staff to complete shifts scheduled by the City of Aspen per the agreement and/or as requested by Transportation staff. · All security officers will observe, report, and act as a deterrent to any unruly behavior of patrons/customers of the Rubey Park facility and will ensure the safety of Roaring Fork Transportation Authority (RFTA) employees and all transit passengers and customers as well as the integrity of the Rubey Park facility. · All security officers will have either documented security force training, prior or current law enforcement experience, prior private security experience or military experience. · All security officers must have previously received or will be provided training in customer service and guest relations by Contractor prior to the start of work under the Contract. · All security officers must be trained in First Aid and CPR. · At least one security officer will remain posted at the Rubey Park Transit Center (450 E. Durant, Aspen, Colorado) at all times. This officer will provide a continuous foot patrol of the bus loading areas to establish a security presence while on alert for criminal activity and safety and liability hazards. This security officer will also assist in the monitoring of patrons that board the bus and will have the authority to deny access to anyone he or she feels create an unruly or dangerous situation. · An additional security officer may, at their discretion, ride scheduled buses from the Rubey Park Transit Center as far as the Intercept Lot at the corner of Brush Creek and State Highway 82 for the purpose of providing a secure presence. Officers should also ride, at their discretion, City of Aspen routes. · Each security officer shall make every reasonable attempt to resolve security situations in a manner consistent with his or her knowledge, experience, and training and will recommend assistance from or contact outside law enforcement as appropriate. · The overall responsibility of the security officer is to serve as a deterrent to unruly behavior and to ensure the safety of RFTA and City of Aspen employees and passengers P18 VI.a Agreement Professional Services Page 11 as well as the integrity of the Rubey Park facility. Best practices for conflict resolution shall be exercised as per the most current agreement with RFTA. · Each security officer will submit a summary report of all contacts and/or activities that he or she encounters. Standard reports will be provided to the City of Aspen with each monthly invoice. Incidents requiring Police involvement must be reported within 24 hours. · Each security officer will cooperate with outside law enforcement as necessary, including providing testimony in any resulting judicial proceeding. · With due notice, and upon mutual consent, Contractor will provide additional security staff as may be requested for special events or for other reasons. · It is the Contractor's responsibility to provide all safety equipment necessary for its employees to perform all work in a safe and appropriate manner. · Contractor will, at the request of the City of Aspen Transportation Department, perform other functions within its area of expertise including but not limited to: § traffic control if needed for the safety of transit operations § risk assessment and prevention consulting § review of incidents or security needs with other agencies P19 VI.a Agreement Professional Services Page 12 EXHIBIT B PROFESSIONAL SERVICES AGREEMENT Fee Schedule The City shall pay a rate of $38.00 per hour, per security officer. P20 VI.a MEMORANDUM TO: Mayor and City Council FROM: Mitch Osur, Director of Parking and Downtown Services THRU: Scott Miller, Director of Public Works DATE OF MEMO: February 15, 2019 MEETING DATE: February 25, 2019 RE: Resolution #6, Series of 2019 - Contract approval for the purchase of two (2) Mobile License Plate Recognition systems. REQUEST OF COUNCIL: Staff requests City Council approval of Resolution #6 Series of 2019, authorizing a contract for the purchase of two (2) new Mobile License Plate Recognition Systems (LPR) PREVIOUS COUNCIL ACTION: We are on a five-year replacement cycle on our License Plate Recognition systems that work in conjunction with our enforcement vehicles. BACKGROUND: We have been using License Plate Recognition systems on our enforcement vehicles for more efficient and accurate enforcement for over 15 years. DISCUSSION: The LPR system is an all-in-one solution for the parking team to read and identify license plates for parking enforcement. Aspen has been using LPR for over 15 years. LPR is a powerful asset to our parking system. Benefits include a significant impact on operational efficiency, improved customer service, increased productivity, provides more consistency, improves compliance, decreases parking violations and enhances public safety. LPR integrates with parking management system to improve customer service through a knowledge bases approach to enforcement and monitoring. LPR lets you monitor a vehicles location over time offering better space management with visibility into how long a vehicle has been in a single location or how long in a specific zone. LPR determines parking compliance automatically rather than relying on a visual check by an officer. By eliminating the need to look for paper permits LPR improves the process of determining compliance therefore benefiting the staff and the parkers. Compliance is determined by the LPR P21 VI.b camera and their automatic evaluation of our registered parking permit database. Aspen currently uses LPR to enforce · The residential zones · 2 hours free parking in the residential zone · 4 hours max parking in the core. · Soon we will be using LPR for Carpool permits enforcement. FINANCIAL/BUDGET IMPACTS: The Parking Services Department has $95,000 in the 2019 capital budget for replacement of two License Plate Recognition systems Cost of the new Equipment is $91,090 Price Each Total AutoVu SharpX Overtime Dual Base Kit $36,270.00 $72,540.00 Mobile Data Computer Solution $5,400.00 $10,800.00 Internal Modem $225.00 $450.00 Mapping License $450.00 $900.00 Installation $2,750.00 $5,500.00 Hosted Sever (1st Year) $600.00 Shipping $150.00 $300.00 Total $45,245.00 $91,090.00 ENVIRONMENTAL IMPACTS: The License Plate recognition system allows the City to use more virtual permits and eliminate the use of paper permits. RECOMMENDED ACTION: Staff recommends City Council approval of the purchase of two (2) Mobile License Plate Recognition systems. ALTERNATIVES: City Council could decide to not approve this agreement and we could enforce without the help and efficiency of License Plate Recognition. PROPOSED MOTION: I move to approve Resolution #6, Series of 2019, a contract to purchase two (2) Mobile License Plate Recognition systems. CITY MANAGER COMMENTS: _________________________________ _______________________________________________________________ ATTACHMENTS: Resolution #6 of 2019 Signed Supply Procurement Agreement P22 VI.b RESOLUTION # 6 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND PCS MOBILE AUTHORIZING THE CITY MANAGER TO EXCUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN COLORADO. WHERAS, there has been submitted to the City Council a contract for purchase of two (2) Mobile License Plate Recognition systems between the City of Aspen and PCS Mobile 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 the Contract for two (2) Mobile License Plate recognition systems between the City of Aspen and PCS Mobile a copy of which is annexed hereto and incorporated herein and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of February 2019. _________________________ Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held February 25, 2019 ___________________________ Linda Manning, City Clerk P23 VI.b P24VI.b P25VI.b P26VI.b P27VI.b P28VI.b P29VI.b P30VI.b P31VI.b P32VI.b P33VI.b P34VI.b P35VI.b P36VI.b P37VI.b Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Matt Kuhn, Parks Operations Manager THRU: Austin Weiss, Parks and Open Space Director DATE OF MEMO: February 19, 2019 MEETING DATE: February 25, 2019 RE: Resolution #27, Series of 2019 - Parks Fleet – CAT 962 Wheel Loader Replacement Contract REQUEST OF COUNCIL: The Parks Department is requesting approval of a contract with Wagner Equipment Company for the replacement of a CAT 962 wheel loader. PREVIOUS COUNCIL ACTION: The wheel loader replacement is included in the 2019 Asset Management Plan. City Council approved the Asset Management Plan in the 2019 Budget. DISCUSSION: The Parks Department utilizes a variety of equipment for our parks, open space and trails maintenance programs. This contract with Wagner Equipment Company is a scheduled fleet replacement for our largest wheel loader. The 962 wheel loader is utilized year-round for various aspects of parks maintenance and construction. The wheel loader is integral for snow removal operations around the downtown core and mall, and our construction and restoration crews utilize the wheel loader for nearly all projects. The current loader is 12 years old, while fleet budget plans for a 7 year replacement on this piece of equipment. The contract with Wagner Equipment Company accounts for trade-in values and pricing is based on a cooperative purchase agreement price through the SourceWell. FINANCIAL/BUDGET IMPACTS: The contract with Wagner Equipment Company in the amount of $152,911.26 is within the fleet budget. ENVIRONMENTAL IMPACTS: Maintaining parks and trails provides for green space and alternative transportation opportunities. P38 VI.c Page 2 of 2 RECOMMENDED ACTION: Parks Staff recommends approval of the contract with Wagner Equipment Company for the 962 wheel loader replacement. ALTERNATIVES: Council could direct staff to postpone the replacement contract, or seek alternative vehicles or contracts. PROPOSED MOTION: “I move to approve Resolution # 027, series of 2019, on the Consent Calendar of Monday, February 25, 2019. CITY MANAGER COMMENTS: ATTACHMENTS: A – Contract with Wagner Equipment Company P39 VI.c RESOLUTION #027 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND WAGNER EQUIPMENT COMPANY AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for Caterpillar 962 Wheel Loader, between the City of Aspen and Wagner Equipment Company, a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for Caterpillar 962 Wheel Loader, between the City of Aspen and Wagner Equipment Company, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of February 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, February 25, 2019. Linda Manning, City Clerk P40 VI.c CITY OF ASPEN STANDARD FORM OF AGREEMENT SUPPLY PROCUREMENT City of Aspen Project No.: 2019-50971. AGREEMENT made as of 15th day of February, in the year 2019. BETWEEN the City: Contract Amount: The City of Aspen c/o Parks Department (Matt Kuhn) 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5055 And the Vendor: Wagner Equipment Company c/o PO Box 919000 Denver, CO 80291 Phone: (970) 242-2834 Summary Description of Items to be Purchased: Parks Fleet - CAT 962 Wheel Loader Replacement Exhibits appended and made a part of this Agreement: If this Agreement requires the City to pay an amount of money in excess of $50,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: February 25, 2019 Resolution No.: 2019-027 Exhibit A: List of supplies, equipment, or materials to be purchased. Total: $152,911.26 P41 VI.c The City and Vendor agree as set forth below. 1.Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A appended hereto and by this reference incorporated herein as if fully set forth here for the sum set forth hereinabove. 2.Delivery. (FOB 585 Cemetery Lane, Aspen, CO 81611) [Delivery Address] 3.Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4.Warranties. 12 Months Unlimited Hours, Parts and Labor (Travel Time included for the first 6 months) 3 Year / 5000 Hour Premier Extended Coverage Plan 5.Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. 6.Third Parties. This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Vendor or City may assign this Agreement in accordance with the specific written permission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 7.Waivers. No waiver of default by either party of any of the terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. 8.Agreement Made in Colorado. The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 9.Attorney’s Fees. In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney’s fees. P42 VI.c 10.Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Agreement. 11.Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 12.Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. (A) Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. (B)Vendor agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (C)Vendor represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (D) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1.Cancel this Purchase Agreement without any liability by the City; 2.Debar or suspend the offending parties from being a vendor, contractor or subcontractor under City contracts; 3.Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor; and 4.Recover such value from the offending parties. P43 VI.c 13.Termination for Default or for Convenience of City. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 14.Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City using state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 15.City Council Approval. If this Agreement requires the City to pay an amount of money in excess of $50,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 16.Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform under this Agreement. Vendor agrees to meet all of the requirements of City’s municipal code, section 13-98, pertaining to nondiscrimination in employment. Vendor further agrees to comply with the letter and the spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and federal laws respecting discrimination and unfair employment practices. 17.Integration and Modification. This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, vendor understands that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 18.Authorized Representative. The undersigned representative of Vendor, as an inducement to the City to execute this Agreement, represents that he/she is an authorized representative of Vendor for the purposes of executing this Agreement and that he/she has full and complete authority to enter into this Agreement for the terms and conditions specified herein. 19.Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement binding on the Parties, notwithstanding the possible event that all Parties may not have signed the same counterpart. Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope of Work, and any other documents requiring a signature hereunder, may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the P44 VI.c P45 VI.c EXHIBIT A SUPPLY PROCUREMENT AGREEMENT DESCRIPTION OF EQUIPMENT ORDERED / PURCHASED MAKE: CATERPILLAR MODEL: 962M-BR YEAR: 2019 STOCK NUMBER: TBD SERIAL NUMBER: TBD SMU: TBA NEW USED 962M SHAVER 4.30.18 COOLING CORES, 9 FPI BUCKET-GP, 114" 4.75YD3 (QC) LANE 3 ORDER FENDERS, BASIC + CUTTING EDGE, BOLT-ON REGIONAL PACKAGE, AM-N HOOD, NON-METALLIC QUICK COUPLER READY, STD LIFT STANDARD PACKAGE SOUND SUPPRESSION, STANDARD FUEL ANTIFREEZE, -45C (-50F) LINKAGE, STANDARD LIFT LUBRICATION, MANUAL, STD/LOG WORKTOOL'S LITERATURE COUNTERWEIGHT, STANDARD LIFT RADIO, CB (READY) TIRES, 23.5R25 MX XHA2 * L3 AXLES, LOCK/OPEN, ED RADIO, AM/FM/USB/MP3 BLUETOOTH WINDOWS, STANDARD HYDRAULIC OIL, STANDARD GUARD, POWERTRAIN FILTRATION, STANDARD STARTING, COLD (120V) FAN, STANDARD AIR INLET STANDARD, RAIN CAP LIGHTS, HALOGEN INSTRUCTIONS, ENGLISH HYDRAULICS, 3V RC, STD/LOGGER STEERING, WHEEL HMU STORAGE PROTECTION JOYSTICK W/FNR, 3V MANUAL DIFF, HMU ANTIFREEZE WINDSHIELD WASHER QUICK COUPLER, FUSION CAB TRIM, STANDARD PROTECTION, CYLINDER ROD LINES GP-IMPLEMENT 3V (QC) SEAT BELT, 3" W/INDICATOR ROLL ON-ROLL OFF CARRIAGE GROUP, 96" PRODUCT LINK, CELLULAR PLE641 ANTIFREEZE, -34C (-29F) TINE GROUP, 72" TRADE-IN EQUIPMENT MODEL: 962H - CATERPILLAR(AA) YEAR: 2007 SN.: K6K00296 SELL PRICE $272,911.26 PAYOUT TO: AMOUNT: PAID BY: Customer LESS GROSS TRADE ALLOWANCE ($120,000.00) MODEL: YEAR: SN.: PAYOUT TO: AMOUNT: PAID BY: MODEL: YEAR: SN.: PAYOUT TO: AMOUNT: PAID BY: MODEL: YEAR: SN.: PAYOUT TO: AMOUNT: PAID BY: TOTAL $152,911.26 ALL TRADES-INS ARE SUBJECT TO EQUIPMENT BEING IN "AS INSPECTED CONDITION" BY VENDOR AT TIME OF DELIVERY OF REPLACEMENT MACHINE PURCHASE ABOVE. PURCHASER HEREBY SELLS THE TRADE-IN EQUIPMENT DESCRIBED ABOVE TO THE VENDOR AND WARRANTS IT TO BE FREE AND CLEAR OF ALL CLAIMS, LIENS, MORTGAGES AND SECURITY INTEREST EXCEPT AS SHOWN ABOVE. P46 VI.c Quote 192899-01 Page 2 of 5 CATERPILLAR Model: 962M-BR Wheel Loader STANDARD EQUIPMENT POWERTRAIN - Engine, Cat C7.1 ACERT - Torque converter, with lock-up clutch - free wheel stator - Tranmission countershaft, automatic, - powershift (5F/3R) - Pump transmission, split flow - Productive Economy Mode (fuel - consumption optimization) - Brakes, full hydraulic enclosed wet-disc - with Integrated Braking System (IBS) - Brake wear indicators - Fan drive hydraulic, electronically - controlled, temperature sensing, - on demand - Fuel priming pump (electric) - Fuel/Water separator - Engine air intake with strata-tubes - Parking Brake, disk & caliper HYDRAULICS - Load sensing system with variable - displacement piston pump. - Hoses, Caterpillar XT - Couplings, Caterpillar O-ring face seal - Hydraulic oil cooler (swing out) - Oil sampling valves - Remote diagnostic pressure taps - Hydraulic Service Center ELECTRICAL - Batteries (2), maintenance free 1400CCA - Starting and charging system (24V) - Alternator, 115-amp brushed - Alarm, back-up - Ignition key; start/stop switch - Main disconnect switch - Receptacle remote start w/o cables - Starter, electric, heavy duty - Emergency shut-off switch - Rear camera - Electrical Service Center - OPERATOR ENVIRONMENT - A-Post mounted membrane 16 switch keypad - Climate Control - Bucket/Work tool function lockout - EH Parking Brake - Intermittent front wiper control - Horn, electric - Lights, cab dome (2) - Radio ready (entertainment) includes - antenna, speaker & converters (12V- - 10amp) - 3 receptacles, 12V - Beverage holders (2) with storage - compartment for cell phone/MP3 player - Coat hooks (2) - Sliding Window - Ergonomic Cab access - Sun visor, front - Computerized monitoring system - Front dash information display with : - -Speedometer/Tachometer - -Digital gear indicator - -Temperatures: engine coolant, - hydraulic oil, transmission oil - -Fuel level - Warning Indicators: - -Temperatures: axle oil, engine intake - manifold - -Pressures: engine oil, fuel pressure - Hi/Low, primary steering oil, - service brake oil - -Battery voltage Hi/Low - -Engine air filter restriction - -Hydraulic oil filter restriction - -Hydraulic oil level low - -Parking brake - -Transmission filter bypass - Multi-function monitor: - -180mm(7'') color LCD touch-screen - display - -Rear-view camera image display - (reverse travel activated) - Machine utilization information : - -Total fuel consumption - -Average fuel burn rate - -Engine fuel consumption - -Total idle time - -Total operating hours - -Travel distance (odometer) - -Total idle fuel - -Total operating hours, neutral - -Total operating hours with hydraulic - filter in bypass OTHER STANDARD EQUIPMENT - Engine idle management system and auto - idle shutdown - Filters: fuel, engine air, engine oil, - hydraulic oil, transmission - Hitch, drawbar - Kickout, lift & tilt, automatic - (adjustable) - Sight gauges: engine coolant, hydraulic - oil, and transmission oil level - Lift and tie down points - Articulation locking bar - Parallel Z-bar lifting P47 VI.c Quote 192899-01 Page 3 of 5 MACHINE SPECIFICATIONS 962M SHAVER 4.30.18 LANE 3 ORDER REGIONAL PACKAGE, AM-N STANDARD PACKAGE LINKAGE, STANDARD LIFT COUNTERWEIGHT, STANDARD LIFT AXLES, LOCK/OPEN, ED HYDRAULIC OIL, STANDARD STARTING, COLD (120V) LIGHTS, HALOGEN STEERING, WHEEL HMU MANUAL DIFF, HMU CAB TRIM, STANDARD SEAT BELT, 3'' W/INDICATOR PRODUCT LINK, CELLULAR PLE641 COOLING CORES, 9 FPI FENDERS, BASIC + HOOD, NON-METALLIC SOUND SUPPRESSION, STANDARD LUBRICATION, MANUAL, STD/LOG RADIO, CB (READY) RADIO, AM/FM/USB/MP3 BLUETOOTH GUARD, POWERTRAIN FAN, STANDARD INSTRUCTIONS, ENGLISH STORAGE PROTECTION ANTIFREEZE WINDSHIELD WASHER PROTECTION, CYLINDER ROD ROLL ON-ROLL OFF ANTIFREEZE, -34C (-29F) BUCKET-GP, 114'' 4.75YD3 (QC) CUTTING EDGE, BOLT-ON QUICK COUPLER READY, STD LIFT FUEL ANTIFREEZE, -45C (-50F) WORKTOOL'S LITERATURE TIRES, 23.5R25 MX XHA2 * L3 WINDOWS, STANDARD FILTRATION, STANDARD AIR INLET STANDARD, RAIN CAP HYDRAULICS, 3V RC, STD/LOGGER JOYSTICK W/FNR, 3V QUICK COUPLER, FUSION LINES GP-IMPLEMENT 3V (QC) CARRIAGE GROUP, 96'' TINE GROUP, 72'' P48 VI.c Quote 192899-01 Page 5 of 5 SELL PRICE $272,911.26 LESS GROSS TRADE ALLOWANCE ($120,000.00) TOTAL $152,911.26 TRADE-INS Model Make Serial Number Year Trade Allowance 962H CATERPILLAR (AA) K6K00296 2007 $120,000.00 WARRANTY & COVERAGE Standard Warranty: 12 Months Unlimited Hours, Parts and Labor (Travel Time included for the first 6 months) Extended Coverage: 3 Year / 5000 Hour Premier Extended Coverage Plan F.O.B/TERMS: Aurora P49 VI.c MEMORANDUM TO: Mayor and City Council FROM: Margaret Medellin, Utilities Portfolio Manager; April Long, Clean River Program Manager; Robert Covington, Raw Water Manager THRU: Scott Miller, Director of Public Works; Dave Hornbacher, Director, Utilities; DATE OF MEMO: February 19, 2019 MEETING DATE: February 25, 2019 RE: Resolution #26, Series of 2019 - Contract with USGS for O&M of Roaring Fork River Gaging Station REQUEST OF COUNCIL: The City coordinated with the Aspen Consolidated Sanitation District (ACSD) and USGS to install a gaging station on the Roaring Fork River below the confluence with Maroon Creek. Staff is requesting approval of Resolution #26, Series of 2019, which will authorize a contract between the City and the USGS for operation and maintenance of the Roaring Fork gage for the period January 1, 2019 through December 31, 2023. PREVIOUS COUNCIL ACTION: On October 10, 2016, Council passed Resolution #141, Series of 2016 directing staff to implement certain water management measures to improve resiliency against future climate change impacts and other system challenges while continuing efforts to maintain diligence for two conditional water storage rights on Castle and Maroon Creeks. In support of this Resolution, staff contracted with Headwaters Corporation to conduct a risk analysis of the City’s water system. This analysis identified the lack of watershed data as a significant contributor to the uncertainty associated with water projections. Council subsequently directed staff to install gages as appropriate to support a robust database. BACKGROUND: The City is committed to providing a safe, legal and reliable water supply to the Utility’s customers as well as protecting the health of the local water bodies and their ecosystems. Understanding watersheds and streamflow is important for both of these goals. To that end, staff is implementing a monitoring program, of which the Roaring Fork USGS gaging station is one component. In October 2018, the City installed a similar USGS gage on Maroon Creek near its headgate. DISCUSSION: In December of 2017, City staff began conversations with the Aspen Consolidated Sanitation District (ACSD) about the status of their existing stream gage on ACSD property, which at the time was maintained by the Colorado Department of Water Resources P50 VI.d (DWR). The gage needed to be renovated and the DWR had indicated that it was no longer interested in continuing maintenance. The existing site was determined to be beneficial for collecting flow data on the Roaring Fork River for environmental, water rights and recreational uses. The ACSD also valued this location for collecting flow data for reporting on effluent standards for their discharge permit. USGS staff visited the site and determined that it would be suitable for their equipment and they were willing to provide on-going maintenance of the site. A partnership between the City and ACSD was formed to share 50-50 in the costs to install and operate this gaging station. In June 2018 a joint funding agreement (See Attachment A) was entered into between the USGS and the City and ACSD. This agreement provided for the installation and 6 months of operation of the site. The site was operational June 2018 and is currently collecting data. The data is available on the USGS website at: https://waterdata.usgs.gov/nwis/uv?site_no=09076300 Staff recommends that the City enter into a 5-year agreement with the USGS for the operation and maintenance of this gage. Included in the maintenance and operation is the compilation of a database available online to the public. FINACIAL/BUDGET IMPACTS: Sufficient annual operating budget authority exists in the Water Fund to cover this expense; which is distributed as follows: PERIOD FUNDING 2019 $ 8,846 2020 $ 9,067 2021 $ 9,294 2022 $ 9,526 2023 $ 9,764 TOTAL $46,497 ENVIRONMENTAL IMPACTS: Collecting data and developing a robust historic record are important components of understanding the City’s impacts on the local environment and developing strategies for minimizing environmental impacts. RECOMMENDED ACTION: Council is requested to consider adoption of Resolution 26, Series of 2019 which directs staff to enter into a 5-year contract with the USGS for the operation and maintenance of the Roaring Fork gage. ALTERNATIVES: If Council chooses not to support this resolution, the gage will not be funded. PROPOSED MOTION: I move to approve Resolution #26, Series of 2019. P51 VI.d CITY MANAGER COMMENTS: ATTACHMENTS: Attachment A – Joint Funding Agreement between the City of Aspen, ACSD and the USGS Attachment B – Contract between the City of Aspen and the USGS Attachment C – Resolution #26, Series of 2019 P52 VI.d Resolution # 26 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, DIRECTING THE CITY MANAGER TO ENTER INTO A FIVE- YEAR CONTRACT WITH THE US GEOLOGICAL SURVEY FOR THE OPERATION AND MAINTENANCE OF A GAGING STATION LOCATED ON ROARING FORK RIVER DOWNSTREAM FROM THE CONFLUENCE WITH MAROON CREEK FOR THE PURPOSES OF ENHANCING THE UNDERSTANDING OF OUR WATERSHEDS. WHEREAS, the City, strives to be a wise steward and protector of local water resources; and WHEREAS, the Aspen Consolidated Sanitation District (ACSD) monitors streamflows in the Roaring Fork River downstream from the confluence with Maroon Creek; and WHEREAS, one of the missions of the United States Geologic Survey (USGS) is to protect our nation’s water through monitoring and assessing water resources; and WHEREAS, the City and ACSD have agreed to jointly fund the operation and maintenance of the USGS site; and WHEREAS, the USGS has prepared a five-year contract for the operation and maintenance of the Maroon Creek gage for an amount of $92,994; and Whereas, the City has agreed to provide 50% of this fee and the ACSD has agree to provide 50% of this fee; and WHEREAS, the City believes that this data will be useful in maintaining safe and reliable water supplies for a vibrant community while balancing the needs of its surrounding natural environment, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen does hereby authorize the City Manager to execute a five-year contract between the City of Aspen and the US Geological Survey for the operation and maintenance of the Roaring Fork gage. P53 VI.d INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of February 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, February 25, 2019. Linda Manning, City Clerk P54 VI.d P55 VI.d P56 VI.d P57 VI.d P58 VI.d P59 VI.d P60 VI.d P61 VI.d 1 MEMORANDUM TO: Mayor and Council FROM : Jeff Pendarvis, Interim Capital Asset Director THRU: Scott Miller, Public Works Director / Interim Assistant City Manager DATE: February 19, 2019 for February 25, 2019 meeting RE: Resolution #28, Series of 2019 - 312 W. Hyman Avenue - Real Estate Contract SUMMARY PREVIOUS COUNCIL ACTION: The City purchased the property located at 312 W. Hyman Avenue and legally described as Lots P and Q, block 46 in the City of Aspen, on March 12, 2007 from Jordan V. Gerberg as detailed in that real estate contract dated November 28, 2006, for the purchase price of $3,500,000. In 2009 was listed for an asking price of $3.5 million. During the initial listing the property generated little interest and had no showings and only two offers to trade the property. City Council had the property appraised by Aspen Appraisal Group for $2,650,000. During the scrutiny of the property in 2009 it was revealed that the property only yields 5 TDRs and not the 7-8 previously thought. Given the economy and state of the real estate market at that time, Council decided to hold the property instead of taking less that the purchase price and it was determined to continue to rent out the home. BACKGROUND: Upon purchasing the property with 150 Housing Development Funds, the City designated it as an historic property to the Aspen Inventory of Historic Landmark Sites and Structures. Ordinance No. 45, Series of 2006 approved the designation. The home is a two-story Swiss chalet style with some 1533 square feet of gross living area above grade and was built in 1956. It is on an approximate 6,000 square foot lot. The property has been rented since initial purchase date up until Summer 2018. The property was listed for sale through our broker agent, Andrew Ernemann with Aspen Snowmass Sotheby’s International Realty, at an asking price of $4,895,000.00. In June 2018 the contract with the broker was extended and changed the listing price to $4,400,000.00. On January 15, 2019 our broker presented an offer (exhibit A) of $3.6 million, 5% earnest money, 120 days for all buyer contingencies, 140 day closing, and a few additional conditions including the buyer achieving HPC conceptual approval prior to the closing (including some bonus square footage), actual removal of three of the five trees along the alley, and resolution on the western property line retaining wall that appeared to be failing. The City countered. This counter offer (exhibit B) is for $3,800,000 and it was accepted by the buyer. On January 22, 2019 we received earnest money of $190,000.00. The contract includes a City Council approval provision. P62 VI.e 2 DISCUSSION: As a rental, the property was producing a modest income and covers its current expenses. Since the general market has returned, the current contract is able to obtain over the initial purchase price. This transaction will mean the 150 Housing Development Fund will be replenished with the proceeds and will be recouping the initial purchase price. · Seller has provided all due diligence documents on the property and they have been forwarded to the Buyer, as well as title and survey · Contract requires Seller provide written notice of City Council Approval to Buyer by the deadline of March 1, 2019 · Buyers have until May 20, 2019 to complete their due diligence and make objections · Buyer/Seller have until May 28, 2019 to come to a resolution on any objections · Closing Date is June 7, 2019 FINANCIAL IMPLICATIONS: Sale price is $3,800,000.00, proceeds of the sale, based on the Preliminary Settlement Statement (Exhibit C) will be the sale price minus closing cost ($7,532.25) and commissions to be paid at closing: 2.0% ($76,000) of purchase price to Aspen Snowmass Sotheby's International Realty; 3.0% ($114,000) of purchase price to Compass; (5.0% total-$190K) = an estimated net proceed of $3,602,467.75, which will be returned to the 150 Housing Development Fund. RECOMMENDATION: The property is an underperforming asset for the Housing Development Fund and returns very little for the $3.5 million used to purchase it. The historic designation on the property makes it undesirable to most investors/developers. The opportunity to add onto the structure is limited by the location on the property of the existing house and the proximity to the large trees that line the alley. ALTERNATIVES: No viable alternatives at this time other than to rent the property out to qualified tenants as a single-family home. PROPOSED MOTION: “I move to approve Ordinance # 028” CITY MANAGER COMMENTS: Notes: · Exhibit A – Purchase Contract · Exhibit B – Counter: Fully executed · Exhibit C – Preliminary Seller’s Settlement Statement P63 VI.e RESOLUTION # 028 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AND RATIFYING THE CONTRACT TO BUY AND SELL REAL ESTATE BY AND BETWEEN THE CITY OF ASPEN (SELLER) AND SOPRIS CENTER LLC (BUYER). WHEREAS, there has been submitted to the City Council a Contract to Buy and Sell Real Estate for the sale of 312 W Hopkins Avenue, by and between the City of Aspen, as Seller, and Sopris Center LLC, as Buyer, a true and accurate copy of which is attached hereto as Exhibit “A” (Contract); and, WHEREAS, the Contract was executed by the City Manager upon the express condition that City Council approved and ratified the Contract and notice of such approval was provided to the Buyer on or before March 1, 2019, or the Contract would be considered terminated. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves and ratifies the Contract to Buy and Sell Real Estate by and between the City of Aspen and Sopris Center LLC, a copy of which is annexed hereto and incorporated herein, and does hereby authorize and direct the City Manager to provide written notice of such approval to Buyer on or before March 1, 2019. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of February 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 on the day hereinabove stated. Linda Manning, City Clerk P64 VI.e 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 Compass Colorado, LLC d/b/a Compass Doug Leibinger Ph: 970-925-6063 The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission. (CBS1-6-18) (Mandatory 1-19) THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. CONTRACT TO BUY AND SELL REAL ESTATE (RESIDENTIAL) Date: 1/14/2019 AGREEMENT 1. AGREEMENT. Buyer agrees to buy and Seller agrees to sell the Property described below on the terms and conditions set forth in this contract (Contract). 2. PARTIES AND PROPERTY. 2.1. Buyer. Sopris Center LLC, A Louisiana Limited Liability Company (Buyer) will take title to the Property described below as Joint Tenants Tenants In Common Other TBD prior to closing. 2.2. No Assignability. This Contract IS NOT assignable by Buyer unless otherwise specified in Additional Provisions. 2.3. Seller.City of Aspen (Seller) is the current owner of the Property described below. 2.4. Property. The Property is the following legally described real estate in the County of Pitkin, Colorado: Subdivision: CITY AND TOWNSITE OF ASPEN Block: 46 Lot: P AND:- Lot: Q known as No. 312 W Hyman Street, Aspen, CO 81611, together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto, and all interest of Seller in vacated streets and alleys adjacent thereto except as herein excluded (Property). 2.5. Inclusions. The Purchase Price includes the following items (Inclusions): 2.5.1. Inclusions - Attached. If attached to the Property on the date of this Contract, the following items are included unless excluded under Exclusions: lighting, heating, plumbing, ventilating and air conditioning units, TV antennas, inside telephone, network and coaxial (cable) wiring and connecting blocks/jacks, plants, mirrors, floor coverings, intercom systems, built-in kitchen appliances, sprinkler systems and controls, built-in vacuum systems (including accessories) and garage door openers (including remote controls). If checked, the following are owned by the Seller and included (leased items should be listed under Due Diligence Documents): None Solar Panels Water Softeners Security Systems Satellite Systems (including satellite dishes). If any additional items are attached to the Property after the date of this Contract, such additional items are also included in the Purchase Price. 2.5.2. Inclusions - Not Attached. If on the Property, whether attached or not, on the date of this Contract, the following items are included unless excluded under Exclusions: storm windows, storm doors, window and porch shades, awnings, blinds, screens, window coverings and treatments, curtain rods, drapery rods, fireplace inserts, fireplace screens, fireplace grates, heating stoves, storage sheds, carbon monoxide alarms, smoke/fire detectors and all keys. 2.5.3. Personal Property - Conveyance. Any personal property must be conveyed at Closing by Seller free and clear of all taxes (except personal property taxes for the year of Closing), liens and encumbrances, except None other. CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 1 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P65 VI.e 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 Conveyance of all personal property will be by bill of sale or other applicable legal instrument. 2.5.4. Other Inclusions. The following items, whether fixtures or personal property, are also included in the Purchase Price: If the box is checked, Buyer and Seller have concurrently entered into a separate agreement for additional personal property outside of this Contract. 2.5.5. Parking and Storage Facilities. The use or ownership of the following parking facilities: Those appurtenant to said Property.; and the use or ownership of the following storage facilities: Those appurtenant to said Property.. Note to Buyer: If exact rights to the parking and storage facilities is a concern to Buyer, Buyer should investigate. 2.6. Exclusions. The following items are excluded (Exclusions):None 2.7. Water Rights/Well Rights. 2.7.1. Deeded Water Rights. The following legally described water rights: n/a Any deeded water rights will be conveyed by a good and sufficient n/a deed at Closing. 2.7.2. Other Rights Relating to Water. The following rights relating to water not included in §§ 2.7.1, 2.7.3 and 2.7.4, will be transferred to Buyer at Closing: n/a 2.7.3. Well Rights. Seller agrees to supply required information to Buyer about the well. Buyer understands that if the well to be transferred is a “Small Capacity Well” or a “Domestic Exempt Water Well” used for ordinary household purposes, Buyer must, prior to or at Closing, complete a Change in Ownership form for the well. If an existing well has not been registered with the Colorado Division of Water Resources in the Department of Natural Resources (Division), Buyer must complete a registration of existing well form for the well and pay the cost of registration. If no person will be providing a closing service in connection with the transaction, Buyer must file the form with the Division within sixty days after Closing. The Well Permit # is n/a. 2.7.4. Water Stock Certificates. The water stock certificates to be transferred at Closing are as follows: 2.7.5. Conveyance. If Buyer is to receive any rights to water pursuant to § 2.7.2 (Other Rights Relating to Water), § 2.7.3 (Well Rights), or § 2.7.4 (Water Stock Certificates), Seller agrees to convey such rights to Buyer by executing the applicable legal instrument at Closing. 3. DATES, DEADLINES AND APPLICABILITY. 3.1 Dates and Deadlines. Item No.Reference Event Date or Deadline 1 4.3 Alternative Earnest Money Deadline 3 Days After MEC Title 2 8.1, § 8.4 Record Title Deadline 7 Days After MEC 3 8.2, § 8.4 Record Title Objection Deadline 120 Days After MEC 4 8.3 Off-Record Title Deadline 7 Days After MEC 5 8.3 Off-Record Title Objection Deadline 120 Days After MEC 6 8.5 Title Resolution Deadline 130 Days After MEC 7 8.6 Right of First Refusal Deadline Owners’ Association 8 7.2 Association Documents Deadline 7 Days After MEC 9 7.4 Association Documents Termination Deadline 120 Days After MEC CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 2 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P66 VI.e 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 Seller's Disclosures 10 10.1 Seller's Property Disclosure Deadline 7 Days After MEC 11 10.10 Lead-Based Paint Disclosure Deadline Loan and Credit 12 5.1 New Loan Application Deadline 13 5.2 New Loan Termination Deadline 14 5.3 Buyer's Credit Information Deadline 15 5.3 Disapproval of Buyer's Credit Information Deadline 16 5.4 Existing Loan Deadline 17 5.4 Existing Loan Termination Deadline 18 5.4 Loan Transfer Approval Deadline 19 4.7 Seller or Private Financing Deadline Appraisal 20 6.2 Appraisal Deadline 21 6.2 Appraisal Objection Deadline 22 6.2 Appraisal Resolution Deadline Survey 23 9.1 New ILC or New Survey Deadline 21 Days After MEC 24 9.3 New ILC or New Survey Objection Deadline 120 Days After MEC 25 9.3 New ILC or New Survey Resolution Deadline 130 Days After MEC Inspection and Due Diligence 26 10.3 Inspection Objection Deadline 120 Days After MEC 27 10.3 Inspection Termination Deadline 28 10.3 Inspection Resolution Deadline 130 Days After MEC 29 10.5 Property Insurance Termination Deadline 120 Days After MEC 30 10.6 Due Diligence Documents Delivery Deadline 7 Days After MEC 31 10.6 Due Diligence Documents Objection Deadline 120 Days After MEC 32 10.6 Due Diligence Documents Resolution Deadline 130 Days After MEC 33 10.7 Conditional Sale Deadline 34 10.10 Lead-Based Paint Termination Deadline Closing and Possession 35 12.3 Closing Date 140 Days After MEC 36 17 Possession Date At Closing 37 17 Possession Time At Closing 38 28 Acceptance Deadline Date 1/16/2019 Wednesday 39 28 Acceptance Deadline Time 5:00 PM MT 40 41 CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 3 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P67 VI.e 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 Note: If FHA or VA loan boxes are checked in § 4.5.3 (Loan Limitations), the Appraisal deadlines DO NOT apply to FHA insured or VA guaranteed loans. 3.2. Applicability of Terms. Any box checked in this Contract means the corresponding provision applies. If any deadline blank in § 3.1 (Dates and Deadlines) is left blank or completed with the abbreviation “N/A”, or the word “Deleted,” such deadline is not applicable and the corresponding provision containing the deadline is deleted. If no box is checked in a provision that contains a selection of “None”, such provision means that “None” applies. The abbreviation “MEC” (mutual execution of this Contract) means the date upon which both parties have signed this Contract. 4. PURCHASE PRICE AND TERMS. 4.1. Price and Terms. The Purchase Price set forth below is payable in U.S. Dollars by Buyer as follows: Item No. Reference Item Amount Amount 1 4.1 Purchase Price $3,600,000.00 2 4.3 Earnest Money $180,000.00 3 4.5 New Loan 4 4.6 Assumption Balance 5 4.7 Private Financing 6 4.7 Seller Financing 7 8 9 4.4 Cash at Closing $3,420,000.00 10 TOTAL $3,600,000.00 $3,600,000.00 4.2. Seller Concession. At Closing, Seller will credit to Buyer $ n/a (Seller Concession). The Seller Concession may be used for any Buyer fee, cost, charge or expenditure to the extent the amount is allowed by the Buyer’s lender and is included in the Closing Statement or Closing Disclosure at Closing. Examples of allowable items to be paid for by the Seller Concession include, but are not limited to: Buyer’s closing costs, loan discount points, loan origination fees, prepaid items and any other fee, cost, charge, expense or expenditure. Seller Concession is in addition to any sum Seller has agreed to pay or credit Buyer elsewhere in this Contract. 4.3. Earnest Money. The Earnest Money set forth in this Section, in the form of a check or wire transfer, will be payable to and held by Attorney`s Title Insurance Agency (Earnest Money Holder), in its trust account, on behalf of both Seller and Buyer. The Earnest Money deposit must be tendered, by Buyer, with this Contract unless the parties mutually agree to an Alternative Earnest Money Deadline for its payment. The parties authorize delivery of the Earnest Money deposit to the company conducting the Closing (Closing Company), if any, at or before Closing. In the event Earnest Money Holder has agreed to have interest on Earnest Money deposits transferred to a fund established for the purpose of providing affordable housing to Colorado residents, Seller and Buyer acknowledge and agree that any interest accruing on the Earnest Money deposited with the Earnest Money Holder in this transaction will be transferred to such fund. 4.3.1. Alternative Earnest Money Deadline. The deadline for delivering the Earnest Money, if other than at the time of tender of this Contract, is as set forth as the Alternative Earnest Money Deadline. 4.3.2. Return of Earnest Money. If Buyer has a Right to Terminate and timely terminates, Buyer is entitled to the return of Earnest Money as provided in this Contract. If this Contract is terminated as set forth in § 25 and, except as provided in § 24 (Earnest Money Dispute), if the Earnest Money has not already been returned following receipt of a Notice to Terminate, Seller agrees to execute and return to CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 4 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P68 VI.e 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 Buyer or Broker working with Buyer, written mutual instructions (e.g., Earnest Money Release form), within three days of Seller’s receipt of such form. 4.4. Form of Funds; Time of Payment; Available Funds. 4.4.1. Good Funds. All amounts payable by the parties at Closing, including any loan proceeds, Cash at Closing and closing costs, must be in funds that comply with all applicable Colorado laws, including electronic transfer funds, certified check, savings and loan teller’s check and cashier’s check (Good Funds). 4.4.2. Time of Payment; Available Funds. All funds, including the Purchase Price to be paid by Buyer, must be paid before or at Closing or as otherwise agreed in writing between the parties to allow disbursement by Closing Company at Closing OR SUCH NONPAYING PARTY WILL BE IN DEFAULT. Buyer represents that Buyer, as of the date of this Contract, Does Does Not have funds that are immediately verifiable and available in an amount not less than the amount stated as Cash at Closing in 4.1. 4.5. New Loan. (Omitted as inapplicable) 4.6. Assumption. (Omitted as inapplicable) 4.7. Seller or Private Financing. (Omitted as inapplicable) TRANSACTION PROVISIONS 5. FINANCING CONDITIONS AND OBLIGATIONS. 5.1. New Loan Application. If Buyer is to pay all or part of the Purchase Price by obtaining one or more new loans (New Loan), or if an existing loan is not to be released at Closing, Buyer, if required by such lender, must make an application verifiable by such lender, on or before New Loan Application Deadline and exercise reasonable efforts to obtain such loan or approval. 5.2. New Loan Review. If Buyer is to pay all or part of the Purchase Price with a New Loan, this Contract is conditional upon Buyer determining, in Buyer’s sole subjective discretion, whether the New Loan is satisfactory to Buyer, including its availability, payments, interest rate, terms, conditions and cost. This condition is for the sole benefit of Buyer. Buyer has the Right to Terminate under § 25.1, on or before New Loan Termination Deadline, if the New Loan is not satisfactory to Buyer, in Buyer’s sole subjective discretion. Buyer does not have a Right to Terminate based on the New Loan if the objection is based on the Appraised Value (defined below) or the Lender Requirements (defined below). IF SELLER IS NOT IN DEFAULT AND DOES NOT TIMELY RECEIVE BUYER’S WRITTEN NOTICE TO TERMINATE, BUYER’S EARNEST MONEY WILL BE NONREFUNDABLE, except as otherwise provided in this Contract (e.g., Appraisal, Title, Survey). 5.3. Credit Information and Buyer’s New Senior Loan. (Omitted as inapplicable) 5.4. Existing Loan Review. (Omitted as inapplicable) 6. APPRAISAL PROVISIONS. 6.1. Appraisal Definition. An “Appraisal” is an opinion of value prepared by a licensed or certified appraiser, engaged on behalf of Buyer or Buyer’s lender, to determine the Property’s market value (Appraised Value). The Appraisal may also set forth certain lender requirements, replacements, removals or repairs necessary on or to the Property as a condition for the Property to be valued at the Appraised Value. 6.2. Appraisal Condition. The applicable appraisal provision set forth below applies to the respective loan type set forth in § 4.5.3, or if a cash transaction (i.e. no financing), § 6.2.1 applies. 6.2.1. Conventional/Other. Buyer has the right to obtain an Appraisal. If the Appraised Value is less than the Purchase Price, or if the Appraisal is not received by Buyer on or before Appraisal Deadline Buyer may, on or before Appraisal Objection Deadline: 6.2.1.1. Notice to Terminate. Notify Seller in writing, pursuant to § 25.1, that this Contract is terminated; or 6.2.1.2. Appraisal Objection. Deliver to Seller a written objection accompanied by either a copy of the Appraisal or written notice from lender that confirms the Appraised Value is less than the Purchase Price (Lender Verification). 6.2.1.3. Appraisal Resolution. If an Appraisal Objection is received by Seller, on or CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 5 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P69 VI.e 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 before Appraisal Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Appraisal Resolution Deadline, this Contract will terminate on the Appraisal Resolution Deadline, unless Seller receives Buyer’s written withdrawal of the Appraisal Objection before such termination, i.e., on or before expiration of Appraisal Resolution Deadline. 6.2.2. FHA. It is expressly agreed that, notwithstanding any other provisions of this Contract, the purchaser (Buyer) shall not be obligated to complete the purchase of the Property described herein or to incur any penalty by forfeiture of Earnest Money deposits or otherwise unless the purchaser (Buyer) has been given, in accordance with HUD/FHA or VA requirements, a written statement issued by the Federal Housing Commissioner, Department of Veterans Affairs, or a Direct Endorsement lender, setting forth the appraised value of the Property of not less than $ . The purchaser (Buyer) shall have the privilege and option of proceeding with the consummation of this Contract without regard to the amount of the appraised valuation. The appraised valuation is arrived at to determine the maximum mortgage the Department of Housing and Urban Development will insure. HUD does not warrant the value nor the condition of the Property. The purchaser (Buyer) should satisfy himself/herself that the price and condition of the Property are acceptable. 6.2.3. VA. It is expressly agreed that, notwithstanding any other provisions of this Contract, the purchaser (Buyer) shall not incur any penalty by forfeiture of Earnest Money or otherwise or be obligated to complete the purchase of the Property described herein, if the Contract Purchase Price or cost exceeds the reasonable value of the Property established by the Department of Veterans Affairs. The purchaser (Buyer) shall, however, have the privilege and option of proceeding with the consummation of this Contract without regard to the amount of the reasonable value established by the Department of Veterans Affairs. 6.3. Lender Property Requirements. If the lender imposes any written requirements, replacements, removals or repairs, including any specified in the Appraisal (Lender Requirements) to be made to the Property (e.g., roof repair, repainting), beyond those matters already agreed to by Seller in this Contract, this Contract terminates on the earlier of three days following Seller’s receipt of the Lender Requirements, or Closing, unless prior to termination: (1) the parties enter into a written agreement to satisfy the Lender Requirements; (2) the Lender Requirements have been completed; or (3) the satisfaction of the Lender Requirements is waived in writing by Buyer. 6.4. Cost of Appraisal. Cost of the Appraisal to be obtained after the date of this Contract must be timely paid by Buyer Seller. The cost of the Appraisal may include any and all fees paid to the appraiser, appraisal management company, lender’s agent or all three. 7. OWNERS’ ASSOCIATION. This Section is applicable if the Property is located within a Common Interest Community and subject to the declaration (Association). 7.1. Common Interest Community Disclosure. THE PROPERTY IS LOCATED WITHIN A COMMON INTEREST COMMUNITY AND IS SUBJECT TO THE DECLARATION FOR THE COMMUNITY. THE OWNER OF THE PROPERTY WILL BE REQUIRED TO BE A MEMBER OF THE OWNERS’ ASSOCIATION FOR THE COMMUNITY AND WILL BE SUBJECT TO THE BYLAWS AND RULES AND REGULATIONS OF THE ASSOCIATION. THE DECLARATION, BYLAWS AND RULES AND REGULATIONS WILL IMPOSE FINANCIAL OBLIGATIONS UPON THE OWNER OF THE PROPERTY, INCLUDING AN OBLIGATION TO PAY ASSESSMENTS OF THE ASSOCIATION. IF THE OWNER DOES NOT PAY THESE ASSESSMENTS, THE ASSOCIATION COULD PLACE A LIEN ON THE PROPERTY AND POSSIBLY SELL IT TO PAY THE DEBT. THE DECLARATION, BYLAWS AND RULES AND REGULATIONS OF THE COMMUNITY MAY PROHIBIT THE OWNER FROM MAKING CHANGES TO THE PROPERTY WITHOUT AN ARCHITECTURAL REVIEW BY THE ASSOCIATION (OR A COMMITTEE OF THE ASSOCIATION) AND THE APPROVAL OF THE ASSOCIATION. PURCHASERS OF PROPERTY WITHIN THE COMMON INTEREST COMMUNITY SHOULD INVESTIGATE THE FINANCIAL OBLIGATIONS OF MEMBERS OF THE ASSOCIATION. PURCHASERS SHOULD CAREFULLY READ THE DECLARATION FOR THE COMMUNITY AND THE BYLAWS AND RULES AND REGULATIONS OF THE ASSOCIATION. 7.2. Association Documents to Buyer. Seller is obligated to provide to Buyer the Association Documents (defined below), at Seller’s expense, on or before Association Documents Deadline. Seller authorizes the Association to provide the Association Documents to Buyer, at Seller’s expense. Seller’s obligation to provide the Association Documents is fulfilled upon Buyer’s receipt of the Association Documents, regardless of who provides such documents. CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 6 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P70 VI.e 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 7.3. Association Documents. Association documents (Association Documents) consist of the following: 7.3.1. All Association declarations, articles of incorporation, bylaws, articles of organization, operating agreements, rules and regulations, party wall agreements and the Association’s responsible governance policies adopted under § 38-33.3-209.5, C.R.S.; 7.3.2. Minutes of: (1) the annual owners’ or members’ meeting and (2) any executive boards’ or managers’ meetings; such minutes include those provided under the most current annual disclosure required under § 38-33.3-209.4, C.R.S. (Annual Disclosure) and minutes of meetings, if any, subsequent to the minutes disclosed in the Annual Disclosure. If none of the preceding minutes exist, then the most recent minutes, if any (§§ 7.3.1 and 7.3.2, collectively, Governing Documents); and 7.3.3. List of all Association insurance policies as provided in the Association’s last Annual Disclosure, including, but not limited to, property, general liability, association director and officer professional liability and fidelity policies. The list must include the company names, policy limits, policy deductibles, additional named insureds and expiration dates of the policies listed (Association Insurance Documents); 7.3.4. A list by unit type of the Association’s assessments, including both regular and special assessments as disclosed in the Association’s last Annual Disclosure; 7.3.5. The Association’s most recent financial documents which consist of: (1) the Association’s operating budget for the current fiscal year, (2) the Association’s most recent annual financial statements, including any amounts held in reserve for the fiscal year immediately preceding the Association’s last Annual Disclosure, (3) the results of the Association’s most recent available financial audit or review, (4) list of the fees and charges (regardless of name of title of such fees or charges) that the Association’s community association manager or Association will charge in connection with the Closing including, but not limited to, any fee incident to the issuance of the Association’s statement of assessments (Status Letter), any rush or update fee charged for the Status Letter, any record change fee or ownership record transfer fees (Record Change Fee), fees to access documents, (5) list of all assessments required to be paid in advance, reserves or working capital due at Closing and (6) reserve study, if any (§§ 7.3.4 and 7.3.5, collectively, Financial Documents); 7.3.6. Any written notice from the Association to Seller of a “construction defect action” under § 38-33.3-303.5, C.R.S. within the past six months and the result of whether the Association approved or disapproved such action (Construction Defect Documents). Nothing in this Section limits the Seller’s obligation to disclose adverse material facts as required under § 10.2 (Disclosure of Adverse Material Facts; Subsequent Disclosure; Present Condition) including any problems or defects in the common elements or limited common elements of the Association property. 7.4. Conditional on Buyer’s Review. Buyer has the right to review the Association Documents. Buyer has the Right to Terminate under § 25.1, on or before Association Documents Termination Deadline, based on any unsatisfactory provision in any of the Association Documents, in Buyer’s sole subjective discretion. Should Buyer receive the Association Documents after Association Documents Deadline, Buyer, at Buyer’s option, has the Right to Terminate under § 25.1 by Buyer’s Notice to Terminate received by Seller on or before ten days after Buyer’s receipt of the Association Documents. If Buyer does not receive the Association Documents, or if Buyer’s Notice to Terminate would otherwise be required to be received by Seller after Closing Date, Buyer’s Notice to Terminate must be received by Seller on or before Closing. If Seller does not receive Buyer’s Notice to Terminate within such time, Buyer accepts the provisions of the Association Documents as satisfactory and Buyer waives any Right to Terminate under this provision, notwithstanding the provisions of § 8.6 (Right of First Refusal or Contract Approval). 8. TITLE INSURANCE, RECORD TITLE AND OFF-RECORD TITLE. 8.1. Evidence of Record Title. 8.1.1. Seller Selects Title Insurance Company.If this box is checked, Seller will select the title insurance company to furnish the owner’s title insurance policy at Seller’s expense. On or before Record Title Deadline, Seller must furnish to Buyer, a current commitment for an owner’s title insurance policy (Title Commitment), in an amount equal to the Purchase Price, or if this box is checked, an Abstract of Title certified to a current date. Seller will cause the title insurance policy to be issued and delivered to Buyer as soon as practicable at or after Closing. 8.1.2. Buyer Selects Title Insurance Company. If this box is checked, Buyer will select the CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 7 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P71 VI.e 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 title insurance company to furnish the owner’s title insurance policy at Buyer’s expense. On or before Record Title Deadline, Buyer must furnish to Seller, a current commitment for owner’s title insurance policy (Title Commitment), in an amount equal to the Purchase Price. If neither box in § 8.1.1 or § 8.1.2 is checked, § 8.1.1 applies. 8.1.3. Owner’s Extended Coverage (OEC). The Title Commitment Will Will Not contain Owner’s Extended Coverage (OEC). If the Title Commitment is to contain OEC, it will commit to delete or insure over the standard exceptions which relate to: (1) parties in possession, (2) unrecorded easements, (3) survey matters, (4) unrecorded mechanics’ liens, (5) gap period (period between the effective date and time of commitment to the date and time the deed is recorded) and (6) unpaid taxes, assessments and unredeemed tax sales prior to the year of Closing. Any additional premium expense to obtain OEC will be paid by Buyer Seller One-Half by Buyer and One-Half by Seller Other . Regardless of whether the Contract requires OEC, the Title Insurance Commitment may not provide OEC or delete or insure over any or all of the standard exceptions for OEC. The Title Insurance Company may require a New Survey or New ILC, defined below, among other requirements for OEC. If the Title Insurance Commitment is not satisfactory to Buyer, Buyer has a right to object under § 8.5 (Right to Object to Title, Resolution). 8.1.4. Title Documents. Title Documents consist of the following: (1) copies of any plats, declarations, covenants, conditions and restrictions burdening the Property and (2) copies of any other documents (or, if illegible, summaries of such documents) listed in the schedule of exceptions (Exceptions) in the Title Commitment furnished to Buyer (collectively, Title Documents). 8.1.5. Copies of Title Documents. Buyer must receive, on or before Record Title Deadline, copies of all Title Documents. This requirement pertains only to documents as shown of record in the office of the clerk and recorder in the county where the Property is located. The cost of furnishing copies of the documents required in this Section will be at the expense of the party or parties obligated to pay for the owner’s title insurance policy. 8.1.6. Existing Abstracts of Title. Seller must deliver to Buyer copies of any abstracts of title covering all or any portion of the Property (Abstract of Title) in Seller’s possession on or before Record Title Deadline. 8.2. Record Title. Buyer has the right to review and object to the Abstract of Title or Title Commitment and any of the Title Documents as set forth in § 8.5 (Right to Object to Title, Resolution) on or before Record Title Objection Deadline. Buyer’s objection may be based on any unsatisfactory form or content of Title Commitment or Abstract of Title, notwithstanding § 13, or any other unsatisfactory title condition, in Buyer’s sole subjective discretion. If the Abstract of Title, Title Commitment or Title Documents are not received by Buyer on or before the Record Title Deadline, or if there is an endorsement to the Title Commitment that adds a new Exception to title, a copy of the new Exception to title and the modified Title Commitment will be delivered to Buyer. Buyer has until the earlier of Closing or ten days after receipt of such documents by Buyer to review and object to: (1) any required Title Document not timely received by Buyer, (2) any change to the Abstract of Title, Title Commitment or Title Documents, or (3) any endorsement to the Title Commitment. If Seller receives Buyer’s Notice to Terminate or Notice of Title Objection, pursuant to this § 8.2 (Record Title), any title objection by Buyer is governed by the provisions set forth in § 8.5 (Right to Object to Title, Resolution). If Seller has fulfilled all Seller’s obligations, if any, to deliver to Buyer all documents required by § 8.1 (Evidence of Record Title) and Seller does not receive Buyer’s Notice to Terminate or Notice of Title Objection by the applicable deadline specified above, Buyer accepts the condition of title as disclosed by the Abstract of Title, Title Commitment and Title Documents as satisfactory. 8.3. Off-Record Title. Seller must deliver to Buyer, on or before Off-Record Title Deadline, true copies of all existing surveys in Seller’s possession pertaining to the Property and must disclose to Buyer all easements, liens (including, without limitation, governmental improvements approved, but not yet installed) or other title matters (including, without limitation, rights of first refusal and options) not shown by public records, of which Seller has actual knowledge (Off-Record Matters). This Section excludes any New ILC or New Survey governed under § 9 (New ILC, New Survey). Buyer has the right to inspect the Property to investigate if any third party has any right in the Property not shown by public records (e.g., unrecorded easement, boundary line discrepancy or water rights). Buyer’s Notice to Terminate or Notice of Title Objection of any unsatisfactory condition (whether disclosed by Seller or revealed by such inspection, notwithstanding § 8.2 CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 8 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P72 VI.e 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 (Record Title) and § 13 (Transfer of Title)), in Buyer’s sole subjective discretion, must be received by Seller on or before Off-Record Title Objection Deadline. If an Off-Record Matter is received by Buyer after the Off-Record Title Deadline, Buyer has until the earlier of Closing or ten days after receipt by Buyer to review and object to such Off-Record Matter. If Seller receives Buyer’s Notice to Terminate or Notice of Title Objection pursuant to this § 8.3 (Off-Record Title), any title objection by Buyer is governed by the provisions set forth in § 8.5 (Right to Object to Title, Resolution). If Seller does not receive Buyer’s Notice to Terminate or Notice of Title Objection by the applicable deadline specified above, Buyer accepts title subject to such Off-Record Matters and rights, if any, of third parties not shown by public records of which Buyer has actual knowledge. 8.4. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND TAX TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYERS SHOULD INVESTIGATE THE SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS LOCATED BY CONTACTING THE COUNTY TREASURER, BY REVIEWING THE CERTIFICATE OF TAXES DUE FOR THE PROPERTY AND BY OBTAINING FURTHER INFORMATION FROM THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY CLERK AND RECORDER, OR THE COUNTY ASSESSOR. A tax certificate from the respective county treasurer listing any special taxing districts that effect the Property (Tax Certificate) must be delivered to Buyer on or before Record Title Deadline. If the Property is located within a special taxing district and such inclusion is unsatisfactory to Buyer, in Buyer’s sole subjective discretion, Buyer may object, on or before Record Title Objection Deadline. If the Tax Certificate shows that the Property is included in a special taxing district and is received by Buyer after the Record Title Deadline, Buyer has until the earlier of Closing or ten days after receipt by Buyer to review and object to the Property’s inclusion in a special taxing district as unsatisfactory to Buyer. 8.5. Right to Object to Title, Resolution. Buyer’s right to object, in Buyer’s sole subjective discretion, to any title matters includes those matters set forth in § 8.2 (Record Title), § 8.3 (Off-Record Title), § 8.4 (Special Taxing District) and § 13 (Transfer of Title). If Buyer objects to any title matter, on or before the applicable deadline, Buyer has the following options: 8.5.1. Title Objection, Resolution. If Seller receives Buyer’s written notice objecting to any title matter (Notice of Title Objection) on or before the applicable deadline and if Buyer and Seller have not agreed to a written settlement thereof on or before Title Resolution Deadline, this Contract will terminate on the expiration of Title Resolution Deadline, unless Seller receives Buyer’s written withdrawal of Buyer’s Notice of Title Objection (i.e., Buyer’s written notice to waive objection to such items and waives the Right to Terminate for that reason), on or before expiration of Title Resolution Deadline. If either the Record Title Deadline or the Off-Record Title Deadline, or both, are extended pursuant to § 8.2 (Record Title), § 8.3 (Off-Record Title) or § 8.4 (Special Taxing Districts), the Title Resolution Deadline also will be automatically extended to the earlier of Closing or fifteen days after Buyer’s receipt of the applicable documents; or 8.5.2. Title Objection, Right to Terminate. Buyer may exercise the Right to Terminate under § 25.1, on or before the applicable deadline, based on any title matter unsatisfactory to Buyer, in Buyer’s sole subjective discretion. 8.6. Right of First Refusal or Contract Approval. If there is a right of first refusal on the Property or a right to approve this Contract, Seller must promptly submit this Contract according to the terms and conditions of such right. If the holder of the right of first refusal exercises such right or the holder of a right to approve disapproves this Contract, this Contract will terminate. If the right of first refusal is waived explicitly or expires, or the Contract is approved, this Contract will remain in full force and effect. Seller must promptly notify Buyer in writing of the foregoing. If expiration or waiver of the right of first refusal or approval of this Contract has not occurred on or before Right of First Refusal Deadline, this Contract will then terminate. 8.7. Title Advisory. The Title Documents affect the title, ownership and use of the Property and should be reviewed carefully. Additionally, other matters not reflected in the Title Documents may affect the title, ownership and use of the Property, including, without limitation, boundary lines and encroachments, set-back requirements, area, zoning, building code violations, unrecorded easements and claims of easements, leases and other unrecorded agreements, water on or under the Property, and various laws and CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 9 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P73 VI.e 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 governmental regulations concerning land use, development and environmental matters. 8.7.1. OIL, GAS, WATER AND MINERAL DISCLOSURE. THE SURFACE ESTATE OF THE PROPERTY MAY BE OWNED SEPARATELY FROM THE UNDERLYING MINERAL ESTATE AND TRANSFER OF THE SURFACE ESTATE MAY NOT NECESSARILY INCLUDE TRANSFER OF THE MINERAL ESTATE OR WATER RIGHTS. THIRD PARTIES MAY OWN OR LEASE INTERESTS IN OIL, GAS, OTHER MINERALS, GEOTHERMAL ENERGY OR WATER ON OR UNDER THE SURFACE OF THE PROPERTY, WHICH INTERESTS MAY GIVE THEM RIGHTS TO ENTER AND USE THE SURFACE OF THE PROPERTY TO ACCESS THE MINERAL ESTATE, OIL, GAS OR WATER. 8.7.2. SURFACE USE AGREEMENT. THE USE OF THE SURFACE ESTATE OF THE PROPERTY TO ACCESS THE OIL, GAS OR MINERALS MAY BE GOVERNED BY A SURFACE USE AGREEMENT, A MEMORANDUM OR OTHER NOTICE OF WHICH MAY BE RECORDED WITH THE COUNTY CLERK AND RECORDER. 8.7.3. OIL AND GAS ACTIVITY. OIL AND GAS ACTIVITY THAT MAY OCCUR ON OR ADJACENT TO THE PROPERTY MAY INCLUDE, BUT IS NOT LIMITED TO, SURVEYING, DRILLING, WELL COMPLETION OPERATIONS, STORAGE, OIL AND GAS, OR PRODUCTION FACILITIES, PRODUCING WELLS, REWORKING OF CURRENT WELLS AND GAS GATHERING AND PROCESSING FACILITIES. 8.7.4. ADDITIONAL INFORMATION. BUYER IS ENCOURAGED TO SEEK ADDITIONAL INFORMATION REGARDING OIL AND GAS ACTIVITY ON OR ADJACENT TO THE PROPERTY, INCLUDING DRILLING PERMIT APPLICATIONS. THIS INFORMATION MAY BE AVAILABLE FROM THE COLORADO OIL AND GAS CONSERVATION COMMISSION. 8.7.5. Title Insurance Exclusions. Matters set forth in this Section and others, may be excepted, excluded from, or not covered by the owner’s title insurance policy. 8.8. Consult an Attorney. Buyer is advised to timely consult legal counsel with respect to all such matters as there are strict time limits provided in this Contract (e.g., Record Title Objection Deadline and Off-Record Title Objection Deadline). 9. NEW ILC, NEW SURVEY. 9.1. New ILC or New Survey. If the box is checked, a: 1) New Improvement Location Certificate (New ILC); or, 2) New Survey in the form of ; is required and the following will apply: 9.1.1. Ordering of New ILC or New Survey.Seller Buyer will order the New ILC or New Survey. The New ILC or New Survey may also be a previous ILC or survey that is in the above-required form, certified and updated as of a date after the date of this Contract. 9.1.2. Payment for New ILC or New Survey. The cost of the New ILC or New Survey will be paid, on or before Closing, by: Seller Buyer or: 9.1.3. Delivery of New ILC or New Survey. Buyer, Seller, the issuer of the Title Commitment (or the provider of the opinion of title if an Abstract of Title) and buyers broker and attorney will receive a New ILC or New Survey on or before New ILC or New Survey Deadline. 9.1.4. Certification of New ILC or New Survey. The New ILC or New Survey will be certified by the surveyor to all those who are to receive the New ILC or New Survey. 9.2. Buyer’s Right to Waive or Change New ILC or New Survey Selection. Buyer may select a New ILC or New Survey different than initially specified in this Contract if there is no additional cost to Seller or change to the New ILC or New Survey Objection Deadline. Buyer may, in Buyer’s sole subjective discretion, waive a New ILC or New Survey if done prior to Seller incurring any cost for the same. 9.3. New ILC or New Survey Objection. Buyer has the right to review and object to the New ILC or New Survey. If the New ILC or New Survey is not timely received by Buyer or is unsatisfactory to Buyer, in Buyer’s sole subjective discretion, Buyer may, on or before New ILC or New Survey Objection Deadline, notwithstanding § 8.3 or § 13: 9.3.1. Notice to Terminate. Notify Seller in writing, pursuant to § 25.1, that this Contract is terminated; or 9.3.2. New ILC or New Survey Objection. Deliver to Seller a written description of any matter that was to be shown or is shown in the New ILC or New Survey that is unsatisfactory and that Buyer requires Seller to correct. CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 10 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P74 VI.e 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 9.3.3. New ILC or New Survey Resolution. If a New ILC or New Survey Objection is received by Seller, on or before New ILC or New Survey Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on or before New ILC or New Survey Resolution Deadline, this Contract will terminate on expiration of the New ILC or New Survey Resolution Deadline, unless Seller receives Buyer’s written withdrawal of the New ILC or New Survey Objection before such termination, i.e., on or before expiration of New ILC or New Survey Resolution Deadline. DISCLOSURE, INSPECTION AND DUE DILIGENCE 10. PROPERTY DISCLOSURE, INSPECTION, INDEMNITY, INSURABILITY, DUE DILIGENCE, AND SOURCE OF WATER. 10.1. Seller’s Property Disclosure. On or before Seller’s Property Disclosure Deadline , Seller agrees to deliver to Buyer the most current version of the applicable Colorado Real Estate Commission’s Seller’s Property Disclosure form completed by Seller to Seller’s actual knowledge and current as of the date of this Contract. 10.2. Disclosure of Adverse Material Facts; Subsequent Disclosure; Present Condition. Seller must disclose to Buyer any adverse material facts actually known by Seller as of the date of this Contract. Seller agrees that disclosure of adverse material facts will be in writing. In the event Seller discovers an adverse material fact after the date of this Contract, Seller must timely disclose such adverse fact to Buyer. Buyer has the Right to Terminate based on the Seller’s new disclosure on the earlier of Closing or five days after Buyer’s receipt of the new disclosure. Except as otherwise provided in this Contract, Buyer acknowledges that Seller is conveying the Property to Buyer in an “As Is” condition, “Where Is” and “With All Faults.” 10.3. Inspection. Unless otherwise provided in this Contract, Buyer, acting in good faith, has the right to have inspections (by one or more third parties, personally or both) of the Property and Inclusions (Inspection), at Buyer’s expense. If (1) the physical condition of the Property, including, but not limited to, the roof, walls, structural integrity of the Property, the electrical, plumbing, HVAC and other mechanical systems of the Property, (2) the physical condition of the Inclusions, (3) service to the Property (including utilities and communication services), systems and components of the Property (e.g., heating and plumbing), (4) any proposed or existing transportation project, road, street or highway, or (5) any other activity, odor or noise (whether on or off the Property) and its effect or expected effect on the Property or its occupants is unsatisfactory, in Buyer’s sole subjective discretion, Buyer may: 10.3.1. Inspection Objection. On or before the Inspection Objection Deadline, deliver to Seller a written description of any unsatisfactory condition that Buyer requires Seller to correct; or 10.3.2. Terminate. On or before the Inspection Termination Deadline, notify Seller in writing, pursuant to § 25.1, that this Contract is terminated due to any unsatisfactory condition. Inspection Termination Deadline will be on the earlier of Inspection Resolution Deadline or the date specified in § 3.1 for Inspection Termination Deadline. 10.3.3. Inspection Resolution. If an Inspection Objection is received by Seller, on or before Inspection Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Inspection Resolution Deadline, this Contract will terminate on Inspection Resolution Deadline unless Seller receives Buyer’s written withdrawal of the Inspection Objection before such termination, i.e., on or before expiration of Inspection Resolution Deadline. 10.4. Damage, Liens and Indemnity. Buyer, except as otherwise provided in this Contract or other written agreement between the parties, is responsible for payment for all inspections, tests, surveys, engineering reports, or other reports performed at Buyer’s request (Work) and must pay for any damage that occurs to the Property and Inclusions as a result of such Work. Buyer must not permit claims or liens of any kind against the Property for Work performed on the Property. Buyer agrees to indemnify, protect and hold Seller harmless from and against any liability, damage, cost or expense incurred by Seller and caused by any such Work, claim, or lien. This indemnity includes Seller’s right to recover all costs and expenses incurred by Seller to defend against any such liability, damage, cost or expense, or to enforce this Section, including Seller’s reasonable attorney fees, legal fees and expenses. The provisions of this Section survive the termination of this Contract. This § 10.4 does not apply to items performed pursuant to an Inspection Resolution. CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 11 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P75 VI.e 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 10.5. Insurability. Buyer has the right to review and object to the availability, terms and conditions of and premium for property insurance (Property Insurance). Buyer has the Right to Terminate under § 25.1, on or before Property Insurance Termination Deadline, based on any unsatisfactory provision of the Property Insurance, in Buyer’s sole subjective discretion. 10.6. Due Diligence. 10.6.1. Due Diligence Documents. If the respective box is checked, Seller agrees to deliver copies of the following documents and information pertaining to the Property (Due Diligence Documents) to Buyer on or before Due Diligence Documents Delivery Deadline: 10.6.1.1. All current leases, including any amendments or other occupancy agreements, pertaining to the Property. Those leases or other occupancy agreements pertaining to the Property that survive Closing are as follows (Leases): 10.6.1.2. Other documents and information: Copies of any of the following, to the extent the following exist and are in Seller’s possession: utility bills relating to the Property for the last 12 months; any architectural drawings, blueprints or other plans or specifications regarding any improvements on or to the Property (including but not limited to any as-built construction plans therefor); any warranties, manuals, instructional brochures or similar materials relating to the Property or Inclusions, or their use, operation or maintenance. 10.6.2. Due Diligence Documents Review and Objection. Buyer has the right to review and object to Due Diligence Documents. If the Due Diligence Documents are not supplied to Buyer or are unsatisfactory, in Buyer’s sole subjective discretion, Buyer may, on or before Due Diligence Documents Objection Deadline: 10.6.2.1. Notice to Terminate. Notify Seller in writing, pursuant to § 25.1, that this Contract is terminated; or 10.6.2.2. Due Diligence Documents Objection. Deliver to Seller a written description of any unsatisfactory Due Diligence Documents that Buyer requires Seller to correct. 10.6.2.3. Due Diligence Documents Resolution. If a Due Diligence Documents Objection is received by Seller, on or before Due Diligence Documents Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Due Diligence Documents Resolution Deadline, this Contract will terminate on Due Diligence Documents Resolution Deadline unless Seller receives Buyer’s written withdrawal of the Due Diligence Documents Objection before such termination, i.e., on or before expiration of Due Diligence Documents Resolution Deadline. 10.7. Conditional Upon Sale of Property. This Contract is conditional upon the sale and closing of that certain property owned by Buyer and commonly known as n/a. Buyer has the Right to Terminate under § 25.1 effective upon Seller’s receipt of Buyer’s Notice to Terminate on or before Conditional Sale Deadline if such property is not sold and closed by such deadline. This Section is for the sole benefit of Buyer. If Seller does not receive Buyer’s Notice to Terminate on or before Conditional Sale Deadline, Buyer waives any Right to Terminate under this provision. 10.8. Source of Potable Water (Residential Land and Residential Improvements Only). Buyer Does Does Not acknowledge receipt of a copy of Seller's Property Disclosure or Source of Water Addendum disclosing the source of potable water for the Property. There is No Well. Buyer Does Does Not acknowledge receipt of a copy of the current well permit. Note to Buyer: SOME WATER PROVIDERS RELY, TO VARYING DEGREES, ON NONRENEWABLE GROUND WATER. YOU MAY WISH TO CONTACT YOUR PROVIDER (OR INVESTIGATE THE DESCRIBED SOURCE) TO DETERMINE THE LONG-TERM SUFFICIENCY OF THE PROVIDER’S WATER SUPPLIES. 10.9. Existing Leases; Modification of Existing Leases; New Leases. [Intentionally Deleted] 10.10. Lead-Based Paint 10.10.1. Lead-Based Paint Disclosure. Unless exempt, if the Property includes one or more residential dwellings constructed or a building permit was issued prior to January 1, 1978, for the benefit of Buyer, Seller and all required real estate licensees must sign and deliver to Buyer a completed Lead-Based Paint Disclosure (Sales) form on or before the Lead-Based Paint Disclosure Deadline. If Buyer does not timely receive the Lead-Based Paint Disclosure, Buyer may waive the failure to timely receive the Lead-Based Paint Disclosure, or Buyer may exercise Buyer’s Right to Terminate under § 25.1 by Seller’s receipt of Buyer’s CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 12 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P76 VI.e 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828 829 830 831 832 833 834 835 836 837 838 839 840 841 842 843 844 845 846 847 848 849 850 851 852 853 854 855 856 857 858 Notice to Terminate on or before the expiration of the Lead-Based Paint Termination Deadline. 10.10.2. Lead-Based Paint Assessment. If Buyer elects to conduct or obtain a risk assessment or inspection of the Property for the presence of Lead-Based Paint or Lead-Based Paint hazards, Buyer has a Right to Terminate under § 25.1 by Seller’s receipt of Buyer’s Notice to Terminate on or before the expiration of the Lead-Based Paint Termination Deadline. If Buyer’s Notice to Terminate would otherwise be required to be received by Seller after Closing Date, Buyer’s Notice to Terminate must be received by Seller on or before Closing. Buyer may elect to waive Buyer’s right to conduct or obtain a risk assessment or inspection of the Property for the presence of Lead-Based Paint or Lead-Based Paint hazards. If Seller does not receive Buyer’s Notice to Terminate within such time, Buyer accepts the condition of the Property relative to any Lead-Based Paint as satisfactory and Buyer waives any Right to Terminate under this provision. 10.11. Carbon Monoxide Alarms. Note: If the improvements on the Property have a fuel-fired heater or appliance, a fireplace, or an attached garage and include one or more rooms lawfully used for sleeping purposes (Bedroom), the parties acknowledge that Colorado law requires that Seller assure the Property has an operational carbon monoxide alarm installed within fifteen feet of the entrance to each Bedroom or in a location as required by the applicable building code. 10.12. Methamphetamine Disclosure. If Seller knows that methamphetamine was ever manufactured, processed, cooked, disposed of, used or stored at the Property, Seller is required to disclose such fact. No disclosure is required if the Property was remediated in accordance with state standards and other requirements are fulfilled pursuant to § 25-18.5-102, C.R.S., Buyer further acknowledges that Buyer has the right to engage a certified hygienist or industrial hygienist to test whether the Property has ever been used as a methamphetamine laboratory. Buyer has the Right to Terminate under § 25.1, upon Seller’s receipt of Buyer’s written Notice to Terminate, notwithstanding any other provision of this Contract, based on Buyer’s test results that indicate the Property has been contaminated with methamphetamine, but has not been remediated to meet the standards established by rules of the State Board of Health promulgated pursuant to § 25-18.5-102, C.R.S. Buyer must promptly give written notice to Seller of the results of the test. 11. TENANT ESTOPPEL STATEMENTS. [Intentionally Deleted] CLOSING PROVISIONS 12. CLOSING DOCUMENTS, INSTRUCTIONS AND CLOSING. 12.1. Closing Documents and Closing Information. Seller and Buyer will cooperate with the Closing Company to enable the Closing Company to prepare and deliver documents required for Closing to Buyer and Seller and their designees. If Buyer is obtaining a loan to purchase the Property, Buyer acknowledges Buyer’s lender is required to provide the Closing Company, in a timely manner, all required loan documents and financial information concerning Buyer’s loan. Buyer and Seller will furnish any additional information and documents required by Closing Company that will be necessary to complete this transaction. Buyer and Seller will sign and complete all customary or reasonably-required documents at or before Closing. 12.2. Closing Instructions. Colorado Real Estate Commission’s Closing Instructions Are Are Not executed with this Contract. 12.3. Closing. Delivery of deed from Seller to Buyer will be at closing (Closing). Closing will be on the date specified as the Closing Date or by mutual agreement at an earlier date. The hour and place of Closing will be as designated by title company. 12.4. Disclosure of Settlement Costs. Buyer and Seller acknowledge that costs, quality and extent of service vary between different settlement service providers (e.g., attorneys, lenders, inspectors and title companies). 13. TRANSFER OF TITLE. Subject to Buyer’s compliance with the terms and provisions of this Contract, including the tender of any payment due at Closing, Seller, provided another deed is not selected, must execute and deliver a good and sufficient special warranty deed to Buyer, at Closing. However, if the box is checked, the parties agree to use the corresponding deed instead: general warranty deed bargain and sale deed quit claim deed personal representative’s deed CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 13 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P77 VI.e 859 860 861 862 863 864 865 866 867 868 869 870 871 872 873 874 875 876 877 878 879 880 881 882 883 884 885 886 887 888 889 890 891 892 893 894 895 896 897 898 899 900 901 902 903 904 905 906 907 908 909 910 911 912 913 914 915 916 917 918 919 920 921 922 923 924 special warranty deed. 13.1. Special Warranty Deed and General Warranty Deed Exceptions. If title will be conveyed using a special warranty deed or a general warranty deed, title will be conveyed subject to: 13.1.1. General taxes for the year of Closing, 13.1.2. Distribution utility easements (including cable TV), 13.1.3. Those specifically described rights of third parties not shown by the public records of which Buyer has actual knowledge and which were accepted by Buyer in accordance with with § 8.3 (Off-Record Title) and § 9 (New ILC or New Survey), 13.1.4. Inclusion of the Property within any special taxing district, 13.1.5. Any special assessment if the improvements were not installed as of the date of Buyer’s signature hereon, whether assessed prior to or after Closing and 13.1.6. Other . 13.2. Special Warranty Deed. In addition to the requirements of § 13.1, if title will be conveyed by a special warranty deed, Seller will warrant title against all persons claiming by, through or under Seller subject to those specific recorded exceptions, if any, created during Seller’s ownership of the Property and described by reference to recorded documents shown as Exceptions in the Title Documents that are accepted by Buyer in accordance with § 8.2 (Record Title) and described in the deed by reference to the specific recording information for each recorded document. 13.3. General Warranty Deed. In addition to the requirements of § 13.1, if title will be conveyed by a general warranty deed, Seller will warrant the title subject to those specific recorded exceptions described by reference to recorded documents shown as Exceptions in the Title Documents that are accepted by Buyer in accordance with § 8.2 (Record Title) and described in the deed by reference to the specific recording information for each recorded document. 14. PAYMENT OF LIENS AND ENCUMBRANCES. Unless agreed to by Buyer in writing, any amounts owed on any liens or encumbrances securing a monetary sum, including, but not limited to, any governmental liens for special improvements installed as of the date of Buyer’s signature hereon, whether assessed or not and previous years’ taxes, will be paid at or before Closing by Seller from the proceeds of this transaction or from any other source. 15. CLOSING COSTS, CLOSING FEE, ASSOCIATION FEES AND TAXES. 15.1. Closing Costs. Buyer and Seller must pay, in Good Funds, their respective closing costs and all other items required to be paid at Closing, except as otherwise provided herein. 15.2. Closing Services Fee. The fee for real estate closing services must be paid at Closing by Buyer Seller One-Half by Buyer and One-Half by Seller Other 15.3. Status Letter and Record Change Fees. At least fourteen days prior to Closing Date, Seller agrees to promptly request the Association to deliver to Buyer a current Status Letter. Any fees incident to the issuance of Association’s Status Letter must be paid by None Buyer Seller One-Half by Buyer and One-Half by Seller. Any Record Change Fee must be paid by None Buyer Seller One-Half by Buyer and One-Half by Seller . 15.4. Local Transfer Tax. The Local Transfer Tax of 1.5 % of the Purchase Price must be paid at Closing by None Buyer Seller One-Half by Buyer and One-Half by Seller. 15.5. Private Transfer Fee. Private transfer fees and other fees due to a transfer of the Property, payable at Closing, such as community association fees, developer fees and foundation fees, must be paid at Closing by None Buyer Seller One-Half by Buyer and One-Half by Seller. The Private Transfer fee, whether one or more, is for the following association(s): in the total amount of % of the Purchase Price or $. 15.6. Water Transfer Fees. The Water Transfer Fees can change. The fees, as of the date of this Contract, do not exceed $ for: Water Stock/Certificates Water District Augmentation Membership Small Domestic Water Company and must be paid at Closing by None Buyer Seller One-Half by Buyer and One-Half by Seller CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 14 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P78 VI.e 925 926 927 928 929 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945 946 947 948 949 950 951 952 953 954 955 956 957 958 959 960 961 962 963 964 965 966 967 968 969 970 971 972 973 974 975 976 977 978 979 980 981 982 983 984 985 986 987 988 989 990 15.7. Sales and Use Tax. Any sales and use tax that may accrue because of this transaction must be paid when due by None Buyer Seller One-Half by Buyer and One-Half by Seller. 15.8. FIRPTA and Colorado Withholding. 15.8.1. FIRPTA. The Internal Revenue Service (IRS) may require a substantial portion of the Seller’s proceeds be withheld after Closing when Seller is a foreign person. If required withholding does not occur, the Buyer could be held liable for the amount of the Seller’s tax, interest and penalties. If the box in this Section is checked, Seller represents that Seller IS a foreign person for purposes of U.S. income taxation. If the box in this Section is not checked, Seller represents that Seller is not a foreign person for purposes of U.S. income taxation. Seller agrees to cooperate with Buyer and Closing Company to provide any reasonably requested documents to verify Seller’s foreign person status. If withholding is required, Seller authorizes Closing Company to withhold such amount from Seller’s proceeds. Seller should inquire with Seller’s tax advisor to determine if withholding applies or if an exemption exists. 15.8.2. Colorado Withholding. The Colorado Department of Revenue may require a portion of the Seller’s proceeds be withheld after Closing when Seller will not be a Colorado resident after Closing, if not otherwise exempt. Seller agrees to cooperate with Buyer and Closing Company to provide any reasonably requested documents to verify Seller’s status. If withholding is required, Seller authorizes Closing Company to withhold such amount from Seller’s proceeds. Seller should inquire with Seller’s tax advisor to determine if withholding applies or if an exemption exists. 16. PRORATIONS AND ASSOCIATION ASSESSMENTS. The following will be prorated to the Closing Date, except as otherwise provided: 16.1. Taxes. Personal property taxes, if any, special taxing district assessments, if any and general real estate taxes for the year of Closing, based on Taxes for the Calendar Year Immediately Preceding Closing Most Recent Mill Levy and Most Recent Assessed Valuation, adjusted by any applicable qualifying seniors property tax exemption, qualifying disabled veteran exemption or Other . 16.2. Rents. Rents based on Rents Actually Received Accrued. At Closing, Seller will transfer or credit to Buyer the security deposits for all Leases assigned, or any remainder after lawful deductions and notify all tenants in writing of such transfer and of the transferee’s name and address. Seller must assign to Buyer all Leases in effect at Closing and Buyer must assume Seller’s obligations under such Leases. 16.3. Association Assessments. Current regular Association assessments and dues (Association Assessments) paid in advance will be credited to Seller at Closing. Cash reserves held out of the regular Association Assessments for deferred maintenance by the Association will not be credited to Seller except as may be otherwise provided by the Governing Documents. Buyer acknowledges that Buyer may be obligated to pay the Association, at Closing, an amount for reserves or working capital. Any special assessment assessed prior to Closing Date by the Association will be the obligation of Buyer Seller. Except however, any special assessment by the Association for improvements that have been installed as of the date of Buyer’s signature hereon, whether assessed prior to or after Closing, will be the obligation of Seller. Seller represents there are no unpaid regular or special assessments against the Property except the current regular assessments and . Association Assessments are subject to change as provided in the Governing Documents. 16.4. Other Prorations. Water and sewer charges, propane, interest on continuing loan and . 16.5. Final Settlement. Unless otherwise agreed in writing, these prorations are final. 17. POSSESSION. Possession of the Property will be delivered to Buyer on Possession Date at Possession Time, subject to the Leases as set forth in § 10.6.1.1. If Seller, after Closing, fails to deliver possession as specified, Seller will be subject to eviction and will be additionally liable to Buyer for payment of $ 500 per day (or any part of a day notwithstanding § 18.1) from Possession Date and Possession Time until possession is delivered. Buyer represents that Buyer will occupy the Property as Buyer’s principal residence unless the following box is checked, then Buyer Does Not represent that Buyer will occupy the Property as Buyer’s principal residence. CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 15 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P79 VI.e 991 992 993 994 995 996 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 If the box is checked, Buyer and Seller agree to execute a Post-Closing Occupancy Agreement. GENERAL PROVISIONS 18. DAY; COMPUTATION OF PERIOD OF DAYS, DEADLINE. 18.1. Day. As used in this Contract, the term “day” means the entire day ending at 11:59 p.m., United States Mountain Time (Standard or Daylight Savings, as applicable). 18.2. Computation of Period of Days, Deadline. In computing a period of days (e.g., three days after MEC), when the ending date is not specified, the first day is excluded and the last day is included. If any deadline falls on a Saturday, Sunday or federal or Colorado state holiday (Holiday), such deadline Will Will Not be extended to the next day that is not a Saturday, Sunday or Holiday. Should neither box be checked, the deadline will not be extended. 19. CAUSES OF LOSS, INSURANCE; DAMAGE TO INCLUSIONS AND SERVICES; CONDEMNATION; AND WALK-THROUGH. Except as otherwise provided in this Contract, the Property, Inclusions or both will be delivered in the condition existing as of the date of this Contract, ordinary wear and tear excepted. 19.1. Causes of Loss, Insurance. In the event the Property or Inclusions are damaged by fire, other perils or causes of loss prior to Closing (Property Damage) in an amount of not more than ten percent of the total Purchase Price and if the repair of the damage will be paid by insurance (other than the deductible to be paid by Seller), then Seller, upon receipt of the insurance proceeds, will use Seller’s reasonable efforts to repair the Property before Closing Date. Buyer has the Right to Terminate under § 25.1, on or before Closing Date, if the Property is not repaired before Closing Date, or if the damage exceeds such sum. Should Buyer elect to carry out this Contract despite such Property Damage, Buyer is entitled to a credit at Closing for all insurance proceeds that were received by Seller (but not the Association, if any) resulting from damage to the Property and Inclusions, plus the amount of any deductible provided for in the insurance policy. This credit may not exceed the Purchase Price. In the event Seller has not received the insurance proceeds prior to Closing, the parties may agree to extend the Closing Date to have the Property repaired prior to Closing or, at the option of Buyer, (1) Seller must assign to Buyer the right to the proceeds at Closing, if acceptable to Seller’s insurance company and Buyer’s lender; or (2) the parties may enter into a written agreement prepared by the parties or their attorney requiring the Seller to escrow at Closing from Seller’s sale proceeds the amount Seller has received and will receive due to such damage, not exceeding the total Purchase Price, plus the amount of any deductible that applies to the insurance claim. 19.2. Damage, Inclusions and Services. Should any Inclusion or service (including utilities and communication services), system, component or fixture of the Property (collectively Service) (e.g., heating or plumbing), fail or be damaged between the date of this Contract and Closing or possession, whichever is earlier, then Seller is liable for the repair or replacement of such Inclusion or Service with a unit of similar size, age and quality, or an equivalent credit, but only to the extent that the maintenance or replacement of such Inclusion or Service is not the responsibility of the Association, if any, less any insurance proceeds received by Buyer covering such repair or replacement. If the failed or damaged Inclusion or Service is not repaired or replaced on or before Closing or possession, whichever is earlier, Buyer has the Right to Terminate under § 25.1, on or before Closing Date, or, at the option of Buyer, Buyer is entitled to a credit at Closing for the repair or replacement of such Inclusion or Service. Such credit must not exceed the Purchase Price. If Buyer receives such a credit, Seller’s right for any claim against the Association, if any, will survive Closing. 19.3. Condemnation. In the event Seller receives actual notice prior to Closing that a pending condemnation action may result in a taking of all or part of the Property or Inclusions, Seller must promptly notify Buyer, in writing, of such condemnation action. Buyer has the Right to Terminate under § 25.1, on or before Closing Date, based on such condemnation action, in Buyer’s sole subjective discretion. Should Buyer elect to consummate this Contract despite such diminution of value to the Property and Inclusions, Buyer is entitled to a credit at Closing for all condemnation proceeds awarded to Seller for the diminution in the value of the Property or Inclusions but such credit will not include relocation benefits or expenses, or exceed the Purchase Price. 19.4. Walk-Through and Verification of Condition. Buyer, upon reasonable notice, has the right to CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 16 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P80 VI.e 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 1080 1081 1082 1083 1084 1085 1086 1087 1088 1089 1090 1091 1092 1093 1094 1095 1096 1097 1098 1099 1100 1101 1102 1103 1104 1105 1106 1107 1108 1109 1110 1111 1112 1113 1114 1115 1116 1117 1118 1119 1120 1121 1122 walk through the Property prior to Closing to verify that the physical condition of the Property and Inclusions complies with this Contract. 19.5. Home Warranty. Seller and Buyer are aware of the existence of pre-owned home warranty programs that may be purchased and may cover the repair or replacement of such Inclusions. 20. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this Contract, Buyer and Seller acknowledge that the respective broker has advised that this Contract has important legal consequences and has recommended the examination of title and consultation with legal and tax or other counsel before signing this Contract. 21. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence for all dates and deadlines in this Contract. This means that all dates and deadlines are strict and absolute. If any payment due, including Earnest Money, is not paid, honored or tendered when due, or if any obligation is not performed timely as provided in this Contract or waived, the non-defaulting party has the following remedies: 21.1. If Buyer is in Default: 21.1.1. Specific Performance. Seller may elect to cancel this Contract and all Earnest Money (whether or not paid by Buyer) will be paid to Seller and retained by Seller. It is agreed that the Earnest Money is not a penalty and the Parties agree the amount is fair and reasonable. Seller may recover such additional damages as may be proper. Alternatively, Seller may elect to treat this Contract as being in full force and effect and Seller has the right to specific performance or damages, or both. 21.1.2. Liquidated Damages, Applicable. This § 21.1.2 applies unless the box in § 21.1.1. is checked. Seller may cancel this Contract. All Earnest Money (whether or not paid by Buyer) will be paid to Seller and retained by Seller. It is agreed that the Earnest Money specified in § 4.1 is LIQUIDATED DAMAGES and not a penalty, which amount the parties agree is fair and reasonable and (except as provided in §§ 10.4, 22, 23 and 24), said payment of Earnest Money is SELLER’S ONLY REMEDY for Buyer’s failure to perform the obligations of this Contract. Seller expressly waives the remedies of specific performance and additional damages. 21.2. If Seller is in Default: Buyer may elect to treat this Contract as canceled, in which case all Earnest Money received hereunder will be returned to Buyer and Buyer may recover such damages as may be proper. Alternatively, Buyer may elect to treat this Contract as being in full force and effect and Buyer has the right to specific performance or damages, or both. 22. LEGAL FEES, COST AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of any arbitration or litigation relating to this Contract, prior to or after Closing Date, the arbitrator or court must award to the prevailing party all reasonable costs and expenses, including attorney fees, legal fees and expenses. 23. MEDIATION. If a dispute arises relating to this Contract (whether prior to or after Closing) and is not resolved, the parties must first proceed, in good faith, to mediation. Mediation is a process in which the parties meet with an impartial person who helps to resolve the dispute informally and confidentially. Mediators cannot impose binding decisions. Before any mediated settlement is binding, the parties to the dispute must agree to the settlement, in writing. The parties will jointly appoint an acceptable mediator and will share equally in the cost of such mediation. The obligation to mediate, unless otherwise agreed, will terminate if the entire dispute is not resolved within thirty days of the date written notice requesting mediation is delivered by one party to the other at that party’s last known address (physical or electronic as provided in § 27). Nothing in this Section prohibits either party from filing a lawsuit and recording a lis pendens affecting the Property, before or after the date of written notice requesting mediation. This Section will not alter any date in this Contract, unless otherwise agreed. 24. EARNEST MONEY DISPUTE. Except as otherwise provided herein, Earnest Money Holder must release the Earnest Money following receipt of written mutual instructions, signed by both Buyer and Seller. In the event of any controversy regarding the Earnest Money, Earnest Money Holder is not required to release the Earnest Money. Earnest Money Holder, in its sole subjective discretion, has several options: (1) wait for any CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 17 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P81 VI.e 1123 1124 1125 1126 1127 1128 1129 1130 1131 1132 1133 1134 1135 1136 1137 1138 1139 1140 1141 1142 1143 1144 1145 1146 1147 1148 1149 1150 1151 1152 1153 1154 1155 1156 1157 1158 1159 1160 1161 1162 1163 1164 1165 1166 1167 1168 1169 1170 1171 1172 1173 1174 1175 1176 1177 1178 1179 1180 1181 1182 1183 1184 1185 1186 1187 1188 proceeding between Buyer and Seller; (2) interplead all parties and deposit Earnest Money into a court of competent jurisdiction (Earnest Money Holder is entitled to recover court costs and reasonable attorney and legal fees incurred with such action); or (3) provide notice to Buyer and Seller that unless Earnest Money Holder receives a copy of the Summons and Complaint or Claim (between Buyer and Seller) containing the case number of the lawsuit (Lawsuit) within one hundred twenty days of Earnest Money Holder’s notice to the parties, Earnest Money Holder is authorized to return the Earnest Money to Buyer. In the event Earnest Money Holder does receive a copy of the Lawsuit and has not interpled the monies at the time of any Order, Earnest Money Holder must disburse the Earnest Money pursuant to the Order of the Court. The parties reaffirm the obligation of § 23 (Mediation). This Section will survive cancellation or termination of this Contract. 25. TERMINATION. 25.1. Right to Terminate. If a party has a right to terminate, as provided in this Contract (Right to Terminate), the termination is effective upon the other party’s receipt of a written notice to terminate (Notice to Terminate), provided such written notice was received on or before the applicable deadline specified in this Contract. If the Notice to Terminate is not received on or before the specified deadline, the party with the Right to Terminate accepts the specified matter, document or condition as satisfactory and waives the Right to Terminate under such provision. 25.2. Effect of Termination. In the event this Contract is terminated, all Earnest Money received hereunder will be returned to Buyer and the parties are relieved of all obligations hereunder, subject to §§ 10.4, 22, 23 and 24. 26. ENTIRE AGREEMENT, MODIFICATION, SURVIVAL; SUCCESSORS. This Contract, its exhibits and specified addenda, constitute the entire agreement between the parties relating to the subject hereof and any prior agreements pertaining thereto, whether oral or written, have been merged and integrated into this Contract. No subsequent modification of any of the terms of this Contract is valid, binding upon the parties, or enforceable unless made in writing and signed by the parties. Any right or obligation in this Contract that, by its terms, exists or is intended to be performed after termination or Closing survives the same. Any successor to a party receives the predecessor’s benefits and obligations of this Contract. 27. NOTICE, DELIVERY AND CHOICE OF LAW. 27.1. Physical Delivery and Notice. Any document, or notice to Buyer or Seller must be in writing, except as provided in § 27.2 and is effective when physically received by such party, any individual named in this Contract to receive documents or notices for such party, Broker, or Brokerage Firm of Broker working with such party (except any notice or delivery after Closing must be received by the party, not Broker or Brokerage Firm). 27.2. Electronic Notice. As an alternative to physical delivery, any notice, may be delivered in electronic form to Buyer or Seller, any individual named in this Contract to receive documents or notices for such party, Broker or Brokerage Firm of Broker working with such party (except any notice or delivery after Closing must be received by the party, not Broker or Brokerage Firm) at the electronic address of the recipient by facsimile, email or text. 27.3. Electronic Delivery. Electronic Delivery of documents and notice may be delivered by: (1) email at the email address of the recipient, (2) a link or access to a website or server provided the recipient receives the information necessary to access the documents, or (3) facsimile at the facsimile number (Fax No.) of the recipient. 27.4. Choice of Law. This Contract and all disputes arising hereunder are governed by and construed in accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a contract in Colorado for real property located in Colorado. 28. NOTICE OF ACCEPTANCE, COUNTERPARTS. This proposal will expire unless accepted in writing, by Buyer and Seller, as evidenced by their signatures below and the offering party receives notice of such acceptance pursuant to § 27 on or before Acceptance Deadline Date and Acceptance Deadline Time. If accepted, this document will become a contract between Seller and Buyer. A copy of this Contract may be executed by each party, separately and when each party has executed a copy thereof, such copies taken CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 18 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P82 VI.e 1189 1190 1191 1192 1193 1194 1195 1196 1197 1198 1199 1200 1201 1202 1203 1204 1205 together are deemed to be a full and complete contract between the parties. 29. GOOD FAITH. Buyer and Seller acknowledge that each party has an obligation to act in good faith including, but not limited to, exercising the rights and obligations set forth in the provisions of Financing Conditions and Obligations; Title Insurance, Record Title and Off-Record Title; New ILC, New Survey; and Property Disclosure, Inspection, Indemnity, Insurability, Due Diligence and Source of Water. ADDITIONAL PROVISIONS AND ATTACHMENTS 30. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado Real Estate Commission.) a. CITY OF ASPEN TRANSFER TAXES. Pursuant to Ordinance No. 20, Series 1979, of the City of Aspen, a Wheeler Real Estate Transfer Tax (WRETT) in the amount of one-half of one percent (.005) of the purchase price shall be payable by Buyer at closing. Pursuant to Ordinance No. 13, Series 1990, of the City of Aspen, a Housing Real Estate Transfer Tax (HRETT) in the amount of one percent (.01) of the purchase price exceeding $100,000 shall be payable by Buyer at closing. (The first $100,000 is exempt from the tax). b. CLEANING: Seller agrees to deliver the subject properties in "Maid Clean" condition . "Maid Clean" shall be defined as "all personal property and trash removed, all appliances cleaned, all floors mopped/vacuumed, all carpets professionally cleaned, all bathroom fixtures, tubs, and showers cleaned, all walls and windows professionally cleaned and free of dirt." c. Buyer shall have the right, at Buyer’s expense, to have Property inspected by professionals of Buyer’s choice. The inspections shall include, although not be limited to, an examination of all existing improvements on the Property including having same tested for the existence of radon gas, the status of all land use approvals or the necessity for same, the completed construction, or any other matter of concern to Buyer, including without limitation, the actual lot size, location and square footage of improvements, building, zoning and allowed use regulations, irrigation water rights, well (flow rate, capacity, depth, recovery rate, suitability for Buyer’s needs, exempt status such as household, domestic, etc., water quality, potability, location on Property), septic (useful life of the system, capacity and suitability for size of house, pumping needs, location on property), leach field (adequacy, location on Property, percolation rate), environmental (such as the presence on the Property of mold, radon gas, asbestos, petroleum products, methamphetamine and/or byproducts from the production of methamphetamine or other hazardous substances or materials) or soils matters, the presence or absence on or about the Property of radiant heating systems, electromagnetic fields, termites or other infestations, exterior insulation and finish systems, artificial stucco, polybutylene plumbing materials, roofing materials, proximity to a floodplain or hazardous waste site, the presence and location on the Property of carbon monoxide alarms, the availability and quality of schools, the impact of air traffic, the dues, fees, taxes or similar charges that are or may be assessed or levied by any applicable association or taxing authority, crime statistics, and other similar matters. Buyer shall have until the Inspection Objection Deadline (“Due Diligence Period”) within which to approve the conditions reflected by such inspections and to determine if the Property is suitable for Buyer’s intended use, in Buyer’s sole and absolute discretion. If Buyer terminates this Contract during the Due Diligence Period or the Final Due Diligence Items Deadline, then Buyer shall have the right to receive the immediate refund of the earnest money deposit and all interest accrued thereon, and all obligations under the Contract shall terminate. CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 19 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P83 VI.e d. Buyer shall have the right to assign this Contract to a trust or other entity owned or controlled by Buyer or organized for the benefit of Buyer or the members of Buyer’s family. e. The following shall be conditions to Buyer’s obligation to close. The Closing Date shall be on the 10th business day following the satisfaction of all of these conditions, except to the extent waived by Buyer in writing in Buyer’s sole discretion. Buyer also retains all inspection and due diligence rights provided for in this Contract and none of the following shall be construed as a waiver of any such rights (including without imitation Buyer’s right to review the Current Survey and object to any matters revealed thereby). 1. Conceptual approval by Historic Preservation Commission to construct a two story addition on the rear of the existing building allowing access at both the first and second level (thereby avoiding the need for two stairs). 2. Approval of the Historic Preservation Commission and the City of Aspen of 434 Square Feet of “BONUS SQUAE FOOTAGE”. (434 Square Feet is the area listed by the City Assessor as the size of the existing original garage to be maintained in the development. This simply replaces the typical parking garage exemption which is not permitted by the City since it is located in the front of the house.) 3. Removal of three of the five spruce trees at the rear of the property. (Removal of these trees allows construction access, foundation construction, and vehicular access to planned garage in addition with higher access for one taller cars. The existing historic garage in the front of the building is only 6’1” in height.) 4. Resolution to Buyer’s satisfaction of the adjacent property “retaining wall” leaning and encroaching on the City of Aspen property at 312 W. Hyman. 5. Receipt of a survey, at Seller’s expense, that meets city building permit application requirements. (This include topography, tree locations, utilities etc.). 31. OTHER DOCUMENTS. 31.1. The following documents are a part of this Contract: 31.1.1. Post-Closing Occupancy Agreement. If the Post-Closing Occupancy Agreement box is checked in § 17 the Post-Closing Occupancy Agreement is a part of this Contract. 31.2. The following documents have been provided but are not a part of this Contract: SIGNATURES Date:1/15/2019 Buyer: Sopris Center LLC, A Louisiana Limited Liability Company By: Henry Lambert [NOTE: If this offer is being countered or rejected, do not sign this document. Date: Seller: City of Aspen By: City of Aspen CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 20 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P84 VI.e END OF CONTRACT TO BUY AND SELL REAL ESTATE 32. BROKER’S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE. (To be completed by Broker working with Buyer) Broker Does Does Not acknowledge receipt of Earnest Money deposit. Broker agrees that if Brokerage Firm is the Earnest Money Holder and, except as provided in § 24, if the Earnest Money has not already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest Money Holder will release the Earnest Money as directed by the written mutual instructions. Such release of Earnest Money will be made within five days of Earnest Money Holder’s receipt of the executed written mutual instructions, provided the Earnest Money check has cleared. Although Broker is not a party to the Contract, Broker agrees to cooperate, upon request, with any mediation requested under § 23. Broker is working with Buyer as a Buyer’s Agent Transaction-Broker in this transaction. This is a Change of Status. Customer. Broker has no brokerage relationship with Buyer. See § 33 for Broker’s brokerage relationship with Seller. Brokerage Firm’s compensation or commission is to be paid by Listing Brokerage Buyer Other . Brokerage Firm's Name: Compass Colorado, LLC d/b/a Compass Brokerage Firm’s License #: Date:1/14/2019 Broker’s Name: Doug Leibinger Broker’s License #: FA 040009481 Address: 403 Lewis Lane Basalt, CO 81621 Ph: 970-925-6063 Fax: Email Address: doug@compass.com;dannielle.gaines@compass.com 33. BROKER’S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE. (To be completed by Broker working with Seller) Broker Does Does Not acknowledge receipt of Earnest Money deposit. Broker agrees that if Brokerage Firm is the Earnest Money Holder and, except as provided in § 24, if the Earnest Money has not already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest Money Holder will release the Earnest Money as directed by the written mutual instructions. Such release of Earnest Money will be made within five days of Earnest Money Holder’s receipt of the executed written mutual instructions, provided the Earnest Money check has cleared. Although Broker is not a party to the Contract, Broker agrees to cooperate, upon request, with any mediation requested under § 23. Broker is working with Seller as a Seller’s Agent Transaction-Broker in this transaction. This is a Change of Status. CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 21 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P85 VI.e Customer. Broker has no brokerage relationship with Seller. See § 32 for Broker’s brokerage relationship with Buyer. Brokerage Firm’s compensation or commission is to be paid by Seller Buyer Other . Brokerage Firm's Name: Aspen Snowmass Sotheby`s International Realty Brokerage Firm’s License #: Date: Broker’s Name: Andrew Ernemann Broker’s License #: Address: 415 East Hyman Avenue Aspen, CO 81611 Ph: 970-925-6060 Fax: Email Address: andrew.ernemann@sothebysrealty.com CBS1-6-18. CONTRACT TO BUY AND SELL REAL ESTATE (RESIDENTIAL) CTM eContracts - ®2016 CTM Software Corp. CBS1-6-15. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 22 of 22 Initials _____________________________________ CTMeContracts.com - ©2019 CTM Software Corp. P86 VI.e Aspen Snowmass Sotheby`s International Realty 415 East Hyman Avenue Aspen, CO 81611 Andrew Ernemann andrew.ernemann@sothebysrealty.com Ph: 970-379-8125 Fax: 888-550-2881 1 The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission. (CP40-6-18) (Mandatory 1-19) 2 3 THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. 4 5 COUNTERPROPOSAL 6 Date: 1/17/2019 7 8 1. This Counterproposal supersedes and replaces any previous counterproposal. This 9 Counterproposal amends the proposed contract dated 1/14/2019 (Contract), between 10 City of Aspen (Seller), and Sopris Center LLC, A Louisiana Limited Liability Company (Buyer), relating to the sale and purchase of the following legally described real estate in the County of Pitkin, Colorado: 11 Subdivision: CITY AND TOWNSITE OF ASPEN Block: 46 Lot: P AND:- Lot: Q 12 known as No. 312 W Hyman Avenue, Aspen, CO 81611 (Property). 13 14 NOTE: If the table is omitted, or if any item is left blank or is marked in the "No Change" column, it means no change to the corresponding provision of the Contract. If any item is marked in the "Deleted" column, it means that the corresponding provision of the Contract to which reference is made is deleted. 15 16 2. 3.1 Dates and Deadlines. [Note: This table may be omitted if inapplicable.] 17 18 Item No.Reference Event Date or Deadline No Change Deleted 1 4.3 Alternative Earnest Money Deadline Title 2 8.1, § 8.4 Record Title Deadline 3 8.2, § 8.4 Record Title Objection Deadline 4 8.3 Off-Record Title Deadline 5 8.3 Off-Record Title Objection Deadline 6 8.5 Title Resolution Deadline 7 8.6 Right of First Refusal Deadline Owners’ Association 8 7.2 Association Documents Deadline 9 7.4 Association Documents Termination Deadline Seller's Disclosures 10 10.1 Seller's Property Disclosure Deadline 11 10.10 Lead-Based Paint Disclosure Deadline CBS 1, 2, F1 7 days after MEC Loan and Credit 12 5.1 Loan Application Deadline 13 5.2 Loan Termination Deadline 14 5.3 Buyer's Credit Information Deadline 15 5.3 Disapproval of Buyer's Credit Information Deadline 16 5.4 Existing Loan Documents Deadline 17 5.4 Existing Loan Documents Termination Deadline 18 5.4 Loan Transfer Approval Deadline 19 4.7 Seller or Private Financing Deadline Appraisal 20 6.2 Appraisal Deadline CP40-6-18. COUNTERPROPOSAL Page 1 of 4 CTMeContracts.com - ©2019 CTM Software Corp. P87 VI.e 21 6.2 Appraisal Objection Deadline 22 6.2 Appraisal Resolution Deadline Survey 23 9.1 New ILC or New Survey Deadline 24 9.3 New ILC or New Survey Objection Deadline 25 9.3 New ILC or New Survey Resolution Deadline Inspection and Due Diligence 26 10.3 Inspection Objection Deadline 27 10.3 Inspection Termination Deadline 28 10.3 Inspection Resolution Deadline 29 10.5 Property Insurance Termination Deadline 30 10.6 Due Diligence Documents Delivery Deadline 31 10.6 Due Diligence Documents Objection Deadline 32 10.6 Due Diligence Documents Resolution Deadline 33 10.6 Environmental Inspection Objection Deadline CBS2, 3, 4 34 10.6 ADA Evaluation Objection Deadline CBS2, 3, 4 35 10.7 Conditional Sale Deadline 36 10.10 Lead-Based Paint Termination Deadline CBS 1, 2, F1 37 11.1, 11.2 Estoppel Statements Deadline CBS2, 3, 4 38 11.3 Estoppel Statements Termination Deadline CBS2,3,4 Closing and Possession 39 12.3 Closing Date 40 17 Possession Date At Closing 41 17 Possession Time After Closing and Funding 42 43 19 20 3. 4. PURCHASE PRICE AND TERMS. [Note: This table may be deleted if inapplicable.] 21 22 The Purchase Price set forth below is payable in U.S. Dollars by Buyer as follows: 23 24 Item No.Reference Item Amount Amount 1 4.1 Purchase Price $3,800,000.00 2 4.3 Earnest Money $190,000.00 3 4.5 New Loan 4 4.6 Assumption Balance 5 4.7 Private Financing 6 4.7 Seller Financing 7 8 9 4.4 Cash at Closing $3,610,000.00 10 TOTAL $3,800,000.00 $3,800,000.00 25 26 4. ATTACHMENTS. The following are a part of this Counterproposal: 27 None. 28 Note: The following documents have been provided but are not a part of this Counterproposal: 29 None. 30 31 5. OTHER CHANGES. CP40-6-18. COUNTERPROPOSAL Page 2 of 4 CTMeContracts.com - ©2019 CTM Software Corp. P88 VI.e 32 A. Section 9.1. Survey: The "New Survey" box shall be checked. B. Section 10.6.1.2 shall be stricken in its entirety. Seller shall provide Buyer with an accounting of utilities expense for the past twelve months. C. Section 15.3. Status Letter and Record Change Fees: The "Seller" box referencing the Record Change Fee shall be unchecked and the "None" box shall be checked. D. Section 15.5. Private Transfer Fee: The "One-Half by Buyer and One-Half by Seller" box shall be unchecked and the "None" box shall be checked. E. Section 30.E (and subsections 1-5) shall be stricken in its entirety. F. Section 33. Broker`s Acknowledgments and Compensation Disclosure: The "Does Not" box shall be checked, the "Seller`s Agent" box shall be checked and the "Seller" box shall be checked. G. The Seller shall have until March 1st, 2019 to obtain Aspen City Council approval of the Contract. In the event the Contract is approved by the Aspen City Council then Seller shall provide written notice to Buyer on or before March 1st, 2019. If the Contract is not approved by Aspen City Council or Seller does not provide Buyer written notice of the approval on or before March 1st, 2019 then the Contract shall be considered terminated. 33 34 6. ACCEPTANCE DEADLINE. This Counterproposal expires unless accepted in writing by Seller and Buyer as evidenced by their signatures below and the offering party to this document receives notice of such acceptance on or before Friday, January 18, 2019 at 5:00 PM MST. Date Time 35 36 If accepted, the Contract, as amended by this Counterproposal, will become a contract between Seller and Buyer. All other terms and conditions of the Contract remain the same. 37 38 Date:1/17/2019 Seller: City of Aspen By: Sara Ott Address: 39 40 Seller: _______________________________________________________ Date: ____________ 41 Address: 42 43 Date:1/18/2019 Buyer: Sopris Center LLC, A Louisiana Limited Liability Company By: Henry Lambert CP40-6-18. COUNTERPROPOSAL Page 3 of 4 CTMeContracts.com - ©2019 CTM Software Corp. P89 VI.e Address: 44 45 Buyer: _______________________________________________________ Date: ____________ 46 Address: 47 Note: When this Counterproposal form is used, the Contract is not to be signed by the party initiating this Counterproposal. Brokers must complete and sign the Broker's Acknowledgments and Compensation Disclosure portion of the Contract. CP40-6-18. COUNTERPROPOSAL CTM eContracts - ©2016 CTM Software Corp. CP40-6-18. COUNTERPROPOSAL Page 4 of 4 CTMeContracts.com - ©2019 CTM Software Corp. P90 VI.e PRELIMINARYSeller's Settlement Statement Attorneys Title Insurance Agency of Aspen, LLC 715 West Main Street Ste. 202 Aspen , CO 81611 Phone: (970)925-7328 Fax: (970) 925-7348 06/07/2019Settlement Date: Escrow officer/Closer:Nicole Lebby Order Number:18003943 Buyer:Sopris Center LLC, a Louisiana Limited Liability Company City of AspenSeller: Property location:312 West Hyman Avenue Aspen, CO 81611 Debit Credit Seller Financial Consideration 3,800,000.00Sale Price of Property Prorations/Adjustments 147.25Sewer proration - ESTIMATE to Aspen Consolidated Sanitation 04/01/19-06/30/19 Commissions 76,000.00Commission to Listing Broker to Aspen Snowmass Sotheby's International Realty 114,000.00Commission to Selling Broker to Compass Colorado, LLC d/b/a Compass Escrow/Title Charges 150.00Sale Closing fee to Attorneys Title Insurance Agency of Aspen, LLC 75.00CO-110.1 (Delete 1, 2, 3, 4) to Attorneys Title Insurance Agency of Aspen, LLC 6,960.00Owner's Title Insurance to Attorneys Title Insurance Agency of Aspen, LLC Coverage: 3,800,000.00 Premium: 6,960.00 ALTA Owners Policy (06/17/06)Version: Miscellaneous Debits/Credits 200.00Water - ESTIMATE to Aspen Utility Billing Subtotals 3,800,000.00 197,532.25 Balance Due TO Seller 3,602,467.75 TOTALS 3,800,000.00 3,800,000.00 Seller City of Aspen BY:________________________________ Sara G. Ott Attorneys Title Insurance Agency of Aspen, LLC Settlement Agent Aspen Snowmass Sotheby's International Realty Listing Agent/Broker Printed on 02/19/19 at 4:32:48PM by NLebby Page 1 of 1 18003943 / 9 P91 VI.e Regular Meeting Aspen City Council February 11, 2019 1 CITIZEN COMMENTS ............................................................................................................................... 2 CITY COUNCIL COMMENTS ................................................................................................................... 2 AGENDA AMENDMENTS ........................................................................................................................ 3 CITY MANAGER COMMENTS ................................................................................................................ 3 BOARD REPORTS ...................................................................................................................................... 3 CONSENT CALENDAR ............................................................................................................................. 3  Resolution #5, Series of 2019 –purchase of two Go-4 Interceptor IV three-wheeled enforcement vehicles ......................................................................................................................................................... 4  Resolution #15, 16, 17 and 18, Series of 2019 –City Offices contracts ................................................ 4  Resolution #20 and #21, Series of 2019 –Three-Phase Transformer Procurement and On-Call Services ......................................................................................................................................................... 4  Resolution #24, Series of 2019 –Authorizing Pete Strecker, Finance Director, to execute transactions 4  Minutes – January 28 and February 4, 2019 ......................................................................................... 4 NOTICE OF CALL-UP - Notice of APCHA Resolution #5, Series of 2018 - Adopting Amendments to the Aspen/Pitkin Employee Housing Guidelines Creating a Hearing Officer Position and Adopting a Schedule of Fines .......................................................................................................................................... 4 ORDINANCE #1 SERIES OF 2019 – Small Lodge Preservation Program Extension ................................ 4 RESOLUTION #22, SERIES OF 2019 - Appeal of Linear Lighting Interpretation .................................... 6 P92 VI.f Regular Meeting Aspen City Council February 11, 2019 2 At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Mullins, Myrin, Hauenstein, and Frisch present. CITIZEN COMMENTS 1. Peter Greeney spoke about the new city offices. Since last August I’ve been inquiring about the design and when a formal process will take place. Tonight’s agenda items will steam roll the project forward with no design review. Conveniently it is too late for a formal process. I’ve put together a basic design review for what I assume the project will be weighed against, the civic master plan. Implementation of the civic master plan is explicit, that an application must demonstrate consistency with the 8 core principles of the plan. Peter reviewed the principles. Without a formal design review we know the project meets one out of eight of the communities clearly described core principles. The vote in November approved the location for the new city offices. The community expects the project to follow the guidelines of the master plan. How can we proceed with a design that does not meet the core principles. Mayor Skadron stated that is an attack on a five year program and every one of those points can be addressed. Sara Ott, city manager, stated this is the first time I’ve heard Peter’s request and she would be happy to meet with him to address his concerns. We are still working on construction detail drawings. Councilwoman Mullins said Peter and I have discussed this before and would be happy to join the meeting with Sara. Councilman Hauenstein said he likes the design of the office and is much in line with Bauhaus principles. 2. Toni Kronberg asked why are we not putting parking under galena plaza right next to the parking garage. You didn’t add one single affordable housing unit. Are you going to build what the fact sheet told the voters you are going to build. You are being asked to approve tonight 54 million dollars, 5 million dollars more than the fact sheet. When is the public hearing going to be on the financing. I’m still irked about this whole thing. I don’t mind losing but when the proper facts are not put out there I have an issue with it. 3. Bob Morris talked about the employee housing issues. He agrees with Adam’s approach. The whole program needs redone. The entry fee to town is expensive. He wants to change the lottery to include people who just moved to town. He suggested senior housing over the Red Brick. CITY COUNCIL COMMENTS Councilman Hauenstein talked about the ability of council for call ups and modify approvals for land use specifically where P&Z and HPC makes decisions. He wants to change the code to permit council the ability for call up. Ms. Ott said currently we do not have it on the work plan. Jessica Garrow, community development, said you do have a work session with P&Z on the 26th of this month. You discussed it with HPC. I anticipate a conversation with P&Z as well. Councilman Myrin said thank you Peter for bringing forward the conversation on city hall. I tried during the election process. One thing you raised was the design. I will be curious to see if anything comes out of the conversation with Sara and Ann. Bob’s advice for anyone looking for housing is spot on and people need to step up and intensify their energy. Once these hotels come on I wouldn’t want to be looking for day care, housing or sitting in traffic. Councilman Frisch said on Ward’s comment, Bert and I started talking about this in the HPC realm. At some point a check in would be helpful. We do need to empower these boards. We need to make sure there is enough ability for the board members to weigh in on their decisions or we will not be attracting candidates and make sure the applicants take that step seriously. Balancing that is delicate. I support your efforts in raising the conversation. P93 VI.f Regular Meeting Aspen City Council February 11, 2019 3 Councilwoman Mullins said most important, vote. Ballots are in the mail. Ward brings up a good point. We are having the conversations with the boards and giving them much clear direction. There is the conversation as to whether council has the final say. We still need a bigger conversation as to how we manage these quasi judicial things. On retirement housing, I think that is the direction we need to go, providing incentives. Lastly, Peter, these projects are still fluid. They are still going through change. I look forward to the discussion with Sara Mayor Skadron said the Aspen laugh festival kicks off. Stop by the Wheeler and gets some tickets. The mountains are fantastic but take extra precaution in the back country. Councilman Hauenstein said those who were not fortunate to see In to the Canyon this weekend. It was a world premier. It will be shown again this Wednesday at the Isis. It is fantastic. AGENDA AMENDMENTS Ms. Ott said staff is no longer requesting executive session tonight. CITY MANAGER COMMENTS Ms. Ott said there is an update on the 911 surcharge application as part of the Information Update memo. It has been submitted to the state. Since my roll change, that leave both assistant positions open. I’ve asked two individuals to step up, Scott Miller and Alissa Farrell. She passed out revised organizational chart. The long range work session calendar for February 19th is calculations and measure. That work session will be canceled. BOARD REPORTS Councilwoman Mullins said HHS had a presentation about vaping. It is shocking about how prevalent it is in this valley. It is something to start thinking about. Councilman Frisch said CORE will be getting together for a retreat to start setting goals for climate change action plans. Councilman Hauenstein said CCLC has been working on finalizing the selection process for next summer Saturday market vendors. CONSENT CALENDAR Councilman Hauenstein said Reso 19 – owners rep, is a new contract. He would like justifications why it did not go to a competitive bid process like prior precedent. Jeff Pendarvis, asset, said we’ve had an owners rep for larger multi year projects since 2008. It is standard operating procedure for us. During the procurement process in 2014 we hired the firm we utilized for the first four years of the project. He was no longer available. It coincided with the time Jack Wheeler gave his notice with the city. When he expressed interest, we spoke with the attorney and he gave his approval. We felt it best for the project and community that Jack’s knowledge would be best for the project. Councilman Hauenstein said there is a precedent for this. A new firm was chosen as the owner’s rep that basically followed the person that was the point of contact. Mr. Pendarvis replied that is correct. There was a change in employment by one manager. We followed him to his next firm. Councilman Hauenstein asked if we had stayed with NV5 we would have gotten a junior person. Mr. Pendarvis replied we had several conversations with their staffing plan and anyone new would have to be brought up to speed. Councilman Hauenstein welcomed Jack and approves the contract. Mr. True said we did review this with staff and I felt it appropriate under the procurement code it was appropriate and best for the city. P94 VI.f Regular Meeting Aspen City Council February 11, 2019 4 Councilwoman Mullins said Resolution #17 the contract is with concept one but the resolution says connect one. Mr. True said we will need to amend the resolution to concept one. Councilman Hauenstein said the contract is a not to exceed. Mr. Pendarvis replied that is correct. Councilman Myrin asked was there utility work last summer. Mr. Pendarvis replied not as part of our project. Councilman Myrin asked on an ongoing basis is there a way to have something on the website that keeps people in the loop at a higher level as to what we are spending. Ms. Ott replied yes, the draw requests are public documents, we can consolidate them. Councilman Frisch said at a higher level, the project has a website. Ms. Ott said there is a webpage on the city website devoted to the project. Mr. Pendarvis said this is the kick off of the design phase. As that develops and working with our contractors we will certainly be sharing that with the public. Mr. True said I can find no other reference to the incorrect name. It appears to only be on the resolution. · Resolution #5, Series of 2019 –purchase of two Go-4 Interceptor IV three-wheeled enforcement vehicles · Resolution #15, 16, 17 and 18, Series of 2019 –City Offices contracts · Resolution #20 and #21, Series of 2019 –Three-Phase Transformer Procurement and On- Call Services · Resolution #24, Series of 2019 –Authorizing Pete Strecker, Finance Director, to execute transactions · Minutes – January 28 and February 4, 2019 Councilwoman Mullins moved to adopt the consent calendar with amendment to Resolution #17; seconded by Councilman Hauenstein. All in favor, motion carried. NOTICE OF CALL-UP - Notice of APCHA Resolution #5, Series of 2018 - Adopting Amendments to the Aspen/Pitkin Employee Housing Guidelines Creating a Hearing Officer Position and Adopting a Schedule of Fines Mayor Skadron said he suggest this gets called up. Cindy Christensen, housing, said it is my understanding you would call this up and move it to another meeting. Councilman Frisch moved to call up APCHA Resolution #5, Series of 2018; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE #1 SERIES OF 2019 – Small Lodge Preservation Program Extension Phillip Supino, community development, said in October of last year there was a work session about the pending expiration of the program. Council directed staff to extend the program for an additional five years. It was originally adopted in 2015 to support small unique lodges. It is an incentive based program for bed base preservation to ensure diverse lodge offerings. It is a collaboration with comdev and the climate action office. We also have a partnership with CORE. The incentives include planning assistance, express lane for land use reviews, express lane for permit review, building code assessments, energy efficiency program, permit fee discounts and right of way improvements. The most popular element is the energy efficiency element (SLEEP). Up to $100,000 per year is provided. Funds are used for improvements like HVAC, in unit refrigerators, lighting upgrades and boiler replacements. This will extend the program for 5 years past the expiration date. The language will memorializes two lodges that joined after adoption of the original ordinance. This will ensure only small lodges are eligible. It changes the word units to keys. Keys are a smaller configuration than units might be. It will clarify boutique lodge uses are not eligible. The distinction between boutique and lodge use are important to understand. Lodge is 15 or more units. Onsite services and amenities are more robust. Distinction in zone district is P95 VI.f Regular Meeting Aspen City Council February 11, 2019 5 which lodge is a permitted use and boutique is a conditional use. Boutique lodge is 10 to 14 units with more limited onsite amenities. The lodges love it. Councilman Hauenstein said the ordinance contains Boomerang lodge. I think it should be struck. Ms. Garrow said that is policy decision council can make. P&Z and council felt if Boomerang were going to come back and operate they should receive those benefits. Councilman Hauenstein said he would like to see it deleted. If it is somehow resurrected can it be added. Ms. Garrow said if it were removed it would need to meet the criteria. Councilman Frisch said as slim as it might be I’m not sure the harm in leaving it in there. Mr. True said at this point I would be a little hesitant to remove it without having some communication with the current owners of the property. Leaving it in at this point would have minimal concern to the city. I would be hesitant taking it out here without communication with the owners. Councilwoman Mullins said there is no downside to leaving it in. Councilman Frisch asked are we saying that basically we don’t recognize a 9 room or smaller lodge as a true lodge product. Mr. Supino said if it is not currently an existing lodge then yes. Councilman Frisch said the lodges that were listed, are there any that meet some qualifications but not listed. Ms. Garrow replied potentially, that is what happened with Shadow Mountain and the Prospector. They were not part of the original list and asked to be added. There is a possibility. Mr. Supino said as existing lodges they would not be caught up in the boutique exemption. Ms. Garrow said this is a policy decision if council wanted all lodges, boutique or not. This particular section was trying to make sure how do we get lodges that have clear amenities for their guests. One lodge that was discussed in 2015 was Hotel Lenado. There are not many amenities as part of that approved lodge. It is not about price but amenities and really being a lodge, not pretending to be a lodge. Councilman Frisch said I’m fine with having the discussion as to it acting like a lodge. I’m not sure we can relate it to amenities. Mr. Supino said one of the things we heard from the operators was the level of service provided to the guest. Councilman Frisch said you feel pretty comfortable that if a boutique lodge shows up they should meet the amenities. Councilwoman Mullins said I think the distinction is important. The two comments we might address is one owner wanted more information and wanted to be able to go to a website rather than call city hall. Another operator did not take advantage of it because of the requirement to remain a lodge for a certain number of years because she was uncertain of the future of her lodge. Ms. Garrow said the only one the city requests a guarantee for is the reduction in the permit fees. Councilwoman Mullins said that may not be clear to some lodge owners. Mayor Skadron opened the public comment. 1. Bob Morris said this is 50 keys or less. Thank you very much for this program. We couldn’t have done the energy upgrades without this program. Along with this the downtowner has been great for small lodges. It has really been helpful. 2. Jeff Bay said we are big fans of the entire program particularly the SLEEP initiative. We’ve done hot water boilers, high efficiency air conditioners and have several other projects lined up. The city has made it simple and easy to manage. We use this to upgrade a lot of behind the scenes infrastructure. Right now electric vehicles are not included. All properties, regardless of size are eligible for the same dollar amount. If the smaller properties are to be included I might look at a sliding scale. Mayor Skadron closed the public comment. Councilman Myrin said I think this is a great program and reassuring to see we are supporting the small lodges. This is where I think we should be investing in our community. Councilwoman Mullins moved to adopt Ordinance #1, Series of 2019; seconded by Councilman Frisch. Roll call vote. Councilmembers Hauenstein, yes; Frisch, yes; Myrin, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. P96 VI.f Regular Meeting Aspen City Council February 11, 2019 6 RESOLUTION #22, SERIES OF 2019 - Appeal of Linear Lighting Interpretation Jennifer Phelan, community development, said an appeal has been submitted. The applicant is represented by Forum Phi and Ben Genshaft. Comdev issued an interpretation of a formal rendering of the land use code as to what represents linear lighting. The interpretation was appealed. I will provide an overview. An interpretation is a form of determination of the land use code. In this instance the city was requested to interpreted what is linear lighting. From 2013 to 2018, 7 permits were issued for this property. The last change order was submitted in January 2018 and included outdoor lighting. Prior to the issuance of the permit the city received its first complaint about the lighting at the rear of the house. A zoning officer followed up and determined some of the lighting was linear lighting. The site plan struck some of the outdoor lighting by a fire pit and stair. Lighting to the right included two strips of lighting, are what we believe were installed. A permit was issued and struck some of the outdoor lighting but it appears to have been installed. We received a second complaint in September for the opposite side of the house. That also appeared to be linear. The zoning officer at the time focused on the rear of the house and there was an oversight at the auto court. At this point the applicant requested an interpretation of what is linear lighting. What does the code say about linear lighting. It is lighting including but not limited to fluorescent lighting primarily intended as an architectural highlight to attract attention or used as a means of identification or advertisement shall be prohibited. It is a specific section of the code. Staff underlined the primarily intended as an architectural highlighted to attract attention. The specific lighting in question is flexible ribbon lighting and was installed in several places. Staff determined that the intent and purpose statement was adopted to illuminate the escalation of night time light pollution and prevent inappropriate and poorly designed or installed outdoor lighting. There are other purpose statements regarding the maintenance of small town feel and providing adequate lighting for safety. Staff also looked at the subject lighting and electrical codes for building safety and determined it was not necessary. What did the interpretation say. The lighting clearly had a linear aspect to it and not required by code. It was applied to a number of hardscape features. Once the interpretation was issued there was a timeline where the requestor could appeal. That is why we are here tonight. An appeal is a decision which according to code cannot be reversed or modified unless a denial of due process, it is in excess of jurisdiction or an abuse of discretion. In regard to due process, the city received two separate formal complaints. It was determined the lighting was linear and therefor prohibited. The interpretation was requested and issued within the required timeframes. The noticing requirements were met. The second criteria is about jurisdiction. The community development director is charged with rendering an interpretation as required by the code. Staff believes the decision is within her jurisdiction. The third criteria is abuse of discretion. When rendering an interpretation the director does need to use her discretion. The question is whether she abused that. She needs to take a pragmatic approach, reliance on language within the code, common definitions if needed as well and intent and purpose statement. As noted previously, linear lighting is explained as lighting primarily to attract attention and shall be prohibited. Staff reviewed the explanation of linear lighting and reviewed a definition as well as the intent and purpose statement. Some lighting is necessary but needs to preserve small town character and the night sky initiatives. The code emphases point specific fixtures. Staff concern is related to exterior lighting needs for safety. Staff determined that the liner ribbon lighting was primarily intended as an architecture highlight and met the term of linear lighting. Staff feels that staff’s discretion was applied appropriately. Staff recommends that council affirm the interpretation based upon the director acting correctly, that due process was provided and there was no abuse of authority or discretion. Ms. Phelan received a comment from one of the neighbors and handed that out and entered it in to the record. Applicant presentation Steev Wilson, representing the applicant, said there are two issues as we see it. The first pertains to the due process issue as to how the lighting in the auto court came to be. We came in with a building permit showing the LED lighting throughout the auto court. We discussed this with the zoning officer as to how we were to get lighting in the courtyard approved. He showed a photo from the lighting test from across the river. One of the controlling neighbors levied the original complaint. The permit was amended P97 VI.f Regular Meeting Aspen City Council February 11, 2019 7 showing what was to be removed. Ben Genshaft, attorney, said during the outdoor lighting test the diming software was not working. What has been done since then has been significant. Mr. Wilson said based on the drawing we went through the typical inspections and CO’s. On the interpretation and what it means, linear lighting isn’t just about the light but how it is used. It is prohibited when its primary intent is used to attract attention or for advertisement. They use examples for neon or when the bulb is exposed. There is nothing like that in town. Our primary intent was to illuminate driving and walking areas. We turned the lighting off as part of the complaint. During that time period several cars have actually run in to the wall since it is not illuminated. The code was adopted in 1991. It was progressive at the time. This is not a one off circumstance. This code has been around for a while. It is an antiquated piece of code. If the light meets the code of non linear lighting, shaded and downcast appropriately then the lighting can be approved as not linear lighting. Mr. Genshaft said it is interesting that the code definition refers to neon and fluorescent. The origins of this provision might be clumsy to use it in this provision. Mr. Wilson said in the meantime we have been asked to do a photometric analysis to show we meet the night sky standards. Our project is compliant. It meets all of the current most stringent night sky requirements. Greg Mackell, lighting, said what I did for landscape lighting, was to use less than what is permitted by code. It wasn’t just software. Mr. Wilson said there is a portion of the code that allows for landscape lighting. He showed examples of similar lighting including a residence at Red Butte drive. Limelight hotel has an accent light on the exterior of the building. 721 W North in the west end with bollards and linear light highlighting the caps. He showed examples of several more uses of linear lighting. We believe our house is pretty consistent with how the code is applied since 1991. Mr. Genshaft said my feeling is if this is an issue for council there is a much better way to address it. Using an interpretation, especially on projects that have been approved is not proper. The outdated code section probably needs to be looked at. It is a code amendment process not an interpretation for one project. We feel we can address the complaints of the neighbors if there continue to be them. Rick, owner, said we spent months working with the city on this installation. We thought we were doing the right thing. We got approved and a CO. When we got the complaint we immediately took it off. We love being Aspen residents and want to do the right thing. Mr. Mackell said the first project I worked on in Aspen was the music tent. The one line in the code that refers to linear lighting has been an enigma. When I read that section of the code it says linear lighting, including but not limited to neon and fluorescent lighting. If the original intent was to have no linear lighting outside I would have stopped after linear lighting. It was qualified with architectural highlight. With this project we sat down with Claude. After that meeting we submitted the plans with the detail that Claude sketched. If the interpretation is going to be no linear lighting outside there should be a period after linear lighting. Another part of the interpretation was to prevent poorly installed lighting. This was not poorly installed. It was also to prevent light from impacting the night sky, this doesn’t do that either. Mr. Genshaft said the abuse of discretion is clear. With all these other projects and the facts, it speaks for itself. There is not a lot of guidance in the code regarding due process. Giving the auto court was approved and we were specifically working with the city. I find it hard to put that into an oversight category. If you uphold the interpretation at the least the auto court lighting is in a different category. Mayor Skadron said you are suggesting abuse of discretion because evidentiary support exists. Mr. Genshaft replied absolutely. Councilwoman Mullins asked for a comment on the approvals that were given then reversed or disputed. Also for a comment on how this differs from the examples. Ms. Phelan said in January 2018 the last change order came in. That permit wasn’t issued until June of 2018. The city received a complaint. That is when it was determined that it was linear in nature. We determined the lighting was installed without a permit. The focus was on the rear of the property and the auto court was overlooked. The CO was handled and the lighting in the rear was removed as a condition of the CO. The auto court was overlooked. The CO was issued in June. We received a second complaint in September by a different person. In regard to examples, we do have an old lighting code. Staff tries to apply it to the best of their ability. They really didn’t get it until we started receiving some complaints. The limelight was approved by the former ComDev director. I will assume these were overlooked by staff. Ms. Garrow said one thing that is clear from this conversation and others is that this is an old code section that does need to be P98 VI.f Regular Meeting Aspen City Council February 11, 2019 8 looked at and address some of the changing technology. We are talking about a specific what we view as linear lighting. It meets those standards in the code. Maybe we need to amend the code. But for right now this specific product meets that definition. If we need to go back through and see if we issued other permits in error, we would do that. For us, we wanted to do this as an interpretation to respond to some of the applications we have seen. Ms. Phelan said I think you will also see this type of ribbon lighting applied. Rick said regarding the timeline, we worked with Claude on the lighting design to create it during January and February during the application. As soon as there was a complaint we took it out. When they did the inspection in order to get the CO all the lighting was inspected. To suggest they overlooked the lighting in the court yard is inaccurate because we walked the property with them and looked at all the lighting. Councilman Hauenstein said the Hotel Jerome lighting was installed without any permits. Ms. Garrow replied correct. Councilman Hauenstein asked are permits required for this type of lighting. Ms. Garrow said yes, we believe a permit would have been denied for this type of lighting. Councilman Hauenstein asked have there been complaints about the Jerome or any of the examples. Ms. Garrow said no formal complaints. Councilman Hauenstein asked is the lighting on the property in question on a dimmer or an on off. Mr. Mackell said it is on a control system with a top end that cannot be exceeded. Councilman Hauenstein said this isn’t something I like to sit here and decide on. It doesn’t seem appropriate for an elected body to arbitrate between neighbors. We are a policy body. It is not a position I like to be put in. I personally don’t like all the lights. I don’t know how you can say you are not allowed when all these others have been allowed. The precedent has been set. Councilman Myrin said thank you for the examples. One missing is the city installed is the rope lighting around the bollard to the theatre in the park. The Dancing Bear also. All that though isn’t what the question is. It is should this be a code amendment. I don’t think staff exceeded their jurisdiction, abused their discretion or a denial of due process. I think the code needs updated. I don’t see a reason to reverse staff decision on this. One thing I would like to do is look at the garage door issue. Councilman Frisch asked how do you see this becoming compliant. What would make staff happy. Ms. Phelan said the intent is to have fixed single point light sources not to have continuous strips of lighting. Councilman Frisch asked is staff only concerned about the auto court. Ms. Phelan said the rear of the house has been removed. Ms. Garrow said in terms of moving forward, there is the option to totally reverse and this type of lighting is ok. You could affirm the interpretation and say staff go back and apply the code evenly and correctly and enforce on all of these. You could say we are not going to go back on any of the permits previously issued but this interpretation will stand. Councilman Frisch said lighting at a base level is used for safety. We have that. Then there is the house would look nice. Then there is attracting attention then advertising. What the applicant is saying is safety we are saying is attracting attention. How are you deciding between that. Ms. Garrow said we don’t use that as a standard, looking nice or attracting attention. We are looking at the technical aspects of the code. Ms. Phelan said linear lighting is linear in nature. Ms. Garrow said there are other types of lighting one could install that would comply. Councilman Frisch said if you were to go back and look at the examples I will offer some pushback that staff was focused on other aspects. I see architectural highlights all over the place. Aren’t we better off allowing any approved plans to go through and if we as a community don’t want that we have that conversation. Ms. Garrow said that is a conversation. If this lighting type is something you are comfortable with you should overturn the interpretation. If it’s not, then you should affirm the interpretation. Councilman Frisch asked how are we going to enforce on approvals that we gave. Ms. Phelan replied we have a section in the code that if you agree this is linear lighting we could say we issued it in error. Ms. Garrow said that is probably the most aggressive option but something we could do. Councilman Frisch said this is a complaint driven conversation. Mr. True said under the code the city has the right to suggest a permit issued in error is void. That would take an enforcement process. What you have to consider now is staff’s interpretation of this particular line of the code. Their interpretation is that lighting is linear lighting and inconsistent with that code. Do you uphold the interpretation. If you do, there may be a lot of other issues you have to address. If you reverse the interpretation it would allow all of this lighting to be considered approved. P99 VI.f Regular Meeting Aspen City Council February 11, 2019 9 Councilman Myrin asked is there a way to affirm this decision to not enforce everything right away and set something for a code amendment. It is a cleaner approach going forward. It keeps us in control of what we want. If we reverse this we’ve lost control. Councilman Frisch said I don’t think it was installed as an architectural highlight. I think it was wayfinding. Mr. True said you could say in this particular instance it is not an architectural highlight. That determination would be limited to this property. Councilman Frisch said if I don’t believe primarily intended as an architectural highlight would that change your opinion. Ms. Garrow said you have two options; one is to reverse this interpretation. Second is to affirm the interpretation and say it applies from this point going forward. Rick said the lighting in the rear is stair lighting to guide people to the hot tub. It is there for safety. Councilwoman Mullins said this code needs to be changed. It doesn’t make sense and is out of date. What is the goal here. Assuming the goal should be safety and dark skys, it doesn’t say much about that. From what I’m seeing I can’t say if it is for safety or to highlight the architecture. Generally, I’m very consistent on following the code. We need to go back and change this. It also appears that people are running away with this. Yes, we can affirm your decision but how do you respond when we haven’t been applying it. Ms. Phelan said you could say yes it is linear lighting and we don’t want to see any more until the code is changed. What is there can stay. Or you can say the lighting is fine and any permit that comes in is approved. Councilwoman Mullins said my position is the city maintains control of the code and affirms what has been done and changes the code as quickly as we can. Councilman Frisch said I have some trouble with the light that is being produced. I think we are here because someone turned them in not because we made a mistake. I don’t think this was a mistake. I think staff has been focusing on other aspects and we are only here because someone turned them in. I don’t want to go back and start chasing other things. Councilwoman Mullins said she supports the option of upholding the interpretation but allowing anything that has been permitted to remain. Councilman Myrin said it might turn out the code change when we work on it may allow what is in the back of the house. Mr. True said it seems like there is consensus to uphold the decision of comdev. It also seems to be consensus to direct staff to work on code amendments to update the code that is quite dated to not pursue enforcement of any property that has a valid permit even if it appears that permit may have been issued in error. That would include the front of this property. I’m not suggesting that council make formal motions on that. I don’t think it is necessary. I think if you uphold this and just direct staff to look at code amendments and to not enforce this code on anybody that has an existing permit I think we can move forward here. Councilman Hauenstein said I see this as linear lighting. If by definition it has to be for architectural highlight I don’t think it is. I think it is to bring highlight to the wall so you don’t hit it with your car. I think it is appropriate in this instance. All these examples show there is a problem that needs to be addressed. The lighting in the courtyard is appropriate for safety. Mr. Genshaft said we would request that be part of the resolution. Ms. Garrow said as the person overseeing the department and managing this process, she would agree with the applicant. Councilman Frisch asked going forward, at what point in the permit process is someone allowed to continue submitting lighting that has been talked about tonight. At what point can they not do it until we have a further discussion. Ms. Garrow said what I am hearing is it is anything that has a valid permit. If something is in permit process, applied for but not issued, it would not apply to that. Councilman Frisch said if someone spent a year and a half doing lighting design and it has been given the formal nod but it hasn’t been approved and staff comes in tomorrow and redlines. Ms. Phelan said there are examples of permits in the queue that have been issued where the lighting was found to be linear and could not be approved and was modified. Staff has been very aware of this issue. I don’t think you will have an example of a permit that has been in review that will be affected by this. Councilman Frisch said the line has to be drawn somewhere. P100 VI.f Regular Meeting Aspen City Council February 11, 2019 10 Councilman Myrin moved to approve Resolution #22, Series of 2019 with modifications directing staff to update the code and not to pursue enforcement for properties with valid permits. Seconded by Councilman Hauenstein. All in favor, motion carried. Councilman Frisch moved to adjourn at 8:15 p.m.; seconded by Councilwoman Mullins. All in favor, motion carried. Linda Manning City Clerk P101 VI.f TO: Mayor Skadron and City Council FROM: Jessica Garrow, Community Development Director RE: Policy Resolution: Wireless Regulations Resolution 13, Series of 2019 DATE: February 25, 2019 SUMMARY: The attached Resolution outlines Council policy direction for amendments to the City’s Land Use Code regarding Wireless Regulations. 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 responds to Aspen’s community aesthetics and small town 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. If the Policy Resolution is approved, (Ordinance 5, Series 2019) is scheduled for later in this meeting. The final Ordinance needs to be approved on the March 11th Council meeting 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 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 review authority 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. MEMORANDUM Mayor Skadron and City Council Community Development Director Wireless Regulations Code Amendment of 2019 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 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 olicy Resolution is approved, the first reading of the ordinance amending the city’s regulations (Ordinance 5, Series 2019) is scheduled for later in this meeting. The final Ordinance needs to be Council meeting to ensure the new regulations meet some of the timelines that have been established by the federal government, which requires that local jurisdictions adopted . The March date will ensure updated requirements take effect before this 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 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 rings on Ordinance outlining specific code amendments. Page 1 of 2 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 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 the first reading of the ordinance amending the city’s regulations (Ordinance 5, Series 2019) is scheduled for later in this meeting. The final Ordinance needs to be regulations meet some of the timelines that have been established by the federal government, which requires that local jurisdictions adopted . The March date will ensure updated requirements take effect before this 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 P102 VII.a Page 2 of 2 DISCUSSION: 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. 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 were held in February, and generally both Commissions supported the direction of the code amendments. They requested reviewing these facilities similarly to how other types of mechanical equipment is currently reviewed. There are specific height and distance standards as well as screening requirements that could be useful. There was some concern about having these facilities on historic buildings, and both Commissions requested the regulations be as strict as possible when it comes to placement on historic structures. Neither Commission particularly liked the “camouflage” options (fake rocks, flag poles, and fake water towers), and instead supported facilities that do not pretend to be something they are not, but to be tastefully placed with setback and screening requirements. 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 P103 VII.a 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 February 25, 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. P104 VII.a 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 P105 VII.a 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 P106 VII.a 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. P107 VII.a 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 P108 VII.a 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. P109 VII.a 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 P110 VII.a 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. P111 VII.a 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 P112 VII.a TO: Mayor Skadron and City Council FROM: Jessica Garrow, Community Development Director RE: Wireless Regulations Code Amendment Ordinance 5, Series of 2019 Public Hearing Scheduled: March 11, 2019 DATE: February 25, 2019 SUMMARY: The attached Ordinance amends the City’s Wireless Regulations state and federal law, while also ensuring a review process that responds to Aspen’s community aesthetics and small town character public hearing) scheduled for March 11, 2019. While staff has worked diligently to get the code language complete, there may be minor changes pending additional input from outside legal counsel and wireless carriers between 1 Staff will include a summary of any changes in that memo. STAFF RECOMMENDATION: Staff recommends approval of the proposed 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 review authority 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 out DISCUSSION: 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 the right-of-way on city infrastructure, such as traffic lights and light poles. MEMORANDUM Mayor Skadron and City Council Community Development Director Code Amendment of 2019 Hearing Scheduled: March 11, 2019 Ordinance amends the City’s Wireless Regulations to ensure the city complies with , while also ensuring a review process that responds to Aspen’s community aesthetics and small town character. This is the first reading of the Ordinance, with 2 public hearing) scheduled for March 11, 2019. ntly to get the code language complete, there may be minor changes pending additional input from outside legal counsel and wireless carriers between 1 Staff will include a summary of any changes in that memo. Staff recommends approval of the proposed Ordinance. 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 Public Hearings on Ordinance outlining specific code amendments. 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 way on city infrastructure, such as traffic lights and light poles. Page 1 of 2 to ensure the city complies with new , while also ensuring a review process that responds to Aspen’s community This is the first reading of the Ordinance, with 2nd reading (the ntly to get the code language complete, there may be minor changes pending additional input from outside legal counsel and wireless carriers between 1st and 2nd reading. 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 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 have evolved to allow wireless facilities to locate in P113 VIII.a Page 2 of 2 Attached is code language that attempts to address the immediate need to comply with state and federal regulations. Additional work to ensure this technology meets Aspen’s community aesthetic standards may 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 were held in February, and generally both Commissions supported the direction of the code amendments. They requested reviewing these facilities similarly to how other types of mechanical equipment is currently reviewed. There are specific height and distance standards as well as screening requirements that could be useful. There was some concern about having these facilities on historic buildings, and both Commissions requested the regulations be as strict as possible when it comes to placement on historic structures. Neither Commission particularly liked the “camouflage” options (fake rocks, flag poles, and fake water towers), and instead supported facilities that do not pretend to be something they are not, but to be tastefully placed with setback and screening requirements. Staff continues to work with outside legal counsel who are experts in wireless regulations. The language will receive a final once-over by these experts between first and second reading. Additionally, staff has provided draft regulations to wireless providers, but has not yet received feedback. If any is received between first and second reading, staff will provide a summary in the second reading memo. STAFF RECOMMENDATION: Staff recommends adoption of the attached Ordinance, on first reading. RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): “I move to approve Ordinance No. 5 Series of 2019, amending the City’s Wireless Regulations to comply with state and federal requirements, on first reading.” ATTACHMENTS: Exhibit A – Staff Findings P114 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 1 of 25 ORDINANCE NO. 5 SERIES OF 2019 AN ORDINANCE OF THE ASPEN CITY COUNCIL AMENDING CITY OF ASPEN LAND USE CODE RELATED TO WIRELESS REGULATIONS. WHEREAS, in accordance with Sections 26.208 and 26.310 of the City of Aspen Land Use Code, the City Council of the City of Aspen directed the Community Development Department to draft a code amendment to amend the language regarding wireless regulations in order to comply with requirements of state and federal law; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall begin with Public Outreach, a Policy Resolution reviewed and acted on by City Council, and then final action by City Council after reviewing and considering the recommendation from the Community Development; and, WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development Department conducted Public Outreach and received comments from the Planning and Zoning Commission and Historic Preservation Commission regarding the code amendment; and, WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on February 25, 2019, the City Council approved Resolution No. 13, Series of 2019, by a ___ to ___ (_ - _) requesting a code amendment to amend the wireless and related sections of the City’s Land Use Code; and, WHEREAS, the Aspen City Council has reviewed the proposed code amendments and finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310; and, WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare; and NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1: Code Amendment Objective 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: Aspen Land Use Code sub-section 26.575.130 is hereby deleted and replaced in its entirety with the following: 26.575.130 Wireless communications facilities and equipment P115 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 2 of 25 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, provide for managed development, installation, maintenance, modification, and removal of wireless communications infrastructure that is consistent with Aspens small mountain town character, while at the same time not unreasonably interfering with the development of a competitive wireless communications marketplace in the city. A. 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. B. 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 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 P116 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 3 of 25 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 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. P117 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 4 of 25 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. C. Wireless 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 Wireless 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, 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 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 P118 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 5 of 25 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. 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. 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. P119 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 6 of 25 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 (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; P120 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 7 of 25 (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 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 P121 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 8 of 25 associated transmitting Antennas, nor does it include other facilities specifically excluded from the coverage of this Section. 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 and Small Cell Facilities in the Right-of-Way which are reviewed under subsections 3 and 4 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 and Zoning Commission or Historic Preservation Commission, as applicable, 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; ii Violates a generally applicable law, regulation, or other rule codifying objective standards reasonably related to public health and safety. P122 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 9 of 25 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. 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 P123 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 10 of 25 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 to 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 and 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 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 P124 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 11 of 25 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. With the exception of Eligible Facilities Requests and Small Cell Facilities in the ROW, 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. P125 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 12 of 25 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. 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. 12. Special review. An application requesting a variance from the review standards for height or location 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, and the Special Review Chapter, 26.430. 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. a) 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: i. Conformance with the applicable review standards of Subsection 26.575.130.F. ii. 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. iii. If the facility or equipment is located on property that is subject to the Commercial Design Standards of Chapter 26.412, those applicable standards 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, 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. P126 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 13 of 25 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. v Specific design considerations for impact or breakaway characteristics as required in specific roadway right of ways P127 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 14 of 25 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; P128 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 15 of 25 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. P129 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 16 of 25 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. 1. 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). 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 P130 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 17 of 25 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 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 collocation request shall not greatly exceed that for a single applicant. 3. Setbacks. All WCFs shall comply with setback requirements. 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, and shall comply with any applicable design requirements of Chapter 26.412, Commercial Design Review, and 26.415, Historic Preservation. 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. P131 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 18 of 25 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. 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, unless otherwise required by Chapter 26.412, Commercial Design Review or 26.415, Historic preservation, or as required by the appropriate decision-making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission or City Council, as applicable). P132 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 19 of 25 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. Variations to this standard in order to meet applicable requirements of Chapter 26.412, Commercial Design Review or 26.415, Historic Preservation, may be approved during the review. 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, as required in Section 26.435.050, Mountain View Plane Review. 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 a given zone district. 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 P133 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 20 of 25 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. 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) All screening shall meet the requirements of applicable Historic Preservation Design Guidelines and Commercial Design Guidelines. Additionally, all fence screening shall meet the requirements of 26.575.050, Fence Materials. . 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 WCFs and 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 P134 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 21 of 25 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 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 P135 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 22 of 25 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 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. P136 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 23 of 25 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 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 apply to the location and design of all WCFs governed by this Chapter. Said guidelines 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; P137 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 24 of 25 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. 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. Section 3: Any scrivener’s errors contained in the code amendments herein, including but not limited to mislabeled subsections or titles, may be corrected administratively following adoption of the Ordinance. Section 4: 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. P138 VIII.a Ordinance 5, Series of 2018 Affordable Housing Fee-in-Lieu Increase Page 25 of 25 Section 5: 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 6: 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 7: A public hearing on this ordinance shall be held on the 11th day of March, 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 25th day of February, 2019. Attest: __________________________ ____________________________ Linda Manning, City Clerk Steven Skadron, Mayor FINALLY, adopted, passed and approved _______________, 2019. Attest: __________________________ ___________________________ Linda Manning, City Clerk Steven Skadron, Mayor Approved as to form: ___________________________ James R. True, City Attorney P139 VIII.a 26.310.050 Amendments to the Land Use Code Standards of review In reviewing an application to amend the text of this Title, per Section 26.310.020(B)(3), Public Hearing before City Council, the City Council shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Staff Findings: There are no known conflicts with any other portions of Title 26. B. Whether the proposed amendment achieves the policy, community goal, or objective cited as reasons for the code amendment or achi Staff Findings: 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. C. Whether the proposed amendment is compatible with the community character of the City and is in harmony with the public interest and the purpose and intent of 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 - Adoption. In reviewing an application to amend the text of this Title, per Section 26.310.020(B)(3), , the City Council shall consider: Whether the proposed amendment is in conflict with any applicable portions of this There are no known conflicts with any other portions of Title 26. Staff finds this criterion to be met. Whether the proposed amendment achieves the policy, community goal, or objective cited as reasons for the code amendment or achieves other public policy objectives. 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 objectives of the City. Staff finds this criterion to be met. Whether the proposed amendment is compatible with the community character of the City and is in harmony with the public interest and the purpose and intent of this Title. The objective of the proposed amendment is to bring the Land Use Code into compliance with state and federal regulations. Staff finds this criterion to be met. Page 1 of 1 EXHIBIT A STAFF FINDINGS Adoption. In reviewing an application to amend the text of this Title, per Section 26.310.020(B)(3), Step Three – Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff finds this criterion to be met. Whether the proposed amendment achieves the policy, community goal, or objective cited as eves other public policy objectives. 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 Whether the proposed amendment is compatible with the community character of the City and is in harmony with the public interest and the purpose and intent of this Title. to bring the Land Use Code into compliance with state and P140 VIII.a TO: Mayor Skadron and Aspen City Council FROM: Garrett Larimer, Planner THRU: Jessica Garrow, Community Development Director RE: Temporary Use Request 2019 MEETING DATE: February 25, 2019 Note: No changes have been made to the Memo from the original hearing. 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 MEMORANDUM Mayor Skadron and Aspen City Council Garrett Larimer, Planner Jessica Garrow, Community Development Director Temporary Use Request – Hotel Jerome, 330 E. Main St., Resolution No. 12 , 2019 (Continued from January 18, 2019) Note: No changes have been made to the Memo from the original hearing. Jerome L.L.C., Sunny Vann, Vann Associates, LLC, PO Box 4827, Basalt, CO Commercial Core (CC) with The applicant is seeking oval for an “Ice Lounge” on the Mill Street terrace. 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 nted 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 Page 1 of 4 E. Main St., Resolution No. 12, Series of Staff is recommending the City Council approve the applicant’s request for a one- ) 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 commends Council grant three (3) annual recurrences 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 P141 IX.a Page 2 of 4 330 E Main St. / Temporary Use City Council Hearing – February 25, 2019 recurrences for the Ice Lounge, starting February 2019 through December 2024. City Council is the final review authority. 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: Mill Street Terrace P142 IX.a Page 3 of 4 330 E Main St. / Temporary Use City Council Hearing – February 25, 2019 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 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 Figure 2 P143 IX.a Page 4 of 4 330 E Main St. / Temporary Use City Council Hearing – February 25, 2019 the Ice Lounge will be calculated and must be paid when the tent permit for the Ice Lounge is pulled each year. 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 P144 IX.a 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 five (5) 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 has reviewed and considered the development 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 on January 28, 2019 and continued the public hearing to February 25, 2019; 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 P145 IX.a 2 year for three (3) years, from February 2019 through December 2022. After three (3) years, the applicant may submit an application to be reviewed administratively for an additional five (5) 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 25th day of February 2019. Attest: P146 IX.a 3 Linda Manning, City Clerk Steven Skadron, Mayor 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 P147 IX.a 1 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 P148 IX.a 2 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. P149 IX.a 4 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 P150 IX.a 4 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 P151 IX.a 4 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. P152 IX.a 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 P153 IX.a MEMORANDUM TO: Mayor Skadron and City Council THRU: Jessica Garrow, Community Development Director FROM: Mike Kraemer, Senior Planner MEETING DATE: February 25, 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 lodge/commercial 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. • The Applicant also requests City Council consideration and feedback for a change in use from the approved mixed-use lodge to a mixed- use affordable housing project. STAFF RECOMMENDATION: 1) Staff recommends a 12 month extension of vested rights for the Base 1 Lodge approvals; or with City Council direction; or, 2) Staff recommends a 6 month extension of vested rights to provide the Applicant additional time to explore a mixed use affordable housing project in lieu of the approved mixed-use lodge. Figure 1. 730 E. Cooper Ave, existing Buckhorn Lodge, looking north. P154 IX.b Page 2 of 7 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: 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 P155 IX.b Page 3 of 7 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. If 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 on July 7th, 2019 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. For Council consideration, the Applicant has provided additional information that acknowledges cost and operational constraints for construction commencing on the approved lodge project. This additional information can be viewed in Exhibit D. The Applicant indicates that if current Base 1 Lodge plans were abandoned and a new development application was pursued under the current Land Use Code, an office building housing a financial institution use would possibly be pursued. A financial institution is an allowed use in the CL zone district. The Applicant also indicates that an amendment to the project that eliminates the approved lodge units and instead proposes affordable housing units within the approved Base 1 building and architecture may be pursued. Exhibit D includes floor plans that illustrates a potential 22 units within the approved Base 1 building. At Council’s discretion, comments could be provided to the Applicant on this portion of the application. Current Land Use Code Analysis for the Approved Lodge: 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: P156 IX.b Page 4 of 7 Dimensions and Uses: Certain commercial zone districts received dimensional and use alterations at the conclusion of the moratorium. None of these changes affected the CL zone district. As a result, if reviewed 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 is still 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, accessory lodge uses and restaurant uses have been approved in subgrade levels that meets the intent of the 2nd tier replacement requirement. • The current Land Use Code requires a minimum 25% of the gross lot size be dedicated to pedestrian amenity spaces. Pedestrian amenities can be in the form of rooftop, courtyard, and patio spaces. 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 this 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 development, the Base 1 Lodge is required to mitigate for 1.97 FTE’s. The current Land Use Code now requires a 65% employee generation rate for both commercial and lodge uses. Applying the small lodge unit mitigation incentive available to Base 1, the current Land Use Code mitigation requirement would increase by 0.098 FTE’s. • The current Land Use Code also requires that the existing Buckhorn Lodge commercial net leasable space mitigate for employees generated at a rate of 18%. Existing commercial net leasable space in 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. • Total FTE mitigation for Base 1 Lodge under the current Land Use Code changes from 1.97 FTE’s to 2.44 FTE’s. STAFF DISCUSSION: The following Staff analysis outlines two discussion areas for Council consideration. The 1st provides analysis should there be a desire to extend vested rights for the Base 1 Lodge approvals. The 2nd provides analysis should there be a desire to allow an extension of vested rights to the lodge project acknowledging that the extension provides the Applicant additional time to assemble and pursue a change in use application for an affordable housing project while under the auspices of a vested lodge approval. Should the 2nd option be considered, certain P157 IX.b Page 5 of 7 conditions could be placed in the vested rights resolution that requires performance from the Applicant to pursue the represented affordable housing change in use application review process. 1) Extension of Vested Rights for Base 1 Lodge Approvals: 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 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 with the requested 18 month 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. 2) Extension of Vested Rights for a Change in Use. For Council consideration, the Applicant has included Exhibit D which illustrates a mixed-use affordable housing/commercial net leasable configuration. Sublevel and main floor plans illustrate commercial net leasable space. 2nd and 3rd floor plans illustrate 22 affordable housing units of varying sizes and configurations. The Applicant has indicated that some of the affordable housing units do not meet the 1 and 2 bedroom minimum square footage requirements in the Aspen Pitkin County Housing Authority (APCHA) Guidelines of 700 square feet and 900 square feet, respectively. A reduction in unit sizes requires review and recommendation by the APCHA Board and Special Review approval by City Council. The Applicant has also indicated that the 23 onsite subgrade parking spaces that are part of the Base 1 Lodge approvals would no longer be viable for the new affordable housing project and that off-site parking would be explored. The Benedict Commons Building, located on the same city block and north of the subject property, contains 20 subgrade parking spaces that are owned by the City of Aspen. The Applicant has stated that these spaces could possibly be allocated and used to satisfy the Base 1 parking requirement. In discussions with the Parking Department, who manages these spaces, it is understood that these spaces are currently leased to local residents, as well as providing required parking for other affordable housing projects (DRACO and 7th & Main), and that elimination of these leases would generate push back from lease holders. Parking spaces at the City owned Rio Grande parking garage and the St. Regis parking garage may also be considered by the Applicant. Staff consulted with the Parking Director regarding the possibility of utilizing off-site City owned parking spaces within the subgrade level of the Benedict Commons building and the Rio Grande parking garage. There is general concern regarding this proposal. Reduction of downtown core off-street public parking could have the effect of displacing current Benedict Common parking lease holders and potentially exacerbate on street parking constraints in the area. Additionally, the Rio Grande parking garage may not have the available capacity for this request and further analysis would be required including its relationship to potential future City of Aspen needs. P158 IX.b Page 6 of 7 Given existing parking constraints, at this time, the Parking Director does not feel it is appropriate to allocate any City owned parking spaces in Benedict Commons or the Rio Grande Parking Garage for this development. The Parking Director will be available at the hearing to provide clarifications and answer any potential questions on this topic. A change in use application represents a “Major Amendment” and is required to be reviewed under the current Land Use Code. In staff’s initial analysis, the minimum net livable size requirements for the affordable housing units can be reviewed by the AHCPA Board and a recommendation made to City Council, but a different parking solution may be less straight forward. Pursuant to Land Use Code Section Table 26.515.-1: Parking Impact Requirement Calculations, 22 affordable housing units would generate a 22 onsite parking space requirement. Using Transportation Impact Analysis (TIA), Mobility Commitments, and cash in lieu, the minimum parking space requirement could possibly be reduced, but any additional reductions could implicate Referendum 1 and a possible public vote on the project. Additionally, if off-site parking were proposed in a formal amendment process, a Shared Parking Agreement, pursuant to Land Use Code Section 26.515.050(3), would be required for both this project, as well as whatever project is allowing their existing facilities to be part of a shared parking arrangement. This would be the first such request since this code section was adopted during the land use moratorium, and would be reviewed by Community Development and Parking staff, with a final determination made by City Council in tandem with the change in use request. The Applicant’s proposed amendment represents a fundamental shift in the approved project. Pursuant to Land Use Code Section 26.304.070(A)(2) & (4), a change of use to a site specific development plan, in this case from lodging to affordable housing, is defined and processed as a “Major Amendment” and is subject to the Land Use Code in effect at the time of the amendment submission. It should be noted that a claim might be made that a change of use is not a “Major Amendment” and does not trigger current Land Use Code requirements, and thus, the request can be considered under the vested Base 1 Lodge approval and the previous Land Use Code. It should be noted that in Staff’s initial review of the previous Land Use Code, offsite parking does not appear to be an option to satisfy parking requirements. City Council has discretion through the Vested Rights section of the land use code to include any reasonable conditions, including identifying if an amendment should be reviewed using the current or vested land use code. RECOMMENDATION: Staff provides the following 2 separate recommendations for this request: 1) Staff recommends that Council pass a motion to approve the Base 1 Lodge Extension of Vested Rights for the lodge approvals for a period of 12 months. Alternatively, if Council is amenable to consider a forthcoming application for a change of use from the approved mixed-use lodge to a mixed-use affordable housing/commercial project, Staff recommends the following: 2) Staff recommends that Council pass a motion to approve the Base 1 Lodge Extension of Vested Rights request for a period of 6 months and include specific conditions in the draft resolution that requires the Applicant to submit a Major Amendment application to change the use of the project to a mixed-use affordable housing/commercial net leasable project as represented at the hearing. Staff has provided 2 draft resolutions that embody both recommendation #1 and recommendation #2. At Council’s discretion, a vote could be passed to adopt either resolution. PROPOSED MOTIONS (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): P159 IX.b Page 7 of 7 “I move to approve Resolution No. 11, Series of 2019, approving a 12 month extension of vested property rights for the Base 1 Lodge.” Or ”I move to approve Resolution No 11, Series of 2019, approving a 6 month extension of vested property rights for Base 1 Lodge, to provide the Applicant additional time to pursue a Major Amendment application to change the use of the project from a mixed use lodge to a mixed use affordable housing commercial project, as represented at this hearing.” ATTACHMENTS: Exhibit A – Review Criteria/Staff Findings relating solely to the extension of vested rights request for the existing Base 1 Lodge approvals Exhibit B – Public comment Exhibit C – Application Exhibit D – Additional applicant information P160 IX.b 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 a way 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 Community Development Director further finds that the Applicant has made significant expenditures obtaining the land use approvals by engaging architectural and engineering services and recording plan sets; 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 meets regulatory requirements; and, P161 IX.b 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 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 25th day of February 2019 at 5:00 PM in the City Council Chambers, Aspen City Hall, Aspen, Colorado. P162 IX.b 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 P163 IX.b RESOLUTION NO. 11 (Series of 2019) A RESOLUTION OF THE ASPEN CITY COUNCIL APPROVING A 6 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; and, WHEREAS, the Applicant has submitted an addendum to the extension of vested rights request and has represented that a change of use from the approved mixed use lodge to a mixed use affordable housing/commercial net leasable project might be pursued; and, WHEREAS, pursuant to Land Use Code Section 26.308.010 Vested Property Rights, 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 the addendum 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 a way that in its current application would significantly or fundamentally change the Base 1 Lodge development from its current vested approval; and, WHEREAS, the Community Development Director further finds that the Applicant has made significant expenditures obtaining the land use approvals by engaging architectural and engineering services and recording plan sets; and, WHEREAS, the Community Development Director further finds that the Applicant has represented that a mixed used affordable housing/commercial net leasable project might be pursued and that this amended project can be pursued within an extension of vested rights framework, subject to the conditions outlined below; and, P164 IX.b 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 6 month extension of vested rights provides the applicant a timeframe to submit for a Major Amendment application to change the use of the project; 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 ASPEN, COLORADO, THAT: Section 1: The Aspen City Council does hereby approve a 6 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, subject to the following conditions; 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. 2. Prior to July 7th, 2019, the Applicant shall submit for a Major Amendment application to change the use of the project from a mixed use lodge to a mixed use affordable housing/commercial net leasable project. Off site parking for the project will not be considered. 3. Once this application is submitted, vested rights for the land use approvals identified in Section 1 shall be automatically extended for a period of 6 months. 4. If the above conditions are satisfied, vested rights shall expire on January 7th, 2020. 5. If the above conditions are not satisfied, vested rights shall expire on July 7th, 2019. Section 2: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public P165 IX.b 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 25th day of February 2019 at 5:00 PM in the City Council Chambers, Aspen City Hall, Aspen, Colorado. 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 P166 IX.b 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 P167 IX.b 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. P168 IX.b 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 P169 IX.b P170 IX.b 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 P171 IX.b 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. P172 IX.b exhibit 1 P173 IX.b P174 IX.b P175 IX.b P176 IX.b P177 IX.b P178 IX.b P179 IX.b P180 IX.b P181 IX.b P182 IX.b P183 IX.b P184 IX.b exhibit 2 P185 IX.b P186 IX.b P187 IX.b P188 IX.b P189 IX.b P190 IX.b P191 IX.b P192 IX.b P193 IX.b P194 IX.b P195 IX.b P196 IX.b P197 IX.b P198 IX.b P199 IX.b P200 IX.b P201 IX.b P202 IX.b P203 IX.b P204 IX.b P205 IX.b P206 IX.b P207 IX.b P208 IX.b P209 IX.b P210 IX.b P211 IX.b P212 IX.b P213 IX.b exhibit 3 P214 IX.b P215 IX.b P216 IX.b P217 IX.b P218 IX.b P219 IX.b P220 IX.b P221 IX.b P222 IX.b P223 IX.b P224 IX.b P225 IX.b P226 IX.b P227 IX.b P228 IX.b P229 IX.b P230 IX.b P231 IX.b P232 IX.b P233 IX.b P234 IX.b P235 IX.b P236 IX.b P237 IX.b P238 IX.b P239 IX.b P240 IX.b P241 IX.b P242 IX.b P243 IX.b P244 IX.b P245 IX.b P246 IX.b P247 IX.b P248 IX.b P249 IX.b P250 IX.b P251 IX.b P252 IX.b P253 IX.b P254 IX.b P255 IX.b P256 IX.b P257 IX.b P258 IX.b P259 IX.b P260 IX.b P261 IX.b P262 IX.b P263 IX.b P264 IX.b P265 IX.b P266 IX.b P267 IX.b P268 IX.b P269 IX.b 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 P270 IX.b 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. P271 IX.b 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 P272 IX.b 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. P273 IX.b 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 P274IX.b exhibit 8P275IX.b 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 P276 IX.b 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 P277 IX.b exhibit 10P278IX.b exhibit 11P279IX.b 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 P280 IX.b 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 P281 IX.b 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 P282 IX.b 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 P283 IX.b 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 # 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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 P289 IX.b 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 P290 IX.b 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 P291 IX.b 300 SO SPRING ST | 202 | ASPEN, CO 81611 970.925.2855 | BENDONADAMS.COM February 8, 2019 Mr. Mike Kraemer Senior Planner City of Aspen 130 So. Galena St. Aspen, Colorado 81611 RE: Supplemental Information 730 East Cooper Avenue (BASE) Extension of Vested Rights Mr. Kraemer: Please accept this supplemental information you requested regarding the Base Lodge application. We discussed with you the prospect of completing the Base Lodge project being challenged by anticipated development costs and operational issues. “Plan A” remains the development of Base Lodge as currently approved. This would preserve the substantial investment in the architecture and engineering work made to date in producing the construction drawings. We continue to refine costs and operations with the intent to pursue Base Lodge and continue to request the additional timeframe to complete this work. Alternative concepts have been discussed within the applicant team in case the approved project cannot move forward. Councilman Myrin and Community Development staff have asked us to comment on alternative plans, which resulted in this letter. If the current plans were abandoned and a new application submitted under the revised land use code, development of an office building is a likely scenario. There continues to be strong interest in Aspen from banking, investment firms, and wealth management institutions. Retail is less likely although a pharmacy has some potential. No specifics or designs have been developed for this idea. The applicant team has also explored uses that could fit within the approved building. A commercial and affordable housing project is possible and some (very) preliminary layouts, attached, show the potential for 22 affordable units. Its important to note that these exploratory drawings are not an application and city staff, referral agencies and Boards have not reviewed these concepts. We reviewed the potential for an affordable housing project with Mike Kosdrosky, the Director of the Aspen/Pitkin County Housing Authority. His initial feedback was supportive. He suggested unit sizes category designations would need to be discussed. The preliminary layout shows unit P292 IX.b 300 SO SPRING ST | 202 | ASPEN, CO 81611 970.925.2855 | BENDONADAMS.COM sizes below the minimum requirements. Mr. Kosdrosky reinforced that he could only comment in his advisory role as the APCHA Director and not on behalf of the Housing Board. We also discussed the potential to utilize off-site parking within a city-owned facility with Mitch Osur, Parking Director. The Benedict Commons parking garage has roughly 20 spaces that are rented for a monthly rate. Re-allocating these spaces is possible although doing so would generate pushback from long-term tenants. The Rio Grande garage was mentioned, but without any specifics on availability. There was also mention of extra spaces in the St. Regis garage and while these are privately-owned they appear to go unused. Mr. Osur also emphasized his advisory role on the matter. Please understand that “Plan B” scenarios are not typically discussed publicly, and we have spent nearly no time refining these concepts within the applicant team. Actual layouts and numbers and types of units could be much different if pursued. Please let me know if you want to discuss any of the above in more detail. Sincerely, Chris Bendon, AICP BendonAdams LLC Attachments: 1. AH concept plan P293 IX.b DWDWLOBBYTENANT 'B'SPACETENANT 'A'RESTAURANTKITCHENTRASH/UTILITYEXITPASSAGEELEC.30'-3 7/8"8'-3 1/2"18'-11 3/8"8'-3 1/2"30'-3 7/8"8'-6 3/4"4'-7 5/8"5'-4 1/2"17'-1 1/4"16'-5 3/8"4'-7 3/8"7'-6 1/8"7'-9 3/4"32'-6 3/8"18'-5 3/8"8'-2"25'-10 1/8"19'-3 3/4"12'-11 5/8"7'-11 7/8"8'-8 3/8"60'-7 1/2"20'-11 1/2"28'-1 1/2"38'-11 3/8"38'-2 5/8"52'-0 3/4"15'-6"14'-0"16'-0 1/4"14'-11 1/8"OFFICE/STOR.MEN'SWOMEN'SSTOR.JAN.DRAWING TITLE:SCALE:DRAWN BY:DATE:RAASPEN, CO 1/8" = 1'-0"A-1FLOOR PLAN730 E. COOPER AVE.01.09.19 1/8" = 1'-0"1MAIN LEVEL FLOOR PLANN P294IX.b 2829 SF TENANT 'A' SPACE 989 SF TENANT 'B' SPACE TRASH/ UTILITY LOBBY ELEC.23'-6 1/2"29'-11 1/4" 25'-7 1/2" 30'-3 7/8"8'-3 1/2"18'-11 3/8"8'-3 1/2"30'-3 7/8"8'-6 3/4"4'-7 5/8"5'-4 1/2"17'-1 1/4"16'-5 3/8"4'-7 3/8"7'-6 1/8"7'-9 3/4"32'-6 3/8"18'-5 3/8"8'-2"19'-1 1/2"12'-11 5/8"7'-11 7/8"8'-8 3/8"28'-1 1/2"52'-0 3/4"15'-6"14'-0"16'-0 1/4"14'-11 1/8"19'-6 7/8"DRAWING TITLE:SCALE:DRAWN BY:DATE:RAASPEN, CO 1/8" = 1'-0"LOD-1LEASE PLAN730 E. COOPER AVE.01.09.19 1/8" = 1'-0"1 GROUND FLOOR NP295IX.b REF.REF.REF.REF.REF.REF.REF.REF.REF.REF.UPUPREF.STAIR #1STAIR #2ELEVATOR#1ELEC.A-021A-111A-031A-041A-051A-061A-071A-081A-091A-101A-121APARTMENT#1APARTMENT#2APARTMENT#3APARTMENT#4APARTMENT#6APARTMENT#7APARTMENT#8APARTMENT#9APARTMENT#10APARTMENT#11APARTMENT#5LAUNDRYDRAWING TITLE:SCALE:DRAWN BY:DATE:RAASPEN, CO 1/8" = 1'-0"A-01SECOND & THIRD FLOOR PLAN730 E. COOPER AVE.01.09.19 1/8" = 1'-0"1SECOND & THIRD FLOOR PLANNROOM TYPE / SQUAREFOOTAGE SCHEDULENameTypeAreaAPARTMENT #1STUDIO361 SFAPARTMENT #2STUDIO312 SFAPARTMENT #3STUDIO345 SFAPARTMENT #42 BEDROOM 595 SFAPARTMENT #52 BEDROOM 513 SFAPARTMENT #6STUDIO381 SFAPARTMENT #7STUDIO305 SFAPARTMENT #8STUDIO350 SFAPARTMENT #9STUDIO330 SFAPARTMENT #10 STUDIO307 SFAPARTMENT #11 STUDIO310 SFGrand total: 114109 SFP296IX.b 364 SF APARTMENT #1 316 SF APARTMENT #11 314 SF APARTMENT #10 337 SF APARTMENT #9 353 SF APARTMENT #8 338 SF APARTMENT #7 407 SF APARTMENT #6 529 SF APARTMENT #5 618 SF APARTMENT #4 360 SF APARTMENT #3 326 SF APARTMENT #2 CORR. ELEV.STAIR #1 STAIR #2 ELECT.LAUNDRY 18'-2"15'-6 5/8"8'-6 7/8"9'-3 1/4"17'-1 1/4"11'-11 3/4"17'-2 1/4"9'-4 1/2"20'-3 3/4"20'-8 7/8"17'-7 1/2"20'-8 3/8"19'-3 3/4"19'-8"18'-6"20'-10 1/8"20'-3 3/4"9'-5 3/8"8'-9 7/8"16'-1 7/8"16'-0 1/2"30'-2 1/8"5'-6 1/2" 2'-6 1/2"2'-10 3/4" 8'-0 7/8" 11'-11 1/4" 26'-11 3/4"26'-7 1/8"3'-10 1/2"4'-0" 7'-11 1/4"7'-5 5/8"7'-7 5/8"8'-2 5/8"7'-5"7'-5"7'-11"8'-6"7'-6 1/8"8'-4"8'-7 5/8"4'-10 1/8"16'-5 3/4"8'-8"16'-5 5/8"4'-7 5/8"2'-2 1/8"30'-2 1/8"DRAWING TITLE:SCALE:DRAWN BY:DATE:RAASPEN, CO 1/8" = 1'-0"LOD-2LEASE PLAN730 E. COOPER AVE.01.09.19 1/8" = 1'-0"1 SECOND & THIRD FLOOR NP297IX.b District Court, Pitkin County, Colorado Court Address: 506 E. Main St., Aspen, CO 81611 DA E FILED: February 18, 2019 9:35 PM FILING ID: 66C9ESC244DE7 CAE NUMBER: 2015CV30150 ASPEN/PITKIN COUNTY HOUSING AUTHORITY, a multi-jurisdictional housing authority, Plaintiff V. EDWARD L. MULCAHY JR., Defendant A COURT USE ONLY A Limited Representation Attorney for Defendant Name: Jordan Porter Case Number: 2015CV030150 Address: 3457 Navajo St. Division: 5 Denver, CO 80211 Courtroom: Phone Number: 720-295-9028 E-mail:jdporter@jdporterlaw.com Atty. Reg. No.: 46726 DEFENDANT'S REPLY FOR MOTION TO VACATE JUDGMENT UNDER C.R.C.P. 60(b) FOR DUE PROCESS VIOLATIONS Defendant Edward L. Mulcahy Jr. ("Mulcahy"), by and through counsel, hereby submits Defendant's Reply For Motion To Vacate Judgment Under C.R.C.P. 60(b) For Due Process Violations, [See Plaintiff APCHA's Brief In Opposition To Defendant Mulcahy's C.R.C.P. 60(B) Motion To Vacate Judgment And Reply Brief In Support Of Its Motion To Vacate The Stay Of Judgment, Feb. 5, 2019 (hereinafter "APCHA's C.R.C.P. 60(b) Resp."); Defendant's Response to Motion To Vacate Stay Requesting The Judgment Be Vacated Under C.R.C.P. 60(b) Because of Plaintiff's Due Process Violations in District Court, Jan. 28, 2019 (hereinafter "Mulcahy's C.R.C.P. 60(b)Mot.")], and, in support, states as follows: -3 .- 3-o- s:30 INTRODUCTION In its response, Aspen/Pitkin County Housing Authority ("APCHA") refuses to accept any responsibility for its clear procedural violations; attempts to blame Mulcahy for failing to take actions which were definitively APCHA's responsibility; ignores Colorado's civil procedure rules that explicitly direct where such procedural violations occur sanctions should be expected; misconstrues and conflates C.R.C.P. 60(b) case law which is neither on-point nor specific to due process analyses; and attempts to shift the burden to Mulcahy to prove his defenses in this single round of briefing where the whole point of Mulcahy's motion is that, due to APCHA's actions, he was deprived of an opportunity to gather facts to support his defenses in the first place. Make no mistake, APCHA disregarded almost every single procedural safeguard our courts have adopted to ensure pro se litigants are treated fairly and have an equal opportunity to defend against claims brought by a represented party. The fact that APCHA offers no contrition for its errors; indeed, in actuality it never even attempts to address or explain away those failures; demonstrates it has no remorse for its actions. Such actions are disrespectful to the principles of fundamental fairness that our democratic society rest upon and disrespectful to the expectations that our judicial system be fair, trustworthy, and an impartial forum protective of its citizens' rights. APCHA's actions violated Mulcahy's due process rights and the judgment here must be vacated as a result. Mulcahy's reply follows. ARGUMENT I. APCHA SERIOUSLY MISCONTRUES AND CONFLATES C.R.C.P. 60(b) STANDARDS — DUE PROCESS VIOLATIONS FOCUS ON FUNDAMENTAL FAIRNESS,APCHA INCORRECTLY IMPUTES ADDITIONAL ELEMENTS Lr-TT A misconstrues and misunderstands the ` ` • , ,_ _ w r .. n cn!s.i motions. Specifically, APCHA attempts to conflate all elements of all C.R.C.P. 60(b) subdivisions — and, indeed, some standards that are not even relevant to C.R.C.P. 60(b) motions — into one super-standard and then argue APCHA's actions do not rise to that level. To be blunt, the cases APCHA relies on in addressing C.R.C.P. 60(b) standards are nowhere close to being on-point as the majority of which are not even from Colorado courts and, moreover,not one of them even mentions due process in the C.R.C.P. 60(b) context. [See, e.g.,APCHA's C.R.C.P. 60(b)Resp. at p. 1, 6-8 (citing Harriman v. Cabela's, Inc., 2016 COA 43 at 1 74 (Colo. App. 2016), discussing relief based on excusable neglect where a party forgot to request an extension from the court to file a motion to dismiss response resulting in dismissal; DeAvila v. Estate of DeHerrera, 75 P.3d 1144 (Colo. App. 2003), declining to amend a judgment after trial where a defendant subsequently asserted a probate code statute barred or limited plaintiff's claims; Russell v. Delco Remy, 51 F.3d 746 (7th Cir. 1995), addressing a misapplication of law in relation to a dismissal based on failing to meet an employment discrimination filing deadline; Stoller v. Marsh, 682 F.2d 971 (D.C. Cir. 1983), addressing a motion to reconsider a summary judgment ruling under Fed. R. Civ. P. 60(b)which, notably, in the federal context motions to reconsider are addressed under Fed. R. Civ. P. 60(b) because there is no explicit federal rule providing for them; Scherer v. Hill, 213 F.R.D. 431 (D. Kan. 2003), asserting a mistake of law based on an appellate ruling from a counter-part veterans disability case plaintiff had also filed; Paddington Partners v. Bouchard, 34 F.3d 1132 (2d Cir. 1994), discussing amending a judgment to award pre judgment interest on the basis of mistake or inadvertence; Boule v. Hutton, 328 F.3d 84 (2d Cir. 2003), addressing newly discovered evidence standards under Fed. R. Civ. P. 60(b)(2); and Cobbin v. Denver, 735 P.2d 214 (Colo. App. 1987), a sovereign immunity and proper party case which has no clear relation to a C.R.C.P. 60(b)motion)]. 3 In contrast, and as discussed in Mulcahy's motion, Colorado case law is clear: where there are serious procedural errors a due process violation has occurred and, accordingly, any resulting judgment is void as a matter of law. [First National Bank v. Fleisher, 2P.3d 706, 712- 13 (Colo. 2002) (acknowledging a "serious procedural error," including notice issues, constitute due process violations and that"it has repeatedly been stated that a judgment is void for purposes of [the federal counterpart] Rule 60(b)(4) . . . if the judgment was entered in violation of due process.") (quoting James Wm. Moore et al., Moore's Federal Practice 1I 60.44, at 148 (3d ed. 1998)); Best Trust v. Ch. Creek Bank, 792 P.2d 302, 304 (Colo. App. 1990) ("A judgment may be void, and not merely erroneous, either because the court entering it had no jurisdiction to do so or because the procedure used to enter the iudgment violated due process rights" and voiding a judgment because it"is undisputed that neither plaintiff nor the trial court followed the procedure contemplated by C.R.C.P. 103") (emphasis added). See also Watson v. Bd. of Regents, 182 Colo. 307, 313 (Colo. 1973) (agreeing that an exclusion order issued by a university without a hearing was void as violative of procedural due process)]. That is, the issue in front of the Court is whether APCHA's actions were violative of due process and C.R.C.P. 60(b) relief is not limited to, as APCHA incorrectly attempts to impute from certain C.R.C.P. 60(b)(1) and (2) provisions, only circumstances `when new fact or law arises that was extrinsic to the judgment" [APCHA's C.R.C.P. 60(b) Resp. at p. 21. Instead, deprivation of due process is a separate and distinct standard and is premised on fundamental principles of procedural fairness that are central to our justice system and are recognized in both the Colorado Constitution and U.S. Constitution. [See U.S. CONST. amend. V & amend XIV, § 1 (due process clauses); COLO. CONST. art. II, § 25 (due process clause); Quill Corp. v. North Dakota, 504 U.S. 298, 312 (1992) ("Due process centrally concerns the fundamental fairness of 4 government activity"), overruled on other grounds by South Dakota v. Wayfair, Inc., 138 S. Ct. 2080(2018)]. Indeed, Colorado courts have explicitly recognized that if a procedural due process violation is found the inquiry ends there; the process through which the judgment was obtained is sufficiently tainted that the judgment must be vacated, there is no discretion. [In re R.A.M., 411 P.3d 814, 819 (Colo. App. 2014) ("A judgment entered in violation of due process is void"; "because a judgment entered in violation of due process is either void or not, the trial court has no discretion in making this determination.")]. H. APCHA'S STATE COURT ACTIONS VIOLATED MULCAHY'S DUE PROCESS RIGHTS — ACPHA ATTEMP'T'S TO DISTRACT THE COURT BY FOCUSING ON MULCAHY AS OPPOSED TO ITS CLEAR PROCEDURAL RULE VIOLATIONS In addition to mischaracterizing the applicable legal standards, APCHA attempts to mischaracterize Mulcahy's argument as merely"recycling his version of the facts" and rehashing prior arguments; attempts to blame Mulcahy for the procedural errors in this case; and attempts to brazenly construe the cases cited in Mulcahy's brief as being in support of APCHA's position when, in actuality, they are directly contradictory to it. [See ACPCHA's C.R.C.P. 60(b) Resp. at p. 2, 7-101. First, Mulcahy's arguments here are not a "recycling" of the facts nor are they a rehashing of prior arguments. [Id. at p. 2]. These issues were definitively not litigated, nor could they have been, while the trial court action was ongoing. Indeed, the entire point of Mulcahy's motion is that APCHA's failure to abide by basic procedural requirements accelerated the action so quickly and without proper disclosures that Mulcahy was deprived of rights he was never apprised of. [Mulcahy's C.R.C.P. 60(b) Mot. at p. 7-10, 13-181. That is, he could not assert the deprivation at the time because,by nature of the deprivation,he was unaware of it. Similarly, on appeal, the issues were limited to those preserved in the trial court which, again, could not have included a deprivation of rights Mulcahy was unaware of and, as a result, 5 had not yet been brought to the attention of the trial court. A requirement necessary to address an issue on appeal. [See People v. Lesner, 855 P.2d 1364, 1366 (Colo. 1993) ("An issue is not properly preserved for appellate review if. . . it is not presented to the trial court and is raised for the first time on appeal")]. Mulcahy only recently found out about these due process issues while working with undersigned counsel retained to look more comprehensively at Mulcahy's case for civil right violations at the administrative leveLl Upon discovery of these issues, Mulcahy promptly—and, notably, of his own accord—brought these issues to the Court for the first time. [See Petition Public Hearing Under CRCP 60(6)(5), Oct 2,20181. These issues are not recycled nor have they ever been ruled on. APCHA's attempts to construe them otherwise is severely inaccurate. Moreover, there is no time limit for asserting due process violations, "the passage of time cannot serve to validate it."[Best Trust, 792 P.2d at 304(discussing void judgments)]. Along these same lines, APCHA's attempt to blame Mulcahy for its own state court procedural errors is inexplicable. Specifically, APCHA asserts "there is nothing in the record to show that Mulcahy ever requested implementation of the Delay Reduction Order or ever requested discovery." [APCHA's C.R.C.P. 60(b) Resp. at p. 81. Mulcahy never requested implementation of the Delay Reduction Order because he was unaware of it, it was never served on him by APCHA; something which APCHA was explicitly ordered to do. [Mulcahy's CAC-P. 60(b)Mot at Ex. A, 1 2 (Mulcahy attesting "even the Delay Reduction Order . . . was never served on me by APCHA or Tom Smith"); Delay Reduction Order and Order to Set Case Management Conference in Civil Cases Assigned to Judges Lynch, Neiley, and Seldin at 1 5, 1 Mulcahy's appellate counsel was retained to appeal the summary judgment order. Accordingly, their scope of representation was limited to only those issues on appeal and they did not take a comprehensive look at Mulcahy's case. Regardless, and as discussed above, even if appellate counsel had discovered the issue, they would have been unable to address it on appeal as any new issues would first have to brought to the trial court. [People v. Lesner, 855 P.2d 1364, 1366 (Colo. 1993)(declining to rule on new issues identified for the first time on appeal)]. 6 Dec. 3, 2015 ("Plaintiff shall mail a copy of this order to all parties who enter an appearance . . ")(hereinafter"Delay Reduction Order")]. Furthermore, APCHA's attempts to blame Mulcahy for not exercising or requesting discovery are belied by the facts that the reason Mulcahy did not is that APCHA's actions deprived of him knowledge that he even had the right to discovery. [APCHA's C.R.C.P. 60(b) Resp. at p. 8-10 (asserting Mulcahy"was not deprived of . . . discovery because he never requested it")]. APCHA had obligations to set a mandatory case management conference where, if one had been set, Mulcahy would have been addressed by the Court and apprised of his rights; APCHA failed to set one. [See C.R.C.P. 16.10); Delay Reduction Order at 1 2, Dec. 3, 2015]. APCHA had obligations to provide initial disclosures to Mulcahy which, at a minimum, would have put Mulcahy on notice he could obtain at least some information from APCHA; APCHA failed to do so. [See C.R.C.P. 16.1(k)(1)]. APCHA had obligations to file a certificate of compliance with the court, and through the filing process, serve it on Mulcahy which would have further notified Mulcahy that he had discovery rights in the case; APCHA failed to do that as well. [See C.R.C.P. 16.1(h)]. Indeed, even APCHA's act of filing the case was procedurally questionable as it elected into C.R.C.P. 16.1's expedited procedure when the property in controversy was dearly over$100,000. [See Complaint at Ex. A,Dec.2,2015 (deed)]. Notably, nowhere in APCHA's resaonse does it contest it failed to abide by these procedural and discovery requirements nor does it even try to explain those errors away; instead, it simply tries to flip the responsibility onto Mulcahy which, as the Court's orders and the Colorado Rules of Civil Procedure dearly delineate, it was not his responsibility. Critically, APCHA also fails to address that C.R.C.P. 16.1 explicitly recognizes that, because of the expedited and simplified nature of C.R.C.P. 16.1 proceedings, compliance with the discovery 7 and certification requirements are particularly important to protect the procedural rights of the parties. Indeed, the rule specifically states that sanctions should be expected where a party fails to comply with those requirements. [C.R.C.P. 16.1 at cmt. [8] ("Parties should expect courts to enforce disclosure requirements and impose sanctions for the failure to comply with the mandate to provide full disclosures')]. If a complete disregard for almost every procedural requirement of C.R.C.P. 161 doesn't justify sanctions, including those designed to protect pro se parties such as a mandatory case management conference, it begs the question, what's left for APCHA to violate before sanctions are justified?2 Lastly, with respect to APCHA's assertion that they "are aware of no case where relief has been granted based upon the denial of discovery rights" and it has "read all of the due process cases cited by Mulcahy, and not a single one is at odds with APCHA's position", 2 Additionally, APCHA's assertion that Mulcahy's filing of a response implicates "there was no genuine issue of material €act" and thereby negates APCHA's requirement to abide by mandated procedures is a false equivalency. [APCHA's C.R.C.P. 60(b)Resp. at 81. Specifically, nowhere in either C.RC.P. 16.1 or C.R.C.P. 56 do those rules indicate discovery obligations are suspended or even that one has to request discovery to obtain it once a summary judgment motion is filed; indeed, C.R.C.P. 16.1 explicitly directs the opposite, that prompt, upfront, and comprehensive discovery disclosures are mandatory and that it is particularly important parties honor that requirement. [C.R.C.P. 161 at cmt. [811. Furthermore, the only potentially uncontested facts that could have been deemed admitted would have been those alleged in APCHA's motion. Facts which were limited to basic things such as ownership of the property and issuance of the notices which, importantly, APCHA alleged only that notices were issued, not that they were issued properly or even that Mulcahy received them. [Plaintiff APCHA's Motion for Summary Judgment and Incorporated Brief at 1-5, Mar. 3, 2016]. Moreover, to the extent a response was filed, courts have explicitly recognized that because of the intricate procedural issues and drastic nature of summary judgment — such as having facts that are not specifically denied deemed admitted — special care must be taken to protect pro se litigants from such procedural errors. [Jaxon Y. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985) (vacating a summary judgment order entered against a pro se party and indicating"[d]istrict courts must take care to ensure that pro se litigants are provided with proper notice regarding the complex procedural issues involved in summary judgment proceedings-") (quotations and citations omitted)]. Here, Mulcahy received none of C.R.C.P. 16.1's procedural protections and was left to try to defend a summary judgment motion having no discovery from APCHA or even being aware that he could gather information to contest asserted facts in APCHA's motion. 8 [APCHA's C.R.C.P. 60(b)Resp. at 9-101, perhaps APCHA needs to research and read Mulcahy's cases more thoroughly. They are directly supportive of Mulcahy's argument. (See, e.g., Mulcahy's C.R.C.P. 60(b) Mot. at 14-15 (citing, among other cases, Petition R.A.M. v. for the Adoption of B.G.B., 2014 COA 68 at 1 1 7, 44 (Colo. App. 2014), finding a judgment void where procedural issues in the case were pervasive enough to deprive the litigant of due process where, although the litigant was addressed by the court, the court did not advise the litigant of the nature of the hearing, what the court must determine, the burden of proof, and "neither offered an advisement or other explanation of the proceedings, nor inquired as to his preparation,"—here, Mulcahy was not even afforded an opportunity to be addressed by the court; Abraham v Great Western Energy, LLC, 101 P.3d 446, 454-55 (Wyo. 2004), indicating ruling on a motion "for summary judgment before the deadline for discovery had passed . . . deprived [the litigants] of the protections to due process afforded by the applicable rules of civil procedure"—notably, there the litigants had some prior opportunity for discovery,here,Mulcahy had none including APCHA's basic failure to provide initial disclosures; Standard Oil Co. v. F.T.C., 475 F.Supp. 1261, 1274-79 (N.D. Ind. 1979), vacating an order as a per se denial of discovery on the specific grounds it was"offensive to due process")]. Additional cases also support Mulcahy's positions. [See Nichols v. DeStefano, 70 P.3d 505, 507-508 (Colo. App. 2003) (indicating that a board of education hearing violated due process principles where, despite the student admitting to the fight underlying the disciplinary action, "the parties' abilities to present evidence" was seriously handicapped, including their ability to contact and subpoena witnesses, and making the proceeding fundamentally unfair), off'd, 84 P.3d 496 (Colo. 2004); Watson v. Bd. of Regents, 182 Colo. 307, 313 (Colo. 1973) (agreeing that an exclusion order issued by an university without a hearing and, consequently, an 9 opportunity to collect evidence and be heard, was void as violative of procedural due process); People v. Flowers, 51 111. 2d 25, 30 (111. 1972) (finding, in a criminal case, that "a complete denial of discovery resulted in a due process violation")]. APCHA's actions here are in clear violation of both the actual procedural requirements of the rules as well as the spirit of the rules. To leave them unaddressed would simply affirm APCHA does not have to take those requirements seriously and affirm to APCHA that it can do whatever it pleases; regardless of whatever important rights it wants to or has to ignore in the process.3 III. APCHA'S ACTIONS DIRECTLY IMPACTS MULCAHY'S DEFENSES, AT A MINIMUM MULCAHY SHOULD BE GIVEN AN OPPORTUNITY TO INVESTIGATE AND GATHER EVIDENCE TO SUPPORT THOSE DEFENSES While Mulcahy maintains that APCHA's state court due process violations, in and of themselves, mandate that the judgment be vacated regardless of his potential defenses, Mulcahy will address APCHA's various attempts to characterize his defenses as meritless.4 [APCHA's 3 Despite APCHA's attempts to mandate otherwise, Mulcahy does not abandon his assertions that relief may be appropriate under other provisions of C.R.C.P. 60(b) aside from C.R.C.P. 60(b)(3) including, but not limited to, C.R.C.P. 60(b)(2) and (b)(5). [See, e.g., In re C.L.S, 252 P.3d 556, 558, 560 (Colo. App. 2011) (vacating a judgment under C.R.C.P. 60(b)(3) where the father's motion "did not use the term `due process' or cite C.R.C.P. 60(b)" but recognizing that "establishing grounds for relief under [one of C.P C.P. 60(b)'s subsections] does not preclude relief under one of the other clauses") (internal citations omitted)]. Mulcahy maintains that C.R.C.P. 60(b)(3) is the most applicable framework as APCHA's actions are pervasive and comprehensive enough to rise to the level of due process violations; however, such actions may also satisfy other provisions of C.R.C.P. 60(b). That is, APCHA's actions constitute fraud upon the court under C.R.C.P. 60(b)(2)as a failure to comply with or otherwise notify the Court it had not complied with mandatory obligations. [See In re Marriage of Gance, 36 P.3d 114, 118 (Colo. App. 2001) ("A fraud upon the court is one that interferes with the judicial machinery itself")]. And, to the extent no other C.R.C.P. 60(b) provisions are applicable, these circumstances are extraordinary and egregious enough to warrant vacating of the judgment under C.R.C.P. 60(b)(5)'s catchall provision. a Mulcahy notes that, seemingly. APCHA expects Mulcahy to litigate the full merits of his defenses in his C.R.C.P. 60(b) briefing. Briefing which is nowhere comprehensive enough to litigate the entire merits of the case and, indeed, a major point of the briefing is that Mulcahy never even had a sufficient opportunity in the first place to gather and investigate facts supportive of his defenses. 10 C.RC.P. 60(b) Resp. at 10-111. Specifically, APCHA's repeated assertions that, even if the judgment were vacated, all of Mulcahy's defenses would still be barred because the Court of Appeals' decision is "now the law of the case" is completely belied by the effects of vacating a void judgment. [Id]. Specifically, a void judgment "is a complete nullity . . . [and] restores the parties to their position before the final judgment." [People v. C.G., 2015 COA 106 at >r 27 (Colo. App. 2015)]. The law of the case doctrine has no application in such circumstances. Moreover, APCHA fundamentally misconstrues the Court of Appeals' mandate. The mandate never found that there are no exceptions to the administrative remedy exhaustion doctrine,just that certain equitable defenses Mulcahy alleged were barred. Indeed, the Court of Appeals specifically recognized how arguments that involve"the adequacy of the administrative process and the fundamental fairness of the process, issues which implicate due process" are "exempt from the exhaustion requirement" [Mandate from Appeals Court at 1 49, May 1, 2018 (emphasis added)]. Notably, in addressing Mulcahy's argument regarding due process violations, the Court of Appeals focused on the factual aspects of Mulcahy's arguments and ruled against him because he had not provided sufficient facts at the trial court level to support his argument. [See id. at 1 32 ("the evidence in the record does not show that there is a genuine dispute of material fact that the County purposefully sent the August 25th[NOV] when Mulcahy was out of the country")]. That is, the precise type of facts APCHA's complete deprivation of discovery denied Mulcahy an opportunity to investigate, gather information about, and present in support of his argument. Similarly, and with respect to the 60-day cure period found in APCHA's 2014 Guidelines, to the extent APCHA asserts Mulcahy has "no explanation whatsoever . . . for the failure to raise the [guidelines issue] in the courts," [APCHA's C.RC_P. 60(b) Resp. at 7]; the 11 explanation is Mulcahy was never provided the applicable guidelines to raise the issue because APCHA never followed through on its initial disclosure obligations. [Mulcahy's C.R.C.P. 60(b) Mot. at 23 (discussing how APCHA provided no initial disclosures or discovery of any kind to Mulcahy, how the 2014 guidelines, for the first time in 7 years, had been amended in October instead of January; how the amendments had done away with the default type escalation procedure; and how the timing of the amendments pushed the guidelines to a different portion of APCHA's website just before the lawsuit against Mulcahy was filed)]. In other words, even APCHA's failure to serve the applicable guidelines, which should have been a basic component of the lawsuit, deprived Mulcahy of a full and fair opportunity to litigate the NOV timing issues. As a result of not being provided them, Mulcahy lacked the teeth of being able to point to definitive regulations indicating that APCHA prematurely issued its NOV almost a full month early and while Mulcahy was expected to be traveling.5 Notwithstanding the significance of these issues, they are inappropriate to be litigated here as this motion seeks relief for APCHA's state court due process errors; errors at the administrative level would have to be litigated next. 5 APCHA inexplicably asserts that the regulations found in its own guidelines is "now irrelevant" because the Master Deed Restriction Agreement was what the Colorado Court of Appeals relied on in affirming the Court's order and "[t]hat [a]greement does not include the 60 — day cure period." [APCHA's C.R.C.P. 60(b) Resp. at 51. This argument is baseless. APCHA's guidelines are explicit, they govern occupants of APCHA's housing and "remain in effect until such time as . . . new or amended Guidelines" are approved. [Exhibit A at p. 5 (APCHA's 2014 Guidelines' purpose section)]. Moreover, the Master Deed Restriction Agreement explicitly incorporates and references the guidelines multiple times throughout the document. [See, e.g.,APCHA's C.R.C.P. 60(b) Resp. at A 1 1, 2, 4, 6, 9, 10, 12, 13, 15, 16, 17, 261. To selectively assert that some guidelines — such as the ones APCHA was attempting to use against Mulcahy— are enforceable while others are not is completely disingenuous. APCHA cannot pick and choose which guidelines are enforceable based on what suits its whim in the moment, especially when APCHA's own notices at the time reflected the 60-day cure period timing. [Complaint at Ex. D, p. 2, Dec. 2,2015(notice indicating"14 calendar days . . . to respond and 60 calendar days . . . to fully resolve this issue")). Regardless of the guidelines' enforceability, and as recognized by the Court of Appeals, if APCHA had issued the notices while knowing Mulcahy would be traveling that in itself can give rise to a due process violation and an exception to the exhaustion doctrine. Something which,at a minimum, Mulcahy should be entitled to investigate. 12 CONCLUSION Here, APCHA's attempt to, not only sweep its procedural violations under the rug, but turn around and blame Mulcahy for failing to take actions that were definitively APCHA's responsibility has no place in a fair and just judicial system. APCHA must be held accountable for its actions and its attempt to take advantage of a pro se parry should not be honored or even recognized by institutions of justice. The law here is dear and APCHA's actions are definitive; it disregarded almost every procedural protection designed to ensure pro se litigants, such as Mulcahy, are apprised of their rights, have a fair and full opportunity to contest disputed claims, and have an equal opportunity to gather facts and dispute claims even though one parry is represented and the other party is not. Mulcahy's due process rights were definitively violated and the judgment here must be vacated as a result. WHEREFORE, for the foregoing reasons, Mulcahy respectfully requests the Court find the judgment in this action void, vacate the judgment entered, and allow Mulcahy a full and fair opportunity to defend against APCHA's claims.6 7 LEM= REPRESENTATION CERTIFICATION FOR PLEADINGS I, the undersigned attorney, have assisted in the drafting of this legal document. In helping to draft the pleading or paper filed by the pro se party, I certify that, to the best of my knowledge, information and belief, this pleading or paper is (1)well-grounded in fact based upon 6 C.R.C.P. 62(b)(2) provides that a court may stay the execution of a judgment "pending a motion for relief from a judgment or order[under] C.R.C.P. 60." Accordingly, Mulcahy requests the stay be extended through the litigation of this motion. 7 Mulcahy filed a motion to exceed page limitations prior to the filing of this reply. [Defendant's Motion to Exceed Page Limits By No More Than S Pages for C.R.C.P. 60(b) Reply, Feb. 18, 20191. That motion has not yet been ruled on; however, Mulcahy files his reply as is under a good faith assumption the motion will be granted. As discussed in the motion, Mulcahy asserts the additional pages are necessary to fully and thoroughly address APCHA's response. 13 o�ss AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E),ASPEN LAND USE CODE ADDRESS OF PROPERTY: Aspen, CO SCHE %LEDP�TBLIC HEARING DATE: 2 201,7 STATE OF COLORADO ) . ss. County of Pitlan ) I, (name,please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: y Publication of notice: By the publication in the legal notice section.of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. 'Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which wascomposed of letters not less than one inch in height.- Said noticewas posted at least fifteen(15)'days prior to the public hearing on the_day of , 20_, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26:304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (3 00).feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. Neighborhood Outreach: Applicant attests that neighborhood outreach, summarized and attached, was conducted-prior to the first public hearing as required in Section 26.304.035, Neighborhood Outreach. A copy of the neighborhood outreach summary, including the method of public notification and a copy of any documentation that was presented to the public is attached hereto. (continued on next page) Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested,to affected mineral estate owners by at-least thirty(3 0) days prior to the date scheduled: for the initial public hearing on the application of development. The names and addresses of mineral estate owners shall be those on the current tax records of Pitkin County. At a minimum, Subdivisions, SPAs or PUDs that create more than one lot, new Planned Unit Developments, and. new Specially Planned Areas, are subject.to this notice requirement. Rezoning or tett amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended,whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey. map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. Signature The!greoing"Affidavit of Notice"was acknowled ed before me this -7 day of 22011 by v4 - PUBLIC NOTICE RE:AMENDMENT TO THE CITY OF ASPEN LAND USE CODE NOTICE IS HEREBY GIVEN that a public hearing WITNESS MY HAND AND OFFICIAL SEAL Nill be held on Monday February 25, 2019, ata - meetingg to begin at 5:00 p.m.before the Aspen City - ^ouncil, Council Chambers, City Hell, 130 S. Galena St.,Aspen,to determine if amendments to the text of the Land Use Code should be pursued. My Commission expires: The potential amendments would amend the land J Y use code relative to wireless regulations.including to definitions(Chapter 26.100), and wireless tele- communication services facilities and equipment (26.575.130),and other sections as may be neces1/6 - sary. For further information, contact Jessica A X411,1141 NF Garrow at the City of Aspen Community Develop- ment Department, 130 S.Galena St.,Aspen,CO, (970)429-2780,Jessica.Garrow®cityofaspen.com s/Steven Skadron,Mayor tt - Aspen City Council i `KAREN REED PATTERSON Published in the Aspen Times on February 7,2019 0000376369 NOTARY PUBLIC h ATTACHMENTS AS APPLICABE: STATE OF COLORADO NOTARY 10#19964002767 • COPYOFTBEPUBLICATI.ON tMy Commission Ezpirea February 15,2020 • PHOTOGRAPH OF TSE POSTED NOTICE(SIGA9 • LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED BYMAIL • APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE AS REQUIRED BY C.R.S. §24-65.5-103.3 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E),ASPEN LAND USE CODE ADDRESS OF PROPERTY: Lc>c6 v 7 SO E . Coote Aspen, CO SCHEDULED PUBLIC HEARING DATE: STATE OF COLORADO ) ss. County of Pitldn� ) L � (name,please print) being or r esenting an Applicant to the aty of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section.of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. 'A copy of the publication is attached hereto. 'Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was' composed of letters not less than one inch in height:' Said notice-was posted at least fifteen(15) days prior to the public hearing on the_day of , 20, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to-'all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. Neighborhood Outreach: Applicant attests that neighborhood outreach, summarized and attached, was conducted-prior to the first public hearing as required in Section 26.304.035, Neighborhood Outreach. A copy of the neighborhood outreach summary, including the method of public notification and a copy of any documentation that was presented to the public is attached hereto. (continued on next page) Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested,to affected mineral estate owners by at least thirty(30) days prior to the date scheduled for the initial public hearing on the application of development. The names and addresses of mineral estate owners shall be those on the current tax records of Pitkin County. At a minimum, Subdivisions, SPAS or PUDs that create more than one lot, new Planned Unit Developments, and.new Specially Planned Areas, are subject to this notice requirement. Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended,whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey. map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. • Signa e The foregoing"Affidavit of Notice"was acknowled d befo e this 7 day yNOTIof ,20(_l by- NOTICE CE OF PUBLIC HEARING RE:Base 1 Lodge Extension of Vested Rights Public Hearing: WITNESS MY HAND AND OFFICIAL SEAL . Monday,February 25th.2019,5:00 pm Meeting Location: 130 S.Galena Street,City Hall- Counci Chambers My commission expires. Project Location and Legal Description: 730 East Cooper Avenue. 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, Description: The applicant is seeking an 18-month extension of vested rights for land use approvals as- Not ublic sociated with Ordinance 2,Series 2015;Ordinance 6,Series of 2016,and P&Z Resolution 4,Series 2016,and a Development Agreement recorded at Reception lNo.Ju 636058. The project is currently KAREN REED PATTERSON vested until July 7th,2019. . Land Use Review Requested: NOTARY PtJi�ue . Extension of Vested Rights ATE ^^,0 Decision Making Body:Aspen City Council ATTACHMENTS AS APPLICAB • f1 M Applicant: 730 E.Cooper,LLC NOTARY ID#19964002767 RADO 2001 N.Halsted#304 n� Chicago,IL60614 'PUBLICATION My Commission Expires Feb 15,2o2o . More Information: For further information re-, 7 POSTED �r lated to the project,contact Mike Kraemer at the CityRIZ OF TBE S O�.Sl l.'D NOTICE(►)IGA9 of Aspen Community Development Department,130 S.Galena St.,Aspen,CO,(970)429'2741, THE OWNERSAND GOVERNMENTAL AGENCIES NOTICED mike.kraemer®cityofaspen.com Published inthe Aspen Times on February 7,2019 0000376911 NT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE AS REQUIRED BY C.R.S. §24-65.5-103.3 O ~. y � j ]iY�nrti /irsuw171dr_ I 1 1, w 4r NOTICE OF PUBLIC HEARING: k : Base Lodge Extension of Vested Rights Project Location: 730 East Cooper Ave; Aspen Land Use Reviews: Extension of vested rights 1 (ITY OF ASPFtq Decision Making Body: City Council 130 S. Galena Street, Hearing Date: January 28, 2019, 5:00 p.m. Aspen, CO 81611 Hearing Location: City Hall, Sister Cities Rm.; 130 S. p: (970) 920.5000 Galena St; Aspen, CO 81611 1 f: (970) 920.5197 www.aspenpitkin.com Project Description: The applicant requests an 18-month extension of vested rights associated with land use approvals granted via Ordinance 2, Series 2015; Ordinance 6, Series 2016; P&Z Resolution 4, Series 2016; and, the development agreement recorded I at reception no. 636058. Base Lodge is a three-story building with commercial uses on the ground and basement floors floors, 38 units of lodging on the 2nd and 3rd floors, and l a partial 4th floor serving a roof-top amenity area. Legal Description: 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 ID: 2737-182-27-904 ` Applicant: 730 E.Cooper, LLC; Mark Hunt, Manager, 2001 N. Halsted Rd. #3041- Chicago, IL 60614. Represented by BendonAdams. More Information: For further information related to the project, contact Mike Kraemer at the City of Aspen Community Development Department, 130 S. Galena St., Aspen, CO, (970) 429.2741, mike.kraemer@cityofaspen.com BendonAdams 300 So Spring St 202 Aspen, CO 81611 970.925.2855 bendonadams.corn s, 4•' _ ` r 16 PU13LIC NOTICE ', }r• fati �• �� -_ �_ e : rvronday, Jr1. 2$tIi y. •` ��,i t� Y i Irl e: 5:00 PNj . ,a. Place : 130 S ahHili. Council CI-jarribers Purpose: The Aspen City Council will consider an application submitted by 730 E. Cooper LLC (2001 N. Halsted#304 Chic,-,390. IL 60614) Appki ant opo, .s an Extension of kfesred pr isting Iod9e approvals Right-, for ex l r ,formation contact Mike -4For furthe „n pl;jnnrng Xraemer Wrth the As€ �r m DoPt at 970-42q-2741- a�cit,,,fa pen `" eiike.kraerT�e �.• ;. - CITY OF • MMUNITY DEVELOPMENT DEPARTMENT, AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E),ASPEN LAND USE CODE ADDRESS OF PROPERTY: 730 e. Cooper Avenue - Base Lodge , Aspen, CO SCHEDULED PUBLIC HEARING DATE: January 28 , 20 19 STATE OF COLORADO ) ss. County of Pitkin ) I, Chris Bendon (name, please print) being or representing an Applicant to the City of Aspen,Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060(E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official Paper or paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. V Posting of notice: By posting of notice,which form was obtained from the Community Development Department, which was made of suitable,waterproof Materials,which was not less than twenty two (22) inches wide and twenty-six(26) Inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing on the 11 day of January ' 2019 ,to and including the date and time of the public hearing. A photograph of the posted notice (sign)is attached hereto: Mailing of notice. By mailing of a notice obtained from the Community Development Department,which contains the information described in Section 26.304.060(E) (2) of The Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S mail to all owners of property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty(60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. Neighborhood Outreach: Applicant attests that neighborhood outreach,summarized and attached,was conducted prior to the first public hearing as required in Section 26.304.035, Neighborhood Outreach. A copy of the neighborhood outreach summary, including the method of public notification and a copy of any documentation that was presented to the public is attached hereto. (Continued on next page) March, 2016 City of Apen 1130 1 1 5050 i CITY OF AsPEN COMMUNITY DEVELOPMENT DEPARTMENT t Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested, To affected mineral estate owners by at least thirty(30)days prior to the date scheduled for the initial public hearing on the application of development. the names and addresses of mineral estate owners shall be those on the current tax tax records of Pitkin County. At a minimum,Subdivision,Spas or PUDs that create more than one lot, new Planned Unit Development, and new Specially Planned Areas, are subject to this notices requirement. Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title,to whenever the text of this Title is to be amended,whether such revision be made by repeal of this Title and enactment of new land use regulation,or otherwise,the requirement of an accurate survey map or-other significant legal description of, and the notice to and listing of names and addresses of owners of real estate property in the ears of the proposed change shall be waived. However,the proposed zoning during all business hours for (teen (15)days prior to the public hearing on such amendments. / Z�A Signature The foregoing"Affidavit Notice"was acknowledged before me this day of 20/1-1 by WITNESS MY HAND AND OFFICIAL SEAL My commission expires: Z�7DZ KI'd 5W NOTARY PUBLIC STATE OF COLO?.P,DO Notary Public NOTARY ID t,120014030017 I Driy commission Expires S.plemte,?5,2(l"I ATTACHMENTS AS APPLICABLE: • COPY OF THE PUBLICATION PHOTOGRAPH OF THE POSTED NOTICES (SIGN) © LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED BY MAIL © APPLICANT CERTIFICATION OF MINERAL ESTATE OWNERS NOTICED AS REQIURES BY C.R.S§24-65.5-103.3 2016 City of Apen 1130 • 1 1 505di CITY OF AsPEN COMMUNITY • ' DEPARTMENT AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E),ASPEN LAND USE CODE ADDRESS OF PROPERTY: 730 e. Cooper Avenue - Base Lodge ,Aspen, CO SCHEDULED PUBLIC HEARING DATE: January 28 , 20 19 STATE OF COLORADO ) ss. County of Pitkin ) I, Chris Bendon (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060(E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official Paper or paper of general circulation in the City of Aspen at least fifteen (15)days prior to the public hearing. A copy of the publication is attached hereto. V Posting of notice: By posting of notice,which form was obtained from the Community Development Department, which was made of suitable,waterproof Materials,which was not less than twenty two (22) inches wide and twenty-six (26) Inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15)days prior to the public hearing on the 11 day of January ' 2019 ,to and including the date and time of the public hearing. A photograph of the posted notice(sign)is attached hereto: V Mailing of notice. By mailing of a notice obtained from the Community Development Department,which contains the information described in Section 26.304.060(E) (2) of The Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S mail to all owners of property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty(60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. Neighborhood Outreach: Applicant attests that neighborhood outreach, summarized and attached,was conducted prior to the first public hearing as required in Section 26.304.035, Neighborhood Outreach. A copy of the neighborhood outreach summary, including the method of public notification and a copy of any documentation that was presented to the public is attached hereto. (Continued on next page) March, 2016 City of Apen 1130 S. Galena St.1(970) 920 5050 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E),ASPEN LAND USE CODE ADDRESS OF PROPERTY: 34 Aspen, CO ) Te SCHEDULED PUBLIC HEARING DATE: 20 kc) STATE OF COLORADO ) ss. County of Pitkin ) (name,please print) being or representing an Applicant to ity of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section.of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. -Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was' composed of letters not less than one inch in height.' Said notice was posted at least fifteen(15) days prior to the public hearing on the_ day of 220 , to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26:304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (3 00).feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. Neighborhood Outreach: Applicantattests that neighborhood outreach, summarized and attached, was conducted-prior to the first public hearing as required in Section 26.304.035, Neighborhood Outreach. A copy of the neighborhood outreach summary, including the method of public notification and a copy of any documentation that was presented to the public is attached hereto. (continued on next page) Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested,to affected mineral estate owners by at-least thirty(3 0) days prior to the date scheduled for the initial public hearing on the application of development. The names and addresses of mineral estate owners shall be those on the went tax records of Pitkin County. At a minimum, Subdivisions, SPAS or PUDs that create more than one lot, new Planned Unit Developments, and.new Specially Planned Areas, are subject.to this notice requirement. Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended,whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. Signature The fore omg"Affidavit of Notice"was acknowled ed before me this 7 day of 20 ft,by NOTICE OF PUBLIC HEARING RE:330 E Main Street,Hotel Jerome S= 7 L 7 A Public Hearing:Monday,February 25th,2019; yy 11 lel Ei SS W HAND AND OFFICIAL SEAL 5:00 PM Meeting Location:City Council Chambers 130 S.Galena St., Aspen,CO 61611 My commission expires: Project Location: 330 EMain Street legal pescripption: Parcel ID:273707321004;AS- PEN t31C,2OTEL JEROME SUBDIVISION/PD, ACCORDING TO THE PLAT RECORDED JANU- ARY 31,2017 IN PLAT BOOK 117 AT PAGE 69 AS R id 00 RECEPTION NO.635789. Deacrlptlon:The Hotel Jerome is requesting a Tem- Qtary ublic . porary Use approval to allow for an Ice Lounge to be erected on the Mill Street terrace for up to on- e-hundred and six(106)days per year.Temporary use requests that exceed seven(7)days require ap- pr oval by City Council,and City Council may grant E PATTERSONup to ten(10)annual reoval forsvariou0s tent struc- ARY pcant was granted app LfBLIC tures on site for up to seventy-four(74)days per OF COLORADO year,with five(5)annual recurrences.A maximumofone-hundred and eighty(180)days per year may ATTACHMENTS AS APPLICABLD#19964002787 be approved by City Council.The current request would result in a request for one-hundred req ed ng ap OFTSEPUBLICATI.ON '�0�"mj�'0f February 15,2020 if 80)total days.Thea titan[is also requesting a- proval for five(5)annual recurrences. Land Use Reviews Regi Temporary and Seasonal OGD GRAPH OF THE POSTED NOTICE O•�+TC (SIG 9 Uses, Commercial Design Review, and a Growth l�tLL-ll��l'7�lDw �7�T/� lJTJ�D7�1771,{1.�L7��/+lITLT�/��+ 7� �*r �+T Management Review for Temporary Uses and Struc-,F TRE OII NER til Yll GO VER YlYlEN AL AlTl.'NCL S NOTICED tures Ci Council Decision Making Body: ty ' Applicant: Iconic Properties - Jerome, LL C' 1375 Enclave Pkwy,Houston.TX 77077 ll[.i More Information: For further information related Asper co mun ry Develop 8 Sao PartMe�e,CoCACERTIFICATION OF NlI1VERAL ESTAE OWNERS NOTICE Galena St.,Aspen.CO,(970)t 2739.Garrett.Lan mer@cityofaspen.com2UIRED BY C.RS. §24-65.5-103.3 . Published in the Aspen Times on February 7, 20190000376394 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E),ASPEN LAND USE CODE ADDRESS OF PROPERTY: Aspen, CO SCHEDULED PUBLIC HEARING DATE: STATE OF COLORADO ) ss. County of Pitkin �) ` ` / I, V�'—`�„� /�/Y /fY (name,please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E)of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. �osting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Saiotice was po ed at least fifteen 15)days prior to the public hearing on ui, _ y of , 20 , to and including the date and time of a public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. AIA _ Neighborhood Outreach: Applicant attests that neighborhood outreach, summarized and attached, was conducted prior to the first public hearing as required in Section 26.304.035, Neighborhood Outreach. A copy of the neighborhood outreach summary, including the method of public notification and a copy of any documentation that was presented to the public is attached hereto. (continued on next page) Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested,to affected mineral estate owners by at least thirty(30)days prior to the date scheduled for the initial public hearing on the application of development. The names and addresses of mineral estate owners shall be those on the current tax records of Pitkin County. At a minimum, Subdivisions, PDs that create more than one lot, and new Planned Developments are subject to this notice requirement. �'4 Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. Signa e The fore_going"Affidavit of Notice"was acknowledged before me this A day of 20_&,byya�� WITNESS MY HAND AND OFFICIAL SEAL TARA L. NELSON NOTARY PUBLIC My co ssion expires: 6 L7 STATE OF COLORADO NOTARY #2001403�`Q17 I L i�iy Commission Expires Notary Public ATTACHMENTS AS APPLICABLE: • COPYOFTHEPUBLICATION • PHOTOGRAPH OF THE POSTED NOTICE(SIGH) • LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED BY MAIL • APPLICANT CERTIFICATION OF MINERAL ESTATE OWNERS NOTICE AS REQUIRED BY C.R.S. X24-65.5-103.3 - W LO W (o Cf) 0 m c UC - (::) - U) O I. _ N O I-- (D C O C Q) � d i OO � CV U O C N C w o co U o O C .0 cn o C"i C U) O U c� a o �, U- Q m o o f -o `o c(a o vi ) c V a = U J00 L C d O 5, o M � O .°' C V M 6 ccz cn U _C i 0 L r N C N U cn C C (� U C _O Q a a O W Y-) CJ O U in OU 9 C MIX I i 1 i iL i r�: 81 q CITY OF ASPEN City of Aspen 130 S. Galena Street,Aspen, CO 81611 P: (970)920.5000 f: (970)920.5197 w: ­ww.aspenpitkin.com NOTICE OF PUBLIC HEARING RE: 33o E Main Street, Hotel Jerome Public Hearing: Monday,January 28th, 2019; 5:00 PM Meeting Location: City Hall, City Council Chambers 130 S. Galena St.,Aspen, CO 81611 Project Location: 33o E Main Street Legal Description: Parcel ID: 273707321004; ASPEN TIMES/HOTEL JEROME SUBDIVISION/PD, ACCORDING TO THE PLAT RECORDED JANUARY 31, 201-7 IN PLAT BOOK 117 AT PAGE 69 AS RECEPTION NO. 635789. Description: The Hotel Jerome is requesting a Temporary Use approval to allow for an Ice Lounge to be erected on the Mill Street terrace for up to one- hundred and six(1o6)days per year.Temporary use requests that exceed seven (7) days require approval by City Council, and City Council may grant up to ten (1o) annual recurrences. In 2017 the applicant was granted approval forvarious tent structures on site for up to seventy-four (74) days per year, with five (5) annual recurrences. A maximum of one- hundred and eighty(18o)days peryear may be approved by City Council. The current request would result in a request for one-hundred eighty (18o) total days. The applicant is also requesting approval for five (5) annual recurrences. Land Use Reviews Req: Temporary and Seasonal Uses, Commercial Design Review, and a Growth Management Review for Temporary Uses and Structures Decision Making Body: City Council Applicant: Iconic Properties—Jerome, L.L.C.,1375 Enclave Pkwy,Houston,TX 77077 More Information: Forfurther information related to the project,contact Garrett Larimer at the City of Aspen Community Development Department, 130 S. Galena St.,Aspen, CO, 970.429.2739, garrett.larimer@cityofaspen.com Pitkin County Mailing List of 300 Feet Radius From Parcel: 273707321004 on 01/07/2019 tTKIN OUNT Instructions: 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. Disclaimer: 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. http://www.pitkinmapsandmore.com JPS NEVADA TRUST WHITMAN RANDALL A MONARCH BUILDING LLC 1701 N GREEN VALLEY PKWY#9C 4845 HAMMOCK LAKE DR PO BOX 126 HENDERSON,NV 89074 CORAL GABLES,FL 33156 WOODY CREEK,CO 81656 KLAUSNER FAMILY REV TRUST CANTINA BUILDING LLC ELM 223 LLC 26020 ELENA RD PO BOX 1247 PO BOX 360 LOS ALTOS,CA 94022 ASPEN,CO 81612 ASPEN,CO 81612 ISIS GROUP HILLSTONE RESTAURANT GROUP INC HODGSON PATRICIA H FAMILY TRUST 2301 N MERIDIAN AVE 3539 NORTHSIDE PKWY 212 N MONARCH ST MIAMI,FL 33140 ATLANTA,GA 30327 ASPEN,CO 81611 ISIS BUILDING LLC CITY OF ASPEN PUBLIC FACILITIES AUTH CRMX-236 LLC 602 E COOPER#202 130 S GALENA ST PO BOX 1031 ASPEN,CO 81611 ASPEN,CO 81611 DILLON,MT 59725 360 HEXAGON LLC JBC PREFERRED PROPERTIES LLC 232 BLEEKER LLC 9401 INDIAN CREEK PKWY STE 800 1005 BROOKS LN 2385 NW EXECUTIVE CTR DR#370 OVERLAND 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