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HomeMy WebLinkAboutagenda.council.regular.20120514 CITY COUNCIL AGENDA May 14, 2012 5:00 P.M. I. Call to Order II. Roll Call III. Scheduled Public Appearances a) Proclamation — Month of the Young Child b) Resolution #44, 2012 — Maroon Creek Bridge Marker IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Deletions and Additions c) City Manager's Comments d) Board Reports . VI. Consent Calendar (These matters may be adopted together by a single motion) a) Resolution #45, 2012 - Contract - Installation of Aspen Tap Filling Stations b) Resolution #47, 2012 —Truscott Affordable Housing Building 100 Master Plan c) 2012 Burlingame Phase IIA Access Infrastructure Contracts (1) Resolution#48, 2012 -Aspen Consolidated Sanitation District (2) Resolution #49, 2012 - Holy Cross Energy (3) Resolution #50, 2012 - H-P Geotech d) Minutes —.April 23, 2012 VII. First Reading of Ordinances a) Ordinance #16, 2012 — Code Amendment - Composting Toilets P.H. 5/29 VIII. Public Hearings a) Resolution #51, 2012 - 861 Ute Ave. Height Variance b) Ordinance #10, 2012 - GMQS Review— 700 E. Bleeker (Eagle's Club) c) Ordinance #14, 2012 Historic Landmark Lot Split 202/208 E. Main d) Ordinance #15, 2012 — Code Amendment - Water Shortages IX. Action Items X. Adjournment Next Regular Meeting May 29, 2012 COUNCIL'S ADOPTED GUIDELINES • Stick to top priorities • Involve others in community problem solving • Be thorough, deliberate and accountable for consequences when making decisions COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. • MEMORANDUM • TO: Mayor Ireland and City Council THRU: Chris Bendon, Community Development Director FROM: Amy Guthrie, Historic Preservation Officer RE: Dedication of Maroon Creek Bridge historic marker DATE: May 14, 2012 SUMMARY: In January 2012, Council was asked to consider the installation of a commemorative marker describing the history of the Maroon Creek Bridge, which was once the Colorado Midland railroad bridge. Local citizen Jim Markalunas requested Council support this effort to recognize the importance of the railroad, the donation of the bridge to the community by DRC Brown, and the subsequent use of the bridge for vehicle travel in and out of Aspen for some 90 years. The Maroon Creek Bridge is listed on the National Register of Historic Places. Community Development and Parks Department staff have worked with Jim Markalunas, the Aspen.Historical Society, and Ruthie Brown, as a representative of the Brown family to develop a design for the marker, which will be placed in the vicinity of the new Maroon Creek Bridge bike trail. STAFF RECOMMENDATION: Staff recommends that Council adopt the attached resolution, dedicating this historic marker to the community. RECOMMENDED MOTION: "I move to adopt Resolution# , Series of 2012" CITY MANAGER COMMENTS: Exhibit: Resolution#1,1-; Series of 2012 A. Proposed marker design B. Letter to Council from Jim Markalanuas, January 2012 • • A RESOLUTION OF THE ASPEN CITY COUNCIL DEDICATING A COMMEMORATIVE HISTORIC MARKER AT THE MAROON CREEK BRIDGE AKA THE COLORADO MIDLAND RAILROAD BRIDGE Resolution No. , Series of 2012 WHEREAS, Aspen historian Jim Markalunas requested City Council involvement in the creation of a commemorative historic marker at the Maroon Creek Bridge; and WHEREAS, the marker outlines the history of the original Midland Bridge, a significant engineering accomplishment from the 19th century, which was first used as a railroad trestle bridge, and later as an automobile bridge; and WHEREAS, the marker describes the importance of one of Aspen's founding citizen's, D.R.C. Brown, Sr., who purchased the bridge from the defunct Colorado Midland Railroad in 1918, and contributed it to Pitkin County for public use. The bridge served as the primary vehicular access into Aspen for approximately 90 years; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Council hereby dedicates a historic marker to be installed at the Maroon Creek Bridge. APPROVED by the Aspen City Council at its regular meeting on May 14, 2012. Approved as to form: Jim True, City Attorney Attest: Mayor: Kathryn Koch, City Clerk Michael C. Ireland, Mayor 3 ..:,,f,.4. ' O u, i. - -C r p n ce. ' V U k ' •-• O a •O r om N O n v ' � ^r � O •Tj r• • . j 7 ., r'' :.. U-b) • v • . by (i., •', - , K• r r '6 3 ^ - J U f (� +--,- , - rte . j a O O n brA O s — a r *' _l y r O Ca'0 N c O r -r ; f.i`= i t' Q o : cn &ID >•,, a.,` O p__ ` o i A• i 4-, ? v, U a? N .bCp Jill, (1) O : O 5 S „ 5n �:cz)ct cps '.- O v •r a) O - ) N a) v '■ c -. .. r.. ..N +U+ p -0 - '4..., — :E,' C ..-_,4 CJ i O-0 i 'm' Cam' C: F . • ,,nn ''-O „ .> hcU v :,f, r C.. 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North Street Aspen, CO 81611 January, 2012 --- To:- The Honorable Mayor and.City Council of Aspen, Colorado RE: A commemoration plaque to be placed on "The. Midland Bridge" Gentlemen, As a citizen of Aspen, I request your support and endorsement to honor the memory of D.R.C. Brown, Sr. for his generous contribution to the citizens of Pitkin County of the historic Colorado Midland Railroad Bridge aka "The Midland Bridge" or the "Old Maroon Creek Bridge" by endorsing our request to CDOT granting us permission to place a commemorative plaque on said bridge recognizing D.R.C. Brown Senior's contribution to the State of Colorado, the County of Pitkin, the City of Aspen and all its Citizens We request you have staff prepare a resolution incorporating the dedication language of "The Midland Bridge" in honor of D.R.C. Brown Sr. Resp-ctfully Submitted, R arkalunas, Citizen as. MEMORANDUM - TO: Mayor and City Council FROM: Ashley Cantrell, Environmental Health Department THRU: CJ Oliver, Environmental Health Director DATE OF MEMO: May 7, 2012 MEETING DATE: May 14, 2012 RE: Installation of Aspen Tap Water Stations Project 2012-056 Contract Approval SUMMARY: Staff recommends City Council approve the Installation of Water Bottle Filling Stations contract with Excavation Services, Inc for the amount of$34,600.00. DISCUSSION: Following Council direction, Environmental Health staff launched the Aspen Tap program in the summer of 2011 to encourage citizens and visitors to drink local tap water, instead of drinking bottled water, to reduce waste and avoid the other environmental damage associated with bottled water. This three-part program included the installation of three bottle filling stations in downtown Aspen. The stations were popular and well used throughout the summer season. For the summer of 2012, the program will expand to include the installation of three more bottle filling stations, the same make and model as the stations installed in the previous year. The three new locations proposed for installation are Francis Whitaker Park, Koch Lumber Park, and the Aspen Municipal Golf Course. The Installation of Water Bottle Filling Stations Project was advertised for bid on April 16, 2012. One bid was received and opened on April 30, 2012. A pre-bid meeting was held on April 25g' and was attended by two contractors. Bids were received from one contractor as summarized below: Excavation Services, Inc $ 34,600.00 Excavation Services, Inc was identified by staff as the lowest qualified bidder. Excavation Services has submitted a bid of$34,600.00 for the construction of the project. BACKGROUND: Excavation Services, Inc has experience in various City infrastructure improvement projects and has performed well in previous contracts. Staff recommends that it is in the City's best interest to award the final design contract to this vendor. FINANCIAL IMPLICATIONS: Funding " Aspen Tap Phase II Budget $50,000.00 TOTAL $50,000.00 Expenditures • Excavation Services Bib for Construction $ 34,600.00 Purchase of Stations $ 10,600.00 Signs for Stations $ 1,500.00 TOTAL $ 46,700.00 RECOMMENDATION: Staff recommends that Council approves the contract for $34,600.00 as mentioned above. PROPOSED MOTION: CITY MANAGER COMMENTS: 42couc.r,4ca4a2 arnivr-P dS C-Ace - RESOLUTION # (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR INSTALLATION OF WATER BOTTLE FILLING STATIONS BETWEEN THE CITY OF ASPEN AND EXCAVATION SERVICES 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 installation of water bottle filling stations, between the City of Aspen and Excavation Services, 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 installation of water bottle stations, between the City of Aspen and Excavation 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 14th day of May 2012. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, May 14, 2012. Kathryn S. Koch, City Clerk 0 wti,S r� The City of Aspen CONTRACT FOR CONSTRUCTION (Short Form) THIS CONTRACT, made and entered into on May 14,2012, by and between the CITY OF ASPEN, Colorado, hereinafter called the "City", and EXCAVATION SERVICES, hereinafter called the"Contractor". THEREFORE, in consideration of the mutual covenants and Contracts herein contained, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,the parties hereto hereby agree as follows: 1. Construction of Project. Contractor agrees to furnish all labor, materials, tools,. machinery, equipment, temporary utilities, transportation and any other facilities needed-therefore, and to complete in a good, workmanlike and substantial manner the Project as described in the Scope of Work and/or Proposal appended hereto as Exhibit "A" which is incorporated herein as if fully set forth (the"Project"). 2. Plans and Specifications; Compliance with Laws. The Project is to be constructed and completed in strict conformance with the Scope of Work and/or Proposal appended hereto for the same approved in writing by the parties hereto. The Project shall also be constructed and completed in strict compliance with all laws, ordinances, rules, regulations of all applicable governmental authorities, and the City of Aspen Procurement Code, Title 4 of the Municipal Code, including the approval requirements of Section 4- 08-040. Contractor shall apply for and obtain all required permits and licenses and shall pay all fees therefor and all other fees required by such governmental authorities. 3. Payments to Contractor. In consideration-of the covenants and Contracts herein contained being performed and kept by Contractor, including the supplying of all labor, materials and services required by this Contract, and the construction and completion of the Project, City agrees to pay Contractor a sum not to exceed THIRTY FOUR THOUSAND SIX HUNDRED ($34,600.00) DOLLARS or as shown on Exhibit"A". 4. Commencement and Completion. Contractor agrees to commence work hereunder immediately upon execution hereof,to prosecute said work thereafter diligently and continuously to completion, and in any and all events to substantially complete the same not later than Junel, 2012, subject to such delays as are permissible under the "Extension of Time for Completion" section of thisAContract.. CC5-971.doc Page: 1 5. Payment of Bills and Charges. Contractor shall pay promptly all valid bills and charges for material, labor, machinery, equipment or any other service or facility used in connection with or arising out of the Project, and shall obtain periodic releases from all subcontractors and material suppliers supplying labor or materials to the Project concurrently with Contractor's delivering any payment to such subcontractors and material suppliers. Contractor shall indemnify and hold City and City's officers, employees, agents, successors and assigns free and harmless against all expenses and liability suffered or incurred in connection with the claims of any such subcontractors or material suppliers, including but not limited to court costs and attorney's fees resulting or arising therefrom; provided that Contractor shall be excused from this obligation to the extent that City is in arrears in making the payments to Contractor. Should any liens or claims of lien be filed of record against the Property, or should Contractor receive notice of any unpaid bill or charge in connection with construction of the Project, Contractor shall immediately either pay and discharge the same and cause the same to be released of record, or shall furnish City with the proper indemnity either by title policy or by corporate surety bond in the amount of 150% of the amount claimed pursuant to such lien. 6. Releases. Contractor shall, if requested by City, before being entitled to receive any payment due, furnish to City all releases obtained from subcontractors and material suppliers and copies of all bills paid to such date, properly receipted and identified, covering work done and the materials furnished to the Project and showing an expenditure.of an amount not less than the total of all previous payments made hereunder by City to Contractor. 7. Hierarchy of Project Documents. This Contract and the Proposal or Scope of Work appended hereto as Exhibit "A" are intended to supplement one another. In case of conflict, however, this Contract shall control both. 8. Changes in the Work. Should the City at any time during the progress of the work request any modifications, alterations or deviations in, additions to, or omissions from this Contract or the Proposal/Scope of Work, it shall be at liberty to do so, and the same shall in no way affect or make void this Contract; but the amount thereof shall be amortized over the remaining term of this Contract and added to or deducted, as the case may be, from the payments set forth in Paragraph 3 above by a fair and reasonable valuation, based upon the actual cost of labor and materials. This Contract shall be deemed to be completed when the work is finished in accordance with the original Proposal or Scope of Work as amended or modified by such changes, whatever may be the nature or the extent thereof. The rule of practice to be observed in fulfillment of this paragraph shall be that, upon the demand of either City or Contractor, the character and valuation of any or all changes, omissions or extra work shall be agreed upon and fixed in writing, signed by City and Contractor, prior to performance. 9. Contractor's Failure to Perform. Should Contractor, at any time during the progress of the work, refuse or fail to supply sufficient material or workmen for the CC5-971.doc Page:2 expeditious progress of said work or fail to perform any other provisions of this Contract, City may, upon giving notice in writing to Contractor as provided herein and upon Contractor's failure to remedy any such failure within 3 days from receipt of such notice, terminate this Contract and provide the necessary material and workmen to finish the work and may enter upon the Property for such purpose and complete said work. The expense thereof shall be deducted from the payments remaining under Paragraph 3 above, or if the total cost of the work to City exceeds the amount of such remaining payments, Contractor shall pay to City upon demand the amount of such excess in addition to any and all other damages to which City may be entitled. In the event of such termination, City may take possession of all materials, equipment and appliances belonging to Contractor upon or adjacent to the Property upon which said work is being performed and may use the same in the completion of said work. Such termination shall not prejudice or be exclusive of any other legal rights which City may have against Contractor. 10. Extension of Time for Completion. Time is of the essence of this Contract and Contractor shall substantially complete the work during the time provided for herein. However, the time during which Contractor is delayed in said work by(a)the acts of City or its agents or employees or those claiming under Contract with or permission from City, or (b) the acts of God which Contractor could not have reasonably foreseen and provided against, or (c) unanticipated stormy or inclement weather which necessarily delays the work, or (d) any strikes, boycotts or obstructive actions by employees or labor organizations and which are beyond the control of Contractor and which it cannot reasonably overcome, or (e) the failure of City to make progress payments promptly, shall be added to the time for completion of the work by a fair and reasonable allowance. Contractor recognizes, however, that the site of the work is in the Rocky Mountains at a high elevation where inclement whether conditions are common. This fact has been considered by Contractor in preparing its Proposal and or agreeing to the Scope of Work. Furthermore, Contractor shall have the right to stop work if any payment, including payment for extra work, is not made to Contractor as provided in this Contract. In the event of such nonpayment, Contractor may keep the job idle until all payments then due are received. 11. Unforeseen Conditions. It is understood and agreed that Contractor, before incurring any other expenses or purchasing any other materials for the Project, shall proceed to inspect the work site and all visible conditions and that if, at the time of inspection therefor, the Contractor finds that the proposed work is at variance with the conditions indicated by the Proposal, Scope of Work, or information supplied by City, or should Contractor encounter physical conditions below the surface of the ground of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract or inherent in a work site located in the Rocky Mountains, Contractor shall so notify City, and City shall at that time have the right and option to immediately cancel and terminate this Contract or to instruct Contractor to continue the work and add the additional amount attributable to such unforeseen conditions to the payments due Contractor as set forth above. CC5-971.doc Page:3 It is agreed that in the event of any cancellation by City in accordance with this section, Contractor shall be paid the actual costs of the work done prior to the time of cancellation. In computing such costs, building permit fees, insurance and such financing and title charges as are not refundable shall be included; provided that supervision time, office overhead and profit shall not be included in such costs to be refunded to Contractor by reason of such cancellation. 12. Acceptance by City. No payment hereunder nor occupancy of said improvements or any part thereof shall be construed as an acceptance of any work done up to the time of such payment or occupancy, but the entire work is to be subject to the inspection and approval of City at the time when Contractor notifies City that the Project has been completed. 13. Notice of Completion; Contractor's Release. City agrees to sign and file of record within five (5) days after the substantial completion and acceptance of the Project a Notice of Completion. If City fails to so record the Notice of Completion within said five (5) day period, City hereby appoints Contractor as City's agent to sign and record such Notice of Completion on City's behalf. This agency is irrevocable and is an agency coupled with an interest. Contractor agrees upon receipt of final payment to release the Project and property from any and all claims that may have accrued against the same by reason of said construction. If Contractor faithfully performs the obligations of this Contract on its part to be performed, it shall have the right to refuse to permit occupancy of any structures by City or City's assignees or agents until the Notice of Completion has been recorded and Contractor has received the payment, if any, due hereunder at completion of construction, less such amounts as may be retained pursuant to mutual Contract of City and Contractor under the provisions of Paragraph 3 above. 14. Insurance. a. The Contractor agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Contractor pursuant to the terms of this Contract. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to the terms of this Contract by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts,duration, or types. b. Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions do not set forth minimum insurance coverage, then the minimum coverage shall be as set forth below. Such coverage shall be procured and maintained with forms and insurance acceptable to City. All coverage shall be continuously maintained to cover all liability, claims, demands, and other CC5-971.doc Page>4 obligations assumed by the Contractor pursuant to the terms of this Contract. In the case of any claims-made policy,the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. 1. Workmen's 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 Workmen's Compensation requirements of this paragraph. 2. 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 include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests provision. 3. 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 Contractor's owned, hired and non-owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests provision.If the Contractor has no owned automobiles, the requirements of this Section 5.4.2.3 shall be met by each employee of the Contractor providing services to the City under this contract. c. Except for any Contractor Liability insurance that may be required, the policy or policies required above shall be endorsed to include the City of Aspen and the City of Aspen's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City of Aspen, its officers or employees, or carried by or provided through any insurance pool of the City of Aspen, shall be excess and not contributory insurance to that provided by Contractor. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under any policy required above. d. The certificate of insurance provided to the City of Aspen shall be completed by the Contractor's insurance agent as evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and shall be CC5-971.doc Page:5 reviewed and approved by the City of Aspen 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 coverage afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City of Aspen. e. In addition, these Certificates of Insurance shall contain the following clauses: Underwriters and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above-described insurance. To the extent that the City's insurer(s) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recovery or subrogation against the Contractor. The insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy. Any and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Proposer. Location of operations shall be: "All operations and locations at which work in connection with the referenced project is done." Certificates of Insurance for all renewal policies shall be delivered to the Architect at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this Contract or thereafter. e. Failure on the part of the Contractor to procure or maintain policies providing the required coverage, conditions, and minimum limits shall constitute a material breach of 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. All moneys so paid by City shall be repaid by Contractor to City upon demand, or City may offset the cost of the premiums against moneys due to Contractor from City. f. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 15. Damage or Destruction. If the Project is destroyed or damaged by any accident or disaster, such as fire, storm, flood, landslide, earthquake, subsidence, theft or vandalism, any work done by Contractor in rebuilding or restoring the work shall be paid for by City as extra work under Paragraph 8 above. If, however, the estimated cost of CC5-971.doc Page:6 replacement of the work already completed by Contractor exceeds twenty (20%) percent of the insured sum set forth in Paragraph 14 above, City shall have the option to cancel this Contract and, in such event, Contractor shall be paid the reasonable cost, including net profit to Contractor in the amount of ten (10%) percent, of all work performed by Contractor before such cancellation. 16. Notices. Any notice which any party is required or may desire to give to any other party shall be in writing and may be personally delivered or given or made by United States mail addressed as follows: To City: City of Aspen 130 S. Galena Street Aspen, CO 81611 To Contractor: Excavation Services PO Box 11159 Carbondale, CO 81623 subject to the right of either party to designate a different address for itself by notice similarly given. Any notice so given, delivered or made by United States mail, shall be deemed to have been given the same day as transmitted by telecopier or delivered personally, one day after consignment to overnight courier service such as Federal Express, or two days after the deposit in the United States mail as registered or certified matter, addressed as above provided, with postage thereon fully prepaid. 19. Inspections; Warranties. (a) Contractor shall conduct an inspection of the Project prior to final acceptance of the work with City. (b) Contractor shall schedule and cause to be performed all corrective activities necessitated as a result of any deficiencies noted on the final inspection prior to acceptance. The costs of material and/or labor incurred in connection with such corrective activities shall not be reimbursed or otherwise paid to Contractor. (c) Contractor shall obtain, at City's expense, third party warranty contracts (to be entered into by City). CC5-971.doc Page:7 20. Licensure of Contractor. Contractor hereby represents and warrants to City that Contractor is duly licensed as a general contractor in the State of Colorado, and if applicable, in the County of Pitkin. 21. Independent Contractor. It is expressly acknowledged and understood by the parties that nothing in this Contract shall result in, or be construed as establishing an employment relationship. The Contractor shall be, and shall perform as, an independent the Contractor who agrees to use his best efforts to provide the Work on behalf of the City.No agent, employee, or servant of the Contractor shall be, or shall be deemed to be, the employee, agent or servant of the City. The City is interested only in the results obtained under the Contract Documents. The manner and means of conducting the Work are under the sole control of the Contractor. None of the benefits provided by the City to its employees including, but not limited to, worker's compensation insurance and unemployment insurance, are available from the City to the employees, agents or servants of the Contractor. The Contractor shall be solely and entirely responsible for its acts and for the acts of the Contractor's agents, employees, servants and subcontractors during the performance of the Contract. THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTITLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE CONTRACT. 22. Assignment. This Contract is for the personal services of Contractor. Contractor shall not transfer or assign this Contract or its rights and responsibilities under this Contract nor subcontract to others its rights and responsibilities under this Contract, and any attempt to do so shall be void and constitute a material breach of this Contract. 23. Successors and Assigns. Subject to paragraph 22, above, this Contract shall be binding on, and shall inure to the benefit of, City and Contractor and their respective successors and assigns. 24. Entire Contract. This Contract contains the entire Contract between City and Contractor respecting the matters set forth herein and supersedes all prior Contracts between City and Contractor respecting such matters. 25. Waivers. No waiver by City or Contractor of any default by the other or of any event, circumstance or condition permitting either to terminate this Contract shall constitute a waiver of any other default or other such event, circumstance or condition, whether of the same or of any other nature or type and whether preceding, concurrent or succeeding; and no failure or delay by either City or Contractor to exercise any right arising by reason of any default by the other shall prevent the exercise of such right while the defaulting party continues in default, and no waiver of any default shall operate as a waiver of any other default or as a modification of this Contract. CC5-97I.doc Page:8 26. Remedies Non-Exclusive. No remedy conferred on either party to this Contract shall be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy. 27. Governing Law. This Contract shall be governed by, and construed in accordance with, the laws of the State of Colorado. Venue for any action at law or equity shall be Pitkin County. 28. Attorneys' Fees. If either party to this Contract shall institute any action or proceeding to enforce any right, remedy or provision contained in this Contract, the prevailing party in such action shall be entitled to receive its attorneys' fees in connection with such action from the non-prevailing party. 29. Severability. Any provision in this Contract which is held to be inoperative, unenforceable or invalid shall be inoperative, unenforceable or invalid without affecting the remaining provisions, and to this end the provisions of this Contract are declared to be severable. 30. Nondiscrimination. During the performance of this Contract, the Contractor agrees as follows: The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, marital status, sexual orientation, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. The Contractor will take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, sex, age, sexual orientation, handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 31. Prohibited Interest. No member, officer, or employee of the City of Aspen, Pitkin County or the Town of Snowmass Village shall have any interest, direct or indirect, in this Contract or the proceeds thereof. 32. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest: a. The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an Contract or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. CC5-971.doc Page:9 b. The Contractor agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of 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 Contract or to any solicitation or proposal therefor. c. It shall be a material breach of the Contract for any payment, gratuity, or offer of employment to be made by or on behalf of a Subcontractor under a contract to the prime Contractor or higher tier Subcontractor or any person associated therewith, as an inducement for the award of a Subcontract or order. The Contractor is prohibited from inducing, by any means, any person employed under this Contract to give up any part of the compensation to which he/she is otherwise entitled. The Contractor shall comply with all applicable local, state and federal "anti-kickback" statutes or regulations. 33. Payments Subject to Annual Appropriations. If the contract awarded extends beyond the calendar year, nothing herein shall be construed as an obligation by the City beyond any amounts that may be, from time to time, appropriated by the City on an annual basis. It is understood that payment under any contract is conditional upon annual appropriation of funds by said governing body and that before providing services, the Contractor, if it so requests, will be advised as to the status of funds appropriated for services or materials and shall not be obligated to provide services or materials for which funds have not been appropriate. 34. 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. 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. CC5-971.doc Page: 10 "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. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. c. By signing this document, Contractor certifies and represents that at this time: (i) Contractor does not knowingly employ or contract with an illegal alien; and (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. d. Contractor hereby certifies that: (i) Contractor 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) Contractor shall not enter into a contract with a subcontractor that fails to confirm to the Contractor 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) Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not employ any new employees who are not eligible for employment in the United States; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor 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. Contractor 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 Contractor is accepted or the public contract for services has been completed, whichever CC5-971.doc Page: 11 is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Contractor 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 Contractor 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, Contractor shall: (1) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Contractor shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Contractor violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the 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 Contractor's violation of Subsection 8-17.5-102, C.R.S. (ix) If Contractor operates as a sole proprietor, Contractor hereby swears or affirms under penalty of perjury that the Contractor (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 CC5-97I.doc Page: 12 identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. IN WITNESS WHEREOF, the parties agree hereto have executed this Contract For Construction on the date first above written. ATTESTED BY: CITY OF ASPEN, COLORADO By: Title: APPROVED AS TO FORM: By: City Attorney ATTESTED BY: CONTRACTOR: Ir ?)-z) By y �, Title: P/t-g-e(-64-141 Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a partnership, the Contract shall be signed by a Principal and indicate title. CC5-971.doc Page: 13 CERTIFICATE OF INCORPORATION (To be completed if Contractor is a Corporation) STATE OF 0-10101/2?-6-cf-o- SS. COUNTY OF --'z"P`a_a ) On this 4-141' day of ;11(tat , 2012, before me appeared (bvy rju-S 4-CK to me personally kiliown, who, being by me first duly sworn, did say that s/he is lees;c� k' of c.a.U6-±1,e Vc and that the seal affixed to said instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and said deponent acknowledged said instrument to be the free act and deed of said corporation. WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above written. / J , Notary Public 3. CaKr attic- 6.Grt a4cf0, cog11401 Address My commission expires: .7 (2-3/2-01S i 1 1 °• ° ° ARY o t.1 G . PUB�� • N: . � Of C0 CC5-971.doc Page:14 DID PROPOSAL FORM PROJECT NO. : 2012-056 BID DATE: April 30,2012 PROJECT: Installation of Water Bottle Filling Stations PROPOSAL SUBMITTED BY: Excavation Services Inc CONTRACTOR CONTRACTOR'S PROPOSAL TO: The Governing Body of the City of Aspen,Colorado The undersigned responsible bidder declares and stipulates that this proposal is made in good faith,without collusion or connection with any other person or persons bidding for the same work, and that it is made in pursuance of and subject to all the terms and conditions of the advertisement for bid, the invitation to bid and request for bid,all the requirements of the bid documents including the plans and specifications for this bid, all of which have been read and examined prior to signature. The bidder agrees to keep this bid open for Sixty (60) consecutive calendar days from the date of bid opening. The Contractor agrees that construction shall start immediately following a mandatory pre-construction conference held by the Engineering Department,which also constitutes the Notice to Proceed. Submission - of this proposal will be taken by the City of Aspen as a binding covenant that the Contractor will finish construction within the time specified in the Special Conditions of this contract document. The City of Aspen reserves the right to make the award on the basis of the bid deemed most favorable to the City,to waive any informalities or to reject any or all bids. The City shall not pay the Contractor for defective work and/or for repairs or additional work required for successful completion of the project. All work not specifically set forth as a pay item in the bid form shall be considered a subsidiary obligation of the Contractor and all costs in connection therewith shall be included in the prices bid for the various items of work. Prices shall include all costs in connection with furnishing the proper and success completion of the work,including furnishing all materials,equipment and tools,and performing all labor and supervision to fully complete the work to the City's satisfaction. Poor quality and workmanship shall not be paid for by the City. Such work product must be removed immediately and replaced properly at no cost to the City. All quantities stipulated in the bid form at unit prices are approximate and are to be used only as a basis for estimating the probable cost of work and for the purpose of comparing the bids submitted to the City. The basis of payment shall be the actual amount of materials furnished and work done. The Contractor agrees to make no claims for damages,anticipated profit,or otherwise on account of any differences between the BP1-971.doc *BPI p Contractor's Initials amount of work actually performed and materials actually furnished and the estimated amount of work. The City reserves the right to increase or decrease the amount of work to be done on the basis of the bid unit price and up to plus or minus Twenty Five(25)Percent of the total bid. By signing this document,Contractor 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 it does not employ illegal aliens. I hereby acknowledge receipt of ADDENDUM(s)numbered 0 through ESTIMATED QUANTITY LIST Koch Lumber Park UNIT BID ITEM DESCRIPTION UNIT QUANTITY PRICE COST Mobilization LS $500.00 $500.00 Bedding&backfill LS $3500.00 $3500.00 Install water station LS $5500.00 $5500.00 Meter&backflow prevention LS $800.00 $800.00 Replace asphalt& curb&gutter LS $3500.00 $3500.00 Landscaping(To be done by COA) $ $ $ $ $ $ $ $ $ $ $13,800.00 TOTAL BID IN NUMBERS: $13,800.00 Total Bid in Words: Thirteen thousand Eight hundred dollars & 00/100 BP1-971.doc *BPI Page 2 Contractor's Initials Francis Whitaker Park UNIT BID ITEM DESCRIPTION UNIT QUANTITY PRICE COST Mobilization LS $500.00 $500.00 Bedding&backfill LS $3500.00 $3500.00 Install water station LS $5500.00 $5500.00 Meter&backflow prevention LS $800.00 $800.00 Replace asphalt&curb&gutter LS $3500.00 $3500.00 Landscaping(To be done by COA) $ $ $ $. $ $ $ $ TOTAL BID IN NUMBERS:13,800.00 Total Bid in Words: Thirteen thousand Eight hundred dollars & 00/100 City of Aspen Golf Course UNIT BID ITEM DESCRIPTION UNIT QUANTITY PRICE COST Mobilization LS $300.00 $300.00 Bedding&backfill LS $2500.00 $2500.00 Install curb valve LS $2500.00 $2500.00 Replace asphalt&curb&gutter LS $1000.00 $1000.00 Landscaping LS $700.00 $700.00 $ $ $ $ $ $ TOTAL BID IN NUMBERS: $ 7,000.00 Total Bid in Words: Seven thousand dollars & 00/100 BP1-971.doc *BP1 dp�11:I7 Contractors Initials I acknowledge that in submitting this bid it is understood that the right to reject any and all bids has been reserved by the owner. Authorized Officer: Troy Bust ,Title: President Full name signature: Company address: PO Box 11 59 Carbondale Co 81623 Telephone number: 963-8355 Email Address: troyna,excavationservices.biz Attested by: / / BP1-971.doc *BP1 Contractors Initials Subcontractor & Material Supplier List Name: GJ Pipe ,Phone#: 963-5700 Address: Carbondale Service or Product: pipe supplies Name: ,Phone#: Address: Service or Product: Name: ,Phone#: Address: Service or Product. Name: , Phone#: Address: Service or Product: Name: ,Phone#: Address: Service or Product: BP1-971.doc *BP1 / a Contr is Initials LIQUIDATED DAMAGES for FAILURE TO COMPLETE THE WORK ON TIME The undersigned contractor declares his/her full awareness of the content and terms of this contract and affirms that the contractual time is the period mentioned in the contract Specifications plus the time extension(s), if any, granted by the City of Aspen for successful completion of project. The undersigned contractor further acknowledges he/she understands and agrees to liquidated damages to be deducted from moneys due to him/her for any delayed calendar day beyond the total time at the rate of$100.00 per day . This amount and the total allowed time by the City shall not be negotiable under any conditions. • 4.• A ttest: ,Corporate Seal ' - Contractor By: ii _ ,17/s�r STATE OF COLORADO ) SS. COUNTY ) n Before me lus , a notary public and for 1. --q L . County, Colorado personally appeared ro ctis- r known to me personally to be the person(s) whose signature(s) in my presence this day of `(Acct- , A.D. 2012. My commission expires: It'&3 J2o1 (-2722, (Seal) 1I1............... • ••••••• 9 y� Notary Public m ARY: „ • ��� • I L11-971.doc. .A• P U `�Q ., S *LD 1 4 q .....•QN, 0F nG ��a� THE CITY OF ASPEN MEMORANDUM TO: Mayor and City Council FROM: John Laatsch, Capital Asset Project Manager THRU: Scott Miller, Capital Asset Director DATE OF MEMO: May 7, 2012 MEETING DATE: May 14, 2012 RE: Truscott Affordable Housing Building 100 Master Plan REQUEST OF COUNCIL: Staff seeks approval of a Contract for Professional Service to Analyze the Housing uses of the 100 Building former Commercial Space. 1) Staff seeks approval of a Contract with Stryker Brown Architects for the Reuse Analysis of the Truscott Housing Commercial Portion of the 100 Building, in the amount of$27,600. In addition to the contract sum a reimbursable sum of$1,500, a project contingency of$5,000 and $5,000 for staff time bring the total value of the project to $39,100. PREVIOUS COUNCIL ACTION: Council has only addressed this Master Planning Effort in the annual budget with its approval. BACKGROUND: The analysis of the Truscott 100 Building has been discussed for many years in an effort to determine the structural and reuse value for housing units. The area presently is being used for project offices, housing maintenance and storage with a large square footage of space not being used. DISCUSSION: This structure was last commercially used as a Red Roof Inn prior to its conversion to affordable rental housing. The housing units of the Inn have been used for affordable housing units for sometime. The Asset Department is just completing a major cleanup of the entire commercial building with the removal of the remaining kitchen fixtures, walk in freezer, cleanse of record storage and creation of safe and secure space for Police, Finance, Clerks and Managers department files. The commercial space has been used for many activities over the history of the city ownership with Golf management offices and even CDOT offices for the construction of the Maroon Creek Bridge, staff meetings and a Galena Plaza Design Studio. It is now time to determine the best and highest use of this structure for housing units and or housing related services. FINANCIAL/BUDGET IMPACTS: The Master Planning efforts have been in the approved budget. RECOMMENDED ACTION: 1) Staff recommends approval of a contract with Stryker Brown Architect in the amount of $39,100. CITY MANAGER COMMENTS: Page 1 of 2 THE CITY OF ASPEN ATTACHMENTS: "Exhibit A": RESOLUTION "Exhibit B": Contract Page 2 of 2 /A/ /l x �8ri RESOLUTION # (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR PROFESSIONAL SERVICES TO PERFORM REUSE ANALYSIS OF THE COMMERCIAL PORTION OF THE TRUSCOTT 100 BULDING, BETWEEN THE CITY OF ASPEN AND STRYKER BROWN ARCHITECTS 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 professionals services to perform a reuse analysis of the commercial portion of the Truscott 100 building, between the City of Aspen and Stryker Brown Architects, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL IL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for to perform a reuse analysis of the commercial portion of the Truscott 100 building, between,the City of Aspen and Stryker Brown Architects, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of May 2012. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, May 14, 2012. Kathryn S. Koch, City Clerk • Li The City of Aspen CITY OF ASPEN STANDARD FORM OF AGREEMENT -2009 PROFESSIONAL SERVICES City of Aspen Project No.: 2012-043. AGREEMENT made as of 14th day of May,in the year 2012. BETWEEN the City: Contract Amount: The City of Aspen c/o Capital Asset Management 130 South Galena Street Total: $27,600.00 Aspen, Colorado 81611 Phone: (970)920-5055 If this Agreement requires the City to pay And the Professional: an amount of money in excess of $25,000.00 it shall not be deemed valid Stryker Brown Architects until it has been approved by the City Council of the City of Aspen. do Wayne Stryker 225 North Mill Street City Council Approval: Aspen,CO 81611 Phone: 970-925-2100 Date: Resolution No.: For the Following Project: Professional services to perform an affordable housing architectural reuse analysis of the commercial portion of the Truscott 100 Building. Exhibits appended and made a part of this Agreement: Exhibit A: Scope of Work. Exhibit B: Fee Schedule. Agreement Professional Services Page 0 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 June 27, 2012. 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 unfmished 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 Agreement Professional Services Page 1 any liability to the. City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. 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,if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, 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 Agreement Professional Services Page 2 to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration,or types. O (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 Agreement Professional Services Page 3 insurance, and any insurance carried by the City, its officers or employees,or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other 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 $150,000.00 per person and $600,000 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. Agreement Professional Services Page 4 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. 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. Agreement Professional Services Page 5 • "Public Contract for Services"means this Agreement. "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 employ 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: Agreement Professional Services Page 6 (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 (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 Agreement Professional Services Page 7 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 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. Agreement Professional Services Page 8 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: PROFESS IANAL: I. IM14 [Signature] / �[S gna i> By: BY: A e _ r r [Name] r Name] Title: Title: Date: Date: //Aid / t/ Approved as to form: City Attorney's Office • Exhibit A Scope of Work Agreement Professional Services Page 9 EXHIBIT A Page 29 Scope of Work 1) Facilitate stakeholder and Truscott resident meetings that involve project anaylsis, development review and discussion. 2) Field measure and draft existing building into .dwg format(ArchiCad base) for future drafting use. 3) Field measure existing site around the Truscott 100 Building and draft into .dwg format(ArchiCad Base) for future drafting use. 4) Research City Building Codes &Aspen Pitken County Housing Guidelines in order to further understand project requirements, regulations and opportunities. 5) Collect information, solidify goals and compose a conclusive proposal based on research findings 6) Utilize imagery, drafting skills, diagrams and 3-D modeling to convey new proposal for space and its benefit to the Truscott and Aspen community. 7) Verify what elements of the existing building are obsolete. 8) Integrate investigatory information, goal ideologies, and existing building reuse into a final presentation that clearly communicates project intentions. • 225 NORTH MILL STREET ASPEN, COLORADO 81611 (PH) 970.925.2100 (FAX) 970.925.2258 The City's desire is to understand the range of options this portion of the 100 building presents for reuse as additional housing units in conjunction with other programming options..There may be opportunities to make small additions or modifications to the building that provides for optimal housing development or there may be little opportunity within the structure to do much of anything and therefore the structure may best be maintained in its present uses or eliminated. The City is looking for the full breath of reuse options that meet code and housing guidelines. Required Base Options A. Maintain four(4)management offices and a rental reception desk. a. Maintain an equal square footage area for secured city files. b. Maintain basement maintenance facilities. c. Affordable Housing Units B. Maintain four(4)management offices and a rental reception desk. a. Maintain basement maintenance facilities. b. Affordable Housing Units C. Maintain four(4) management offices and a rental reception desk. a. Affordable Housing Units D. Maintain four(4) management offices and a rental reception desk. a. Provide a suitable Community Room b. Affordable Housing Units E. Consultant independent programming options. Additional Information Required A. Description of overall project vision, including drawings, sketches, renderings or other graphics to illustrate experience in this design challenge • B.Development pro-forma identifying the probable cost of construction and development C. Analysis of structure and need explaining choices made for unit mix, unit sizes and affordability mix. Agreement Professional Services Page 10 • EXHIBIT B FEE SCHEDULE • Hourly Fees: Partner In Charge=$160/hour • Structural Engineer=$135/hour Design Architect=$130/hour Project Architect=$100/hour Technical/Drafts person=$75/hour Total Hours: • Stryker Brown Architects proposes working a total of 6 weeks at 40 hours per week, resulting in'240 total hours. Team Member Time Involvement: • 80%Project Architect 10%Design Architect • .05%Partner in Charge .05%Architect .05% Structural Engineer Allotted rate based on above hourly fees&team member time involvement: 80%($100)= $80.00/hour 10%($130)= $13.00/hour • .05%($160)_ $8.00/hour • ".05%($130)= $6.50/hour .05%($135)_ $7.00/hour Total=—$115.00/hour Calculated Fee: • An assumed total of 240 hours at$115.00 per hour results in an estimate of$27,600.00 Agreement Professional Services Page 13 TIMELINE 1st Week:Set standards and expectations 1.Meet with project stakeholders and Truscott residents 2.Research needs,possibilities and opportunities 3.Feasibility and project goal brainstorming • 4.Investigate sustainable(LEED)design potential 5.Investigate City code and Aspen Housing Authority regulations 2nd&3rd Week: Project goals solidified,field measurements and investigations 1.Continue to meet with stakeholders&Truscott residents 2.Prioritize goals 3.Propose&solidify project scope 4.Draft existing building&site 4th Week: Communicate conclusive ideologies with design 1.Continue to meet with concerned parties 2.Diagram ideas and goals 3.Draft proposed spatial configurations 4.Review and Revise 5th Week:Develop design 1.Continue to meet with concerned parties 2.Review and Revise 3.Prepare final presentation 6th Week:Finalize design 1.Final presentation Agreement Professional Services Page 12 1+ i THE CITY OF ASPEN MEMORANDUM V I Coa. TO: Mayor and City Council FROM: Steve Bossart, Capital Asset Project Manager THRU: Scott Miller, Capital Asset Director DATE OF MEMO: April 26, 2012 MEETING DATE: May 14, 2012 RE: 2012 Burlingame Phase IIA AI Construction Contracts REQUEST OF COUNCIL: Staff seeks approval of Contracts for 2012 Burlingame Phase IIA access/infrastructure (AI) construction project. 1) Staff seeks approval of Contract with Aspen Consolidated Sanitation District for the Collection System Management during the 2012 Burlingame Phase IIA access / infrastructure (AI) 2012 construction project in the amount of $288,907. This comprises $21,000 of engineering (including construction observation, surveying, and record drawing preparation) and $267,907 comprising the 40% (forty) tap connection fee required by the Aspen Consolidated Sanitation District. 2) Staff also seeks approval of Contract with Holy Cross Energy for undergrounding the existing overhead power lines through the Burlingame Ranch project. The total estimated cost of underground construction is $516,000. 3) Staff also seeks approval of Contract with H-P Geotech for materials testing and geotechnical services for 2012. The estimated cost of geotechnical testing is $33,825. PREVIOUS COUNCIL ACTION: At the March 6, 2012 City Council work session, Council approved the go-ahead of the 2012 Burlingame Phase IIA access / infrastructure (AI) construction project scheduled for April 30 through November 30 of 2012. At the regular City Council meeting on March 12, 2012, Council approved consent of the guaranteed maximum price (GMP) contract with Haselden Construction for the 2012 Burlingame Phase IIA access / infrastructure (AI) construction project scheduled for April 30 through November 30 of 2012. BACKGROUND: Sanitary sewer install, electric infrastructure and geotechnical testing of all. earthwork and utilities must be completed during the Access/Infrastructure project of 2012. DISCUSSION: Aspen Consolidated Sanitation District is the sanitation district serving the subject property. Holy Cross Electric delivers electric service to Aspen and other upper valley areas of Pitkin County via the existing overhead high voltage lines. These will be placed underground in preparation for the balance of access and infrastructure construction. Geotechnical services are an owner provided service for monitoring this aspect of construction. Page 1 of 2 THE CITY OF ASPEN FINANCIAL/BUDGET IMPACTS: Thus far, procurement of these items is within budget and the status of each is shown below: Contracts submitted for consent today 5/14/2012: Role Firm Purpose Contract Proposed Budget Status Amount Sanitary Sewer Aspen Engineering, Attached, $288,907 $600,000 Collection System Consolidated inspection, tap awaiting COA Sanitation District fees signature Remove and Holy Cross Energy Franchise Attached, $516,000 $617,000 underground agreement total awaiting COA existing high estimated cost of signature voltage electric underground construction Geotechnical HP Geotech Geotechnical Attached, $33,825 $240,000 Engineering observation, awaiting COA Services inspection,testing signature and reporting TOTALS $838,732 $1,157,000 RECOMMENDED ACTION: 1) Staff recommends approval of contract with Aspen Consolidated Sanitation District relating to Sanitary Sewer engineering and tap fees, under the Collection System Management agreement during the Burlingame Phase IIA access /infrastructure (AI) 2012 construction project and for permits for the 2013 vertical construction project in the amount of$288,907. 2) Staff also recommends approval of contract with of contract with Holy Cross Energy for undergrounding the existing overhead power lines through the Burlingame ranch project in the amount of $516,000. 3) Staff also recommend approval of contract with H-P Geotech for geotechnical inspection and testing services in the amount of$33,825. CITY MANAGER COMMENTS: ( iL _! -,«,, ! . ATTACHMENTS: "Exhibit A": Collection System Management Agreement with Aspen Consolidated Sanitation District "Exhibit B": Holy Cross Energy Trench, Conduit, and Vault Agreement "Exhibit C" H-P Geotech Contract and Proposal Page 2 of 2 RESOLUTION # `' / C 7"g (1) (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR COLLECTION SYSTEM AGREEMENT FOR BURLINGAME-RANCH PHASE IIA BETWEEN THE CITY OF ASPEN AND ASPEN CONSOLIDATED SANITATION DISTRIST 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 collection system agreement for Burlingame Ranch Phase IIA, between the City of Aspen and Aspen Consolidated Sanitation District, 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 collection system agreement for Burlingame Ranch Phase IIA, between the City of Aspen and Aspen Consolidated Sanitation District, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of May 2012. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, May 14, 2012. • Kathryn S. Koch, City Clerk RLB I Rider Levett Bucknall 1621 Eighteenth Street Suite 255 Denver,Colorado 80202 T:+1 720 904 1480 F:+1 720 904 1481 memorandum To Scott Miller, Steve Bossart City of Aspen cc Chris Everson City of Aspen From Rob Taylor Date 03 May 2012 Subject Burlingame Ranch Phase II Aspen San District- Recommendation Reference No. Scott/Chris The purpose of this memo is to recommend that the Collection Service Agreement with Aspen Consolidated Sanitary District be approved. Background Aspen Consolidated Sanitary District(Aspen San)are the provider of sewer facilities to Aspen and they require a 40%deposit when Sewer infrastructure is installed. Aspen San provided a detailed breakdown of the total cost for the Sewer Tap fee of$669,767.50 plus $21,000 in design fees. Only$267,907 of the tap fee is required in 2012, and the 60% balance will fall in subsequent years, when the Building Permits are applied for each building (1,2,3,4,5,6, 14 and 4 RO lots). This overall tap fee, as well as the 40%deposit is within budget. Recommendation The total of$288,907 required to be paid in 2012 is within budget and we recommend that the Collection Service Agreement proposed by Aspen San is accepted and signed off by Council. Please contact me for any queries relating the attached or above. Sincerely, Rob Ta Ibr Y Associate Principal Rider Levett Bucknall Ltd End:Aspen San Collection Service Agreement www.rlb.com Aspen Consolidated Sanitation District Michael Kelly • Chair Stoney Davis John Keleher• Vice Chair Joe Zanin Roy Holloway • Sec/Treas Bruce Matherly • Mgr COLLECTION SYSTEM AGREEMENT THIS AGREEMENT is made and entered into this day of , 2012, by and between the ASPEN CONSOLIDATED SANITATION DISTRICT, a quasi-municipal corporation of Pitkin County, Colorado (hereinafter"the District"), and the CITY OF ASPEN, Colorado, a municipal corporation and home-rule city (hereinafter"Developer") for the Burlingame " Ranch Phase 2a, development. RECITALS: A. Developer is the owner of certain real property located within the District to be developed as Burlingame Ranch Phase 2a, (hereinafter the"Project"). B. District is the owner of an existing wastewater collection and treatment system providing wastewater collection and treatment services to all property owners within the District. C. As part of the Project,the District will design and have installed, at Developer's sole expense, an on-site wastewater collection system to service the Project(hereinafter the"Collection System"). In addition the Developer shall financially contribute on a proportionate basis to the District's existing wastewater collection system (hereinafter"District System Improvements"),which shall be specified in Section Five of this agreement, System Impacts. D. Developer desires to secure wastewater collection and treatment services from District. E. District agrees to provide wastewater collection and treatment services to Developer, upon the terms and conditions set forth below. NOW, THEREFORE, in consideration of these premises and the promises of each of the parties as set forth below, it is agreed: 1. Developer's Obligations. a. Developer agrees to pay the District all reasonable expenses incurred by District in retaining District Engineer, District Counsel, and such other professionals to be retained by the District in performing work related to design,selecting a contractor,construction,observation,and contract administration of the Collection System b. The Developer shall provide to the District and its Engineer the following information for design of the Collection System, and coordination with the Developer including, but not limited to: 1. A site survey with legal description of the property, and topographic map, and benchmark tied to the District's datum. 2. Existing conditions map including adjacent existing utilities. 3. Land use/development.application (if filed with the City/County). 4. Development site plan for the Project,showing building configurations,points of connection for sanitary and other utilities, finished floor,elevations, and grading plan 5. Existing and proposed zoning. 6. Unit and fixture counts for each building(s). 565 N. Mill St., Aspen, CO 81611 / (970)925-3601 /FAX (970)925-2537 c. Throughout the term of this Agreement, and prior to the first day of each calendar quarter, Developer shall provide the District with a schedule of the Project work for the upcoming calendar quarter, from which the District shall estimate the amount of money the Developer shall deposit with the District for design, coordination, construction, observation, and contract administration of the Collections System d. Developer shall notify or advise, in writing, all necessary local, state, and federal agencies with jurisdiction over the Project. e. Developer shall be responsible for securing any and all necessary permits and approvals for construction of the on-site Collection System. The District agrees to cooperate with Developer in obtaining all necessary permits and approvals described in the preceding sentence. Any and all costs incurred by the District as a result of such cooperation shall be reimbursed to the District by the Developer in accordance with the terms of this Agreement. f. Developer shall provide District with a detailed construction schedule for work to be performed on the Project and shall meet regularly with the District Engineer to discuss progress of the work, to coordinate construction of the Collection System, and to keep District Engineer informed as to the occurrence of any problems. g. Upon completion of the Collection System construction,the Developer shall provide in a form acceptable by the District the following: 1. Submission to the District of fully executed final amended plat and/or appropriate perpetual easement documents containing dedication and conveyance language, using standard District formats, satisfactory to the District, giving the District the right to gain, • access for and right to install, maintain, repair, and replace any or all of the Collection System and the right to use portions of the Project as reasonably necessary to conduct the business of the District. 2. Provision of evidence acceptable to District that such easements or other property rights will not be adversely affected by superior liens, mortgages, or other encumbrances, 2. District's Obligations. a. District agrees to retain a Professional Engineer who is familiar with and shall act in accordance with the District's rules, regulations, specifications, and requirements of wastewater collection systems (hereinafter "District Engineer") , to prepare plans and specifications for the Collection System, secure a District qualified Contractor for construction, provide contract administration, construction observation, and coordination with the Developer. District shall also retain legal and make available legal counsel("District Counsel")and such other professionals as are necessary to complete work on the Collection System pursuant to the terms of this Agreement. b. District shall through its Engineer prepare at Developer's expense, a preliminary design and cost estimate of the Collection System for the Project. Within thirty(30) days following execution of this Agreement, District shall deliver to the Developer the preliminary design and cost estimate,to be determined by the District,as payment for preparation of the preliminary design and cost estimate by the District Engineer. c. Following review of the preliminary designs and cost estimates, District shall prepare final designs, based upon suggested changes, if any. The set of final design plan documents and final cost estimates shall be provided to the Developer at least thirty(30) days prior to the award d- aily contract for.construction and installation of the Collection System. d. District agrees to perform all reviews required under this Agreement in a reasonable and timely fashion. e. District shall maintain all monies paid by Developer pursuant to the terms of this Agreement in a public funds account. District reserves the right to prepare a final accounting of construction costs, District Engineer's fees, and District Counsel fees, together with a final accounting of all rates,fees,tolls,and charges imposed by the District,based upon the actual costs incurred by the District and the final configuration of the Collection System for the Project. If the actual amount of funds determined by the District to be due and owing from the Developer exceeds the amount previously paid by Developer hereunder, District shall bill Developer for the difference and Developer agrees to pay District said amount within thirty(30) days of receipt of such bill. If the actual amount of funds determined by the District to be due and owing from Developer is less than the amount previously paid by Developer hereunder,the District shall reimburse Developer for the difference,within thirty (30) days of issuance of final acceptance. It is mutually acknowledged the amount of funds determined by the District to be due and owing to the District from the Developer pursuant to this Agreement,throughout the performance of this Agreement, are ESTIMATES ONLY. 3. Service Connections. a. Developer, prior to Preliminary Design of the Collection System, shall provide all information for District to install individual private service connections to the Collection system within the Project including, but not limited to, horizontal location, elevation and point of stub termination,and size. Total collection fees or other rates,fees,tolls, and charges of the District for such individual connections shall be paid in a manner prescribed by the District's rules and regulations. b. The District's Contractor shall install"stub-outs"for service connections at the time of Collection System construction in the Project, at Developer's expense, in accordance with paragraph c. below. These stub locations shall be provided by the Developer in writing to the District. Prior to the time of installation of any stub-out, Developer shall pay to the District forty percent,(40%) of the estimated current total connection fee then in effect, for that particular lot, known hereinafter as the "stub-out fee". c. When stub-outs are installed, Developer's engineer shall be responsible for establishing both the stub-out connection point on the main and the proposed stub out connection point. The service line stub out shall be extended to the edge of the public right-of-way or edge of sewer easement and laid at the proper grade to a point identified by the approval plans. The end of the stub out shall be capped for future testing and marked with an above ground wooden or steel marker. The location of all stub outs shall be field confirmed with the District's engineer prior to covering any such stub out. The District's surveyor shall be responsible for providing survey information identifying the end of each stub out, and providing the information to the District for future use. If Developer or its successors elect not to use a previously installed stub-out: (1) The existing stub-out shall be excavated and capped off at the District's main, at Developer's or its successor's expense; if this task is not accomplished, the District shall have the right to perform this work, at Developer's or its successor's expense and bill Developer or its successor for such work; and (2) Developer or its successor shall lose the credit of the forty percent (40%) total connection charges previously paid and shall pay for a new total connection charge for the residence or other structure not utilizing previously installed stub-outs, at the rate in effect at the time the tap is to be made. d. At such time as Developer notifies the District that plans have been approved for construction of residence or other structure on any particular lot for which a stub-out fee has been paid,the balance of the total connection fee established by the District's rules and regulations shall be due and payable in full. From the time Developer has paid the District the initial portion of the total connection fee until the time the balance of the total connection fee,as determined pursuant to paragraph 3(e) below, is paid in full, prior to issuance of the building permit for the residence or other structure, Developer or any subsequent owner of a lot shall be responsible for payment of the District's standby fee. e. With respect to those lots where Developer has paid a stub-out fee,the balance of the total connection fee due at the time the District is notified of plan approval shall be based upon the total connection fee in effect at the time the building permit for the residence or other structure is to be issued. f. In all other situations, a total connection fee due for any lot shall not be capped or fixed and the balance shall be computed in accordance with District rules and regulations and total connection fee rates in effect at the time the balance of such fee is paid. 4. Upsizing. a. It is mutually acknowledged and understood that Developer shall be financially responsible for the cost of installing 8-inch internal diameter main.collection lines within the Project's Collection System. b. For any portion of the Collection System which District,in its sole discretion,requires a larger size pipe,the District shall not charge the Developer for the difference in cost between an 8- inch pipe size and the desired larger diameter pipe size. Upsizing costs shall be for the material costs of the pipe only. A statement for the actual cost of the upsized pipe installed shall be provided to the Developer as part of the Collection System construction costs documentation. 5. System Impacts. The parties hereto mutually acknowledge that the construction of the Project and the Collection System for the Project will have impacts upon the District's existing public sanitary wastewater collection system, such impacts shall be addressed by Developer including depositing funds in an account with the District as follows: a. With the submission of this CSA, Developer will deposit $21,000.00 with the District as an estimate of the ongoing engineering costs to proceed with final engineering drawings,for construction observation,for surveying and preparation of record drawings. b. Developer acknowledges that any and all damages done to the public wastewater collections system as well as private sanitary sewer service lines during construction of the Project shall be solely at the Developers expense and at the sole discretion of the District. c. Developer shall deposit with the District forty percent of the estimated total connection fees of$669,767.50 ($267,907.00) prior to the start of construction of the sanitary sewer system for this initial phase of the Project. The remainder of the total connection fees for this initial phase of the Project shall be paid to the District prior to issuance of the building permits for each building. d. Both the Developer and the District agree to amend this agreement for the subsequent phasing of the Project for the main sanitary sewer installation and . subsequent total connection fees that will be due and owing to the District. 6. District's Estimates. It is mutually acknowledged the amount of funds initially determined by the District to be due and owing to the District from the Developer pursuant to this Agreement, throughout the performance of the Agreement are estimates made in good faith. 7. Status of Accounts. For all accounts established and maintained by the District pursuant to this Agreement, the District agrees to provide Developer with account statements, showing the status of the funds maintained in said accounts. The parties mutually acknowledge the District is a governmental entity and therefore its financial statements are subject to the statutory requirement of an annual audit. The District covenants that it will direct its auditors, on an annual basis to specifically address the status of all such accounts by means of a detailed note to the District's annual audit report. 8. Rules and Regulations. Except to the extent that terms of this Agreement are inconsistent therewith, in which case the terms of this Agreement shall be deemed controlling, any and all provisions of the District's rules, regulations, and specifications regarding installation of the Collection System, District System Improvements connection thereto, and use thereof shall apply to the Developer, and its agents, independent contractors, related parties, successors and assigns. 9. Indemnity. To the extent permitted by law, the Developer shall indemnify, defend and hold the District harmless from and against any and all claims arising from the Developer's work or from the conduct of any activity, program or thing that may be permitted or suffered by the Developer, except that neither the Developer, its Board, agents or its employees will be liable under this paragraph for any claim, loss, damage, cost, charge or expense arising out of any negligent act by the District during the performance of this Agreement. The parties agree that nothing contained herein waives or is intended to waive any protections that may be applicable to the District or the developer under the Governmental Immunity Act, Section 24-10-101 et. seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. 10. Notices. All notices,requests,and other communications hereunder shall be in writing and shall be deemed to have been duly given upon delivery thereof, by hand, to the appropriate addresses hereinafter set forth, as evidenced by a signed receipt for same, or as of the second business day after mailing, by United States certified mail, return receipt requested, postage prepaid, addressed as follows: (a) To Developer: Steve Bossert, Capital Asset Project Manager City of Aspen 130 S. Galena Street Aspen CO 81611 With a copy to: James R. True, Esq. City Attorney City of Aspen Aspen CO 81611 • (b) To District: ASPEN CONSOLIDATED SANITATION DISTRICT 565 N. Mill St. Aspen, CO 81611 With a copy to: Robert Tibbals, Jr., Esq. Greenwood Executive Park, Building 7, Suite 302 6444 South Quebec Street • Englewood, Co 80111 11. Assignment/Transfer. In the event Developer assigns or transfers its interest in the Project prior to the completion of all the work referred to above, Developer shall provide written notice to the District thereof and be forever and finally released and discharged from any further liability or obligation under this Agreement and the District agrees to look solely to the assignee for the performance of all covenants, obligations, terms and conditions and for any breach thereof. 12. Miscellaneous. (a) Governing Law. This agreement shall be subject to and construed in accordance with the laws of the State of Colorado. (b) Entire Agreement. This Agreement contains the entire understanding and agreement between the parties herein with respect to the transactions contemplated hereunder and may be altered and amended from time to time only by a written instrument executed by each of the parties hereto. (c) Further Acts. Each of the parties agree to execute, acknowledge, and deliver such further instruments, documents, or certificates and do all things and acts as the other party may reasonably require in order to carry out the intentions of this Agreement and the transactions contemplated hereby. (d) Attorney's Fees. In the event of any action for breach of,or to enforce the provisions of, or otherwise involving this Agreement,the court in such action shall award a reasonable sum as attorneys' fees to the party who, in light of the issues litigated and the court's decision on those issues, is the prevailing party in such action. (e) Binding Agreement.This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns,heirs,personal representatives, and any entities resulting from reorganization, consolidation, or merger of any party hereto. (1) Default. Neither the District nor Developer shall be responsible or deemed to be in default under this Agreement on account of delays in the performance of this Agreement due to causes beyond the District's or Developer's control,as the case may be,and not occasioned by their fault or negligence, including, but not limited to, fires, floods, explosions, earthquakes; serious accidents of third parties; strikes,riots, or insurrections;irreparable damage to sewer lines;any act of any government, governmental priorities, acts of God, or other public entity; failure of transportation; quarantine restrictions; or labor troubles causing cessation, slow-downs or interruptions of work provided any and all costs are beyond the District's or Developer's control,as the case may be. Any party invoking the provisions of this subparagraph shall provide appropriate notice,'per paragraph 10 above, to the other party. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ASPEN CONSOLIDATED SANITATION DISTRICT Attest: A quasi-municipal corporation By Title Title STATE OF COLORADO ) ss: COUNTY OF PITKIN The foregoing instrument was acknowledged, subscribed, and sworn to before me this day of , 20_, by as and by as of the ASPEN CONSOLIDATED SANITATION DISTRICT. My commission expires (SEAL) Notary Public CITY OF ASPEN Attest: By Title Steve Barwick, City Manager-City of Aspen STATE OF COLORADO ) ss: COUNTY OF PITKIN The foregoing instrument was acknowledged, subscribed, and sworn to before me this day of , 20 , by as and by as of the CITY of ASPEN, 'Colorado, a municipal corporation and home-rule city. My commission expires (SEAL) Notary Public RESOLUTION # 41/ 216 (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR UNDERGROUND EXISTING OVERHEAD POWER LINES THROUGH BURLINGAME RANCH PHASE IIA BETWEEN THE CITY OF ASPEN AND HOLY CROSS ENERGY 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 underground existing overhead power lines through the Burlingame Ranch Phase IIA project, between the City of Aspen and Holy Cross Energy, 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 underground existing overhead power lines through the Burlingame Ranch Phase IIA project, between the City of Aspen and Holy Cross Energy, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of May 2012. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, May 14, 2012. Kathryn S. Koch, City Clerk RLB I Rider Levett Bucknall 1621 Eighteenth Street Suite 255 Denver,Colorado 80202 T:+1 720 904 1480 F:+1 720 904 1481 memorandum • To Scott Miller, Chris Everson City of Aspen cc Steve Bossart City of Aspen From Rob Taylor Date 17 April 2012 Subject Burlingame Ranch Phase II Rev 2 Reference No. Holy Cross Electric Undergrounding -Recommendation Scott/Chris The purpose of this memo is to recommend that a Contract with Holy Cross Energy be approved. Background A key part of the Access Infrastructure work in 2012 is the electrical undergrounding of the current two overhead lines that run across the Burlingame site. Holy Cross have provided a proposal to the sum of$516,000 to provide the conduit and vault material, wire, connection and commissioning of the Ajax/Highlands and Silverking circuits,with a total new underground length of approximately 3,700 I.f. The conduit and vault install is part of the already approved Haselden GMP Contract. Holy Cross have also stated that this proposal includes an allowance for work needed to support the existing power poles, as'the Burlingame project excavates close to the current over-head lines. Burlingame will work very close to three Holy Cross service poles. This cost of$516,000 is within budget and is included as part the current approved 2012 Burlingame Phase II budget appropriation, so requires no additional cost to the City. We note that this trade is subject to fluctuations of material pricing(notably aluminum electric wire)and the Holy Cross proposal is subject to actual costs being submitted upon completion. We will monitor costs with Holy Crossaccordingly. Recommendation We recommend that City Council approve the Holy Cross proposal for$516,000 and that the Contract is ratified for this scope of work. Please contact me for any queries relating the attached or above. Sincerely, l —_.// Rob Taylor Associate Principal Rider Levett Bucknall Ltd End: Holy Cross Proposal April 16, 2012 incl maps. HCE signed contract www.rlb.com c GROSS 3799 HIGHWAY 82• PO. BOX 2150 GLENWOOD SPRINGS,COLORADO 81602 OY (970)945-5491 •FAX(970)945-4081 SsO�O April 16, 2012 City of Aspen Mr. Steve Bossart, Project Manager 1 30 South Galena Aspen, CO 81611 Dear Mr. Bossart: Holy Cross Energy has completed the design and cost estimate for underground existing overhead power lines through the Burlingame Ranch project, hereinafter the "Project". Our facilities will be installed as shown on the attached sketch. The owner or developer of the subject Project is hereinafter referred to as the "Owner". The estimated cost of construction is as follows: Total estimated cost of underground Construction $516,000.00 • Per Franchise Agreement between Holy Cross Energy and City of Aspen, no prepayment required. The above figures are only estimates. After the job has been completed, the actual cost of construction will be determined. Your contribution will be adjusted to reflect the actual contribution required. Execution of this document constitutes agreement to pay this amount in a timely manner. Our facilities must be installed on an easement. Since the utility easement is to be dedicated and assigned in the recorded final plat, Holy Cross Energy has reviewed the preliminary plat, and we will sign a final copy upon submittal. In the event any Holy Cross utility are built outside of these recorded easements, we will need to get our standard easement document executed. The following conditions are hereby noted: 1. Holy Cross Energy has implemented a policy which requires that the Owner provide all excavation, backfill, compaction and cleanup needed for installation of the underground power system extension to serve the Project. The Owner must also set all vaults and install all conduits as specified by Holy Cross Energy's design for the Project and the enclosed construction specifications. Holy Cross Energy will supply all material which can be picked up by the Owner at the appropriate storage yard. The cost of this material is included in the job cost estimate. The • attached Trench Agreement must be properly executed by the Owner and returned prior to the start of excavation. 2. It shall be Owner's responsibility to ensure that splice vaults installed hereunder on the Property are accessible by Holy Cross boom trucks and other necessary equipment and personnel at all times. The use of such access by Holy Cross shall not require removal or alteration of any improvements, landscaping, or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, nor along the power line route between the vaults. The ground • surface grade at said splice vaults shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and accessible at all times. Owner hereby agrees to maintain the requirements of this paragraph and further agrees to correct any violations that may occur as soon as notified by Holy Cross. Said corrections will be made at the sole cost and expense of Owner. . • A Touchstone Energy'Cooperative i )`; - M City of Aspen Steve Bossart, Project Manager April 16, 2012 Page Two • 3. We attempt to complete all projects in a timely manner. However, highest priority is given to maintaining service to our existing consumers. This fact, along with inevitable construction delays, will not allow us to guarantee a project completion date. 4. All Holy Cross Energy rules and regulations will be followed. When Holy Cross Energy is in receipt of the recorded final plat showing our easements, other permits, if required, the executed trench agreement, and the signed original of this letter agreement (below), the job can be scheduled for construction. The City hereby agrees to pay the actual cost of construction for this project upon the receipt of billing. Sincerely, HOLY CROSS ENERGY g . 6/14 Libby Cowlip, Engineering Department c�✓ (cowling @holycross.com (970) 947-5428 LC:vw Enclosure The above terms and conditions are hereby agreed to and accepted By: Title: Date: W/O#1 2-21 540:Burlingame UG:78-65 & 90-49 1 2-2 1 540 Bossart • lqr • TRENCH, CONDUIT, AND VAULT AGREEMENT This agreement is made and entered into this day of , 20 between THE CITY OF ASPEN, COLORADO, a Municipal Corporation, whose mailing address is 130 South Galena Street, Aspen, Colorado 81611, hereinafter called "Owner", and Holy Cross Energy, a Colorado corporation whose mailing address is P. O. Box 21 50, Glenwood Springs, Colorado 81602, hereafter called "Holy Cross". WHEREAS,Holy Cross has been requested by Owner to provide underground electric facilities, hereinafter called "Facilities", to serve a project known as Burlingame Ranch, hereinafter called "Project"; and, WHEREAS, Owner is required to provide all excavation, conduit and vault installation, backfill, compaction and cleanup needed to construct said requested Facilities; and, WHEREAS, Owner owns real property described as follows: Burlingame Ranch Affordable Housing, Filing 1, Tract B, and Park Trust Exemption Lot 5, a/k/a Parcel 2, located in Section 2, Township 10 South, Range 85 West of the 6`" P.M., hereinafter called "Property", which Property is the real property where the Project is being developed; and, WHEREAS, installation of Facilities to serve the Project may require trenching or other excavation on certain real property adjacent to the Project described as follows: Not Applicable, hereinafter called "Adjacent Land". NOW, THEREFORE, Owner and Holy Cross agree as follows: 1. Owner shall provide all excavation, conduit and vault installation, backfill, compaction and cleanup necessary for installation of Facilities to serve the Project. Such excavation shall be located as shown on the construction plans approved by Holy Cross, and performed in accordance with Holy Cross Vault Installation Specifications, Construction Specifications and inspector requirements. Any deviation from the approved construction plans will not be made unless approved by Holy Cross in advance. All Facilities installed hereunder shall be inspected during construction by Holy Cross and shall meet all Holy Cross requirements prior to acceptance of such Facilities by Holy Cross. a. Prior to commencement of any work hereunder, Holy Cross shall furnish to Owner its Vault Installation Specifications and Construction Specifications and such specifications are made a part hereof by reference. b. All Facilities installed within the Property and Adjacent Land shall be within dedicated or conveyed and recorded utility easements. c. The top of all conduits installed hereunder shall be located a minimum of 48" below the final grade of the ground surface. d. A twelve-inch (12") minimum separation will be maintained between conduits installed for the Facilities and all other new or existing underground utilities. Wherever possible, this separation will be horizontal. The Facilities conduit separation from plastic gas lines shall be greater than this minimum wherever practicable. e. Holy Cross will supply the necessary conduit and vaults for installation by the Owner upon completion of contractual arrangements. Owner assumes responsibility for all material lost or damaged after such material has been issued to and signed for by Owner or by an agent of Owner. Alternatively, Owner may provide its own conduit and vaults meeting Holy Cross specifications for use on the Project and convey such provided material to Holy Cross with an acceptable Bill of Sale. After installation by the Owner and acceptance by Holy Cross, Holy Cross shall continue as the owner of the conduit, vaults and related structures and facilities. f. If conduit and/or vault installation provided by Owner for the Project are found to be unusable or improperly constructed, irrespective of whether such discovery is made during or after installation, Owner will be responsible for correcting said problems at its expense as specified by Holy Cross and Owner shall reimburse Holy Cross for all additional costs resulting from conduit and/or vault installation being unusable or improperly constructed. 2. Despite the fact that Holy Cross reserves the right to specify acceptable work performed hereunder, Owner shall perform work hereunder as an independent contractor, including, but not limited to, the hiring and firing of its own employees, providing its own tools and equipment, payment of all wages, taxes, insurance, employee withholdings, and fees connected with its work on the Project. 3. Owner shall obtain all necessary digging permits and utility locations prior to excavation for work performed hereunder. Owner shall repair all damage caused during excavation promptly and at its expense. No excavation will be undertaken within five(5)feet of existing underground electric facilities except under the on site supervision of a Holy Cross employee. 4. Owner shall indemnify, save, and hold harmless Holy Cross, its employees and agents, against any and all loss, liability, claims, expense, suits, causes of action, or judgments for damages to property or injury or death to persons that may arise out of work performed hereunder, or because of a breach of any of the promises, covenants and agreements herein made by the Owner. Owner shall promptly defend Holy Cross whenever legal proceedings of any kind are brought against it arising out of work performed hereunder by the Owner and/or work performed at the direction of the Owner. In the event Owner shall fail to promptly defend Holy Cross, it shall be liable to Holy Cross, and shall reimburse it, for all costs, expenses and attorney fees incurred in defending any such legal proceeding. Owner agrees to satisfy, pay, and discharge any and all judgments and fines rendered against Holy Cross arising out of any such proceedings. Owner also agrees to promptly satisfy - and pay any monetary settlements of disputes that arise hereunder, provided Owner has been given the opportunity to join in such settlement agreements. The above indemnification clause shall not apply to state and local governments or local service I districts. In lieu thereof, whenever Owner is a government or district it shall procure and maintain in effect at least $1,000,000 of public liability insurance covering the acts, damages and expenses described in the above indemnification clause. Upon Holy Cross' request, such an Owner shall furnish a Certificate of Insurance verifying the existence of such insurance coverage. 5. Owner shall repair, at its expense, any excavation settlement and damage to asphalt paving or other surface improvements caused by such settlement resulting from work performed hereunder within the Property and Adjacent Land for a period of two (2)years beginning on the date backfill and cleanup are completed. 6. Owner, at its expense, shall stop the growth of thistles and/or other noxious weeds in all areas disturbed by excavation performed hereunder for a period of two (2)years beginning on the date backfill and cleanup are completed. 7. In the event Owner shall not promptly complete all of the obligations hereinabove agreed to be performed by Owner, Holy Cross may give written notice by registered or certified mail demanding Owner to complete the work and obligations undertaken by Owner herein, and if such is not completed within 30 days after receipt of such notice by Owner, Holy Cross may complete the work and obligations hereof. If Holy Cross shall be required to complete the work, all costs of completion shall be chargeable to and collectible from Owner. 8. As set forth in paragraph 1 above, Owner covenants that the trench, and all Facilities within the trench installed hereunder shall be located within dedicated or conveyed and recorded utility easements and at the proper depth below finished grade. It shall be the obligation of Owner to properly locate and construct the Facilities within the easement. Should it ever be discovered that such Facilities have not been properly located within dedicated or conveyed and recorded utility easements, or at the proper depth, it shall be the obligation of Owner to provide new easements for the actual location of the Facilities, or to relocate the Facilities within the easement, all of which shall be at the sole cost and expense of Owner. 9. It shall be Owner's responsibility to ensure that splice vaults installed hereunder on the Property are accessible by Holy Cross boom trucks and other necessary equipment and personnel at all times. The use of such access by Holy Cross shall not require removal or alteration of any improvements, landscaping, or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, nor along the power line route between the vaults. The ground surface grade at said splice vaults shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and accessible at all times. Owner hereby agrees to maintain the requirements of this paragraph and further agrees to correct any violations that may occur as soon as notified by Holy Cross. Said corrections will be made at the • sole cost and expense of Owner. 10. Owner covenants that'it is the owner of the above described Property and that said Property is free and clear of encumbrances and liens of any character, except those held by the following: All those of Record. The promises, agreements and representations made by Owner herein shall be covenants that run with the Property and shall be binding upon the successors in interest, and assigns, of the Property. The individual signing this Trench, Conduit and Vault Agreement hereby represents that he/she has full power and authority to sign, execute, and deliver this instrument. Holy Cross Energy, a Colorado corporation THE CITY OF ASPEN, COLORADO, a Municipal Corporation By: o.%�((1 l E By: Ric rd D. Brinkley, Chief erasing O icer Mayor • STATE OF ) ) ss. , COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20 , by as Mayor of THE CITY OF ASPEN, COLORADO, a Municipal Corporation. WITNESS my hand and official seal. My commission expires: Notary Public Address: 4 W/0#12-21.540:Burlingame UG:78-65 & 90-49:4-16-12 12-21540 Bossart Lc Page 2 of 3 Revised 4-5-1 1 I • • STATE OF C &—\ ..€fit ) � / ss. , COUNTY OF GU S.(42 b ) The foregoing instrument was acknowledged before me this 17 -I day of al ' ��; , 20 I , by Richard D. Brinkley, Chief Operating Officer of Holy Cross Energy, a Colorado corporation. WITNESS my ss hand and official seal. ���� dLtuat-,0_70 My commission expires: a_ �7_ j 4.,_....��,� y� '= �.WK�CH,q� Notary Public • ' tdo t. ' �j, Address: A./LL4L co 8 I‘0 / • • Posuc • • • ° W/O#1 2-21 540:Bur.lingame UG:78-65 & 90-49:4-16-12 12-21540 Bossart LC Page 3 of 3 Revised 4-5-11 • Trench, Conduit and Vault Agreement Holy Cross Energy • 0 ;WA in TzI_�' , T cm 5 I 0 I-- W Y • I- , Z W / .......1...."-°`.. .. -- .. 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RESOLUTION # V c (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR GEOTECHNICAL AND MATERIALS TESTING.— ACCESS INFRASTRUCTURE CONSTRUCTION IN BURLINGAME RANCH PHASE II BETWEEN THE CITY OF ASPEN AND HEPWORTH-PAWLAK GEOTECHNICAL INC. 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 geotechnical and material testing — access infrastructure construction in Burlingame Ranch Phase II, between the City of Aspen and Hepworth-Pawlak Geotechnical Inc., a true and accurate copy of which is attached hereto as Exhibit 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 geotechnical and material testing — access infrastructure construction in Burlingame Ranch Phase II, between the City of Aspen and Hepworth-Pawlak Geotechnical Inc., a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of May 2012. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, May 14, 2012. Kathryn S. Koch, City Clerk �.a The City of Aspen CITY OF ASPEN STANDARD FORM OF AGREEMENT -2009 PROFESSIONAL SERVICES City of:Aspen Project No.: 2012-053. • AGREEMENT made as of 1=1`I' day of May,in the year 2012. BETWEEN the City: Contract Amount: The City oP Aspen Cho Asset 130 South Galena Street 'Total: $ 3;825.00 Aspen, Colorado: 161 l Phone: (970) 920-5655 If this Agreement requires the:City to pay And the Professional: an amount of money in excess of $25,000.00 it shall not be deemed valid Flepwori i {'a��lal. Geotechnical Inc. until it has been'approved by the;City Council of the City of Aspen. c/o David Young PE 5020 County Road 15=1 City Council Approval: 'Glenwood Splinas, CO 8 160 •Phone: 970-915-7985 Date: May 14;2012 Resolution No:: For the Following'Project: l3urlin a.me Ranch Phase 2— Geotechnical and Materials"fesiino Exhibits appended and made a part of this Agreement: Exhibit A: Scope of Carl;. Exhibit B: Fee Schedule.. Agreement Professional Sendees 'Page 0 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 Nov. 30. 2012. 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 etceeded 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.relieye 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,iby 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 Agreeinent Professional Services Page I this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. 7. Independent Contractor Status. It is expressly-acknowledged and'understood by the parties that nothing contained in this agreeinent. 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 sen giant 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, if such injury, loss, or damage is caused in whole or in part by, or is'claimed to be`caused in whole or in part by, the act; omission,.error; 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 incun-ed 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;sand other obligations assumed by the Professional pursuant to -Section "4 a bove. Such insurance shall be in • addition to any other insurance .requirements imposed by this 'contract or by law. The Agreement Pro fessional.Services Page1 Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 a bove 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 '(5500;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 niav 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 «nth 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 Agreement Professional Services Page:3 primary insurance, and any insurance carried by the City, its officers or•employees, or carried by or provided through any insurance pool of the City; shall be excess and not contributory insurance to that provided by:Professional. No additional insured.endorsement to the policy required .above shall contain any exclusion for bodily injure or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. • (d) T he 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 thirtv.(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, eat itS discretion City may procure or renew-any such policy or an 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 clan), policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on,and does not waive or "intend to "waive by any provision of this contract,..the monetary limitations (presently • $150,000.00 per person and $600,000 per occurrence) or any other rights,.inimunities; 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 othernvise,available to City, its.officers,or its employees. 10. City's insurance. The parties hereto understand that the Cite 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 tire 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. Agreement Professional Services Page 4 • 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. 13. Non-Discrimination. N o 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 10 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 reined); 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. D wring the 2006 C olorado 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. AgreementProfcssional Services Page 5 • "Public Contract for Services"means this Agreement. "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 employ 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 theirr 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.inthe 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: Agreeinent Professional Services Page 6, (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 (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 Label- 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 ei 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) P rofessional warrants that no pe rson 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) P rofessional 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 Agreement Professional Services Page 7 ruling, determination, claim or controversy, or.other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) P rofessional.represents that no official, officer, employee or representative of the City during the term of this Agreement has,or one (1);year thereafter shall har,.e 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-siuspend the offending parties from being a Professional, contractor or subcontractorunder 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 ex_cept upon a writing signed by the parties. (d) This Agreement shall be governed by-the'laws'of the State of Colorado as from time to time in effect. Agreement Professional.Services. Page 8 • 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: PROFESSIONALS [Signature] ]Signature] By: By: ,S� ,i�Y L L, r.w-�G ' Name] [Name] Title: Title: p, 5-td-e- Date: Date: S�Z/( Approved as to form: City Attorney's Office • • Agreement Professional Services. Page 9 I • EXHIBIT A Scope of Work 1. PROJECT The City,Of Aspen("the City") is constructing,Burlingame Ranch Phase II. This is an affordable housing project and occupies a site of approximately 17'acres on the outskirts of Aspen. The full Phase II project plans for 161affordable housing units across 15 buildings; With an additional 6 single family owned units also planned. • Currently the Aspen City Council has only approved the 2012 Access Infrastructure work which involves bulk earthwork and grading,utilities, stonnwater:management, road construction and a portion oldie carport retaining walls. The full loop road Paepcke.Drive:will be formed in 2012, but only the north half of this will be fully finished with curb/gutter and asphalt. It is anticipated that the first buildings will commence in 2013 and this is subj"ect'to further confirmation by Aspen City Council. The project has been designed under the collaboratir-;e framework of the AIA,model Integrated Project Delivery (IPD). The core IPD team is the City.of Aspen, Oz Architecture,Rider Levett Bucknall (project management)and Haselden.Construction. 2. SCOPE OF WORK The,City of Aspen seeks the services of qualified independent Geotechnical/Material testing companies to observe, monitor and ensure Quality Control of the bedding, compaction, backfill and materials for the 2012 construction season for the Burlingame Ranch II Access'Infrastructure project. During construction other agencies will be involved in on-site observation including: o General Contractor QA O Subcontractor QA o Third party independent civil inspection of storm.water, permeable pavers and irrigation (commissioned by the City) O City of Aspen observation(as Owner) O City of:Aspen observation (by regulatory departments-such as Engineering) O Design team observation (Oz Architecture,Alpine Engineering) O Owners Representative observation (Rider Levett Bucl:nall) 0 Aspen Sanitary District commissioned observation of the Sanitary Sewer c Aspen City Utilities.commissioned observation of the City Water and City Electric O SourceGas installation and observation of the Gas main O Holy Cross observation of high voltage electrical undergrounding. 2.1 GEOTECHNICAL AND MATERIAL TESTING REQUIRED BURLINGAME:RANCH PHASE II TESTING SCOPE OF WORK, INFRASTRUCTURE CONSTRUCTION March 26, 2012 AREAS OF TESTING FOR GEOTECHNICAL ENGINEER, REFER TO SPEC SECTIONS EARTHWORK Section 02300 Agreement Professional Services Pa`gc 10 • BUILDING EARTHWORK Section 02310 WATER SYSTEM Section 02510 • ELECTRIC,COMMUNICATION, CONDUITS AND GAS SYSTEM Section 02580 STORM DRAINAGE Section 02630 UNBOUND BASE COURSE Section 02720 FLEXIBLE PAVEMENT Section 02740 RIGID PAVEMENT Section 02750 PERRMEABLE INTERLOCKING CONCRETE PAVERS Section 02756 TOPSOIL Section 02922 CONCRETE MATERIALS Section 3305 EARTHWORK O Stockpiling of topsoil material O On site observation 1-2 visits per day.5 days/week O Stockpiling of select structural material O On site.observation 1-2 visits perday 5 days per week O Lab tests of topsoil material to determine gradation and growing properties, O 4 tests per week o Identification of excavation material and suitable fill material o 1-2 visits per day, 2 days per week O Proof rolls all sub grade areas1-2 visits per day, 2 days per week Compaction testing (In addition to CDOT testing specifications the following test frequencies should also be met. O Fills 3-4 foot depth proof roll tests every lift placed • Compaction test 2 per day of finished elevation O Fills 4-8 foot depth proof roll test every lift placed O Compaction test 6 per day every third lift placed O Fills greater than.8 foot depth proof roll test every lift placed o Compaction test.6 per day every third lift BUILDING EARTHWORK Meet Earthwork specifications WATER SYSTEM Potable and Reuse Line Backfill compaction at 50%completion every linear 150' Backfill compaction at.100%completion every linear 200' ELECTRIC, COMMUNICATION, CONDUITS AND GAS SYSTEM Observation at the beginning of work and review of backfill material Compaction test at 100%backfill I per linear 200' section of pipe or conduit Agreement Professional.Seivices Page 11 STORM DRAINAGE In addition to minimum CDOT testing specifications the following test frequencies'sliould also be met: O Pipe bedding O Inspect subgrade uniformity of compaction and bedding materials O Compaction test subgrade'eveiy linear 150'.or,less O Daily inspect pipe backfill O Observe pipe backfill at completion of side backfill and authorize aggregate fill placement 0' Completion of aggregate backfill test compaction O Compaction test backfill every linear 150' or less O Manholes and inlets O Backfill compaction at 50%completion 0 Backfill compaction at 100%completion UNBOUND BASE COURSE In addition to minimum CDOT testing specifications the following.test frequencies should also be met: ® Proof roll subgrade O Review and approve base course material O Subgrade compaction test 4 tests per day of base course installation O Proof roll base if soft areas are observed in subbase then test O Base'course compaction test 8 tests per day of installation - FLEXIBLE PAVEMENT In addition to Minimum CDOT testing specifications the following test frequencies shouldalso be met: O Lab test paving material "test per day of installation'per lift O Compaction test 4 per liftplaced'per day RIGID*PAVEMENT O Test mix design l per day of installation. O Collect 4 cylinders,per every, 50 cubic yards of material installed per day O Break 1 cylinder at 7 day and test. o Break 2 cylinders at 28 day and test O Hold 1 cylinder O Test to include slump, air entrainment, unit weight, temperature and compressive'strength PERMEABLE INTERLOCKING CONCRETE,PAVERS o Subgrade compaction test.2 per paving area per day of work © Finished bedding compaction test-2 per paving area per day of work. Agreement Professional Services 'age 12 TOPSOIL o Test.completed stock pile of material for gradation and growth properties o Test processed material from main stock pile prior to site distribution o Test gradation and growth properties prior to amendments and site installation CONCRETE MATERIALS (for site concrete foundations and retaining walls) o Test mix design 1 per day of installation o Collect 4 cylinders per every:50 cubic yards of material installed per:day • Break I cylinder at 7 day and test • Break 2 cylinders at 28 day and test • Hold I cylinder Test to include slump,air entrainment, unit weight;'temperature and compressive strength • It is intended that the testing.meet or exceed CDOT specification and reflect the schedule and nature of site development that we have in the Access Infrastructure contract. Many of the tests are based on the completion of work for a given period of time and/or lift of material and therefore may be reduced or expanded as the progress of the work dictates and as'directed by the Project Engineer. This listing of Geotech testing is to assist in the pricing of services and management of fees while achieving the City's requirements. 'This work is in concert With a high level of site observation by project consultants and city staff. 2.2 PROJECT QUANTITIES The following is supplied for information only to establish the magnitude of the project based. upon a good faith transposition of.current bulk quantities. The consultant must review the .schedule, plans and overall project scale in detail to establish the full scope of work, but the current broad bulk quantities established via the construction estimating and bidding process are: EARTHWORK Bulk Earthwork CUT 49,000 CY Embankment fill for processing and placement/compaction 28,000 CY Process fill for stockpiling 10,000 CY BUILDING EARTHWORK None, no buildings will be constructed in.2012 WATER SYSTEM O 3,000 If of 12"and 8"water main o 1,000 if of:10"HDPE re-use water main o 2.000 If of 8"sanitary sewer,main • Agreement Professional Services' Page 13 ELECTRIC, COMMUNICATION, CONDUITS AND GAS SYSTEM .0 3,800 If of Holy Cross electric underground conduit O 1,200 If of city electric including express feeder conduit o 4,100 If of low voltage conduits adjacent to the roadway O 3,500 If of gas system bedding adjacent to the roadway(gas line placement by SourceGas) STORM DRAINAGE 3.000 If of 8"and 12"RCP UNBOUND BASE COURSE 10,000 SY of unbound base course for southern unpaved road and parking lots (formed but with no flexible pavement placed) 'FLEXIBLE PAVEMENT 36.000 sf(4,000 SY)of 4"asphalt Paving to roadway up to cul-de-sac RIGID PAVEMENT 5,000 sf of 6"concrete paving and pans 3,0001f of ribbon curbs and edge walls PERMEABLE INTERLOCKING CONCRETE PAVERS 9,000 sf of permeable pavers on structured base and sand layers TOPSOIL 480,000 sf of 6"topsoil utilizing on site material (8,000 CY placed) CONCRETE MATERIALS 600 cy of concrete for foundations and concrete retaining walls 2.4 NON-CONFORMANCE The main goal of this inspection framework is to ensure 100%,correct installation quality'—right- first-time-and mitigate any risk to the project that work is not accepted at project completion. Should a nonconformance occur,.the intention is that relevant parties (the General Contractors supervisor, the subcontractors supervisor, the Owners agent)are contacted immediately to halt whatever concerns the Geotechnical inspector, and that the work is removed, reworked, revised etc to meet standards. It is NOT the intention of this framework that the inspector simply records inappropriate work. An on-site communications protocol will be pros ided to immediately remediate such non-conformances as they occur in real time during construction. Agreement Professional.Seivices Page 14 EXHIBIT B Fee Schedule Compensation of the Scope of Work is as follows: Field Technician .390 hours $55.00 $21,450.00 Vehicle Mileage 3500,miles $2,450.00 Project Mgt/Review 45 hours $100.00 $4,500.00 Clerical/Word Processing 35 hours $55.00 $1,925.00 $3,500.0 • Laboratory Testing per fee schedule 0 $3,500.00 Total $33,825.00 • Miles and mileage rate is estimated. The City\ill reimburse at the approved IRS rate of$0.555. Additional work outside the Scope of Work will be paid at the rates listed on the next page. • • Agreement Professional Services Page l 5 t-IEPWORTH-PAWLAK,GEOTECHNICAL;INC. 5020.County Road:154 'Glenwood Spri ,Colorado 81601 Phone:ngs _970-945-7988 HEPWORTH-PAWLAK GEOTECHNICAL Fax: 970-945.eern • e-mail: hpgeo @hpgeotech.com 2012 FEE SCHEDULE GLENWOOD SPRINGS CONSTRUCTION OBSERVATION AND MATERIALS TESTING CONSTRUCTION OBSERVATION Field/Lab Technician-,Soils,Concrete,Asphalt,Masonry,Fireproofing $50.00 to$65.00/hour Field Technician-Piers,Piles $65.00 to$75.00/hour Field Technician-Coring(includes equipment) ' ' $100.00/hour . Field Technician-Windsor Probe Testing(includes equipment and probes) $125.00/hour Overtime(Over 8 hours per day,Saturday,Sunday and Holidays) 1.5 x standard hourly rate Project Management/Review - '$100.00/hour Engineer(Staff to Principal Level)' • $90.00 to$180.00/hour CAD/Drafting • - $75.00/hour Word Processing $55.00/hour • LABORATORY TESTING SOILS Moisture Content(ASTM D-2216) $10.00 AGGREGATES • Moisture and Density(Liner Sample) 20.00 Coarse Aggregate 3"through#8 Sieve(ASTM.0-136)....$60.00 Atterberg Limits(ASTM D-4318) 85.00 Coarse Aggregate Amount Finer#200(ASTM C-117)• 40.00 Swell-Consolidation(Std.3 Points) - 90.00 Fine Aggregate(with#200 Sieve) - 60.00 Unconfined Compression(ASTM D-2166) • 90.00 Clay Lumps and.Friable Particles(ASTM C-142) Specific Gravity(ASTM D-354) 90.00 Coarse or Fine Aggregate • • • 50.00, Gradation Analysis(ASTM D.422) Fractured Faces,Coarse Aggregate a.5"through#200 Sieve 95.00 (Colorado Procedure 45) 60.00. b:#4 through#200 Sieve- 60.00 Specific Gravity,Bulk and Apparent c.Percent Less than#200 Sieve 40.00 . a.Coarse(ASTM C-I27) - • 60.00•d.Hydrometer Analysis 90.00 b.Fine(ASTM C-128) 85.00 Gradation,Large Pit Run Samples 55.00/hour %Salt Content-Sanding Material 75.00 Standard Proctor Compaction(ASTM D-698) 110.00 Modified Proctor Compaction(ASTM D-1557) • 120.00 FIREPROOFING Hveem Stabilometer R'Value 325.00 Density(ASTM E-605) ... . $50.00 Bond Test(ASTM E-736) • 60.00 ASPHALT Oil Content Only(ASTM D-6307) $125.00 Oil Content/Gradation OTHER DIRECT CHARGES (ASTM D-6307 and ASTM D-5444) 180.00 Auto or Pickup - •• $.70/mile Specific Gravity,Bulk Out of town living expenses,commercial travel costs, (ASTIvi D-1188 and D-2726) 30.00 equipment rental,freight,etc. ' Cost+20% Maximum Theoretical Spec.Gr.(ASTM D-2041) 75.00 Subcousultant Services/Special Testing Cost+20% CONCRETE-MASONRY REMARKS Cylindr th Compression Test(ASTM C-39) Technician rates_include nuclear gauge`or other typical field- -3"x6" Cylinder • $10.00 equipment and are portal to portal. A 24-hour notice is 4"x8"Cylinder 12.00 requested for scheduling of field service.Minimum 2 hour trip :6"x12"Cylinder 14.00 ,charge per day for field engineer or technician may be applied. Trimmed Contractor Cast Cylinder. 24.00 Concrete Core Compression Test - 24.00 -Pioposals for specific projects available upon'request. Masonry Grout Compression Test, Including Sample Preparation` 30.00/eache The prices listed above include up to 3 copies of the report. Late Mortar Cubs Compression Test 14.00• fee of.$30.00 or 1.5%per month(whichever is'the greater) Masonry Prism Compression Test charged 30 days.from invoice'date plus collection costs, bank a.Hollow Cell 95.00 charges arid reasonable attomey's.fees. b.Grout Filled • 105.00 Unit Weight(4"or 6".Cylinder-Dry) ' - 15.00 rare and Coodifiors 03 crack , Efrafivcraou:ry 1,2012. • ACCORD CERTIFICATE OF LIABILITY INSURANCE MIDD/YYYY) 7/221 1/20/2011 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Van Gilder Insurance Corp. (A"/C.N.Ext):303-837-8500 FAX No):303-831-5295 1515 Wynkoop, Suite 200 E-MAIL Denver CO 80202 ADDRESS:jclemens@vgic.com INSURER(S)AFFORDING COVERAGE NAIC# INSURER A Travelers Insurance 3 INSURED - INSURER B:Endurance America Specialty Hepworth-Pawlak Geotechnical, Inc. INSURER C: 5020 Road 154 INSURER D: Glenwood Springs CO 81601 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER:2001094783 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP W /Y LIMITS LTR INSR VD POLICY NUMBER (MM/DD/YYYY) (MM/DDYYY) A GENERAL LIABILITY Y Y 6805281L180 7/16/2011 7/16/2012 EACH OCCURRENCE $1,000,000 X DAMA E TO RENTED • COMMERCIAL GENERAL LIABILITY PREMISES(Ea occurrence) $1,000,000 CLAIMS-MADE X OCCUR MED EXP(Any one person) $10,000 PERSONAL&ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $2,000,000 7 POLICY X Tel: n LOC $ A AUTOMOBILE LIABILITY Y Y BA6541N825 7/16/2011 7/16/2012 (Ea accident)INGLE LIMIT $1,000,000 X ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS — NON-OWNED PROPERTY DAMAGE X HIRED AUTOS X AUTOS (Per accident) $ A X UMBRELLA LIAB X OCCUR Y Y CUP7311Y825 7/16/2011 7/16/2012 EACH OCCURRENCE $3,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $3,000,000 DED X RETENTION$10,000 $ A WORKERS COMPENSATION y UB3215T724 7/16/2011 7/16/2012 X WC STATU- OTH- AND EMPLOYERS'LIABILITY TORY LIMITS ER ANY PROPRIETOR/PARTNER/EXECUTIVE 17 N/A E.L.EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT,$1,000,000 B Professional Liability PPL10003292100 7/16/2011 7/16/2012. Per Claim $1,000,000 Claims Made Annual Aggregate $1,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,If more space is required) If required by written contract or written agreement,the following provisions apply subject to the policy terms,conditions,limitations and exclusions: The Certificate Holder and Owner are included as Additional Insureds for ongoing and completed operations under General Liability; Designated Insured under Automobile Liability;and Additional Insured under Umbrella/Excess Liability but only with respect to liability arising out of the Named Insured's work performed on behalf of the certificate holder and owner. This insurance will apply on a primary, non-contributory basis. A Blanket Waiver of Subrogation applies for General Liability,Automobile Liability, Umbrella/Excess Liability and Workers'Compensation. Limited Contractual Liability is included. The Umbrella/Excess Liability policy provides excess coverage over See Attached... CERTIFICATE HOLDER . CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Aspen ACCORDANCE WITH THE POLICY PROVISIONS. Capital Asset Department 130 South Galena Street AUTHORIZED REPRESENTATIVE Aspen CO 81611 ciao a�'rVE+1. ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25(2010/05) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: LOC#: ACORD ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY NAMED INSURED Van Gilder Insurance Corp. Hepworth-Pawlak Geotechnical, Inc. POLICY NUMBER 5020 Road 154 Glenwood Springs CO 81601 CARRIER NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE the General Liability,Automobile Liability and Employers Liability. THE CITY OF ASPEN AND THE CITY'S EMPLOYEES ARE INCLUDED AS ADDITIONAL INSUREDS. PROJECT SPECIFIC: BURLINGAME RANCH PHASE II ACORD 101 (2008/01) ©2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD VI%also MEMORANDUM TO: Mayor and City Council FROM: CJ Oliver, Environmental Health Director DATE OF MEMO: 5/7/2012 MEETING DATE: 5/14/2012 RE: Change to Ordinance 13-04-010 to allow for composting toilets REQUEST OF COUNCIL: Staff is requesting that Council approve a change to Ordinance 13-04-010 to allow for composting toilets to be installed on publicly owned land in the City of Aspen as well as other parcels as specified in the attached code change language. BACKGROUND: The current language in the City of Aspen Municipal Ordinance 13-04- 070(a) does not allow for permanent on-site waste disposal systems of any kind to be installed in the City of Aspen. The ordinance requires new buildings to hook into the public sewer system for transportation and treatment of waste. DISCUSSION: By making the requested ordinance change the City of Aspen would allow for innovative composting restroom facilities to be put in place on parks and open space properties to service large numbers of users while using minimal amounts of water. The end product of the composting toilet operation would be a beneficial compost product that can be used to enrich topsoil. The proposed new restroom facility for the Rio Grande Park, which council recently approved, specifies composting style toilets which are not connected to the public sewer system. The Rio Grande Park improvement project is the driving force behind the requested ordinance change but if it is successful there may be future applications in other specified areas where this technology would be beneficial. An additional benefit to this type of installation is that it prevents the disturbance of what can often be long expanses of native vegetation to install a connection to the public sewer system. FINANCIAL/BUDGET IMPACTS: This ordinance change does not have a significant financial impact as the management of the composting toilet systems would be conducted by existing Parks staff. For certain applications there are cost savings from not having to install significant lengths of sewer pipe to make a connection to the public sewer system. The largest Page 1 of 2 benefit of the composting type toilets is in the reduced environmental impacts the composting facilities will offer. ENVIRONMENTAL IMPACTS: 2012 is shaping up to be a year of drought conditions and the city is already taking active steps to reduce its water consumption. Approval of the composting toilet system for the Rio Grande would translate to a significant water savings over the use of classic style restroom facilities, 1.6 gallon per flush compared to a classic low flow toilet. In the case of Rio Grande Park there is also a benefit of not having to disturb native vegetation to run sewer pipe from the restroom location over to Rio Grande Place to hook into the existing sewer line. Similar benefits would also be realized if future installations are done in additional parks. RECOMMENDED ACTION: Staff recommends that council approve the proposed changes to ordinance 13-04-010 to allow for the installation of composting toilets on parks and open space zones parcels. ALTERNATIVES: Council could keep the existing language in 13-04-070 and require the new Rio Grande Park restrooms to hook into the public sewer system. PROPOSED MOTION: "I move to approve Ordinance Series 2012" CITY MANAGER COMMENTS: ATTACHMENTS: Ordinance # 1L Series 2012 Page 2 of 2 ORDINANCE NO. lb (Series of 2012) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,AMENDING CHAPTER 13.04 OF THE ASPEN MUNICIPAL CODE REGARDING WATER QUALITY. WHEREAS,The City of Aspen seeks to be a leader on environmental issues; and WHEREAS, Water is a scarce and valuable resources in the intermountain west and composting toilets use minimal amounts of water to operate; and WHEREAS, the proposed changes to this ordinance will allow the installation of composting toilets within certain zone districts where the use of standard toilet facilities may be impractical due to specific site constraints; and, WHEREAS,the amendments to the Code are delineated as follows: • Text being removed is delineated with strikethrough. Text being removed looks like this. • Text being added is bold and underline. Text being added looks like this. • Text which is not highlighted is not affected; and WHEREAS,the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,THAT: Section 1: The City Council hereby amends Chapter 13.04 of the Aspen Municipal Code as follows: Sec. 13.04.010.Definitions. (a) Composting Toilet shall mean: A human waste disposal system consisting of a toilet that uses little or no water connected to a specially built tank in which waste material is decom- posed by aerobic bacteria. (b)fa)Enjoined shall include temporary, preliminary and permanent injunctive relief. Lel(43)Municipal water supplies means all surface and underground water rights, whether absolute- ly or conditionally decreed, of the City, which are used or are capable of being used for any benefi- cial purpose, including,without limitation, municipal, commercial, aesthetic, irrigation, minimum stream flow, fish and game propagation, recreation, domestic, industrial uses and augmentation and exchange. fcL(e)Nonpoint source means any source of pollutant other than a point source and includes,with- out limitation, water use and development practices, activities which encroach on riparian areas, vegetation disturbance, soil disturbance and earth movement, impervious cover and storm water runoff from developed areas. (d)Permit means a permit lawfully issued pursuant to Public Law 92-500, the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1251, et seq.)or pursuant to Section 25-8- 501, C.R.S. 1973 et seq. l�(e)Person means an individual, corporation, partnership, association, municipality, district, fed- eral or state agency, commission or other state or federal body or political subdivision thereof. iga(4)Point source means any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel,tunnel, conduit, well, discrete fissure, container, rolling stock or concentrated animal feeding operation from which pollutants are or may be discharged. ILD(g)Pollutant means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste dirt and slurry. (h)Presumption means that any person charged with the waste of water resources shall bear the burden of proving that the water diversions which were wasted did not contribute to or result in a degradation of the water quality standards set forth in Section 13.04.020 below. (i)Sources means any area which contributes to the water supply of any stream or river and in- cludes, without limitation, any drainage basin or underground aquifer. (4 Waste means the failure to apply water diverted from any source which contributes to municipal water supplies to a beneficial use and includes, without limitation, causing.or permit- ting the application of water in excess of that reasonably required to accomplish the purpose or purposes for which the water is diverted; permitting water to escape from ditches, canals or other structures in excess of reasonable loss; and any diversion of water rights decreed for a given purpose under circumstance which cannot reasonably justify such usage. Sec. 13.04.070. On-site waste disposal system. (c) Notwithstanding any provision herein to the contrary,at the sole discretion of the Envi- ronmental Health Director,a composting toilet may be constructed upon publicly owned property or upon privately owned property within the City of Aspen in excess of five(5) acres. Such composting toilet shall be constructed and maintained pursuant to standards is- sued by the Environmental Health Department. If in the opinion of the Environmental Health Director any approved and installed composting toilet constitutes a potential threat to the public health,then the Environmental Health Director shall require improvements to the constructed toilet or to the maintenance procedures or shall revoke permission for use of the composting toilet. Any such requirements,including removal of the toilet,shall be completed by the property owner within ten (10) days of notice from the Environmental Health Direc- tor. _ Section 2: 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 3. Existing Litigation. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 4. Effective Date. This ordinance shall be effective as of thirty(30) days from the date of final approval. Section 5. Notice A public hearing on the ordinance was held on , in the Aspen City Council Chambers, 130 S. Galena St., Aspen, Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the day of 2012. Michael C. Ireland,Mayor ATTEST: Kathryn Koch, City Clerk FINALLY,adopted,passed and approved this day of , 2012. Michael C. Ireland,Mayor ATTEST: APPROVED AS TO FORM: Kathryn Koch, City Clerk James R. True, City Attorney MEMORANDUM TO: Mayor Ireland and City Council FROM: Chris Bendon, Community Development Director RE: 861 Ute Avenue Height Variance Resolution No.5L, Series 2012, Public Hearing DATE: May 14, 2012 NOTE: This property is currently under development. The rear portion of the property is under a stop work order until the matter is resolved. APPLICANT/OWNER: Laguna Sierra, LLC. REPRESENTATIVE: ,, David Dorr, Vice President, John Olson Builder, Inc. ` "' }� 4F LOCATION: 861 Ute Avenue. 861 Ute Avenue, Front REQUEST: The applicant is requesting a variance to height limitations. Building height in this zone is limited to 25 feet. The height of the building along the rear of the property is 26'-2" in one location and 28'-3" in another location. The heights are non- compliant due to the depth of sunken patio areas. BACKGROUND: *" J t •—:= .�.�,. r .� Iterations of this project have been underway since 2005 when _ ''` the previous home was demolished. A permit for a new home 1 was reviewed by the Community Development Department in late 2007. Gretchen Greenwood was the architect and this '! _ r version of the project is referred to as the Greenwood design. The plans demonstrated compliance with all zoning limitations 861 Ute Avenue, Rear and the permit was approved for issuance. Economic conditions changed and the permit for the Greenwood design was not drawn. The Chief Building Official granted two one-year "group extensions" to several active and valid permits, this being one, temporarily waiving the expiration procedures of the building code. The permit for 861 Ute was issued in late 2010. John Olson Builders initiated construction of the Greenwood design in early 2011 at the same time the owner retained a new architect, David Johnston. In April, 2011, a change order was submitted to Community Development for a new design using the same foundation as was under construction. Page 1 of 4 In reviewing the Johnston design, Zoning Officer Claude Salter requested clarification of heights along the rear façade of the building. New plans sheets were submitted with the rear façade showing a dimensioned height of twenty four feet eleven and one half inches, 24'-1 1 1/2". The height limit in this zone district is 25 feet. The plans demonstrated compliance and the permit was issued in June, 2011. In January of 2012, another change order was submitted to alter the placement of the garage. A complete set of plans were submitted. The rear façade was again not dimensioned. Claude Salter twice requested clarification of the height. In her second correspondence, she repeated her request and highlighted her need to understand the height of the rear facade "from the ground to the top-most portion of the structure." Her email contained a section of the land use code describing height measurement. Two weeks later, Community Development issued a pre-application conference summary for a potential height variance on this property. (A pre-application conference summary is a written document describing the potential application, review standards, process, fees, and other relevant information.) The pre-app stated that the pending change order would not be approved until the height issue was resolved. The pre-app provided two options—apply for a variance or bring the building into compliance with height limits. The pre-app was prepared by Jessica Garrow of Community Development and provided to David Johnston. Three days after the pre-app, February 20th, email correspondence from David Johnston to Jessica Garrow addressed the height issue and the options. Johnston: "We are going to try to bring the project into compliance; I will be submitting new plans later this week to Claude." New drawings were submitted with a dimensioned height along the rear façade of 24' — 11 1/4". The change order was issued on March 12th On April 4th Zoning Officer Claude Salter realized during a site visit that the height issue along the rear façade was not being addressed. In an email to the contractor, architect, and City field inspection staff, she noted that the height issue was not being addressed and that final inspections would not be conducted until the issue was resolved. She provided the same two options the department provided before—apply for a variance or bring the property into compliance. On April 10th, John Olson responded to the email. " . . we have built exactly what is drawn and signed-off on by the various departments, including zoning, and there are no supplemental notes on our prints stating that we should have any reason to assume that there could be any issues with the south elevation . . . we have built exactly what we have on our approved prints, but I guess they were incorrectly approved, which is not my fault or my owner's fault." On April 11th, Deputy Director Jennifer Phelan responded to Olson's email. "The permit was issued based on the height measurements provided by the architect in the plan set, which showed compliance with the City's height regulations. Your field set should have the same pages that we used to approve Mr. Johnston's height representations." The City's Building Department staff confirmed that the field set represents a height of 24' — 11 1/4". Mr. Olson met with the City Manager and City Attorney, both of whom visited the site with Claude Salter and Senior Planner Sara Adams. The City Attorney agreed with Planner Adams Page 2 of 4 that a height variance could not be issued administratively. The height variance request was submitted on April 30t. On May 3`d, Community Development Director Chris Bendon met with the project architect David Johnston, and project contractor David Dorr. It was confirmed by architect Johnston that the June 2011 plans provided construction details that made achieving the dimensioned height of 24' — 11 '/2" impossible. Johnston stated "the construction detail did not work." It was also confirmed by contractor Don that the structure was not built according to the construction detail; the joist dimension was increased and additional wood was added under the roof membrane. Architect Johnston stated he realized the discrepancy prior to submitting the change order in January, 2012. When asked why the January plans continued to represent 24' — 11 '/2" in height, architect Johnston responded "there's a mistake on our plans." When asked why the building was built to a height above that represented on the plans, contractor Don responded, ;-` "we built to the structural plans, we didn't see or care about the 24' — 1 11 1/4" on the plan set." One open patio along the back is represented in the approved plans as `�� being filled with earth to within 2 inches of the surrounding wall. The patio has been constructed to be approximately 3.5 feet deep. ' _ ✓ , ;,y Measuring height from the constructed grade places the roof at 28' =„' `- `•- # 3". When asked about a sunken patio area that appears in the plan set , `" iti, as filled-in, architect Johnston stated that the difference in rendering -.- = ` '" `' detail was "simply a computer thing" and he considered the space to .. be an "areaway." When asked why the drawing contained no notes or - i , citation of an areaway, he replied that he made an assumption that it - - - would be treated as an areaway. Rear Patio The Director asked the architect and the contractor who should have known that the 24' — 11 '/2" represented in the plans would not work. Architect Johnston replied "we should have provided a construction detail that met the 24' — 11 '/2". "We should have caught it prior to submission. We missed it." Contractor Don responded"we should have caught it. We just didn't pick up on it." STAFF RECOMMENDATION: The record reflects that the height of the building has been a staff concern for approximately the past year. Correspondence with the applicant has stressed the need for compliance and the applicant has responded with the intent to comply and representations of compliance. It is not clear to staff if all parties within the applicant team have maintained internal communication. Architect Johnston stated that he was not retained for construction oversight. It is the position of the Director that the current height condition of this property is not the fault of City staff The criteria for receiving a variance are strict. Only City Council may grant a height variance. A property owner must demonstrate that reasonable use of the property has been withheld by the City and can only be achieved by the City providing a variance. In situations where all, or practically all, reasonable use of a property is made impossible by development regulations the City has the ability to grant a variance to avoid a "regulatory taking". City staff believes this property has reasonable use. Page 3 of 4 • The property owner must demonstrate that his rights, as compared with owners of similar properties, have been deprived. In considering this criterion, the Council must consider unique conditions inherent to the property but which are not the result of the applicant's actions. There are unique conditions, but staff considers those conditions to be the direct result of the applicant. Furthermore, staff believes the applicant was or could have been aware of the conditions as they were being created. Staff acknowledges the limited affect of this variance request. The building sits lower than it could and lower than adjacent structures. The variance would not increase this relative height. Rather, the depth of the sunken patio would be lowered. And, the location of the affected area is not highly visible, being on the back side of the building. Staff does not believe this application meets the City's strict standards for a variance. The condition is unfortunate, but could have been avoided. The record seems to reflect some applicant knowledge and potentially an attempt to cover-up the situation. Staff is concerned about the precedent this could create — demonstrate compliance on paper, build the desired condition, and then obtain a variance. Staff recommends denial of the variance. RECOMMENDATION: Staff recommends denial. A resolution approving the variance has been provided. CITY MANAGER COMMENTS: ' PROPOSED MOTION: "I move to approve Resolution No. , Series 2012." ATTACHMENTS: EXHIBIT A— Review Criteria and Staff Findings EXHIBIT B— Application EXHIBIT C- May 4, 2012, letter from David Johnston EXHIBIT D— Public Comment • • Page 4 of 4 RESOLUTION NO. (SERIES OF 2008) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL GRANTING A HEIGHT VARIANCE TO A SINGLE-FAMILY RESIDENCE LOCATED AT 861 UTE AVENUE, LOT 11 UTE ADDITION, CITY AND TOWNSITE OF ASPEN. PARCEL ID—2737-182-95-019 WHEREAS, the Community Development Director received a request for a height variance from Laguna Sierra, LLC, owner of real property located at 861 Ute Avenue, Lot 11 Ute Addition, City and Townsite of Aspen; and, WHEREAS, the City Council, pursuant to Chapter 26.314, may approve, approve with conditions, or deny the variance request; and, • WHEREAS, the City Council has taken and considered written and verbal testimony from the City of Aspen Community Development Director, David Don, Vice President of John Olson Builder, Inc. representing the owner, and the general public, and has found that the application for a height variance meets the standards of review; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council approves a variance to height limitations for the single-family residence located at 861 Ute Avenue. The variance is limited to the extent demonstrated in Exhibit A of this resolution. The variance shall expire upon the demolition of the structure. This Resolution shall not affect'any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof APPROVED by the Aspen City Council at its regular meeting on , 2012. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor APPROVED AS TO FORM: James R. True, City Attorney Resolution No. , Series of 2012. ` . a41144 ix, ��0�� om ow at .st " ommin I ~^-W� 't ® ® • 4, wzo("--fl).._, _ __- _ ______ _�. i ,..,.�.� . ` __ l'•• lAm. (4_-:' :' ;:.;•-,: .',Li 'ItiFIV, 1 1 . • I ---,- -----•--, 2'<r • ' —U - - - - - -- '- '4- - -- T -r_ IEJ , . - �� � _ ______' �_—_____' '• ny�u�� � ,n^�m��� ~�~�~��. . ^~ ° . � � � —__—_---_—_—_---__ ___ __ _ ___ ___ ___ f�~��� 1 �!_ . u`�� � _ _ __ _ __ ` / -, . ` �� ft/60 Obi EXHIBIT A REVIEW CRITERIA 26.314.040.A—Variances, Standards applicable to variances. A. In order to authorize a variance from the dimensional requirements of Title 26, the appropriate decision-making body shall make a finding that the following three (3) circumstances exist: 1. The grant of variance will be generally, consistent with the purposes, goals, objectives and policies of this Title and the Municipal Code; and Staff Response — The purpose of the City's land use code is very general. It does, however, speak to the legitimate rights and reasonable expectations of property owners. Staff believes a reasonable expectation is that zoning limitations are observed and enforced as uniformly as practical. Given the background of this project, staff does not believe receipt of a variance is a reasonable expectation. Staff does not believe this criterion is met. 2. The grant of variance is the minimum variance that will make possible the - reasonable use of the parcel, building or structure; and Staff Response — Staff believes reasonable.use of the property already exists and that no variance is necessary to achieve reasonable use. Amendments to the structure to accomplish compliance will be complicated, but possible. Staff does not believe this criterion is met. 3. Literal interpretation and enforcement of the terms and provisions of this Title would deprive the applicant of rights commonly enjoyed by other parcels in the same zone district and would cause the applicant unnecessary hardship, as distinguished from mere inconvenience. In determining whether an applicant's rights would be deprived, the Board shall consider whether either of the following conditions apply: a. There are special conditions and circumstances which are unique to the parcel, building or structure, which are not applicable to other parcels, structures or buildings in the same zone district and which do not result from the actions of the applicant; or Staff Response — The site is sloped, vegetated, and within the mudflow area— but not in a manner different from many other properties in this zone district. The current situation of the property is unique in that it is nearly complete and correcting the height issue would likely be complex. However, staff believes this is a circumstance created by the applicant. Staff does not believe this criterion is met. b. Granting the variance will not confer upon the applicant any special privilege denied the terms of this Title and the Municipal Code to other parcels, buildings or structures, in the same zone district. Staff Response—Receipt of a height variance for new construction when City staff has made the applicant aware of the issue would represent a special privilege not granted to others in the same zone district, or circumstance. Staff does not believe this criterion is met. S Exhibit A—861 Ute 1 11 . ea:14k 1442 C 11-'- -` ''''' DAVID JOHNSTON ARCHITECTSrc 418 Baal Cnoper Avenue Sulk•20G Aspen CI)1111,11 rn.970-925-7•114 tAX 970-920-2I8( May 4, 2012 , E Five�'t. Chris Bendon,AICP ' r' . Community Development Director MAY 0 7 2012 City of Aspen CI TY OF CO ASPEN 4UNITy pEVELOP NT Via email:Chris.Bendon@ci.aspen.co.us ' Re: 861 Ute Avenue . Chris, Attached is a drawn perspective representation of the site conditions that exist for the subject property and building as viewed from the south,and the indications of the original and proposed designs relative to the variance application for the required vertical height of a single wall plane. As stated in our meeting, the design intent of the construction documents was not met nor achieved to secure the required vertical height for the south elevation. The enclosed drawing is intended to clearly show that the intent of the site height restriction for the property was met,and,in fact,substantially lower than the limitation of 25'-0"from existing grade. During construction,from what we now know,the designed roof(s)were actually lowered by 4"from where they were originally designed.The building was built lower on the site. The variance therefore Is a request to grant an increase in the vertical dimension for the subject southern walls, but in the downward direction. No additional impacts occur as viewed from any adjacent • properties or public circulation corridors,as the roof and building are basically where they were designed and approved.The patio is simply deeper by 1'-2", relative to the grade and site design. It is our hope that this'is a reasonable request,while still meeting and exceeding the intent and requirements for the height of the building on the site. Regards, David Johnston I David Johnston.Arth.itects,pq j i i i i s j i • • • • .k--C'- t. '":_:":".----------,===;__-'.----------,- ---,---kW., - ----- - ,, ' ',,\ •••••, .-'-.7-..-._ l7., i , --7-`7,.. ..:,,, -...,'... ....-,--,::,i - .' . , . ,:,_1,;.„3-_,;a:--t.---L---_-‘_-_-,:--.,._J--_--, 1,t-/. ...,...:,„),,I:.--,:,.,-:::-, \ ----- j ., 1 i \ ;"--:::::,-, --7',""--,.. .... --,,,...._ ...` :- ..'" 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"..--/:// —'1".:-,-,=-,-,4"API, 11... ....,,',i7-,/ , ' , - , - .. ;.......: - .. c ,,z:Wk.' ' .< ,-.274( ' h :.,....... . .-,-, , .,-i. z - i (. _-_. , , • V,,, ■.', --;"' l "t."'"';',_ lc' "/// ,'c , ....,r .• .i, , .. ,,,..4../N,,.., i, Ay /1- ',.'-,x'• i ii,1,- - Y .'.----2 -------,- --- . \TA. ,,,•,Y,.4,,,,,% .,',.•,\, ,,,....,'1.__ -.....— -, .., ' .' ; `.•, ,5)::,;" , _...?!_/. --''' ,s ..„ ,„,..„ ....... „. _ s. _ ....,_ ,._. . ,,„..._.,.._ , , ..._ _. ___„ .„......., , . r .. 1-- -4 -...,, , . - .:-.-_- ,-:----',•.-_-- ... t , . . , •*., q a .,_--- .., _...._ ,„,..... ... jit 1-..F....4. ________ .0,-- .n.) 'I i 5..„, 4 1 V q -t- 1-, DOYLE HARTMAN Oil and Natural Gas Operator 500 NORTH MAIN P.O.BOX 10426 MIDLAND,TEXAS 79702 174,4bit- (432)684-40 Agattiga (432)682-7616 FAX May 3, 2012 ` • Via Email (sara.adams(a�ci.aspen.co.us) and FedEx City of Aspen Community Development Department 130 S. Galena Street Aspen, CO 81611 Attn: Sara Adams Re: Public Notice regarding 861 Ute Avenue Height Variance Land Use Request Aspen,Colorado Dear Ms. Adams: Reference is made to the Public Notice, received by us on April 30, 2012, regarding 861 Ute Avenue Height Variance Land Use Request which is set for public hearing on Monday, May 14, 2012 before the Aspen City Council (copy enclosed). When our home, located at 820 Chance Court, Aspen Chance Subdivision, was constructed over 20 years ago, we were restricted from raising the height of our roof which caused a height problem for the ceiling in our master bathroom. In light of the Height Variance Land Use Request which has been made by Laguna Sierra LLC corresponding to 861 Ute Avenue, in the even such request is approved, by the City of Aspen, we likewise may decide to submit an application to raise the height of our house in order to raise the height of our master bathroom and would expect the same treatment for our Height Variance Land Use Request as well. Therefore,we respectfully request that we be kept informed as to the outcome of this pending application. Sincerely, Doyle and Margaret Hartman cc: Via Email and FedEx Aspen Real Estate Company 620 E. Hyman Avenue, Suite 102 Aspen, CO 81611 Attn: Carol Ann Jacobson, Realtor(Email: CarolAnn @AspenExperts.com) Via Email and FedEx City of Aspen-Planning and Zoning Commission 130 S. Galena Street, 3` Floor Aspen,CO 81611 Attn: Jennifer Phelan, Planning Deputy Director(Email: webj,itkinl @ci.aspen.co.us) • PUBLIC NOTICE RE: 861 UTE AVENUE HEIGHT VARIANCE LAND USE REQUEST NOTICE IS HEREBY GIVEN that a public hearing will be held on Monday,May 14, 2012,at a meeting to begin at 5:00 p.m. before the Aspen City Council,Council Chambers Room, City Hall, 130 S. Galena St.,Aspen,to consider an application submitted by Laguna Sierra LLC,represented by John Olson Builders for 861 Ute Avenue,Aspen,CO 81611.The applicant is requesting a height variance for the rear(south) elevation. The property is legally described as: Lot 11, Ute Addition to the City and Townsite of Aspen, County of Pitkin, Colorado, 81611. For.further information,contact Sara Adams at the City of Aspen Community Development Department, 130 S. Galena St.,Aspen,CO, (970)429.2778,sara.adams @ci.aspen.co.us. • s/Michael C.Ireland,Mayor Aspen City Council • DO APR 3 u 20i2 i2 SUBMITTALS: DATE: April 23, 2012 TO: Sara Adams, Senior Planner City of Aspen Community Development Department FROM: John Olson Builder (JOB) PROJECT: Residence at 861 Ute Avenue RE: EXHIBIT TO LAND USE APPLICATION FOR A VARIANCE AT 861 UTE AVENUE Addressing Land Use Code Section 26.314.040.A, "Standards Applicable to Variances" (as amended under City Council Ordinance#3 of 2012 Per the Pre-Application Conference Summary dated 02.17.2012 which references the project, "861 Ute Avenue, Height Variance", and per the General Land Use Application Packet, the following Submittals and information are required for the application (numbered items refer to Attachment 4 of the General Land Use Application Packet): • Deposit • Signed Fee Agreement 1) Land Use Application Form & Authorization Letter 2) Street Address & Legal Description 3) Disclosure of Ownership 4) Vicinity Map 5) Site Improvement Survey 6) Existing & Proposed Site Plan 7) Written Description of the Proposed Variance 9) Proposed Elevations & Sections • Photographs [Submittals begin on page following . . . 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 5 of 23 A letter signed by the applicant, with the applicant's name, address and telephone number in a letter signed by the applicant, which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages,judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. An 8 1/2" by 11"vicinity map locating the parcel within the City of Aspen. Existing and proposed site plan A site improvement survey including topography and vegetation showing the current status of the parcel certified by a registered land surveyor, licensed in the State of Colorado. A written description of the requested variance and an explanation of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. Please provide a written response to all applicable criteria. 12 Copies of the complete application packet. 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. 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 4 of 23 . CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY PLANNER: Jessica Garrow, 429.2780&Claude Salter,429.2752 DATE: 02.17.2012 PROJECT: 861 Ute Ave, Height Variance REPRESENTATIVE: David Johnston, david @diarchitects.com LAND USE REQUEST: Height Variance DESCRIPTION: The property at 861 Ute Ave received a building permit in 2011 for a new single family home. As part of her review of a change order, the Zoning Officer found that the height of a portion of the structure was over the 25 foot allowed height limit. The applicant is interested in receiving a variance for height, as the area in question has already been built. A height variance is under the purview of City Council and shall be reviewed during a noticed public hearing. The application shall address the criteria listed in Land Use Code Section 26.314 Variances. The other option is for the applicant to bring the building into compliance with the allowable height. The city is not able to issue the change order,do a final inspection, or issue a CO until the issue is resolved. Application: http://www.aspenpitkin.com/Portals/O/docs/City/Comdev/Apps%20and%2OFees/2011%201and%20 u se%20app%20form.pdf Land Use Code: http://www.aspenpitkin.com/Departments/Community-Development/Planning-and-ZoningiTitle- 26-Land-Use-Code/ Land Use Code Section(s) 26.304 Common Development Review Procedures 26.314 Variances 26.575.020.F Building Height 26.710.040 R-6 zone district Review by: Staff, City Council Public Notice: Required at City Council. Planning Fees: $1,890 deposit for 6 hours (additional staff time billed hourly at$315/hr.) Referral Fees: None Total Deposit: $1,890 To apply, submit the following information: Total deposit for review of the application. Proof of ownership. Completed Land Use Application Form. A signed fee agreement. A Pre-Application Conference Summary. 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 3 of 23 4 r 4 .� April 24, 2012 • A Ms. Sara Adams, Senior Planner City of Aspen Community Development Department 130 South Galena Street Aspen, Colorado 81611 Dear Sara: Pursuant to our meetings and discussions over the past week, John Olson Builder has prepared this Land Use Application regarding the present height condition and surrounding issues at 861 Ute Avenue. The purpose of this application is to seek of Aspen City Council the granting of a variance of the City of Aspen's Residential Design Standards as those standards specifically relate to allowable building heights in the R-6 Zone District. As we have discussed, the height of the South (rear) Elevation of the newly constructed home at 861 Ute Avenue is higher than the 25-foot limit prescribed by the code, when measured from the finished grade at the sunken rear (South) terrace. Despite the fact that the house was built in accordance with the plans designed by David Johnston Architects and issued in conjunction with a Building Permit by the City of Aspen Building Department, the present condition is such that the dimension of the height of the South Elevation, when measured from finished grade, exceeds the 25-foot limit by 14 inches along one plane (the kitchen wall), and by 39 inches along another plane (the living room wall). This application requests a variance for the heights of this South Elevation, thus allowing the vertical dimension of the wall plane — from finished grade to the top of the roof curb—to measure 28 feet, 3 inches. We believe it critical to note that neither the structure nor the roof of the building is or will be situated any higher than was approved. This variance will simply allow for the patio at the rear of the house to sit lower than is allowed under the code, despite the fact that the permitted drawings reflect such condition. Also noteworthy is that the house sits four feet below the overall height limit as measured from natural grades. Likewise, the entire building sits many feet lower than the roof of the adjacent"Black Swan" parcel.The rear of the home(where the elevation in question is situated) is sunken approximately 8 feet below natural grades, and is not visible from any public right-of-way. Thank you for your time in reviewing this application and in affording the applicant prompt access to the Aspen City Council for the review of this Application. Please contact me with any questions. Regards, David Dorr Vice President John Olson Builder, Inc. ddorr @johnolsonbuilder.com (970) 379-7110 mobile 200 East Main Street Aspen, CO 81611 (970) 923-4233 phone (970)923-2977 fax 861 Ute Avenue -Land Use Application for Height Variance-2012.04.24;Page 2 of 23 ittia.14 SUN O Table of Contents Letter of Introduction 2 Pre-Application Conference Summary 3 Application Submittals 5 Exhibit A: Land Use Application Form & Authorization Letter XX Exhibit B: Disclosure of Ownership XX Exhibit C: Site Vicinity Map XX Exhibit D: Site Improvement Survey XX Exhibit E: Site Plan XX Exhibit F: Proposed Elevations & Sections XX Exhibit G: Photographs XX Please note: Exhibits include 8.5"x11" materials; 24x36 copies of applicable items are included in the application submittal package, as indicated by the transmittal sheet. 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page.1 of 23 . iliciii.tit its, .156,,, am OHN OLEO B U I L D E R INC 200 East Main Street Aspen,CO 81611 (970)923-4233 phone (970)923-2977 fax Land Use Application Application for a Dimensional Requirements Variance: To Allow a Lower Finished Grade in a Sunken Rear Terrace,resulting in an Increase to the Allowable Vertical Dimension of an Exterior Wall Plane Project: Single-Family Residence 861 Ute Avenue Aspen,CO 81611 Applicant: Laguna Sierra, LLC cio Bowden Development 200 East Main Street Aspen, CO 81611 Prepared for Submittal to: Ms.Sara Adams,Senior Planner City of Aspen Community Development Department 130 South Galena Street Aspen,Colorado 81611 April 24, 2012 Requirement#1: Land Use Application Form & Authorization Letter: Completed Application Form and Signed Authorization Letter with signed Fee Agreement are attached, under cover sheet, "Exhibit A: Requirement#1: Land Use Application Form & Authorization Letter". Requirement#2: Street Address & Legal Description: Street Address: 861 Ute Avenue Aspen, CO 81611 Legal Description: Lot 11 of the Ute Addition to the City and Townsite of Aspen Requirement#3: Disclosure of Ownership: A Proforma Title Report consisting of Schedule A and Schedule B as performed by Pitkin County Title, Inc. on March 21, 2011, as well as a current copy of the Pitkin County Assessor's Office property search records are attached, under cover sheet, "Exhibit B: Requirement#3: Disclosure of Ownership". Requirement#4: Vicinity Map: , '"° w le „ or 4 „, I`,, . �- i >� fi ti r ti *' ' F r a ice,, '`s \"� Is 14 ' A:Ott \S '-eleoN ,, , kii It' 4*' '#;:v42:. s, '' vi' .. .4:1- ''. . ' 861 Ute Avenue -Land Use Application for Height Variance-2012.04.24;Page 6 of 23 The subject property is indicated by the `A', on the above Vicinity Map. A full-size copy of this map is also attached under cover sheet, "Exhibit C: Requirement#4: Vicinity Map". Requirement#5: Site Improvement Survey: A Site Improvement Survey is attached, under cover sheet, "Exhibit D: Requirement#5: Site Improvement Survey". Requirement#6: Site Plan: A Site Plan is attached, under cover sheet, "Exhibit E: Requirement#6: Site Plan". Requirement#7: Written Description of the Proposed Variance: A. In order to authorize a variance from the dimensional requirements of Title 26, the appropriate decision-making body shall make a finding that the following three (3) circumstances exist: 1. The grant of variance will be generally consistent with the purposes, goals, objectives and policies of this Title and the Municipal Code; and [Applicant Response: Being as the applicant is not seeking to elevate or increase the overall elevation of the building or the roof of the building, and being as the increased dimension of the South Elevation is the result of lowering a sub-grade terrace, the Applicant firmly believes that the request being made hereof is indeed generally consistent with the purposes, goals, objectives and policies of the Land Use Code.] 2. The grant of the variance is the minimum that will make possible the reasonable use of the parcel, building or structure; and [Applicant Response: The granting of this variance, as it is described herein, is the minimum variance required to allow for the reasonable use of the parcel. A variance of a lesser form or dimension would reduce the utility of a portion of the improvements on the parcel in a material fashion.] 3. Literal interpretation and enforcement of the terms and provisions of this Title would deprive the applicant of rights commonly enjoyed by other parcels in the same zone district and would cause the applicant unnecessary hardship, as distinguished from mere inconvenience. In determining whether an applicant's rights would be deprived, the Board shall consider whether either of the following conditions apply: 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 7 of 23 a. There are special conditions and circumstances which are unique to the parcel, building or structure, which are not applicable to other parcels, structures or buildings in the same zone district and which do not result from the actions of the applicant; or [Applicant Response: Special conditions and circumstances which relate directly to this Application are twofold: (1) The building is built in accordance with the architectural plans, as they have been designed and prepared by David Johnston Architects, and as they were approved and stamped by the City of Aspen in the capacity of a Building Permit Application review and approval; and(2) that in constructing the building in accordance with such plans, a reasonable sense of reliance is engaged on the part of those involved in the development and construction of the improvements, and such reliance is entered into as a matter of course upon the City of Aspen regarding its review, stamping, and issuance of the architectural plans as they are submitted for the purpose of obtaining a building permit.] b. Granting the variance will not confer upon the applicant any special privilege denied[by] the terms of this Title and the Municipal Code to other parcels, buildings or structures, in the same zone district. [Applicant Response: Being as the overall height of the structure will not be affected, and being as there is in the Applicant's view no appreciable impact to any neighboring parcel, public Right-of-Way, or any other property owner, individual, or entity, it is the stance of the Applicant that the variance requested hereof does not confer any such special privilege.] Requirement#9: Proposed Elevations & Sections: Proposed Elevations are attached, under the cover sheet, "Exhibit F: Requirement#9: Proposed Elevations & Sections". Requirement#30: Photographic Panorama: A series of photographs are attached, under cover sheet, "Exhibit G: Requirement#30: Photographs". 861 Ute Avenue-Land Use Application for Height Variance-201204.24;Page 8 of 23 Exhibit A: Copy of Land Use Application Form & Authorization Letter COMMUNITY DEVELOPMENT DEPARTMENT LJ Agreement to Pay Application Fees An agreement between the City of Aspen("City")and Property Laguna Sierra,LLC Phone No.: 970-544-2000 Owner("I"):(authorized agent:Bowden Development) Email:bob @bobbowden.com - Address of 861 Ute Avenue Billing c/o Bowden Development Property: Address: 200 East Main St. (subject of (send bills here) Aspen,CO 81611 application) I understand that the City has adopted, via Ordinance No. , Series of 2011, review fees for Land Use applications and the payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $ flat fee for $ flat fee for $ flat fee for $ flat fee for For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review, and presentation of sufficient information to enable legally required findings to be made for project consideration,unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood,and agree to the Land Use Review Fee Policy including consequences for non-payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render an application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $_1,890 deposit for_6 hours of Community Development Department staff time. Additional time above the deposit amount will be billed at$315 per hour. $ deposit for hours of Engineering Department staff time.Additional time above the deposit amount will be billed at$265 per hour. City of Aspen: Property Owner: Laguna Sierra, LLC(Bowden Properties,Agent) Chris Bendon Community Development Director Name: Bob Bowden City Use: Title: Representative Fees Due:$ Received:$ November.201 I City of Aspen 1 130 S.Galena St.I(970)920-5090 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 9 of 23 ATTACH MENT 2—LAND USE APPLICATION PROJECT: Name: Residence at 861 Ute Avenue Location: 861 Ute Avenue(Lot 11 of the Ute Addition Subdivision) (Indicate street address,lot&block number,legal description where appropriate) Parcel ID#(REQUIRED) 273718295019 APPLICANT: Name: Laguna Sierra,LLC Address: c/o Bowden Development Company,200 East Main St.Aspen,CO 81611 Phone#: (970)544-2000 REPRESENTATIVE: Name: Bob Bowden,Bowden Development/David Don,JOB/David Johnston,DJA Address: 200 East Main St.Aspen,CO 81611 Phone#: (970)544-2000(or 970-379-7110,David Don's mobile number) TYPE OF APPLICATION:(please check all that apply): ❑ GMQS Exemption ❑ Conceptual PUD ❑ Temporary Use ❑ GMQS Allotment ❑ Final PUD(&PUD Amendment) ❑ Text/Map Amendment ❑ Special Review ❑ Subdivision ❑ Conceptual SPA ❑ ESA—8040 Greenline,Stream ❑ Subdivision Exemption(includes ❑ Final SPA(&SPA Margin,Hallam Lake Bluff condominiumization) Amendment) Mountain View Plane ❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/ Expansion ▪ Residential Design Variance ❑ Lot Line Adjustment ❑ Other: ❑ Conditional Use EXISTING CONDITIONS: (description of existing buildings,uses,previous approvals,etc.) A nearly completed single-family residence exists;the same being built under a City of Aspen Building Permit issued by the BuildingDepartment,as designed by David Johnston Architects.The height of the South Elevation is in queston. PROPOSAL: (description of proposed buildings,uses,modifications,etc.) The applicant is seeking a variance to increase the allowed height of a vertical wall plane as measured from finished grade. ' The height will be increased by lowering the rear terrace,not by raising the structure or the roof. Have you attached the following? FEES DUE:$_1,890 m Pre-Application Conference Summary • Attachment#1,Signed Fee Agreement ❑ Response to Attachment#3,Dimensional Requirements Form ❑ Response to Attachment#4,Submittal Requirements-Including Written Responses to Review Standards ❑ 3-D Model for large project All plans that are larger than 8.5"X 11"must be folded. A disk with an electric copy of all written text (Microsoft Word Format)must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre-application conference summary will indicate if you must submit a 3-D model. 861 Ute Avenue -Land Use Application for Height Variance-2012.09.24;Page 10 of 23 ATTACHMENT 3 DIMENSIONAL REQUIREMENTS FORM Project: Residence at 861 Ute Avenue Applicant: Laguna Sierra,LLC Location: 861 Ute Avenue(Lot 11 of the Ute Addition) Zone District: R-6 Lot Size: 5,153 square feet Lot Area: 5,153 square feet (for the purposes of calculating Floor Area,Lot Area may be reduced for areas within the high water mark,easements,and steep slopes.Please refer to the defmition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: n/a Proposed::_n/a Number of residential units: Existing: 1 Proposed::_1 (no change proposed) Number of bedrooms: Existing: 5 Proposed:_5(no change proposed) Proposed%of demolition(Historic properties only): DIMENSIONS: Floor Area: Existing: Allowable: Proposed: Principal bldg.height: Existing:26'2" Allowable:_25' Proposed: 262 (one wall plane) bldg.height(cont.): Existing:_28'3" Allowable: 25' Proposed:_28'3" (one wall plane) Access.bldg.height: Existing: Allowable: Proposed: %Site coverage: Existing: Required: Proposed: %Open Space: Existing: Required: Proposed: Front Setback: Existing: Required: Proposed: Rear Setback: Existing: Required: Proposed: Combined F/R: Existing: Required: Proposed: Side Setback: Existing: Required: Proposed: Side Setback: Existing: Required: Proposed: Combined Sides: Existing: Required: Proposed: Distance Between Existing Required: Proposed: Buildings Existing non-conformities or encroachments:The roof height of the building is slightly lower than shown in the original approved permit.The elevation of the sunken patio is lower,however. Variations requested:The application requests that the lower,sunken rear-facing(non-street facing)be allowed at each of the two wall planes at the South Elevation. 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 11 of 23 April 26,2012 To Whom This May Concern: Please note that David Dorr of John Olson Builder,Inc. is authorized to act on behalf of Laguna Sierra, LLC,the owner of the property at 861 Ute Avenue. David Dorr may be contacted at ddorr @iohnolsonbuilder.com or at(970)379-7110,or at 200 East Main Street,Suite 205,Aspen,CO 81611. Thank you, 1 , I',- ' Bob Bow•,: Repres,j ative,Laguna Sierra,LLC Bowde Development Company 200 East Main St,STE 103 Aspen,CO 81611 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page.12 of 23 Exhibit B: Disclosure of Ownership: EXHIBIT 2 PROFORMA TITLE REPORT SCHEDULE A 1. Effective Date: March 21,2011 at 8:00 AM Case No.PCT23133P 2. Policy or Policies to be issued: Proposed Insured: PROFORMA 3. Title to the FEE SIMPLE estate or interest in the land described or referred to in this Commitment is at the effective date hereof vested in: LAGUNA SIERRA,LLC 4. The land referred to in this Commitment is situated in the County of PITKIN State of COLORADO and is described as follows: Lot 11, UTE ADDITION TO THE CITY AND TOWNSITE OF ASPEN PITKIN COUNTY TITLE,INC. 601 E.HOPKINS,ASPEN,CO.81611 970-925-1766 Phone/970-925-6527 Fax 877-217-3158 Toll Free AUTHORIZED AGENT Countersigned: ( } 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 13 of 23 (EXHIBIT 2 SCHEDULE B-SECTION 1 REQUIREMENTS THIS REPORT IS FURNISHED FOR INFORMATIONAL PURPOSES ONLY,IT IS NOT A CONTRACT TO ISSUE TITLE Ole INSURANCE AND SHALL NOT BE CONSTRUED AS SUCH.IN THE EVENT A PROPOSED INSURED IS NAMED THE COMPANY HEREBY RESERVES THE RIGHT TO MAKE ADDITIONAL REQUIREMENTS AND/OR EXCEPTIONS AS DEEMED NECESSARY.THE RECIPIENT OF THIS INFORMATIONAL REPORT HEREBY AGREES THAT THE 1w COMPANY HAS ISSUED THIS REPORT BY THEIR REQUEST AND ALTHOUGH WE BELIEVE ALL INFORMATION CONTAINED HEREIN IS ACCURATE AND CORRECT,THE COMPANY SHALL NOT BE CHARGED WITH ANY FINANCIAL LIABILITY SHOULD THAT PROVE TO BE INCORRECT AND THE COMPANY IS NOT OBLIGATED TO ISSUE ANY POLICIES OF TITLE INSURANCE POO kge 01 0 0 0 0 0 0 O O A A 0 O 0 O A O A 0 0 0 0 A w 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 14 of 23 Parcel Detail Page 1 of 2 Pitkin County Assessor Parcel Detail Information Assessor Property Search I Assessor Subset Query I Assessor Sales Search Clerk&Recorder Reception Search I Treasurer Tax Search Search Basic Building Characteristics I Value Summary Parcel Detail I Value Detail I Sales Detail I Residential/Conunercial Improvement Detail Owner Detail I Land Detail ( Photographs Tax Area I Account Number Parcel Number 2011 Mill Levy 056 I R004791 273718295019 I 32.048 Primary Owner Name and Address LAGUNA SIERRA LLC PO BOX 1470 ASPEN,CO 81612 Additional Owner Detail Legal Description Subdivision: UTE ADDITION Lot: 11 Location Physical Address 861 UTE AVE ASPEN Subdivision: UTE ADDITION J Land Acres: L000 Land Sq Ft: 15,153 2011 Property Value Summary Actual Value Assessed Value Land: 4,230,000 1,226,700 Improvements: 0 0 Total: _ 4,230,000 1.226,700 http://www.pitkinassessor.org/assessor/Parcel.asp?AccountNumber=R004791 4/26/2012 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 15 of 23 Parcel Detail Page 2 of 2 Sale Date: 10/4/2010 Sale Price: 2,500,000 Additional Sales Detail Basic Buildin g Characteristics Number of Residential 0 Buildings: Number of Comm/Ind I 0 Buildings: No Building Records Found Top of Page Assessor Database Search Options Pitkin County Home Page The Pitkin County Assessor's Offices make every effort to collect and maintain accurate data.However, Good Turns Software and the Pitkin County Assessor's Offices are unable to warrant any of the information herein contained. Copyright©2003-2011 Good Turns Software.All Rights Reserved. Database&Web Design by Good Turns Software. http://www.pitkinassessor.org/assessor/Parcel.asp?AccountNumber=R004791 4/26/2012 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 16 of 23 , Exhibit C: Site Vicinity Map: Subject property is indicated by the letter 'A', in this image: .. . , or i I ; ir _ , .,i' i -....,. - t• '• iL• # t • ... Atli N.477. 14' i Fr --,. 7Plie 'Alt . ) •-• 4 At . Al ' 4 all \ 4i. -.- ' ,, •Alia: '''''-i t -114 At. *If ta ft 4k 44: , JvIk,' '4C;``'' -440.9 - .;141ftrY- ' 44.'4*":" a:8...'''- • tio I v‘).Ci '1 1 1 lit.,.. ....it.- ,IA,...... ,, Attifit.,,,lat 711 iiii4 ,i it i4041. 14,....„ ta lilt . , . 1 . , .., ... ,, , . . . 1 ,. fr•„. •• ,,i P i - ,.',_., N***61."*416.°81*29kftt": .4411fr-• If, 4 t. G': - -,1 - :' A 1-, - ,-- ' , "c.,2 II •I •Hi• ••• ,N -"if . • E.fr-f . , 414 *s s $1:-"I' -r, ..,.,..1. A_ ..' ithisil.' c acirit44._ AI,. • •_ opk„ , , i -i„,, ,,. 11 •,,`,1 -. `,/ ' as, p„ . -.' ' e- -,-,. - ,,, f I .7 , F•■ 11 F r i', i Lk,_......... . ',44 (9‘40k • i .01: _ 1 , itts‘ v •) ' , i 'P.Acluntatisk EtHor, !Olif, '' i' '",',..__ ,1, ,t- Hs, • ,..:it, , "" J. -ir 0, ii rhaf, . ,44 a'... IF" ', • 1"4411=•.4,LaFtqt- ,• %A q - ".. ", ilki ' '''„?--- " •ests , 4' t k - ? • 4,- ',' ''.:,_ c , -,L, ' , ;• & I : ANPI -- al I '''P.'kt 2, • , -,co3-..., 014 ill, *, , _. '4144111114 Per,,,i4, , 4 ct, Air A ••01. v -.,, • • Al, . .. I1; () v tt i -- ' A, : .- 4 ■._.- , All', Jp " ' -,-10A-._ ' s - 1 - a` Ai ‘.....i4 77, 1:.,.: - ••• " •=-':' EJ,... - i ''! •:•A. ,,,, , iiii,a, ;IV: • ‘44 A lideigerrifi - r A.1 „ , 0 1, firl. c",r) ' 'lie, '' , -4 -00,, • r kg,. f 1 1 . ,........._ , _.„... mi t 4 , gripe"'P:1 i ''.illirir tik it& ' ■ "*.-rl -`"- --80L ' lir P41.,. 4 ;•04.,4.*,,- _la Ark II . "AN040.-Avgri.....Sky 101".11)e.nblick Sy, 4,, -"' 4•1/C-f '• ..T .. 4.4. . Fe•i. -Iti" 1 ? • . • it• , ,, , F,,.-F.Propc•ftwi - 'as -• ft - ii ‘ -11 trt ,. 1 - .'" -; ifira, . i -"v ..1. ,• i -1111 ‘-- ft4flitrolt 4F-,-1.,;' ,-,. .'' " '1 '' .1 ... --, %... d-,.i ..., IF II I 41- , . • kJ 4 1?1 It- . 4 y ■ 'c.. 4,. Aft..__ ,. s441 i _.10.4L.. ic,s014, • ' F----c -, • 4.4,„.„ , , , aotAlir,....... ,,,„— ....11 . 4 . - -AfrA( Wilk , • 4i,-.14j,l,•,- ,. I .. .4t...i 1 a.,:, s , . . , „c..■ i,t iiiii-I ' -1. '' ti. L, '' ON-•%,ill .. -' lir\ -. lb,. 16 , t•A 1 tir fr. 4, 41 al 4. ....,,, Aspn Alps -•,-, - • / / ' fr- 1 ; i'74110t1 i Iii ii P.' ..^C 1111L , 17 „.irk. • -. lif :., *No Ai 4., .• , !yew 0 ii- , t 4 r LiNt. SI I It aek ,,,,..;.. ,/X 14 i 1 .* , .. , 1 . 1 colt. ,,..: 4'1 Iti. IL I 1„.A. - A . ft, i." ..,...., • „ 1,,.....) •.. - clOr - 1„,,,, , . C j • Q, i V‘, o., ...• i-.. . 1 ',Jr, ,Ii• . . 741r. i . I • -114 '.• .. . , i . 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 17 of 23 Exhibit D: Site Improvement Survey: s ;ivy { Qtr Y ,x4.. /6 r 8 or 7-4 cY /S *. .. \ \ ,� -> \ '\ ,; , 10 V', • - y ;5 4 \, f u...... g7 € \N.`\ .2F \\.• ` e ��a \ . \',\ \\ '' �vyo \\ // E.3 ` . iifll i • I 9.a3Q 4x ,.Vie ;-'41.:1- ai_ $ i s P.. jXa:}J i L3 Y'3, 4' :"i f 3 S 5 A. ' A :°,4a 11* - !i-,1 #I i 0 21 I'. i'. 33 Q y 4y iu p-, i. ^ « 5= Exhibit E: Site Plan (Showing Proposed Condition of Sunken Terrace—Non-Street Facing): L 4_ ., __ _ its, — —7,962'-0' T.0.CAP,TYP. 3 ,- --. ..---•-•- j� ',i.o.cAP, 4.. EDGE OF CAP _i - r=- @ STONE VENEER;- y ._.• SEE M.L PLAN 3.2 J ° �� r Y" ;r D f �J�f '----.\-0,‘,.--_--:--I 14 -y, (:)c.---%,-/- -4.7• 7 I T.O. P,TYP. � t 17 �� I �� � 1 , 1 ....A____. fI c____, 1 _ 1 ii - 79192'-0" r' r� 1,, LIGHTWELL i T.O. -`T--L --- .1 - IPBOULDER WALL '( �� , � �� 7.958'-fi'? i�J. .� ,! I I - ..1;- �.� ) a `' SEE M.L PLAN 3.2 4 r_ FOR REL WALL i; . DIMS. t ' '..-1 ___Nt_' 4 IIP I . - 1 ' 1 . 7,9192'-0' lttl i`r l4 ' , t0.CAP TYP. t 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 19 of 23 Exhibit F: Proposed Elevations & Sections: 4 --------- I. -V- i il i i 1 ii 1 i i I 1 i __L—____ 0 4 1 i , , A--- 0 1 0 0 0 I 1 iFt--------- I 1 I I MI '' mom -I— El!II - 0 a -IMO 1 L-----7.1. '7- - ,--.-_-i m---- 0 - - Lafa - 1 .. 1-:a.--‘916=1111 c 1 I . aim 1 0 ] -,____ I _,,LMINfrf;" f LO: - (1) M11211 - : % iii ei 1 i 1 i imam ' i i 1 i 1 I M I- IN L-1 I 1 !- 7t-I II I I0 - 0 t 1 , 11 ---221*'Ilni I 1 - ' 1 , 1 1 , 1 — I I _r- 12 ! -1 F - -'1'>-)-.1-4-,-.?,- 1 ,\ _ -- -_,.! it 1 I i 0 I --744w5I ' _,_ mil ----1 I) n_—— " I 0 f i • --- 1 --"'-'7-- 0 ii 11 1 , i V 0 I 1 -: I ' i i OW -'-- ! i 1 2 I t i P n 1 if- I j ' 0 „ a --. ! 7 .0 .0 k Z 8 Z 0 V il 1 iniiii 1 ,: 4 Htlill' 861 Ute Ave. '..,■, '' • 0 SI ilii ':: n r.) H !II; 861 Ute Ave I ASpen.CO _ . 1 r.. ■ t i g 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 20 of 23 / I ry . 4 u iii, ,i i I 1- II i� ii ' fir. 5 In- li Ilum !I 11111 in HE rfill i Ili riu �� 111I■ a i 1 ■■ ■■ [MA in. i imum ami : � w ' � i j\ a j M s r ■ '� 1 _ , 110 Ifl_ ifl . 1LI,0 sulnimm ),..2 y , 1,■ ■■ ■■ III IPIM -. ■gin i nt a�. . . ARE ill mg . , 1iii • IUIIIIUIIILJ .-. _ _________ _____ I I _____®■■p �•■u I ■ ■ ,! , , ,126'-6' 4T.O_La I d i I I 111111 ", ,. it ■E 1 i 11 ■1 i I rriorsel nnn ■n _ _ A - = Mega l 66 lift, - �.W '4#4Và$t�� �% tqt ' !' � %vi k i- s - . -At' �� ��lr . 1 „Vol -- — — 1, IE pf � . i * Sr I 444 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 21 of 23 Exhibit G: Photographs: _ iiiie ): . , : " .... ..i.. . --.4. .„ . .',..: „ .. i ,, , _ .. ,, , • ii '., .„,, , ..;,... .., .,. ., . , ...4...._‘„,, i, . , . :..,,; G' .—MEM it 3 A i 1. { i.,, .. ,,,. ': .t a1 i " +• YI ,... T �' l t a �, Xy 1747 .+�S '1 •�( ^' / - , 1yal • Y �f: Kati' _ .r- fi `,` 1' ;1i'A,- Sq ai t '" � {• � ��:� �' rlla � rl • �.� ! ��Y��l.rr. i } - i.„N„:1 ice, $ \.,: 5'1.'• 1 III 4 q7 t `1! .(t, F". t �. r 1 .-.tjf 1'. �`* 1::.i A it:�@ 1��� ' . it ' ' ,-..:-., - . -',-- -•-..- , iiii!I ri R NII::-Li.' -"4-- , �:�, c «-: ,y i ,./- . ';';-_. .• •,,..• pi ) ,ii• '1.-,,,.„._...-t,. 4.••.,.,(;.1 ..,-., _ _'. 1 l " ' ' p i Ii. 1) . - ' --OF '‘' N- '.-:;..;_ /�� I ,-'-'_:71.k r' IfM k ' " •' ,.w p K.. , � ,,_': i 861 Ute Avenue-Land Use Application for Height Variance-2012.04.24;Page 22 of 23 1 (5,4(4)1/42) Aspen Alps May 11,2012 Mr. Chris Bendon City of Aspen Community Development Director 130 South Galena Street Aspen, CO 81611 ELECTRONIC DELIVERY Dear Chris, Thanks for taking the time to bring me up to speed on the 861 Ute Avenue Height Variance Land Use Request. Since I will be unable to attend the meeting personally,I wanted to give you my comments to forward to the City Council. • While a lower patio might appear not to have any influence on the Aspen Alps,upon further reflection,a few observations come to mind. Since the property is adjacent to the Aspen Alps, and other construction activities have impacted the Aspen Alps, it stands to reason that this decision may,in the future, affect the Alps as well. First, the City of Aspen's engineering requirements were accepted by the owners and builders of the property. My assumption is that those requirements have some element of -' life safety features built into them. The owners at the Alps want no harm to come to anyone at the residence due to any unauthorized building changes or shortcuts taken by the contractor. Second, it is well documented that water and mud have flowed to and through that property in some past years. If a lower patio makes the property any more susceptible to flooding, damage that might occur to that property may impact the Aspen Alps in a variety of ways. As an example, if heavy equipment is necessary to restore the property after damage,the property owners may seek to use Aspen Alps Road for such work, which may have a negative effect on our owners and guests. Third,the owners of the 861 Ute property sent a letter to.the Aspen Alps in February of 2011. In that letter,the owners implied that past flood and mud events were somehow the responsibility of the Aspen Alps, and they inquired as to what the Alps intended to do about this issue. While the Aspen Alps believes their assertions incorrect(and we have educated them as such),the letter demonstrated a lack of understanding and a propensity to blame others for their own inconveniences. I have included the correspondence and our 700 Ute Avenue, Aspen, Colorado 81611 (800) 228-7820 Fax (970) 920-2528 Info @aspenalps.com www.aspenalps,com Recipient of the 2005 and 2006 Greentree Award for Environmental Stewardship,Aspen ZGREEN Business c I response for your review. If the granting of a variance in any way increases the likelihood of flooding on that patio, then I believe that will increase the likelihood of the owners erroneously blaming the Aspen Alps for that condition. For that reason alone,the Alps must object to the variance request. In closing, as neighbor to the 861 Ute Avenue address,the Aspen Alps expects the building, as constructed,to accurately reflect the plans that have been approved. If you have any questions for me regarding this matter,please feel free to contact me. Sincert4 ,III% J,f hn J,%aorcoran ,.kenefal Manager ir• is • 1 • • • Laguna Bay. Capital Laguna Sierra LLC To:Aspen Alps Board of Directors and Management Team From:Tim Biggs/Sierra Laguna Cc:Bob.Bowden Development,John Olson Builder,Peter Thomas Attorney Date:Feb 9,2011 Re:Adjacent Property at Ute Ave and Aspen Alps Rd. Dear Gentlemen, I am writing today to introduce myself as the new owner of the vacant parcel on the.corner of Ute Ave and Aspen Alps Rd:,just to the north of the Aspen Alps open sae Since our•propertiesrun adjacent•to each other,and I am basically downhill of you I wanted to:advise you'of my plans to build and also share a concern I have had for a while related to the drainage that runs from your property,onto my property. To bring you current with my project,I closed the property st the and o12410 and have since pulled a building permit through John.Olson Builders with,the;City of Aspen Olson is preparing to:break ground.very Shortly;and Imes much,has,expressed a concern about the surface drainage that historically has run from your property on and around my.property.: John Olson has shared numerous photos deploting.signIficantapring run off arid advised that.this water could damage my new home Knot addressed:prior to this year e-spring runoff. This has in all likelihood nol been a concern while.My parcel was vacant.However,now that we are about to begin construction,Olson • insists this drainage be addressed. I wish to bring to your attention your responsibility, I am therefore writing to simply ask how the Aips'pians to address this drainage.John.Olson offered to hand deliver this request and suggested he could have some conversation about possible ideas with you.The is of tho essence;so I would appreciate a response as soon as possible,dither to me or John Olson as my agent. • I appreciate your consideration o• this matter and look forward to hearing back from you. 'Sincerely, / • • • /STEPFIEN TIMOT,'Y B GS MANAGER LAGUNASIERRALLC • Laguna Bay Capital Ply Ltd J PO Box 2718 Fortitude Valley QLD 4008 j T:+617:3.123 68661 F:+617.3.319 0955 Laguna Sierra LLC 1 216 S Monarch Aspen Co.81611 USA I T:±1 970 987 3062 ' i • HLE 1'hvr,as 3. Todd�,.�,��; � = Phone 970-925-3976 • FAx 970-925-9367 ttodd @hoiandhart.com March 2, 2011 .Stephen Timothy Biggs, Manager Laguna Sierra LLC. 215 S. Monarch • Aspen,CO 81611 • Re: Historic Drainage E..asements:Burdeui> g 861 Ute Avenue,Aspen,Colorado Dear Mr. Biggs : • Holland&Hart LLP represents the Aspen Alps Condominium Association. Your letter of February 9.201 1 has been forwarded to me foi•response. • As you know. the Durant Mine Ditch flows through the Laguna Sierra LLC property, We • understand that Laguna Sierra LLC has undertaken to'relocate the Durant Mine Ditch during.its:new home construction activities and has entered into a City of Aspen Ditch Relocation,Operation and • Easement Agreement.dated as.of January 31,2011 and recorded under Reception No. 577196 of the Pitkin County real property records(the"City.Agreement"). • • Under the terms of the City Agreement, Laguna Sierra LLC assumed'certain duties and obligations which included but are not limited to accommodating historic.surface drainage patterns. through, over and across the Laguna Sterna LLC property: 'l hese'historic drainage patterns include the Durant Mine Ditch irrigation eater as well as-storm water and other surface runoff that periodically • follow the historic alignment of the.Durant Mine Ditch. These storm.water and other sui•face.runoff events typically oiigiriate in the Spar Gulch area;on lands•owned by third parties: Aspen Alps • Condominium Association has no responsibility.for predicting;:managing or otherwise directing these storm water or surface runoff events. Similarly. Aspen Alps'Condominium Association)has no obligation or responsibility to take any action to change or improve the historic surface drainage on the Laguna Sierra.LLC property: • Please contact the undersigned if you have any questions. • SintFerely. ) • J.• • Thomas J.Todd/ of Holland&Hart LLP TJT:AEE li Enclosures cc: John Corcoran,General Manager of Aspen Alps Condominium Association Moses Lebovits, President of Aspen Alps Condominium Association i. • • I Holland&Hart 1.1.1, Attorneys at Law I. • Phone(970)925.3476. nz(970)925-9367 www,hollandhartcone 600 East Main Street,Suite 109 Aspen,Co 816t1-!99.1 Aspen 1liilinys else Weer Carson City Chcvcs se Coloraeo 5p'mgs Lenve'Dearer 1 ch Center Jackson Hale Los WTI Kegs Sall Lake Ole&Into FC WoSt moron,D.C.. n �: s o - -_• - 0'g C L!!VILA N. LL - ,." ; m-' 4: tit 7 ,l: - ' r- STAIRWELL P. - _ . i_t - �. ist -2nd°arc.= _ 4—Ir..--/, . FLOORS f` f �,/;r G u� .'''.. : k._„____:,, ,, ...___ :; _ .- . .. _........:., ,, . _ . .....„..,:„:, _41_ / --, ,,,. /../,,,, iv,. '.,_- ' . _..._ ____.. _ -. . _.. .." f .. , . , _ .__ ,„, 4 `iii ` ! t - ELECTRIC tip - �` FLOORS �,� •4 66 .. i '!f, i / ( '.., f i i \ ry i / ` j I a 1l,=w:4-403.441k$:,, I FIRE HtSE ® 3 z. •' .�.. ;v° .. is I C IEGTI CAN A7movat,41,4 ,,o . . . .6 ,./, ,,,__...: / clisTIN4 , STEPS -......._ri.,/_-&' ,,,,,,,fi !• `', k;, Q �"y 8 �d'7 4 L qty �S61jo =' 7936' . MEMORANDUM • %/nib TO: City of Aspen Mayor and City Council THRU: Chris Bendon, Community Development Director 0J„W) FROM: Jessica Garrow, Long Range Planner RE: Second Reading of Ordinance 10, Series 2012, Eagles Club (700 E. Bleeker) GMQS for Essential Public Facility Review MEETING DATE: May 14, 2012 APPLICANT/OWNER: STAFF RECOMMENDATION: Fraternal Order of the Eagles, Staff recommends City Council require mitigation for Aspen, CO. the catering use. REPRESENTATIVE: APCHA RECOMMENDATION: Sunny Vann, Vann Associates APCHA recommended City Council not require mitigation. LOCATION: Lot 3 of Creektree Subdivision, City P&Z RECOMMENDATION: of Aspen, CO, commonly known as P&Z recommended City Council not require 700 E Bleeker. mitigation. CURRENT ZONING &USE R-6 PUD, Medium Density SUMMARY: The applicant requests Conditional Use Residential. The Eagles Club Review to memorialize 1,881 sq ft of basement space qualifies as "an arts, civic and that has been rented to and used by a commercial cultural use,1" which is permitted as catering company for 14 years. City Council is being a conditional use in the R-6 zone asked to waive affordable housing mitigation district. associated with the catering use as part of the GMQS review for an Essential Public Facility. PROPOSED LAND USE: The . applicant requests a conditional use approval to memorialize space which has been used by a commercial catering company for 14 years. . Section 26.104.100 of the Aspen Municipal Code defines arts,cultural,and civic uses as"the use of land or buildings by non-profit, arts,cultural,religious, or public organizations such as a church,fraternal club,performing arts theatre...." Page - 1 - of 4 LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant is requesting the following land use approvals: • Growth Management Review for an Essential Public Facility pursuant to Land Use Code Section 26.470.090.4 (City Council is the final review authority following a recommendation from the Planning & Zoning Commission). BACKGROUND: Since 1901, the Fraternal Order of the Eagles has served both members and the general public through fundraisers and support for area non-profits. The primary goal of the Eagles is to be charitable to the local community. They have supported many community causes, including Spring Board, The Right Door, Roaring Fork Veterans' History Project, and The Shining Stars. The Eagles received a conditional use approval to operate in their present location in 1977. PROJECT SUMMARY: The Fraternal Order of the Eagles proposes to memorialize a commercial use in their basement. There is a commercial,grade kitchen, which for the past 14 years has been rented to two different catering companies. The space is approximately 1,881 sq ft. The. Growth Management Quota System is triggered because of the commercial nature of the space, which is different than the sole use of the space for a fraternal club as was approved in 1977. The Eagles requested a Conditional Use review to memorialize the use of the basement for a commercial kitchen rented to a commercial'catering operation. There are currently a number of businesses that operate out of or use the space, including Conundrum Catering, Gourmet Girl to Go, as well as a number of vendors at the summer farmer's market. The Planning and Zoning Commission reviewed the conditional use request, and approved the space to be used for commercial catering purposes, conditioned upon fulfilling any conditions imposed by City Council. They also included a condition requiring that no more than one (1) business rent the space at any one time. The P&Z and APCHA determined that there are three (3) employees generated by the catering use, based on the fact that the catering operation has historically and currently has three (3) employees. The P&Z and APCHA recommended that City Council not require any affordable housing mitigation for the existing use because it has been in operation for fourteen (14) years. They did, however, recommend that any change in the nature of the current use by a single commercial catering operation or an increase in employees beyond three (3) trigger additional review for affordable housing. STAFF COMMENTS: GROWTH MANAGEMENT REVIEW A recommendation from the Planning and Zoning Commission for the employee generation rate of an Essential Public Facility2 is required. City Council then determines the mitigation rate. The proposal is to memorialize 1,881 sq ft of space that has been used as by a commercial catering company for the past 14 years. Back Door Catering used the space for 2 years, and Conundrum Catering has used the space for the last 12 years. Conundrum Catering has 3 employees. If the typical commercial generation rates were used to calculate the number of 2 Pursuant to Section 26.104.100,Essential Public Facility is defined as"a facility which serves an essential public purpose, is available for use by,or benefit of,the general public and serves the needs of the community." Page - 2 - of 4 FTEs generated by this space, the mitigation requirement would be about 3 FTEs.3 Staff and P&Z recommend using the current number of employees (3) as the level of employee generation. No new affordable housing is proposed with this application — the applicant has requested that City Council waive any affordable housing mitigation requirements. The Growth Management review leads to a larger policy question: Should commercial operations be able to rent/use space designated in an Essential Public Facility and take advantage of the ability to provide lower mitigation than would be required for) a similarly sized commercial space? Other similar Essential Public Facilities, such as churches, the Yellow Brick, and the Aspen Elks Lodge, allow individuals and non-profits to use and/or rent their spaces, but they do not lease their space to a commercial business in the way the Eagles has with the catering operation. Staff believes this is a policy question City Council should consider as they determine the mitigation level required. Staff cannot support the use of Essential Public Facilities by an unassociated commercial business. Similarly situated commercial businesses in town have been required to mitigate for their commercial space based on the land use code's commercial mitigation levels. Staff is concerned that approving a commercial use in an Essential Public Facility sets a precedent that creates an unequal playing field for local businesses. COUNCIL QUESTIONS FROM FIRST READING: City Council asked a number of questions at First Reading related to other Essential Public Facilities (EPFs) that might be in a similar situation as the Eagles Club. Other EPFs in the City include the Elks Lodge, City buildings like the Yellow Brick or the ARC, community emergency services like the Fire Station or Mountain Rescue, and churches. Staff is not aware of any other EPFs are renting space to commercial operations. The Eagles Club is located in the R-6 zone district. Staff conducted an analysis of other EPFs, and the only other EPFs located in the R-6 zone district are churches. Various programs for the community, like music recitals and concerts, soup kitchens, or community meetings like AA, are held in many churches throughout the community. These are not commercial in nature, and are anticipated parts of a church mission. Staff does not believe that the Eagles Club situation is currently occurring elsewhere. The Elks Lodge is most similar in operation to the Eagles Club. The main difference is that the Elks Lodge is located in the Commercial Core,' so all the commercial uses occurring in their building comply with the underlying zoning. If an expansion was requested, it would go through the proper Growth Management review. City Council may want to consider if a code amendment to the EPF portion of the code is appropriate to ensure that future Essential Public Facilities do not morph into commercial operations. 3 The space in question is 1,881 sq. ft. in size. If this were new commercial space, housing mitigation for 3.47 FTEs would be required (1,881sf/ 1,000sf= 1.881sf; 1.881sf*3.075 FTEs = 5.78 FTEs; 5.78 FTEs * 60% mitigation = 3.47 FTEs). Page -3 - of4 REFERRAL AGENCY COMMENTS: The APCHA Board reviewed the application at their regular meeting held February 1, 2012. Due to the nature of the business in that Conundrum Catering provides food to the Club members as well as their special events, and has done so in the last 14 years, the Board recommended approval of the applicant's request with no additional mitigation required, but that an employee audit shall be provided to APCHA with the current number of employees and that any other use of the commercial kitchen by another caterer be reviewed and approved by the Community Development Department. The Planning and Zoning Commission agreed with APCHA's conditions and included tern as part of their conditional use approval. In addition, P&Z found that the use generates three (3) FTEs. RECOMMENDATION: Staff believes that a commercial grade kitchen is an expected aspect of any fraternal club. It provides a place for the organization to prepare food for member events, as well as for events that further the charitable mission of the organization. However, staff cannot support the use of an essential public facility for a commercial operation. Staff therefore recommends against the request. RECOMMENDED MOTION(ALL MOTIONS ARE WORDED IN THE AFFIRMATIVE): "I move to approve Ordinance No.10, Series of 2012, approving with conditions a Growth Management Review for an Essential Public Facility for the Eagles Club, located at 700 E Bleeker." ATTACHMENTS: EXHIBIT A— GMQS Criteria EXHIBIT B— APCHA Board Recommendation EXHIBIT C- P&Z Resolution 4, Series of 2012 EXHIBIT D— Application (provided with First Reading Packet—please contact staff if you need an additional copy.) • Page - 4 - of4 ORDINANCE NO. 10, (SERIES OF 2012) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING WITH CONDITIONS AGROWTH MANAGEMENT REVIEW FOR AN ESSENTIAL PUBLIC FACILITY FOR 700 BLEEKER ST, LOT 3 OF CREEKTREE SUBDIVISION, CITY OF ASPEN, CO, PITKIN COUNTY, COLORADO, COMMONLY KNOWN AS THE ASPEN EAGLESCLUB PARCEL NO. 2737-073-508-03 WHEREAS, the Community Development Department received an application • from the Fraternal Order of the Eagles, requesting approval of a Conditional Use amendment to allow 1,881 sq ft of their basement to be used for a commercial catering business, and a recommendation to City Council for the approval of Growth Management allotments for an Essential Public Facility; and, WHEREAS,the Applicant, Fraternal Order of the Eagles qualifies as a Conditional Use, pursuant to Section 26.104.100 "arts, cultural, and civic use", in the R-6 Medium Residential Zone District; and, WHEREAS, the Applicant, Fraternal Order of the Eagles, serves an essential public purpose by serving the needs of the general public and Aspen community, and therefore is categorized as an Essential Public Facility, pursuant to Section 26.104.100; and, WHEREAS,the subject property is zoned R-6 Medium Residential with a PUD Overlay; and, WHEREAS,upon review of the application, and the applicable code standards, the Community Development Department recommended denial, of the proposed land use requests; and, WHEREAS, during a duly noticed public hearing on February 7, 2012, the Planning and Zoning Commission approved Resolution No.4, Series of 2012, by a Four to One (4 -1) vote, approving a conditional use review for a commercial catering operation in the basement of 700 E Bleeker, and recommending city Council approve an Essential Pubic Facilities Growth Management Review; and, WHEREAS, pursuant to Section 26.470, the City Council may approve an Essential Public Facility Growth Management Review, during a duly noticed public hearing after considering a recommendation from the Planning and Zoning Commission made at a duly noticed public hearing, comments from the general public, a recommendation from the Community Development Director, and recommendations from relevant referral agencies; and, Ordinance 10, Series 2012 Page 1 of 3 WHEREAS, during a duly noticed public hearing on May 14, 2012, the City Council approved Ordinance No. 10, Series of 2010, by a to ( — ) vote, approving an Essential Public Facility Growth Management Review; and, WHEREAS,the Aspen 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 Planning and Zoning Commission, the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing; and, WHEREAS,the City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS,the City Council finds that this Ordinance furthers and is necessary for 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: Approvals Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City of Aspen City Council approves an Essential Public Facility Growth Management Review for the basement of the Eagles Club, located at 700 E Bleeker. The basement space measures approximately 1,881 sq. ft. and may be used by for regular operations of the Eagles Club, as well as by no more than one (1) commercial catering operation/business. Section 2: Affordable Housing Mitigation Affordable housing mitigation is hereby waived for the existing commercial catering use, comprised of three (3) FTEs. Any change in the nature of the current use by a single commercial catering operation or an increase in employees beyond three (3) shall trigger additional review, pursuant to the Aspen Land Use Code. Section 3: 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 Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 4: 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 Ordinance 10, Series 2012 Page 2 of 3 amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 5: 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. The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. Section 6: A public hearing on this ordinance shall be held on the 9th day of January, 2012, 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 26th day of March, 2012. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland,Mayor FINALLY, adopted, passed and approved this day of ,2012. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland,Mayor Approved as to form: James R True, City Attorney Ordinance 10, Series 2012 Page 3 of 3 Exhibit A Sec. 26.470 Growth Management Quota System. (Review Criteria) Sec. 26.470.090.City Council applications. The following types of development shall be approved, approved with conditions or denied by the City Council, pursuant to Section 26.470.110, Procedures for review, and the criteria for each type of development described below. Except as noted, all growth management applications shall comply with the general requirements of Section 26.470.050. Except as noted, all City Council growth management approvals shall be deducted from the respective annual development allotments and development ceiling levels. 4. Essential public facilities. The development of an essential public facility, upon a recommendation from the Planning and Zoning Commission, shall be approved, approved with conditions or denied by the City Council based on the following criteria: a. The Community Development Director has determined the primary use and/or structure to be an essential public facility (see definition). Accessory uses may also be part of an essential public facility project. Staff Finding: Pursuant to Section 26.104.100, Essential Public Facility is defined as "a facility which serves an essential public purpose, is available for use by, or benefit of the general public and serves the needs of the community." Since 1901, the Fraternal Order of the Eagles has served both members and the general through fundraisers and support for area non-profits. The primary goal of the Eagles is to be charitable to the local community. They have supported many community causes, including Spring Board, The Right Door, Roaring Fork Veterans' History Project, and The Shining Stars. Staff finds that this criterion is met. b. Upon a recommendation from the Community Development Director, the City Council may assess, waive or partially waive affordable housing mitigation requirements as is deemed appropriate and warranted for the purpose of promoting civic uses and in consideration of broader community goals. The employee generation rates may be used as a guideline, but each operation shall be analyzed for its unique employee needs, pursuant to Section 26.470.100, Calculations. Staff Finding: The Commercial Kitchen that is the subject of this review is currently rented to Conundrum Catering. They have three (3) employees. The Eagles use the rent to help support their overall charitable mission. They have stated that they could survive without the rent from ,Conundrum Catering, but that would mean they have reduced resources to maintain their building and carry out their mission. The applicant has requested that any affordable housing mitigation be waived. The space in question is 1,881 sq. ft. in size. If this were new commercial space, housing mitigation for 3.47 FTEs would be required (1,881sf/ 1,000sf= 1.881sf; 1.881sf*3.075 FTEs = 5.78 FTEs; 5.78 FTEs * 60% mitigation= 3.47 FTEs). • Page 1 of 4 Staff suggests using the current number of employees at Conundrum catering (3) be used as the generation rate. APCHA has reviewed the proposal and recommends approval of the applicant's request with no additional mitigation required, but that an employee audit shall be provided to APCHA with the current number of employees and that any other use of the commercial kitchen by another caterer be reviewed and approved by the Community Development Department. The Growth Management review leads to a larger policy question: Should commercial operations be able to rent/use space designated in an Essential Public Facility and take advantage of the ability to provide lower mitigation than would be required for a similarly sized commercial space? Other similar Essential Public Facilities, such as churches, the Yellow Brick, and the Aspen Elks Lodge, allow individuals and non-profits to use and/or rent their spaces, but they do not lease their space to a commercial business in the way the Eagles has with the catering operation. Staff believes this is a policy question City Council should consider as they determine the mitigation level required. Staff cannot support the proposal without affordable housing mitigation because of the policy implications for Essential Public Facilities. Sec. 26.470.050.General requirements. A. Purpose: The intent of growth management is to provide for orderly development and redevelopment of the City while providing mitigation from the impacts said development and redevelopment creates. Different types of development are categorized below, as well as the necessary review process and review standards for the proposed development. A proposal may fall into multiple categories and therefore have multiple processes and standards to adhere to and meet. B. General requirements: All development applications for growth management review shall comply with the following standards. The reviewing body shall approve, approve with conditions or deny an application for growth management review based on the following generally applicable criteria and the review criteria applicable to the specific type of development: 1. Sufficient growth management allotments are available to accommodate the proposed development, pursuant to Subsection 26.470.030.D. Applications for multi-year development allotment, pursuant to Paragraph 26.470.090.1 shall not be required to meet this standard. Staff Finding: There is no specified number of allotments for Essential Public Facilities. The Eagles is requesting 1,881 square feet of Essential Public Facility space for their commercial kitchen. Staff finds this criterion to be met. 2. The proposed development is consistent with the Aspen Area Community Plan. Staff Finding: The AACP does not address civic organizations. It does discuss the importance of maintaining places and opportunities for social interaction. The Eagles in Page2of4 general provides these opportunities through its charitable mission and activities with area groups. The commercial use of the space does not relate well to the AACP. Staff finds this criterion to be met. 3. The development conforms to the requirements and limitations of the zone district. Staff Finding: The Eagles Club us part of the Creektree Subdivision and PUD, and is zoned R-6 PUD. The space is located within the existing building. The building conforms with the approvals and Arts, cultural, and civic uses are allowed as a conditional use. Approval for the conditional use is before P&Z for approval. Staff finds this criterion to be met. 4. The proposed development is consistent with the Conceptual Historic Preservation Commission approval, the Conceptual Commercial Design Review approval and the Conceptual Planned Unit Development approval, as applicable. Staff Finding: Staff finds this criterion to not be applicable. 5. Unless otherwise specified in this Chapter, sixty percent (60%) of the employees generated by the additional commercial or lodge development, according to Subsection 26.470.100.A, Employee generation rates, are mitigated through the provision of affordable housing. The employee generation mitigation plan shall be approved pursuant to Paragraph 26.470.070.4, Affordable housing, at a Category 4 rate as defined in the Aspen/Pitkin County Housing Authority Guidelines, as amended. An applicant may choose to provide mitigation units at a lower category designation. If an applicant chooses to use a Certificate of Affordable Housing Credit as mitigation, pursuant to Chapter 26.540, such Certificate shall be extinguished pursuant to Chapter 26.540.90 Criteria for Administrative Extinguishment of the Certificate. (Ord. No. 6—2010, §2) Staff Finding: Staff finds this criterion to not be applicable, as the project is being reviewed as an Essential Public Facility. 6. Affordable housing net livable area, for which the finished floor level is at or above natural or finished grade, whichever is higher, shall be provided in an amount equal to at least thirty percent (30%) of the additional free-market residential net livable area, for which the finished floor level is at or above natural or finished grade, whichever is higher. Affordable housing shall be approved pursuant to Paragraph 26.470.070.4, Affordable housing, and be restricted to a Category 4 rate as defined in the Aspen/Pitkin County Housing Authority Guidelines, as amended. An applicant may choose to provide mitigation units at a lower category designation. Affordable housing units that are being provided absent a requirement ("voluntary units") may be deed-restricted at any level of affordability, including residential occupied. If an applicant chooses to use a Certificate of Affordable Housing Credit as mitigation, Page 3 of 4 • pursuant to Chapter 26.540, such Certificate shall be extinguished pursuant to Chapter 26.540.90 Criteria for Administrative Extinguishment of the Certificate, utilizing the calculations in Section 26.470.100 Employee/Square Footage Conversion. (Ord. No. 6—2010, §2) Staff Finding: Staff finds this criterion to not be applicable, as the project is being an Essential Public Facility. The Housing as a y g Board recommends no affordable housing mitigation be required for the existing use of the space. If a different use (besides catering) were in the location, housing mitigation might be required. 7. The project represents minimal additional demand on public infrastructure, or such additional demand is mitigated through improveme n t proposed as part of the project. Public infrastructure includes, but is not limited to, water supply, sewage treatment, energy and communication utilities, drainage control, fire and police protection, solid waste disposal, parking and road and transit services. (Ord. No. 14,2007, §1) Staff Finding: The catering use has been located on the property for 14 years, with Conundrum Catering operating there for the past 12 years. The city has not received any official complaints regarding the catering use during that period. Staff believes the space can handle the use, as well as the on-going charitable activities conducted by the Eagles. However, staff has some concerns related to additional businesses operating out of.the space. The catering use is unique in that the prep work is done on-site, but the events are held off-site. There have been other businesses that attract traffic and users to the site. Staff is concerned this could result in increased demand on public infrastructure. Staff finds this criterion to be met for the catering use and the general Eagles operations. Page 4 of 4 Exhibit B, APCHA Referral Comments MEMORANDUM • TO: Jessica Garrow, Community Development Department FROM: Cindy Christensen, APCHA Operations Manager THRU: Tom McCabe, APCHA Executive Director DATE: February 1, 2012 RE: Fraternal Order of Eagles Conditional Use Amendment ISSUE: The applicant is requesting approval to be determined as an "Essential Public Facility" , which would permit the operation of the kitchen to be exempt from the City's growth management quota system (GMQS) competition and waiver of the affordable housing mitigation requirements. BACKGROUND: The Eagles Club ("Club") building contains a commercial grade kitchen in the basement, which is used to provide food service for Club members and various Club events. The last 14 years, the kitchen has been leased to two catering companies - Back Door Catering for the first two years and Conundrum Catering for the last 12 years. Conundrum Catering does have a City of Aspen business license and its use in the Club kitchen has been regularly inspected by the City's Environmental Health Department. The Community Development Department ("ComDev") determined that the leasing of the building's kitchen to caterers is inconsistent with the conditional use approval; therefore, the Club must either stop leasing its kitchen or apply for a conditional use amendment. ComDev further determined that growth management approval is also required if the kitchen is to continue to be leased for commercial purposes. The basement's net leasable area totals approximately 1,881 square feet; however, this square footage includes a mechanical room, storage area, along with the kitchen and associated preparation area as well. DISCUSSION: Conundrum Catering is a seasonal business which operates within the Club during the hours of 8:00 a.m. to 10:00 p.m. Approximately 75% to 80% of its business is conducted on the weekends. Its activities are essentially limited to eight months a year — four months in the summer and four months in the winter. Conundrum Catering also provides food serve for the Club members and its various special events. Conundrum Catering has three employees—company's owner, Kip Feight; its chef; and its catering manager. Contract labor (e.g., waiters, bartenders, etc.) utilized for catered events is obtained from the community's extensive pool of restaurant employees. No additional employees will be generated as a result of the requested conditional use approval. Fraternal Order of Eagles Conditional Use Amendment Page 1 Exhibit B, APCHA Referral Comments The primary goal of the Club is to be charitable to the local community. If a charitable group approaches the Club for an event, it is provided free of charge. Upon a recommendation by ComDev, City Council may assess, waive or partially waive affordable housing mitigation requirements. The Club is requesting that affordable housing mitigation not be required in connection with Conundrum Catering's leasing of its kitchen. The applicant believes that no reasonable ability exists to provide such mitigation within its building or to make a cash-in-lieu payment. If the mitigation requirement is not waived, the Club will have no other option but to cease the leasing of its kitchen for catering purposes. MITIGATION: An Essential Public Facility is defined as "a facility which serves an essential public purpose, is available for use or benefit of the general public, and serves the needs of the community." ComDev has deterred that the Club is eligible to be considered as such a facility. The City Council has the option of waiving affordable housing mitigation requirements for an Essential Public Facility, although the Code does not exempt an applicant from the mitigation requirement. The mitigation requirement would be as follows: 4.1 FTE's per 1,000 square feet with a 25%reduction for below grade space 1,881 ± 1,000= 1.88 4.1 X 25%reduction=3.1 1.88 X 3.1 =5.83 FTE's X 60%= 3.5 required mitigation RECOMMENDATION: The APCHA Board reviewed the application at their regular meeting held February 1, 2012, and due to the nature of the business in that Conundrum Catering provides food to the Club members as well as their special events, and has done so in the last 14 years, Staff recommends approval of the applicant's request with no additional mitigation required, but that an employee audit shall be provided to APCHA with the current number of employees and that any other use of the commercial kitchen by another caterer be reviewed and approved by the Community Development Department. Fraternal Order of Eagles Conditional Use Amendment Page 2 �xhiloi-�C� RESOLUTION NO. 4, SERIES OF 2012 A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION APPROVING WITH CONDITIONS AN AMENDMENT TO THE FRATERNAL ORDER OF THE EAGLES CONDITIONAL USE TO USE 1,881 SQ FT OF BASEMENT - SPACE FOR COMMERCIAL USE,AND RECOMMENDING CITY COUNCIL APPROVE WITH CONDITIONS GROWTH MANAGEMENT REVIEW FOR AN ESSENTIAL PUBLIC FACILITY FOR 700 BLEEKER ST, LOT 3 OF CREEKTREE SUBDIVISION, CITY OF ASPEN,CO, PITKIN COUNTY, COLORADO PARCEL NO. 2737-073-508-03 WHEREAS, the Community Development Department received an application from the Fraternal Order of the Eagles, requesting approval of a Conditional Use amendment to allow 1,881 sq ft of their basement to be used for a commercial catering business, and a recommendation to City Council for the approval of Growth Management allotments for an Essential Public Facility; and, WHEREAS,the Applicant, Fraternal Order of the Eagles qualifies as a Conditional Use, pursuant to Section 26.104.100 "arts, cultural, and civic use", in the R-6 Medium Residential Zone District; and, WHEREAS, the Applicant, Fraternal Order of the Eagles, serves an essential public purpose by serving the needs of the general public and Aspen community, and therefore is categorized as an Essential Public Facility, pursuant to Section 26.104.100; and, WHEREAS,the subject property is zoned R-6 Medium Residential with a PUD Overlay; and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended denial, of the proposed land use requests; and, WHEREAS, during a duly noticed public hearing on February 7, 2012, the Planning and Zoning Commission approved Resolution No.4,Series of 2012, by a Four to One(4 -1)vote; and, WHEREAS,the Aspen Planning and Zoning Commission has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein; and, WHEREAS, the Aspen Planning and Zoning Commission finds that the development proposal meets all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, • P&Z Resolution 4, Series of 2012 Page 1of3 WHEREAS,the Aspen Planning and Zoning Commission 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 OF ASPEN PLANNING AND ZONING COMMISSION AS FOLLOWS: Section 1: Dimensional Standards Pursuant to the procedures and standards set forth in Title 26 of the City of Aspen Municipal Code, the Planning and Zoning Commission hereby approves with conditions the use of 1,881 sq. ft. of the basement of the Fraternal Order of the Eagles (also known as the Eagles Club) as commercial net leasable space. The space can be used for regular operations of the Eagles Club, as well as by a commercial catering operation. Section 2: Conditional Use Amendment A Conditional Use Amendment is approved to allow the basement of the Eagles Club, measuring approximately 1,881 sq ft, to be used as commercial net leasable space for a commercial catering company, conditioned upon fulfilling all conditions imposed by City Council in their Growth Management Review for an Essential Public Facility. The Eagles Club shall not permit the space . to be leased to more than one (1) business at any one time. Section 3: Growth Management for Essential Public Facility The Planning and Zoning Commission has determined that the employee generation rate for the commercial use of the space is three (3) employees. The APCHA Board and the Planning and Zoning Commission recommend City Council waive any Affordable Housing mitigation associated with the existing catering operation. An employee audit shall be provided to APCHA with the current number of employees. Any change in the nature of the current use by a single commercial catering operation or an increase in employees beyond three (3) shall trigger additional review, pursuant to the Aspen Land Use Code. Section 4: 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 Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 5: 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 6: 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. P&Z Resolution 4, Series of 2012 Page 2 of 3 APPROVED BY the Planning and Zoning Commission of the City of Aspen on this 7th day of February, 2012. APPROVED AS TO FORM: PLANNIN , I ZONING COMMI: •N: ,City Attorney LJ Erspamer, Chairman AT ES : (ackie Lothian,Deputy City Clerk P&Z Resolution 4, Series of 2012 Page 3 of 3 .54111011- Jessica Garrow From: gailen @skybeam.com evtited ca, Sent: Thursday, May 10, 2012 11:18 PM To: Jessica Garrow Subject: 700 Bleeker-Eagles review Dear Jessica, I will be out of town and unable to attend the Monday May 14th meeting concerning the Eagles Growth Management Review. I am extremely opposed to any additional uses by the Eagles other than by members and definitely not for a Commercial kitchen. My wife and I own two properties within the Obermeyer Place complex. We have experienced numerous disturbances from that location. During evening and late night hours on several occasions we have been awakened or unable to retire necessitating a call to the Aspen Police. Loud disturbing noise emanating form people hanging out in the parking lot and leaving that location is a common occurrence.This is a bedroom residential community that does not warrant a late night commercial , operation unlike those at Obermeyer Place. Thank you, Gailen B. Smith Pamela D. Smith Aspen Rio LLC Aspen Bleeker Street LP 501-203 Rio Grande PL Email secured by Check Point • 1 MEMORANDUM VII ) C TO: Mayor Ireland and City Council THRU: Chris Bendon, Community Development Director CIM,'r FROM: Amy Guthrie, Historic Preservation Officer J RE: Second Reading of Ordinance #14, Series of 2012, 202/208 E. Main Street . Historic Landmark Lot Split DATE: May 9, 2012 SUMMARY: 202/208 E. 4 ";i ,�; F �°� � s .') ` � i Main Street is a 6,000 " , � : ;r ' �' In 1« q ' , square foot lot that contains 'Ar e ',"*.:',,if::' '' '`,4 iY!,',,its. z. ?,� `} = '1L3iW r gN 1,:'1.-,44,,, two Victorian era homes. � '` k I ' The two structures were -- k,, ," '4 : :� `'r �_� -` r1, condominiumized in 1999 � ; ��' n� and are separately owned. °� „„� , ` Y nor, .,- ,, 202 E. Main is Aspen � .e� �� � ' � n`1 * € - _ 3 is', i : J ax. Home Consignment and " , , �� q 208 E. Main is Salon Tulio. # 4� p , ' : ,i / 11 r te' M y! The • owners are co- ,72--- ; �` �, applicants in a request to , 7,: � 74.- split the property into two ' r 3,000 square foot lots, „r E � restoring them to the =,.,� x ` R original townsite plat. No expansions or changes to the existing structures are proposed for review at this time, except for the removal of a small non-historic addition that currently links the two houses together near the front. Even with the removal of the link, the structures will still be as little as 4' apart. Both buildings currently encroach into the side and rear yard setbacks since they were substantially constructed before setback standards existed. New sideyard setback encroachments will be created as a result of drawing a new lot line between the houses. HPC recommended approval of the Historic Landmark Lot Split on-March 14th and has conditionally granted setback variances to legalize the existing conditions, pending Council passage of this ordinance. Staff is coordinating with the Building Department to ensure any code issues created by the new property line are addressed. 1 STAFF RECOMMENDATION: Staff and HPC recommend Council approve the Historic Landmark Lot Split as proposed. The result is a more simple form of ownership for the property owners. ADDRESS: 202 and 208 E. Main Street, Units A and B, Main Street Victorians Condominiums, Block 73, City and Townsite of Aspen. PARCEL ID UNIT A: #2737-073-20-011 PARCEL ID UNIT B: #2737-073-20-012 ZONING: MU, Mixed Use. HISTORIC LANDMARK LOT SPLIT In order to complete a Historic Landmark Lot Split, the Municipal Code states that the application shall meet Section 26.480.030(A)(2) and (4) and Chapter 26.470. Growth Management where applicable. 26.480.030(A)(2),SUBDIVISION EXEMPTIONS,LOT SPLIT All of the following conditions must be met: a. The land is not located in a subdivision approved by either the Board of County Commissioners or the City Council or the land is described as a metes and bounds parcel which has not been subdivided after the adoption of subdivision regulations by the City on March 24, 1969. This restriction shall not apply to properties listed on the Aspen Inventory of Historic Landmark Sites and Structures. Staff Finding: The property is in the original townsite. b. No more than two (2) lots are created by the lot split, both lots conform to the requirements of the underlying Zone District. Any lot for which development is proposed will mitigate for affordable housing pursuant to Chapter 26.470. Staff Finding: The application proposes two lots, both of which conform to the MU zone district. Any future expansion will properly address Growth Management requirements. c. The lot under consideration or any part thereof, was not previously the subject of a subdivision exemption under the provisions of this Chapter or a "lot split" exemption pursuant to Chapter 26.470. Staff Finding: The land has not received a subdivision exemption or lot split exemption. The applicant will be required to abandon the existing Condominium plat as part of this process. 2 d. A subdivision plat which meets the terms of this Chapter and conforms to the requirements of this Title, is submitted and recorded in the office of the County Clerk and Recorder after approval, indicating that no further subdivision may be granted for these lots nor will additional units be built without receipt of applicable approvals pursuant to this Chapter and growth management allocation pursuant to Chapter 26.470. Staff Finding: The subdivision plat shall be provided to the Community Development Department for approval and recordation within 180 days of final land use action. e. The subdivision exemption agreement and plat shall be recorded in the office of the County Clerk and Recorder. Failure on the part of the applicant to record the plat within one hundred eighty (180) days following approval by the City Council shall render the plat invalid and reconsideration of the plat by the City Council will be required for a showing of good cause. Staff Finding: The subdivision exemption agreement shall be provided to the Community Development Department for approval and recordation within 180 days of final land use action. f. In the case where an existing building occupies a site which is eligible for a lot split, the building need not be demolished prior to application for a lot split. Staff Finding: A small (20 square feet) enclosed area between the two structures must be demolished. Staff recommends this be accomplished prior to recording the plat. g. Maximum potential residential build-out for the two (2) parcels created by a lot split shall not exceed three (3) units, which may be composed of a duplex and a single-family home. Staff Finding: The properties are developed with commercial uses. Following the lot split, each property will be eligible for a one time Growth Management exemption for a residential dwelling unit. 26.480.030(A)(4),SUBDIVISION EXEMPTIONS,HISTORIC LANDMARK LOT SPLIT All of the following conditions must be met: a. The original parcel shall be a minimum of six thousand (6,000) square feet in size and be located in the R-6, R-15, R-15A, RMF, C-1 or MU Zone District. Staff Finding: The subject parcel is 6,000 square feet and is located in the MU Zone District. b. The total FAR for each lot shall be established by dividing the allowable floor area for a duplex or two detached residences on the fathering parcel according to the Zone District where the property is located. The total FAR for each lot shall be noted on the subdivision exemption plat. When the property is redeveloped with any allowed uses other than single family or duplex residential, refer to the Zone District for allowable FAR on each lot. 3 Staff Finding: FAR for each parcel shall be according to the zone district regulations in effect at the time of development, according to the uses proposed for each lot individually. c. The proposed development meets all dimensional requirements of the underlying Zone District. The variances provided in Chapter 26.415 as benefits for historic preservation are only permitted on the parcels that contain a historic structure. Only one (1) FAR bonus of up to 500 square feet may be granted to each historic landmark lot split subdivision exemption. Staff Finding: The development is expected to meet the dimensional requirements of the zone district except for variances that may be granted within the authority of the HPC. RECOMMENDATION: Staff and HPC recommend Council approve the 202/208 E. Main Street Historic Landmark Lot Split, Ordinance #14, Series of 2012. PROPOSED MOTION: "I move to adopt Ordinance#14, Series of 2012." CITY MANAGER COMMENTS: Exhibits: Ordinance#14, Series of 2012 A. Application 4 ORDINANCE #14 (Series of 2012) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN,COLORADO APPROVING A HISTORIC LANDMARK LOT SPLIT FOR THE PROPERTY LOCATED AT 202 AND 208 E. MAIN STREET,UNITS A AND B, MAIN STREET V ICTORIANS CONDOMINIUMS, BLOCK 73, CITY AND TOWNSITE OF ASPEN, CITY AND TOWNSITE OF ASPEN, COLORADO PARCEL ID: #2737-073-20-011 and #2737-073-20-012 WHEREAS,the property owners, Rocking Lazy J Properties, LLC, owner of the property located at 202 E. Main Street, Unit A of the Main Street Victorians Condominiums and Michael Giordano, owner of the property located at 208 E. Main Street, Unit B of the Main Street Victorians Condominiums, have requested a historic landmark lot split and variances; and WHEREAS, in order to complete a Historic Landmark Lot Split, the applicant shall meet the requirements of Aspen Municipal Code Section 26.480.030, Subdivision and Chapter 26.470, Growth Management Quota System; and WHEREAS, at their regular meeting on March 14, 2012, the Historic Preservation Commission considered the application, found it to be consistent with the review standards and recommended Council approval by a vote of 5 to 0; and WHEREAS, Amy Guthrie, Historic Preservation Officer, in her staff report to City Council, performed an analysis of the application, found that the review standards for Historic Landmark Lot Split are met, and recommended approval; and WHEREAS, the City Council finds that the proposal meets or exceeds all applicable development standards and that the approval of the development proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS,the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,THAT: Section 1: Historic Landmark Lot Split Pursuant to the findings set forth in Section 1, above, the City Council does hereby grant a Historic Landmark Lot Split Subdivision Exemption for with the following conditions: 1. A subdivision exemption plat and subdivision exemption agreement shall be reviewed and approved by the Community Development Department and recorded in the office of the Pitkin County Clerk and Recorder within one hundred eighty (180) days of final approval by City Council. Failure to record the plat and subdivision exemption agreement within the 202/208 E. Main Street Ordinance#14, Series of 2012 Page 1 of 3 specified time limit shall render the plat invalid and reconsideration of the plat by City Council will be required for a showing of good cause. As a minimum, the subdivision plat shall: a. Meet the requirements of Section 26.480 of the Aspen Municipal Code; b. Contain a plat note stating that no further subdivision may be granted for these lots nor will additional units be built without receipt of applicable approvals pursuant to the provisions of the Land Use Code in effect at the time of application; c. Contain a plat note stating that all new development on the lots will conform to the dimensional requirements of the zone district, except for variances approved by the HPC; d. Be labeled to indicate that allowable FAR will be determined by the zone district regulations in effect at the time of development, according to the uses proposed for each lot individually. 2. Prior to execution of the subdivision exemption plat and subdivision exemption agreement, the applicants shall demolish the approximately 20 square foot storage area that links the two structures together and shall comply with any building code requirements that result from the lot split. Section 2: Vacation of Condominium Plat Recordation of this Subdivision Exemption Plat shall nullify and vacate the previously approved Main Street Victorians Condominium Plat. Section 3: Severability If any section, subsection, sentence, clause,phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 4: Existing Litigation This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 5: Vested Rights The Land Use entitlements granted herein shall be vested for a period of three (3) years from the date of issuance of a development order. However, any failure to abide by any of the terms and conditions attendant to this approval shall result in the forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to properly record all plats and agreements required to be recorded, as specified herein, within 180 days of the effective date of the development order shall also result in the forfeiture of said vested property rights and shall render the development order void within the meaning of Section 26.104.050 (Void permits). Zoning that is not part of the approved site-specific development plan shall not result in the creation of a vested property right. No later than fourteen(14) days.following final approval of all requisite reviews necessary to obtain a development order as set forth in this Ordinance, including Final Major Development and Commercial Design Reviews by the HPC, the City Clerk shall cause to be published in a newspaper 202/208 E. Main Street Ordinance#14, Series of 2012 Page 2 of 3 of general circulation within the jurisdictional boundaries of the City of Aspen, a notice advising the general public of the approval of a site specific development plan and creation of a vested property right pursuant to this Title. Such notice shall be substantially in the following form: Notice is hereby given to the general public of the approval of a site specific development plan, and the creation of a vested property right, valid for a period of three (3) years, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes,pertaining to the • following described property: 202 and 208 E. Main Street, Units A and B, Main Street Victorians Condominiums, Block 73, City and Townsite of Aspen. Nothing in this approval shall exempt the development order from subsequent reviews and approvals required by this approval of the general rules, regulations and ordinances or the City of Aspen provided that such reviews and approvals are not inconsistent with this approval. The approval granted hereby shall be subject to all rights of referendum and judicial review; the period of time permitted by law for the exercise of such rights shall not begin to run until the date of publication of the notice of final development approval as required under Section 26.304.070(A). The rights of referendum shall be limited as set forth• in the Colorado Constitution and the Aspen Home Rule Charter. Section 6: Public Hearing A public hearing on the ordinance shall be held on the 14th day of May, 2012 in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 9th day of April, 2012. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk FINALLY,adopted, passed and approved this day of , 2012. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk APPROVED AS TO FORM: • James R. True, City Attorney 202/208 E. Main Street Ordinance #14, Series of 2012 Page 3 of 3 ®C $sNJ..� 0 02/13/2012 Amy Guthrie Historic Preservation Commission 130 S. Galena St. Aspen, CO 81611 On Behalf Of: Michael and Shelley Tullio (Giordano) Salon Tullio 208 E. Main St. Aspen, CO 81611 Parce l ID: 273707320012 Lot L and Lot M, Block 73, City and Townsite of Aspen, County of Pitkin, State of Colorado And ' Jake Vickery Aspen Home Consignment 202 E. Main St. Aspen, CO 81611 Parcel ID:273707320011 Lot L and Lot M, Block 73, City and Townsite of Aspen, County of Pitkin, State of Colorado Michael and Shelley Tullio and Jake Vickery are seeking a Historic Landmark Lot Split,which would allow each lot owner the right to construct a single family unit with 1,500 square feet FAR. The new property line which is shown in the draft plat that accompanies this memo will follow the historic lot line. Each lot would therefore be returned to its original 30'wide by 100' length. An easement is being requested for the Lot M roofline that extends onto Lot L. Once the Lot M addition takes place, all overhanging roofline will be removed except for what exists on the historic resource. ti We appreciate your time and consideration. Sara Boulet Upton, Architect • p.o. box 2324 basalt, co 81621 c 970 948 9667 f 970 927 3727 e sarana upton-design.com w upton-design.com ATTACHMENT 2 -Historic Preservation Land Use Application dettNA -,e6kb PROJECT: C t 4/ke-6 Name: ja Ike Vic.14.2 II 1Y �,� Location: Zo Z E. _AA S`� ASP°� C-s' I(o I/ rl. �iy 1`�C�..li - �c S�• U 1[r�'oRa.nS, U Ll i '� (Indicate street address,lot&block number or metes and bounds description of property) Parcel ID# (REQUIRED) 2 7 3-7 ,1 3 z c ,1 APPLICANT: Name: cat- Address: F.O . F",* I23!00 Phone#: C‘i-10) z z Fax#: E-mail: I i�� ev i eke 4..pca,,,,,.464021-- REPRESENTATIVE: Name: Address: Phone#: Fax#: E-mail: TYPE OF APPLICATION: (please check all that apply): ❑ Historic Designation ❑ Relocation(temporary, on ❑ Certificate of No Negative Effect or off-site) ❑ Certificate of Appropriateness n Demolition(total ❑ -Minor Historic Development demolition) X . ❑ -Major Historic Development Historic Landmark Lot Split ❑ -Conceptual Historic Development 1 -Final Historic Development . -Substantial Amendment EXISTING CONDITIONS: (description (descriptionof existing buildings,uses,previous approvals, etc.) N14 41A Z7S IN/WA e (.n✓IO R"A0it PROPOSAL: (description of proposed buildings,uses,modifications,etc.) Aspen Historic Preservation Land Use Application Requirements,Updated:May 29,2007 PROJECT: /v S //rc If Name: _,- —. Location: ,,t> C A 5t L. n0 /7,7 f f3/ / (Indicate street address,lot&block number or metes and bounds description of property) Parcel ID# (REQUIRED) : 7-7 77,7)- 0 6 APPLICANT: • Name: /e/G.# -77 Address: t✓.m/✓!�J/�-�- `�� j� - Phone#.0)/ (61. " 33"-7-- Fax#: E-mail: /�1 �✓�/lO 81'1 , GUh, REPRESENTATIVE: Name: Address: Phone#: Fax#: E-mail: TYPE OF APPLICATION: (please check all that apply): I I Historic Designation I J Relocation(temporary,on n Certificate of No Negative Effect I or off-site) � t I I Certificate of Appropriateness I Demolition(total demo Demoli n -Minor Historic Development demolition) -Major Historic Development X Historic Landmark Lot Split n I I -Conceptual Historic Development -Final Historic Development -Substantial Amendment EXISTING CONDITIONS: (description of existing buildings,uses,previous approvals, etc.) J- th6i0'/4 -f Z6/e4--ce J 72- /27/g" vSE- PROPOSAL: (description of proposed buildings, uses, modifications,etc.) / bC///te,a-421,-N--- 174/b 71/7 . Aspen Historic Preservation Land Use Application Requirements,Updated:May 29,2007 • JAN-31-2012 16:22 FROM: TO:919705445292 P. 1/1 Jake Vickery Architect Architecture RI Planning 202 East Main Street Aspen,Colorado 81612 970 309-7722 jakevickery@comcast.net . January 30,2012 TO: Historic Preservation Commission City of Aspen RE:HISTORIC LOT SPLIT OF MAIN STREET VICTORIANS,UNIT A This letter is to document thatAwe,the undersigned owners of Unit A,Main Street Victorians, 202 East • Main Street, grant our permission and joint participation in the submission of an application for the Historic Lot Split of Main Street Victorians, Aspen Colorado, This letter is also to authorize both Jake Vickery and Della Pegolotti to act as mutual representatives for each other on all matters pertaining to this historic lot split. Sincerely, J Vickery(Jake) Manager, Rocking Lazy 1 Properties Co-owner,Unit A,Main Street Victorians 202 East Main Street Aspen,CO 81611 970 309.772 "%lei 4(, • Della.1. Pegolotti Co-owner, Unit A,Main Street Victorians 202 East Main Street Aspen,CO 81611 970 309-7711 • February 6, 2012 TO: Historic Preservation Commission City of Aspen RE: HISTORIC LOT SPLIT OF MAIN STREET VICTORIANS, UNIT B This letter is to document that we,the undersigned owners of Unit B, Main Street Victorians, 20$ East Main Street, grant our permission and joint participation in the submission of an application for the Historic Lot Split of Main Street Victorians, Aspen, Colorado. This letter is also to authorize Sara Upton to act as Michael and Shelley Giordano's representatives on all matters pertaining to this historic lot split. Sincerely, Michael and Shelley Giordano 208 East Main Street Aspen, CO 81611 970.948.7357 \ • - , ALLEY BL\ REAR SETBACK ��p Op LOCK 73 \ GF 0 CEMENT -- \ • 3°.0� `_ WOOD FENCE \ SIDE SETBACK ` Sy5009' �„ \ \ GRAVEL` /rGRAVEL' 0 1 \ • PARKING -100 PARKING ®® REAR SETBACK / SH D 1 —1==— 10`a T /r`1� �_0_, . / / I 6"1 SPEN� ` /r- '/ / TREES ` • / / / / ALLEY SHED/ FOOTPRINT/ --.4 /z • / •'V / / •a/ °°DFN a_ /tiek �'T/ / I / / z II / / / / ,EASEMENT REQUESTED / 101 o / / I / FOR ROOF OVERHANG O. u a / I 6-0' 1 ONTO NEIGHBORING • m ►v / / LOT Q �I / �/ / • l 5o. / 0 0, / / I I l/ // O / LOT 1 O / SIDE SETBACK 0 O0 / �, / ,� / LOT L . // O �..OTZ / Z// I 3000 SQ.FT. / // O _ / //-102— / ,y / / / / i i/ / LOT M .. I i i 3000 SQ.FT. / CONNECTOR BETWEEN / / W // 1'�''''.9 7/8' • / / HOUSES TO BE / / • V / REMOVED o .` 1 Op I in ' o l I I /I o . �,/ I ^/ I I•lI I I / 11 o o / PORCH / I / ti / I / : /` / W I NCLOSED Q Q / ` - I ENTRY I O /U ` ` / Cl d/ / I o O _, / Ch VARIANCES REQUESTED ^�n,U /08' PIN 704 �l o L� I FOR ALL EXISTING X04 / ` ` 1 CONSTRUCTION THAT • S75-009, / ENCROACHES INTO 3 � a° _ 1 SETBACKS,TYP.OF EACH LOT • F \ V SIDE SETBACK • FRONT SETBACK CONC sr \ 3. ` FRONT SETBACK 7 \ \ Wq� \ =R8 Q \ K COTTONWOOD \ X 5% \ \ \ - ` • COTTONWOOD SITE PLAN yo EAST \ 8"ASPEN HISTORIC LANDMARK LOT SPLIT MAIN STREET ` 1"= 10.-0" 02-13-2012 --,U .ton basalt,co 81621 ®eS n�U t 970 948 9667• �K rl,, V ill * MEMORANDUM TO: Mayor and City Council FROM: Lee Ledesma, Utilities Operations Manager THRU: David Hornbacher, Director of Utilities and Environmental Initiatives Randy Ready, Assistant City Manager DATE OF MEMO: May 7, 2012 MEETING DATE: May 14, 2012 RE: Water Shortages—Ordinance update Second Reading—Public Hearing REQUEST OF COUNCIL: City Council approval of a Water Shortage Ordinance amendment (Exhibit A) revising Sections 25.28.010, 25.28.020, 25.28.030, and 25.28.040. Principle changes involve empowering the city manager to act on behalf of city council for swift follow-up on a council decision to implement any of the three water shortage stages. Additionally, the ordinance amendment updates the water rates during a water shortage stage to a level higher than current rates which further encourages conservation and water savings. PREVIOUS COUNCIL ACTION: Council declared a Stage 1 drought on June 10, 2002. As part of this declaration, temporary water rates were enacted in order to encourage and reinforce a program of voluntary water conservation measures. A target level of 10 percent reduction in water use was established in the 2002 Council action. BACKGROUND: As of May 1, 2012 the year-to-date precipitation and snowpack match levels on this date in 2002. Current forecasts indicate runoff could peak in mid-May, which is four weeks ahead of normal. • A complicating factor in water supply forecasting is the manner in which water rights are administered in Colorado. Parts of the State are far drier than the Roaring Fork Valley. As a result of these conditions, we may witness early "calls" for water rights administration in the lower Gunnison and Colorado Rivers. Prudent water management also considers these uncertainties. DISCUSSION: Presently the temporary rates shown in Section 25.28.040 of the Water Shortages ordinance are lower than existing rates. These temporary rates must be updated to reflect current pricing, as well as price modifications for extraordinary water use which is defined as water use that typically occurs within Tier 3 and Tier 4 of our approximately 3,825 water Page 1 of 3 accounts. Staff recommends a June 14, 2012 implementation of the Water Shortages rate which reflects a 30-day period after second reading/public hearing on May 14th and would only be enacted if council has implemented a Stage One, Stage Two or Stage Three Water Shortage by that date. Responses to First Reading Questions: 1. What was the minimum stream cfs in Castle and Maroon Creeks during 2002 water shortage? Response: During the 2002 water shortage, the City contracted with Enartech to conduct paired measurements at historic USGS gauges and downstream of the two headgates on Castle and Maroon Creeks. This work confirmed that the quantity of water predicted by the hydrologic model matched the drought of record conditions as measured in 1977 during the late irrigation season of July through August. Year 1977 conditions were then utilized as the design period for the water system and the criteria to meet all potable water demands at full buildout of Aspen while ensuring instream flows of 12 and 14 cfs respectively in Castle and Maroon Creeks immediately below the City's primary diversions. Because the City designed its system to operate in a manner to preserve in-stream flow, in year 2002 we believe these streams were near but did not go below the instream flow values established by the CWCB. 2. What water rights does the city have in case of a large fire event that would require the Fire Department to pull directly out of creeks/rivers for firefighting? Response: When a large fire event occurs, responders are focused on the immediate life/safety needs and actions necessary to fight the fire. In doing so, the fire trucks, helicopter, or firefighting planes fill with water from available sources as needed. The City's Maroon Creek Ditch and Nestell Ditch, as well as the Castle Creek Flume and Midland Flume rights, are all decreed for domestic/municipal uses, and firefighting is one of those uses. FINANCIAL/BUDGET IMPACTS: If water shortage restrictions are implemented in any of the three Stages, it is expected that water use and subsequent revenue would decline. However, this revenue loss may be partially offset by the temporarily increased water rate structures for Tier 3 and Tier 4 for metered water customers and an increase demand rate for unmetered water users during the water shortage stages. ENVIRONMENTAL IMPACTS: Without a city-wide water conservation and drought management plan, stream health, agricultural activities, and fish and wildlife habitat along the Roaring Fork and Colorado Rivers will be more negatively impacted than if we contributed to water conservation efforts. Public safety concerns resulting in increased fire and flood hazards, as well as negative economic impacts due to decreased tourism, are also expected to occur if drought conditions persist. RECOMMENDED ACTION: Staff recommends approval of the proposed Water Shortages ordinance amendment Section 25.28. Note that staff is not recommending a declaration of water Page 2 of 3 shortage at this time and that subsequent City Council action will be required to declare a water shortage. ALTERNATIVES: Temporary water rates for anticipated 2012 water shortages, along with other associated Water Shortages ordinances in Section 25.28 Municipal Code, can be amended in any manner Council may desire. Leaving the existing rates to be applied in the event of a water shortage, (lower than existing applicable rates during non-shortage conditions), would encourage increased water use and is therefore not recommended. PROPOSED MOTION: I move to adopt Ordinance #15, Series of 2012 on second reading CITY MANAGER COMMENTS: ATTACHMENTS: Exhibit A: Water Shortages Ordinance amendment • Page 3 of 3 ORDINANCE NO. 15 Series of 2012 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO AMEND CHAPTER 25.28, WATER SHORTAGES, OF THE MUNICIPAL CODE. WHEREAS, the City Council has adopted a policy to address a shortage in its supply of water; and WHEREAS, this shall apply to the use of the treated water supply of the City and to raw water licensed agreements issued by the City and to other raw water agreements to which the City is a party to the extent those agreements provide for curtailment of water use or suspension of water delivery during water shortages or emergencies; and WHEREAS, the three-stage plan set forth in this Ordinance shall be decided by City Council according to the exigencies of the stage being implemented as set forth below. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. That Sections 25.28.010 of the Municipal Code of the City of Aspen, Colorado which sets forth water shortages applicability, is hereby amended as follows. Sec. 25.28.010. Applicability. This Chapter shall become effective upon a finding by the City Council that the City is facing a shortage in its supply of water. Such a finding shall be made by resolution. To the extent reasonable, findings of applicability of the stages set forth in this Chapter shall be coordinated with similar findings by other water users in the same drainage basin and findings by the State g Y g g Y engineer and the Water Conservation Board shall be considered to be of a persuasive nature. The provisions of this Chapter shall apply to the use of the treated water supply of the City and to raw water license agreements issued by the City and to other raw water agreements to which • the City is a party to the extent those agreements provide for curtailment of water use or suspension of water delivery during water shortages or emergencies. Upon such finding, the three-stage plan set forth in this Chapter shall be implemented. The duration of each stage shall be decided by the City Council according to the exigencies of the particular situation in question. It shall be an additional responsibility of the Water Superintendent, under direction of the City Manager, to ensure that the measures described for each implementation Stage are carried out and to provide sufficient coordination between City departments. (Code 1971, § 23-200; Ord. No. 27-1985, § 1; Ord. No. 18-2002 § 1 [part]) Section 2. That Section 25.28.020 of the Municipal Code of the City of Aspen, Colorado, which sets forth water shortages stages, is hereby amended to read as follows. Sec. 25.28.020. Stages. (a) Stage One. The objective of water use restrictions during this stage is a ten percent (10%) reduction in water use. Voluntary conservation is encouraged during this condition. During the period designated Stage One: (1) There shall be lawn watering only to the extent determined permissible by the City Council according to the demands of the particular period in question. If no other specific schedule is adopted by City Council, an odd-even schedule shall be in effect on a voluntary basis. An"odd- even" schedule means that addresses ending in odd numbers and addresses ending in even numbers will water on alternate days, with odd numbers only irrigating the day following the declaration of Stage One restrictions, even numbers only irrigating the next day, and so on. (2) Public education materials shall be provided to encourage efficient use of the available water supply. (3)Public facilities will be directed to implement water use restrictions by administrative order, including: limiting irrigation of public parks and golf courses town extent greater than the target reduction in overall water use; reducing street washing to minimum level necessary to comply with air quality standards and suspending fire hydrant flushing and testing except when required for completion and acceptance of a newly constructed water system. (4) Upon declaration of Stage One water shortage, increases in water rates for "extraordinary water use" (Sections 25.16.010 and 25.16.020 and 25.16.021) shall be imposed as mandated by the City of Aspen City Manager-up to the maximum rates defined in Section 25-28.040. (b) Stage Two. Prior to the expiration of Stage One, a period known as Stage Two shall be designated by the City Council, if the Council deems the entry of such stage necessary. The Council may continue Stage One or terminate the water shortage period at its discretion. The objective of water conservation measures during Stage Two is to achieve up to a thirty percent (30%) reduction in water consumption. Upon commencement of Stage Two, the City Council, by resolution, shall adopt one or more of the following additional measures which may be altered by resolution of the City Council during a Stage Two condition: (1) There shall be no washing of sidewalks, driveways, parking areas, tennis courts,patios or other paved areas. (2) There shall be no refilling of swimming pools with water furnished by the City. (3) There shall be no noncommercial washing of privately owned cars, other motor vehicles, trailers or boats, except from a bucket and except that a hose equipped with a positive shut-off nozzle may be used for a quick rinse. (4) No new public or private landscaping installations shall be allowed with the exception of that required as a minimum for erosion control of disturbed surfaces as determined by the City. (5)No new water connections shall be authorized; however, existing authorizations shall be honored; provided, however, that this subsection (5) shall not apply to users on a well whose well has run dry. (6) Watering of golf courses and parks shall be managed to achieve at least the 30% reduction in water use specified for stage 2. (7) Water shall not be used for dust control, except pursuant to authorization from the City or Pitkin County Environmental Health Department and only to the extent necessary to comply with air quality standards. (8) Except for fighting fire, there shall be no use of water from a fire or specially designated • loading hydrant for human consumption or for use in connection with animals, street washing or construction water supply. Hydrant draft permits for any of the above uses shall be suspended for the duration of the Stage Two or Three designation. (9) Watering of any lawn, garden, landscaped area, tree, shrub or other plant shall be prohibited from 10:00 a.m. to 5:00 p.m., except from a hand-held hose or container or drip irrigation system. These limitations are in addition to any applicable limits from Stage One (e.g., odd-even • • watering schedule). The allowable time limits for irrigation (both day of week and time of day) may be modified by City Council in accordance with the need for water conservation. (10) There shall be no use by a car washing or bus washing facility in excess of seventy percent (70%) of the amount used by it during the corresponding billing period in the preceding year. If the facility was not operating during the preceding year, an assumed amount shall be computed from its records and from the rate of use of comparable facilities; provided, however, that this subsection (10) shall not apply to any facility that recycles water in a manner satisfactory to the City Manager. (11) There shall be no nonresidential use in excess of seventy percent (70%) of the amount used by the customer during the corresponding billing period in the preceding year. If connection to the City system was not in existence during the preceding year, an assumed amount shall be computed based on the rate of comparable facilities. Said percentage may be increased by the City Manager for any connection, use or customer if the City Manager determines that such increase is necessary to protect the public health, safety and welfare or to spread equitably among water users of the City the burdens imposed by the water shortage and the resulting lack of water in the City's supply; provided, however, that this provision regarding equitably spreading such burden shall in no way serve to injure, weaken or deprive the legal demands of an adjudicated water right under state statutes. (12) Flat rate water customers shall be required to meter water usage within thirty (30) days of declaration of the Stage Two water shortage notice (unless it is not feasible to install a meter); or, pay 150% of existing current unmetered rates during implementation of Stage Two and Stage Three Water Shortage ordinance. (13) Upon declaration of Stage Two water shortage, increases in water rates for "extraordinary water use" (Sections 25.16.010 and 25.16.020 and 25.16.021) shall be imposed as mandated by the City of Aspen City Manager-up to the maximum rates defined in Section 25-28.040. (c) Stage Three. Prior to the completion of Stage Two, the City Council shall determine by majority vote whether to: (1) terminate the water shortage period; (2) revert to Stage One; (3) extend the time for Stage Two; (4) alter the use restrictions; or(5) enter Stage Three. If entered, Stage Three shall last until the City Council determines by resolution that the water shortage no longer exists. The City Council shall have the power to revert back to Stage One or Stage Two in its discretion or alter the use conditions should circumstances during Stage Three change and suggest such a course of action. The objective of restrictions in effect during Stage Three is to obtain a fifty percent(50%) reduction in water consumption. In addition to restrictions pertaining to Stage Two, the City Council may adopt one (1) or more of the following use limitations to go into effect upon entering Stage Three: (1) Watering of any lawn, garden, landscaped area, tree, shrub or other plant material shall be prohibited except from a hand-held hose or container or drip irrigation system. (2) Use in any dwelling or separate residential unit in excess of fifty (50) gallons per day (or some other quantity decided by the City Council) for each resident thereof shall not be permitted. Each residence supplied with water by the City shall certify to the City Water Department in writing, under oath and penalty of perjury, the number of residents of each dwelling or separate residential unit billed to the customer. (3) There shall be no nonresidential use in excess of fifty percent (50%) of the amount used by the customer during the corresponding billing period of the previous year. If connection to the City system was not in existence or use during the preceding year, an assumed amount shall be computed based upon the City's records for comparable facilities. Said percentage may be increased by the City Manager for any connection, use or customer if the City Manager determines that such increase is necessary to protect the public health, safety and welfare or to spread equitably among the water users of the City the burdens imposed by the water shortage and the resulting diminution of the City's supply. (Code 1971, § 23-201; Ord. No. 27-1985, § 1; Ord. No. 18-2002 § 3 [part]) (4) Upon declaration of Stage Threee water shortage, increases in water rates for "extraordinary water use" (Sections 25.16.010 and 25.16.020 and 25.16.021) shall be imposed as mandated by the City of Aspen City Manager-up to the maximum rates defined in Section 25-28.040. Section 3. That Section 25.28.030 of the Municipal Code of the City of Aspen, Colorado, which section sets forth water shortages violations and sanctions, is hereby amended to read as follows. Sec. 25.28.030. Violations and sanctions. (a) If and when the City Council, Water Department or police department become aware of any violation of any mandatory restriction imposed under a Stage Two or Three water shortage as described in this Chapter, a written notice shall be placed on the property where the violation occurred and mailed to the person who is regularly billed for water service where the violation occurs and to any other person known to the City who is responsible for the violation or its correction. Said notice shall describe the violation and order that it be corrected, cured or abated immediately or within such specified time as the City Manager determines is reasonable under the circumstances. If said order is not complied with, the Water Department may disconnect the service where the violation occurs. This provision also applies to any water waste pursuant to the definition provided in Section 25.20.020 regardless of whether a Stage One, Two or Three water shortage has been declared by City Council. (b) A fee of five hundred dollars ($500.00) shall be paid for the reconnection of any service disconnected pursuant to Subsection (a) above during Stage Two. (c) A fee of one thousand dollars ($1,000.00) shall be paid for the reconnection of any service disconnected pursuant to Subsection (a) above during Stage Three. Furthermore,no service disconnected pursuant to Subsection (a) above during Stage Three shall be reconnected unless a device furnished by the Water Department is installed to 1 restrict the flow of water to said service. (Code 1971, § 23-202; Ord. No. 27-1985, § 1; Ord. No. 18-2002 § 3 [part]) Section 4. That Section 25.28.040 of the Municipal Code of the City of Aspen, Colorado, which section sets forth water shortages monthly rates, is hereby amended to read as follows. Sec. 25.28.040. Monthly rates for water shortages. Unless an alternative system of charges is adopted by City Council, the following temporary rates will be in effect during the time that City Council declares a water shortage. (a) A variable charge for the first and second tier of water consumption shall remain the same unless otherwise directed by the City of Aspen City Manager with a minimum of a 48-hour notification of the rate change via Public Notice on local radio and within daily local newspaper publications. (b) A variable charge not to exceed a maximum of 175% of the existing per thousand gallons rate for tier three shall go into effect after a minimum of a 48-hour notification of this rate change by City of Aspen City Manager via Public Notice on local radio and within daily local newspaper publications. (c) A variable charge not to exceed a maximum of 200% of existing per thousand gallons rate for tier four shall go into effect after a minimum of a 48-hour notification of this rate change by City of Aspen City Manager via Public Notice on local radio and within daily local newspaper publications. (Ord. No. 18-2002 § 3 [part]) (d) Rates for Bulk Water Sales to other water districts will be adjusted by City Manager in accordance with contract terms addressing rate increases. Section 5. 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. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 7. This ordinance shall be effective as of the 14th day of June, 2012. Section 8. A public hearing on this ordinance shall be held on the l4`' day of May, 2012, 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 day of , 2012. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland,Mayor FINALLY, adopted, passed and approved this day of ,2012. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland,Mayor Approved as to form: City Attorney