HomeMy WebLinkAboutagenda.council.regular.20050926CITY COUNCIL AGENDA
September 26, 2005
5:00 P.M.
I. Call to Order
I1. Roll Call
III.
Scheduled Public Appearances
Proclamation - Physical Therapists Month
IV.
Citizens Comments & Petitions (Time for any citizen to address Council on issues
NOT on the agenda. P/ease limit your comments to 3 minutes)
Special Orders of the Day
a) Mayor's Comments
b) Councilmembers' Comments
c) City Manager's Comments
d) Board Reports
VI. Consent Calendar (These matters may be adopted together by a single motion)
P.3 a) Resolution #75, 2005 - CIRSA Property/Casualty Insurance Policy Renewal
P.11 b) Resolution #76,2005- City Shop Renovation Contract
P.27 c) Aspen West affordable housing category change
d) Minutes - September 12, 2005
VII. First Reading of Ordinances
· VIII.
P.29
P.47
P.49
d)
P.53 e)
P.59 f)
P.67 g)
P.115 h)
Public Hearings
a) Ordinance #26, 2005 - Recycle Initiatives
b) Ordinance #37, 2005 - Code Amendment HPC FAR Bonus Continue to 10/11
c) Ordinance #38, 2005 - Snyder Affordable Housing PUD Amendment Continue to
10/11
Ordinance #39, 2005 -ARC PUD Amendment - Aspen Junior Hockey Continue
to 10/11
Ordinance fl41, 2005 - Stage Road Vacation
Resolution #77, 2005 - Wagar/Detwieler Annexation
Ordinance fl42, 2005 - Open Space Bonds
Resolution #69, 2005 - Lodge at Aspen Conceptual PUD
IX. Action Items
X. Information Items
P.139 a) Dwell master plan update
Adjournment
· Next Regular Meeting October 11,2005
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
MEMORANDUM
TO:
Mayor and Council
FROM:
Peggy Carlson, Risk Manager
THRU: Paul Menter, Finance Director
DATE:
September 15, 2005
Resolution # ~ ~ , Acceptance of 2006 Property/Casualty Insurance
Policy Renewal Premium Quote
SUMMARY: This resolution authorizes the City Manager to execute the acceptance of
CIRSA's premium quote for the 2006 renewal of the City's property/casualty insurance
Coverage (Attachment A). I recommend that Council approve the resolution
PREVIOUS COUNCIL ACTION: None.
DISCUSSION: The proposed CIRSA coverage for 2006 includes property coverage
(including auto damage), liability qoverage (including general liability, auto liability, law
enforcement liability and public officials errors and omissions liability), and cr/me
coverage Which insures the City for theft of money, employee dishonesty, etc.
FINANCIAL IMPLICATIONS: Staffrequested. that CIRSA pro¥ide the 2006 quote
based on the same deductibles per claim that were in place in 2005. The deductibles are
$10,000 for liability claims, $5,000 for auto liability (damage to' third party vehicle),
$10,000 for auto physical liability (damage to a City vehicle) and $10,000 for property
damage. The 2005 premium for this coverage was $293,657. The quote for 2006 is
$305,948. The increased premium has been built into the 2006 budget.
Insurance premiums have increased in the last few years in general, particularly in the
areas of public officials and police liability. The City's premiums have increased due to
increased property loss and liability exposures, increased operating expenses and some
significant claims in 2003 that still affect the premium.
RECOMMENDATION: I recommend that the City Council authorize the City
Manager to execute the acceptance of CIRSA's 2006 insurance premium qnote in the
amount of $305,948.
ALTERNATIVES: A decision to withdraw from CIRSA would require the City to look
for another insurance carrier. In the current insurance market, there are very few,.if any
carriers who are willing to insure municipalities. The other option would be to self-
insure for ail losses.
PROPOSED MOTION: "I move to approve Resolution # :~5 authorizing the City
Manager to execute the Acceptance of the premium quote for the City of Aspen's 2006
CIRSA property/casualty insurm~ce."
CITY MANAGER COMMENTS: ~.~ ~ 6~
Attachment:
A - 2004 Property/Casualty Preliminary Contribution Quote
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RESOLUTION NO.
(SEamS OF 2005)
A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO, APPROVING
THE RENEWAL OF THE CIRSA PROPERTY/CASUALTY INSURANCE POLICY
FOR THE CITY OF ASPEN FOR 2006, AND AUTHORIZING THE CITY MANGER
TO EXECUTE THE ACCEPTANCE OF THE PREMffUM QUOTE ON BEHALF OF
THE CITY OF ASPEN
WHEREAS, there has been submitted to the City Council the Premium Quote for
2006 CIRSA Property/Casualty Insurance Policy for the City of Aspen, Colorado, a copy
of which is annexed hereto and part hereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Section One
That the City Council of the City of Aspen hereby approves the CIRSA Premium
Quote for 2006 Property/Casualty Insurance Policy for the City of Aspen, Colorado, a
copy of which is annexed hereto and incorporated herein, and does hereby authorize the
City Manager to execute said Acceptance of Premium Quote on behalf of the City of
Aspen.
Dated:
Helen Kalin Klanderud, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of the that resolution adopted by the City Council of
the City of Aspen, Colorado, at a meeting held ,2005.
Kathryn S. Koch
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Acceptance of Preliminary Property/Casualty ~uotation
Attachment C
MUST BE RECEIVED AT THE CIRSA OFFICE
ON OR BEFORE FRIDAY, SEPTEMBER 30, 2005
Complete, sign, and return this form if your entity has decided to accept CIRSA's Preliminary
Property/Casualty Quotation for 2006.
ACCEPTANCE OF PRELIMINARY
PROPERTY/CASUALTY QUOTATION
Th/s is to notify CIRSA that the City of Aspen accepts the following preliminary quotation for
property/casualty coverage for 2006 (check and fill in as applicable):
The City of Aspen accepts the preliminary 2006 quotation of$ ~c.~,, t~ .t/.~
with the same deductibles as 2005 (listed below):
$ 10,000
$ 5,000
$ 10,000
$ 10,000
Liability Deductible*
Auto Liability Deductible
Property Deductible
Auto Physical Damage Deductible
__ The City of Aspen accepts the preliminary 2006 quotation of $
with new deductibles of:
$
Liability Deductible*
Auto Liability Deductible
Property Deductible
Auto Physical Damage Deductible
*A $500 deductible quotation is offered to members, if requested, for property, auto
physical damage, auto liability and general liability, l-Iowever, police professlonal and
public officials errors and omissions deductibles cannot go below $1,000.
AUTOMOBILE MEDICAL PAYMENTS~ PREMISES MEDICAL PAYMENTS AND
UN1NSURED/UNDERINSURED MOTORIST OPTIONAL COVERAGE
Based upon the selections made in your 2006 Property/Casualty Renewal Application, the City of
Aspen has elected:
Not to participate in Automobile Medical Payments Coverage, and
Not to participate in Premises Medical Payment Coverage, and
To participate in Uninsured/Underinsured Motorist Coverage.
If this is incorrect, or you wish to change your selection at this time, please contact your underwriting
representative at (800) 228-7136 or (303) 757-5475.
** Indicates the selection is a change from your entity's selection in 2005.
/
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Acceptance of Preliminary Property/Casttalty Quotation
Page 2
Attachment C (continued)
LOSS CONTROL STANDARDS AUDIT SCORE CREDIT
Please indicate below how.you would like to utilize your 2006 Loss Contr'ol Standards Audit Score
Credit, if applicable:
__ Apply the credit towards our 2006 Property/Casualty contribution.
__ Apply the credit towards our 2006 Workers' Compensation contribution.
Deposit the credit in our Loss Control Credit Account on January 1, 2006.
__ Send us a check for the amount of the credit (after January 1, 2006).
LOSS CONTROL CREDIT ACCOUNT
Please indicate below how you would li!re to utilize your Loss Control Credit Account Balance, if
applicable:
__ Apply $ of the credit towards our 2006 Property/Casualty
contribution.
Apply $ of the credit towards our 2006 Workers'
Compensation contribution.
. . Keep the full amount in our Loss Control Credit Account and do not reduce our
contribution.
PURSUIT AND EMERGENCY VEHICLE OPEEAT1ONS CREDI~T
Please indicate below how you would like to utilize your 2006 Pursuit and Emergency Vehicle
Operations Credit, if applicable:
__ Apply the credit towards our 2006 Property/Casualty contribution.
__ Apply the credit towards our 2006 Workers' Compensation contr/bution.
~ Deposit the credit in our Loss Control Credit Account on January 1, 2006.
__ Send us a check for the amount of the credit (after January 1, 2006).
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Acceptance of Preliminary Property/Casualty Quotation
Page 3
Attachment C (continued)
THIS IS NOT A BILL. AN INVOICE WILL BE SENT ON JANUARY 1, 2006.
The undersigned is authorized to accept this preliminary quotation on behalf of the City of Aspen.
$I/e accept this preliminary quotation for January 1, 2006 to January 1, 200Z We
understand our final invoice may increase/decrease depending upon the number of
CIRSA Property/Casualty members for 2006, actual a~ccess insurance premiums, and
any changes made to our 2006 renewal application.
Signature:
Title:
Date:
PlO
TO:
THRU:
FROM:
DATE:
RE:
MEMORANDUM
Mayor Klanderud and Aspen City Council
Ed Sadler, Assistant City Manager ~
Ben Ludlow, Project Manager
September 20, 2005
Old Street ShoP Historic Renovation
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SUMMARY: The old Castle Creek Power Plant, which now is used as a Streets Department Shop,
is in need of renovation for the preservation of the building. In 2003 the Streets Department made an
AMP request to renovate the building. Design was funded in 2004, with the actual work funded in
2005 ($290,000). Soon after, the Colorado Historical Society became involved with a grant to help
fund the work ($155,584). The renovation of this building includes: construction ora new retaining
wall behind the building, repoint existing masonry and reconstruction of damaged masonry, cleaning
of all brick masonry, installation of new corrugated steel roof, repainting of exterior and interior
windows and doors, grading and drainage improvements to keep water away from the building and
therefore reduce ongoing damage to the brick.
DISCUSSION: Bids were received May 17, 2005 for the reconstruction of the building. The bids
were far over the Architect's Estimate of $384,074, so staffworked with the low bidder to reduce
scope and to lower the price, while still accomplishing all of the major objectives in preserving the
buildingl The Apparent low bidder was Fenton Construction at $770,438. With a reduction of the
scope of work, Fenton was able to lower the bid to $410,664 to complete the most important portion
of the work Which is the exterior brick, doors, windows, roof and other structural repairs to the
building.
Since the scope changed from the originally approved plan by the Colorado Historical Society, staff
had to present a new scope of work. The Colorado Historical Society then did a site visit and
reviewed the new scope and cost impacts. The Colorado Historical Society had to then decide if they
would still approve the grant at the same level of funding for the new scope of work. This decision
was final on 9/19/05 when they did f'mally approve the project with the new scope of work.
STAFF RECOMMENDATION: Staff is recommending approval of the contract with Fenton
Construction for $410,664
ALTERNATIVE: Reject the bid and put the project back out to bid in 2006 with a new work scope.
FINANCIAL IMPACTS: The Colorado Historical Society has approved a grant for $155,584 to use
towards .exterior rehabilitation of the building. Additionally, the Streets Department has $290,000
funds available through the AMP budget general fund, for a total of $445,584 in available funds.
Construction will occur during 2005 if weather holds, but otherwise could lapse into early 2006.
CITY MANAGER'S COMMENTS:
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RESOLUTION NO. Series of 2005
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A CONTRACT FOR RENOVATION AND PRESERVATION OF THE
CASTLE CREEK POWER PLANT AT THE CITY OF ASPEN STREETS
DEPARTMENT, BETWEEN THE CITY OF ASPEN AND FENTON
CONSTRUCTION, AND AUTHORIZING THE MAYOR OR 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
reconstruction and preservation of the old Castle Creek Power Plant at the City of Aspen
Streets Department, between the City of Aspen and Fenton Con~tmction, a true and
accurate copy of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY
OF ASPEN, COLORADO:
That the City Council of the City of Aspen hereby approves that Contract for
reconstruction and preservation of the old Castle Creek Power Plant at the City of Aspen
Streets Department, between the City of Aspen and Fenton Construct.ion, a copy of which
is annexed hereto and incorporated herein, and does hereby authorize the Mayor or 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 day of ., 2005.
Helen Kalin Klandemd, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a tree and accurate copy of that resolution adopted by the City Council of the
City of Aspen, Colorado, at a meeting held on the day hereinabove stated.
Kathryn S. Koch, City Clerk
TLO- saved: 9/2012005-276-G:\tara~R. esos\Fenton.pow~rplant.doc
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CONTRACT FOR CONSTRUCTION T~c~
THIS AGREEMENT, made and entered into on September 20, 2005, by and between the
CITY OF ASPEN, Colorado, hereinafter called the "City", and Fenton Construction, Inc ,
hereinafter called the "Contractor".
WHEREAS, the City has caused to be prepared, in accordance with the law,
specifications and other Contract Documents for the work herein described, and has approved
and adopted said documents, and has caused to be published, in the manner and for the time
required by law, an advertisement, for the project Castle Creek Power Plant., and,
WHEREAS, the Contractor, in response to such advertisement, or in response to direct
invitation, has submitted to the City, in the manner and at the time specified, a sealed Bid in
accordance with the terms of said Invitation for Bids; and,
WHEREAS, the City, in the manner prescribed by law, has publicly opened, examined,
and canvassed the Bids submitted in response to the published Invitation for Bids therefore,
and as a result of such canvass has determined and declared the Contractor to be the lowest
responsible and responsive bidder for the said Work and has duly awarded to the Contractor a
Contract For Construction therefore, for the sum or sums set forth herein;
NOW, THEREFORE, in consideration of the payments and Contract for Construction
herein mentioned:
The Contractor shall commence and complete the construction of the Work as fully
described in the Cont[act Documents.
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The Contractor shall furnish alt of the materials, supplies,-tools, equipment, labor and
other services necessary for the construction and completion of the Work described
herein.
The Contractor shall commence the work required by the Contract Documents within
seven (7) consecutive calendar days after the date of "Notice To Proceed" or Issuance of
Building permit and will complete the same by the date and time indicated in the Special
Conditions unless the time is extended in accordance with appropriate provisions in the
Contract Documents.
The Contractor agrees to perform all of the Work described in the Contract Documents
and comply with the terms therein for a sum not to exceed Four Hundred Ten
Thousand Six Hundred and Sixty Four ($410,664) DOLLARS or as shown on the BID
proposal.
The term "Contract Documents" means and includes the documents listed in the City of
Aspen General Conditions to Contracts for Construction (version GC97-2) and in the
Special Conditions. The Contract Documents are included herein by this reference and
made a part hereof as if fully set forth here.
CC1-971.doc Page 1 **CC1
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10.
11.
12.
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The City shall pay to the Contractor in the manner and at such time as set forth in the
General Conditions, unless modified by the Special Conditions, such amounts as
required by the Documents.
This Contract For Construction shall be binding upon all parties hereto and their
respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein or in the Contract Documents, this Contract For
Construction shall be subject to the City of Aspen Procurement Code, Title 4 of the
Municipal Code, including the approval requirements of Section 4-08-040. This
agreement shall not be binding upon the City unless duly executed by the City Manager
or the Mayor of the City of Aspen (or a duly authorized official in his/her absence)
following a resolution of the Council of the City of Aspen authorizing the Mayor or City
Manager (or a duly authorized official in his/her absence) to execute the same.
This agreement and all of the covenants hereof shall inure to the benefit of and be
binding upon the City and the Contractor respectively and their agents, representatives,
employees. Successors, assigns, and legal representatives. Neither the City nor the
Contractor shall have the right to assign, transfer or sublet his or her interest or
obligations hereunder without the written consent of the other party.
This agreement does not and shall not be deemed or construed to confer upon or grant
to any third party or parties, except to parties to wi~om the Contractor or the City may
assign this Contract For Construction in accordance with the specific written consent, any
rights to claim damages or to bring suit, action or other proceeding against either the City
or the Contractor because of any breach hereof or because of any of the terms,
covenants, agreements or conditions herein contained.
No waiver of default by either party of any terms, covenants or conditions hereof to be
performed, kept and observed by the other party shall be .construed, or operate as, a
waiver of any subsequent default of any of the terms, cover~ants or conditions herein
contained, to be performed, kept and observed by the other party.
The parties agree that this Contract For Construction was made in accordance with the
laws of the State of Colorado and shall be so construed. Venue is agreed to be kept
exclusively in the courts of Pitkin County, Colorado.
In the event that legal action is necessary to enforce any of the provisions of this
Contract for Construction, the prevailing party shall be entitled to its costs and
reasonable attorney's fees.
This Contract For Construction was reviewed and accepted through the mutual efforts of
the parties hereto, and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of
the parties in the negotiation, review or drafting of this Contract For Construction.
The undersigned representative of the Contractor, as an inducement to the City to
execute this Contract For Construction, represents that he/she is an authorized
representative of the Contractor for the purposes of executing this Contract For
CC1-971 .doc Page 2 **CCI
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Construction and that he/she has full and complete authority to enter into this Contract
For Construction for the terms and conditions specified herein.
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:
RECOMMENDED FOR APPROVAL:
APPROVED AS TO FORM:
City Engineering Department
By:
City Attorney
ATTESTED BY:
CONTRACTOR:
Title:
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.
CCl-971.doc Page 3 "CC1
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CERTIFICATE OF INCORPORATION
(To be completed if Contractor is a Corporation) _
STATE OF C~"~C;E~O )
On this/"~1 day~ ~~¢1'~''' , ~ before me appeared
· _ . to me_personally known, who,
being, by ~e first dul~/sw(~rn, di(~ s. ay that s/he is(~.~'f¢~ ~d~k~ Us (~¢4'¢-¢,'~ of
to said instrument is the corporate seal of said corporation, and that said inmrumem 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.
. My Cmmi~ F.~res 04/11/2009
My commission expires: /~r:'( {
Address /'
CC1-971.doc Page 4 *'CC1
June 30, 2005
Fenton Construction, Inc.
Ben Ludlow
City Of Aspen
130 S. Galena StJ
Aspen, CO. 81611
Dear Ben,
Thank you for the opportunity to submit our pricing for the Castle Creek Power Plant. We have
compiled a detailed estimate and scope letter based on drawings provided. We look forward to
worldng with you on this project.
The proposal is broken down into the following categories:
1. Estimate
2. ScoPe Letter
Fenton Construction's contact information for additional questions is as follows:
Pat ]Fenton - President
117 South Monarch
Aspen, CO 81611
Office: (970)-920-4623
Cell: (970)-948-5190
Fax: (970)-920-4629
pfenton~fentonconstmct.com
Tim l~enton
117 South Monarch
Aspen, CO 81611
Office: I970)-9204623
Ceil: (970)-948-1279
Fax: I970)-920-4629
ffenton~fentonconstruct, com
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Please cali us w/th any questions about our proposal.
Respectfully submitted,
Tim Fenton.
117 South Monarch Street, Aspen, CO 81611
Phone: 970-920-4623
Fax: 970-920-4629
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Fenton Construction, Inc.
Castle Creek Power Plant Restoration
Scope Letter
Juue 30, 2005
City of Aspen
130 S. Galena Street
Aspen, CO 81611
To Whom It May Concern:
This letter shall confirm our quote to you for the Castle Creek Power Plant Restoration
Project and outline our scope of work, assumptions, and exclusions per the contract
documents.
Contract Documents '
Our price is in accordance with the following documents:
· Architectural Sheets by Aller Lingle Architects, dated 04-07-05: Site Plan
SD1.0; Building Floor Plan Al.0; Reflected Ceiling Plan Al.1; Roof Plan and
Details Al.2; Building Elevations A2.0; Building Elevations A2.1; Building
Sections A3.0; Roof Details A4.0; General Notes Project Plan SI.0; Sections &
Details S2.0; Mechanical Plans MI.0; Electrical Plans El.0; Panel Schedules/One
Line Diagram E2.0
· The price is based on plans and specifications except where otherwise noted or
qualified below. When an allowance is noted, it includes cost for both labor and
materials unless specifically stated otherwise.
· The construction cost of the work is $410,664.00. This price includes our
contingency ors 8,052 and contractor fee of 10%.
The following items are included:
Division 1 - General Conditions
· Project Supervision for 3 Months.
· Temporary fire protection.
· First aid, safety program, and safety equipment.
· Tools and equipment rental and consumables.
· Finish clean of the site and building.
· Blue Prints & Spec Books
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Fenton Construction, Inc.
Division 2 - Sitework
· E~cavation for the new micro pile
· Sub-grade excavation for new parking area
· 450 CY of export around building and new parking area
· New inlet and dryweI1 ( 100 tons of 1 ½" screened Rock)
· Fine grade the sub-grade and place 4" 3/4 ".road base) approximately 60 tons
· Prep for the drainage pan between the buildings and the micro pile wall
· Micro pile wall and fencing
Division 3 - Concrete
· Fumish/instaI1 (2) two recast concrete caps
Division 4 - Masonry
Exterior brick repair allowance $65,625.00, If we save money on the micro pile
wall and the excavation the credit will be applied to the exterior brick repair
Division 6 - Wood and Plastics
· Famish materials and labor for installation ofmiscellaneous rou~da'ctk~pentry
· Furnish and install pressure-treated and fire treated materials
· Furnish nails, screws, bolts, fasteners, and glues
· Furnish/install epoxy-type wood repair materials
Division 7 - Thermal-Moist Proofing
· Famish/install new galvanized sheet metal flashings and counter flashings
· Furnish miscellaneous metal flashings
· Furnish all equipment required for field forming and cutting operations of the
prefmished metal roofing system
· Furnish/install rigid board-type roof insulation with attachments to inside face of
existing lantern louvers
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Fcnton Construction, Inc.
Division 8 - Doors and Windows
· RePair of existing wood double hung windows and screens
· Refurbish existing finish hardware for reinstallation in existing doors
· Furnish/install glass and glazing for new wood windows
Division 9 - Finishes
· Prep and paint interior and exterior of all windows and exterior doors
Division 15 - Mechanical
· Install new bathroom fixtures
· Test existing mectmnical equipment and repair if needed
Division 16 - Electrical
· , Electrical allowance as needed for safety issues
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MEMORANDUM
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TO:
FROM:
· THRU:
THRU:
DATE:
RE:
Mayor and City Council
Cindy Christensen, Homing Operations Manager
Maureen Dobson, Housing Executive Director
Ed Sadler, Assistant City Manager ~
September 21, 2005
CHANGING A CATEGORY I UNIT TO A CATEGORY 3
ISSUE: Approval is being requested to increase a Category 1 unit to a Category 3 unit.
BACKGROUND: On March 2, 2005, the Housing Board approved the unit owner at Aspen West
#5 the ability to recoup the costs from a major remodel at the time of resale. This unit is the only
deed-restricted unit in a free-market complex. The unit is a Category 1 two-bedroom unit.
Currently, without the additional $38,000 of proposed remodel, the unit is being listed for
$101,594. With the additional $38,000 remodel, the price will be increased to $139,594. In the
current Guidelines, the maximum sales price for a Category 1 two-bedroom is $51,000; a Category
2 two-bedroom is $114,000; and a Category 3 two-bedroom is $167,000.
The Housing Board, City Council and Board Of County Commissioners. approved a new policy
when accepting buy-downs as follows:
1. Future buy-down proposals for deed-restricted units shall only be accepted in existing
complexes at Category 3 or above, if at all, and shall be reviewed on a case-by-case basis.
In any new project that consists of free-market and deed-restricted units, the homeowners'
assessments shall be based on the value of the free-market unit compared to the deed-
restricted unit (sample spreadsheets attached). This language shall be requ'~red in the
approval and in the Covenants associated with the project. No changes to these
requirements would be allowed without APCHA's approval.
Any current unit that is located within a free-market complex that has had to pay special
assessments for the upkeep of the building could recoup the costs of the special assessments
in the sale price with APCHA's pre-approval, even though the expenses may not be
specifically classified as a capital improvement and/or the homeowner has exceeded the
limit as stipulated in the deed restriction. ·
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The unit, at the time of sale, would be assessed as to the value and category. If found to be
too high for the category and/or is determined not marketable through APCHA's routine
lottery process, a request shall be made to the Board of County Commissioners or the City
Council to either buy-down the unit to the original category or to increase the category to
match the elevated sales price of the unit.
RECOMMENDATION: Staff is requesting the City Council approve the request to increase
Aspen West Unit #5 fi:om a Category 1 to a Category 3 where at the time of resale, a new deed-
restriction will be recorded indicating the category change and the funds for the remodel will be
held in an escrow until such time the remodel is completed.
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TO:
THRU:
FROM:
DATE:
liB:
MEMORANDUM
Mayor and Council
Lei Cassin, Environmental Health Director
Jaunette Marison, Senior Environmental Health Specialist
September 20, 2005
Continued Second Reading of Proposed Waste Reduction/Recycling Ordinance
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SUMMARY: The City of Aspen prides itself on being an environmental leader. The community strives
to be environmental stewards. However, when it comes to mcyc!ing and reducing our waste we are Well
below the national average. Currently, Chris Hoofnagle, site manager for the Pitkin County Solid Waste
Center, estimates Aspen recycles about 150 pounds per person per year. The national average in 1997
was 453 pounds per person per year. Aspen can improve its rote and achieve environmental excellence
with recycling.
Aspen has had a voluntary recycling program for many years. Relying on voluntary measures will not
bring about the kind of recycling levels with which Aspen will be satisfied. This ordinance contains
measures that are in place in hundreds of towns and states in the United States. These towns have found
that recycling ordinances are necessary to reach high recycling rotes'. There is no reason why Aspen
cannot also implement such successful programs.
Some businesses have asked City Council not to pass this ordinance. They would like to see more
research and have a voluntary business recycling program. We have made a change to the proposed
ordinance that we believe will meet the main business cost objection. Others have claimed the city is
rushing. On the contrary, staffhas spent over a year researching alternative ways to increase recycling,
from surveying over 100 local businesses to looking at the hundreds of suceegs'ful communities in the
country with recycling ordinances. Staffhas come to the conclusion, like officials in hundreds of other
towns mad states, that some mandatory measures are necessary to greatly increase Aspen's recycling rate.
Business concerns over cost are understandable and we believe they are addressed by the exemption we
have added to the ordinance. In addition, we have obtained cost information from studies of hundreds of
towns that have adopted similar measures. Costs to businesses and residents have gone down in some
cases and up in others, although not by large amounts.
While we can always delay totry to make this ordinance more perfect, one th~ng that is not needed, in
staff's opinion, is time to do more studies and research. We know exactly how many tons of each
recyclable are collected each year, we know cost impacts of similar ordinances throughout the country,
we know the range of container numbers and types in Aspen's alleys, and we know the range of traffic
increases or decreases in Aspen's alleys.
Staff recommends that Council approve the waste reduction/recycling ordinance. It will allow Aspen to
reach a better-than-average recycling level, do our part to reduce energy use, and extend the landfill's
life. Like other community goods such as schools, parks and libraries, the community as a whole will
benefit from each person paying a small amount to increase recycling in Aspen.
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PREVIOUS COUNCI~ ACTION: Council continued the second reading of Ordinance #26, 2005 -
Code Amendment - Recycling In/tiatives at the August 22, 2005 City Council meeting. Council
continued the hearing for staff to meet with more businesses and get more cost information from other
towns. First reading of this ordinance was in the spring of 2005, and the f~st work session on this
ordinance was in Aug-mst of 2004.
BACKGROUND: Extensive background information on this subject is included in previous staff
memos to Council on recycling and the proposed recycling ordinance.
Since the August 22® public heating, staff has met with CCLC, presented at the public recycling forum
to the business community, and spoken with numerous businesses about the proposed ordinance. Staff
has amended the proposed ordinance with an exemption section in an effort to address a major concern
from the business community. The exemption is for existing commercial customers who selfhanl ali
their cardboard to the Rio Grande Recycling Center.
DISCUSSION: The goal of this ordinance is to increase redycling to extend the life of our landfill and
reduce our energy use and impact on global warming. Increasing recycling lessens the amount of waste
taking up room in the landfill. Frisco, Boulder, Fort Collins are a few examples of other Colorado cities
that have implemented similar recycling laws for residential sectors, and have subsequently seen
significant increases in recycling rates. Honolulu, Hawaii and Ann Arbor, Michigan are examples of
cities that have implemented recycling laws for both commercial and residential sectors and have
observed success in the form of increased recycling in both sectors.
The following is a summary of the main areas and issues related to Aspen City Council adopting a
recycling ordinance:
Ordinance Summary: The two most important elements in the ordinance require haulers to include
recycling in the basic rate of trash service and to base their rates on the customer's volume of trash. No
one sector of the community will subsidize the other, nor will those that pay for recycling be the only
ones who bear the costs of extending the life of the landfill and protection of our environment.
.-
Other ordinance provisions include:
o Keeping yard waste out of trash. (This provision will help insure that the community's yard
waste does not fill up the County Landfill, since yard waste makes up from 30-50% of trash
taken to the landfill in spring, summer and fall).
o Waste haulers providing an annual report on the mount of trash and recyclables collected within
the City of Aspen.
o Waste haulers providing annual recycling education to their customers. Educational material
will be provided by Environmental Health.
o Council must decide after three years whether to continue, amend or repeal the ordinance.
o Commercial customers with existing solid waste contracts are exempt from the recycling
requirements until their earliest opt out date. (This causes a natural phasing of the ordinance in
the commercial and multi-family sectors of Aspen, which is advantageous for the haulers as well
' as the businesses, since it gives them a chance to decide which hauler to use and whether to share
trash or recycling containers with nearby businesses.)
See Attachment 1: Key Elements to the Proposed Recycling Ordinance for Aspen.
2
/
Added Ordinance Provisions from Continued Second Reading: In response to business suggestions
at the recent forum, staff added an exemption section for commercial customers who self haul their
cardboard. Due to the size of the cardboard container provided by haulers, limited space in some alleys,
and cost of cardboard pickup service, several businesses self haul their cardboard to the Rio Grand
Recycling Center. Tkis exemption prevents added costs to those businesses already self hauling their
cardboard recycling. At a business owner's suggestion, we also added a provision reqUiring the City to
annually provide to the community a report on recycling mtes and other data and measurements of
Cost Analysis: When looking at costs of variable-rate waste disposal pricing, staffreports (designated
by quotation marks) the following from a public-policy think tank report on Waste Management:
"Concerns about costs are an issue for every community. Studies conducted by the states of Wisconsin
and Iowa found that for two-thirds of the communities implementing variable ~tes, costs stayed the same
or decreased. Only one third had an increase in costs. This demonstrates that 1) these programs do not
have to be expensive to implement, and 2) communities can fred program types that fit well with their
existing or planned solid-waste management system." Also, "towns implementing variable-rate p?ograms
can expect to see reductions of more than 15 percent in tons disposed as well as increases in recycling
and yard-waste diversion." "A survey in Iowa found that recycling increased by 30 percent to 100
percent, and averaged about 50 percent."
The report also found "from studies using data gathered from over 500 communities across the nation
that variable-rate programs decrease residential disposal by about 17 percent in weight, with 8-11
percent being diverted directly to recycling and yard programs, and another 6 percent decreased by
source-reductinn efforts."
Residential Analysis - Of communities that have volume based pricing and recycling included in the
base rate for residential customers, costs ranged from a savings of $36.00 per year, to a~ increase of
$69.00 per year. In studies done by the states of Iowa and Wisconsin, with residential recycling
ordinances, two thirds experienced no change in price, or saved money. If Aspen is like other towns with
the same provisions, customers who can recycle and keep their trash volumes low tend to see small cost
savings, while customers who do not recycle and cznnot reduce their trash vo[ti~es, see small increases.
Commercial Analysis - Staff contacted a number of businesses and multi-family customers in Aspen
that currently pay for recycling services and found they pay between $240 and $2,706 per year. This cost
is often offset by reductions in trash service bills. The business paying $2,706 was able to reduce trash
service, and the money saved exceeds or breaks even with the cost of recycling. We also researched the
results of recycling ordinances in many other communities, and reviewed Environmental Protection
Agency studies of costs of recycling on hundreds of towns and states in the United States. These studies
found cost changes varying from small savings to small increases in cost. A study in Collier County, FL
found a cost savings to businesses of $57 per year to an expense ranging from $400 to $1,000 per year.
See Attachment 2: Cost Analysis for a Recycling Ordinance in Aspen.
Enforcement: This ordinance does not require any person to recycle. No one will be freed for putting a
recyclable item in the trash. The recycling requirement is placed on the hauler. The ordinance requires
the haulers to provide recycling service as part of their basic service. They cannot charge separately for
recycling. Monitoring of hauler compliance will be done by random surveillance, customer complaints
and the information provided by haulers in their required annual reports to the City. Staffwill primarily
be educating customers who the haulers fred contaminating their reeyclables with trash and
contaminating trash with yard waste. An audit card system will be used to notify the customer of
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contamination of recycling and putting yard waste in trash. These provisions make enforcement by staff a
reasonable undertaking. Enforcement of the exempti6n for people who haul their own cardboard will be
done by periodic surveillance and we believe it can be accomplished without additional staff.
Voluntary Program by the Business Community: Recently some businesses have suggested that they
do a pilot program to encourage mom recycling. This idea was discussed at the public recycling forum.
Two volunteered to work together and encourage those that are not already recycling to begin recycling,
and to talk to their alley neighbors about recycling. Rick Jones, Aspen Chamber Resort Association
(ACRA) board member, suggested thgt an outstanding business practices award program be developed by
ACRA to positively encourage those that are recycling. He thought it may also provide a forum for
sharing successful recycling practices among businesses. In stating this, he did recognize that ACRA
would have to put staff time and money towards this idea and he would have to first speak to the board
about pursuing this type of program.
CCLC has stated that they have tried to improve the alleys and recycling for over ten years to no avail.
Although this recycling ordinance f~rst went to CCLC last spring, some CCLC members indicated that
they did not have time to work with the business community during the busY summer. They have
consistently asked for more time, with the length not stated, but not jnst a few weeks. Numerous
businesses, including the St. Regis, have stated that they like the idea of having an ordinance because it
provides a "stick."
As mentioned above, Aspen's and Pitkin County's excellent voluntary recycling programs have not been
enough to make Aspen an exemplary recycling community. Aspen has not made a name for itself on
being "average". Staffhas walked the alleys in the commercial core and seen the large amounts of
recyclables being thrown into trash dumpsters and commercial compactors. Staff believes that voluntary
recycling has had its chance in Aspen for years, and that the ordinance's provisions can proceed or not
according to their merits, but that we need to do more than a voluntary program if the community is to be
a leader in recycling.
Single Stream Recycling: CCLC continues to suggest that the City of Aspen postpone the recycling
ordinance until Pitkin County can implement single stream recycling (a system where one cor~tainer is
used to collect all forms of recyclable material). Staff has met with Chris Hoofnagle and he does not
foresee the County using single stream because there are not enough recyclables in the Roaring Fork
Valley to support such a costly endeavor ($5 million alone to retrofit the county's materials recovery
facility). However, if the county did decide in the future to start single stream recycling, it would not
affect the proposed recycling ordinance; only the size and number of the containers used by the customer
would change with single stream recycling. It is important to remember that the volume of material able
to be recycled will not change. Ifa business requires six - 96 gallon containers for its recycling, which is
576 gallons, it will still need that much space for its recycling. It just might be a 2 or 4 yard container
depending on the number of pickups.
FINANCIAL IMPLICATIONS: This ordinance does not require any budget adjustments at this time.
Council has already proxdded the Environmental Health Department with a three year part-time position
to work on recycling. With or without this ordinance, staffplans to continue its education campaign,
events like the zero-waste community picnic, television programs, and one-on-one recycling
consultations.
By passing the ordinance and increasing recycling rates, the community would save money by prolonging
the life of the landfill and deferring higher disposal costs. Space for burying trash in the Pitldn County
4
Landfill is finite and without increasing recycling and other diversion programs it will close within 15 to
20 years. When it does, the cost to dispose of Aspen's trash will increase. Exactly how much is difficult
to say because we do not know what the closest available landfill and its tipping fees will be at that time.
However we do know that our trash will have to be hauled to at least Garfield County, Eagle County or
further. The transportation costs alone will greatly increase the cost to dispose of trash. Aspen will also
be doing more to reduce greenhouse gas pollution and save energy in the products we Use.
Other communities that have implemented similar ordinances as. a general role have seen small cost
savings to businesses and residents that currently recycle and small cost increases tO those that continue
to not recycle and cannot lower their trash volumes.
One of the concerns of some businesses is trash haulers taking advantage of customers and significantly
raising their rates. However the waste industry operates in a highly competitive and fight market; while
haulers are clearly looking to expand profit margins, they also have to keep rates reasonable to stay
competitive and not lose customers to haulers offering lower rates. While anyone can speculate that
costs will go up or down, because of all the variables for different customers, staff prefers to rely on
known facts. In other communities, when recycling ordinances were adopted, these concerns were not
borne out. See Attachment 2
ENVIRONMENTAL IMPLICATIONS: The intent of including recycling in the base rate and having
volume based pricing, as is proposed by ttfis ordinance, is to create incentives for people to start
recycling, increase current ra~es of recycling, and to reduce their trash volumes. The goal of this
ordinance is to prolong the life of the Pitkin County landfill and to increase Aspen's stewardship of the
environment.
The most notable environmental benefit of recycling is the reduction of natural resources and energy
used in the manufacturing of products. Products made from virgin material are full of"embodied
energy." The amount of energy required to extract raw materials, and then transport them to a production
facility, far exceeds the energy inputs required to manufacture new products from recycled materials -
thus accounting for a significant portion of the energy savings associated with recycled products. Using
recycled materials instead of raw materials saves about 90-95% of the energy'/~eded to produce
aluminum from ore, 60% of the energy for steel, 70% for plastics, and 40% for both glass and newspaper.
Eliminating the need for extraction also corresponds to significant savings in air pollution and water
usage and pollution (nrc.org).
By working with Aspen's Global Warming Program Manager and reviewing the work done by the City
of Portland, staff believes that the reduction in emissions resulting from the increase in recycling will
more than offset the CO2 emissions from the collection and transportation ofrecyclable materials.
RECOMMENDATION: Staffrecommends that Council approve the waste reduction/recycling
ordinance as amended. Th/s ordinance will encourage Aspen's residems and businesses to recycle more.
It will also join them together in addressing an important environmental issue that people believe in and
support.
ALTERNATIVES: The following are possible alternatives to the proposed recycling ordinance:
(1) Mandatory Recycling: Several people have suggested that Aspen pass an ordinance mandating
recycling, in other words requiring businesses to recycle as a matter of law. Council could implement the
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residential and reporting requirements of the law as proposed, and make recycling mandatory for
commercial customers (again, suggested by some businesses).
(2) No Recycling Ordinance: A purely voluntary program is the current alternative, and has been in
place since the 1970's. A voluntary program would be the no-change alternative. Staff would continue
current outreach efforts through events, television, print media and group and individual meetings. We
would expect not to see significant changes in recycling rotes.
(3) Staged Implementation: The ordinance as proposed will akeady be phased over a several year
period, since provisions do notgo into effect until the first auto-renewal dates for contracts. As an
additional way to phase implementation of the ordinance, several members of CCLC have suggested that
Council start with cardboard recycling initially, to allow time for a voluntary business program for all
types of recycling. (The ordinance would include only cardboard recycling fight now, since it is
responsible for such a large volume of recyclables.) Then other commodities could be included in a
staged manner, starting in 90 days, if Council decides the voluntary business effort is not successful.
It would be beneficial if the details of this staging could be included in the ordinance so businesses could
better plan the measures they would take, instead of leaving it uncertain. It would also be important for
the measures of success of the pilot program to be clearly spelled out. Staffsuggests that at the end of the
90-day voluntary test program, there should be an improvement of 20% in the number of downtown
dumpsters where cardboard is still put in trash dumpsters. A 90-day period will be sufficient time to fred
out whether businesses are interested in voluntarily recycling. (While some will request montl~s for this
experiment, CCLC members have stressed that businesses have time for such projects only during th? off
seasons. If the business voluntary program can be successful, we will see increased recycling rates during
this off-season, since they can call a hauler immediately.)
Council could stage the ordinance, without trying a voluntary program, beginning with cardboard and
then adding commingled after three months, adding newspaper after another three months, and so on
until the items in the Recycled Materials List were all included. This was also a CCLC suggestion.
(4) No Commercial Recycling Requirements: Council could implement the ~rdinance for the
residential and multi-family sectors only, but that would not capture the majority of the volume Of
recyclable materials in Aspen.
(5) Partial Approval: Ail the sections of this ordinance "stand alone" and could be implemented
without any of the other measures. If Council believes one section of the ordinance needs more .
evaluation, consideration of that section could be continued and the rest of the ordinance passed.
PROPOSED MOTION: "I move to approve as amended Ordinance # ~L(o Series of 2005 to amend the
City of Aspen solid waste ordinance."
CITY MANAGER COMMENTS: ~'~-~aAAa,,--~(~ 0,~(D'0,t'~d ~ ~
6
Ordinance NO..,~
(Series 2005)
AN ORDINANCE AMENDING CHAPTER TWELVE OF THE MUNICIPAL CODE
OF THE CITY OF ASPEN, COLORADO TO ENCOURAGE RECYCLING BY
BUSINESSES AND RESIDENTS
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WHEREAS, The City Council of the City of Aspen finds that a significant reduction of
the volume of solid waste and a corresponding increase in the volume of Recyclable
Materials generated by citizens and businesses in the City would benefit the public
welfare by reducing the consumption of important, non-renewable natural resources and
by saving energy and reducing greenhouse gas emissions; and,
WHEREAS, increasing recycling and reducing trash volumes will extend the life of the
Pitkin County landfill as long as possible, thereby protecting city residents from furore
large cost increases when the landfill closes and trash must be transported to distant
landfills; and,
WHEREAS, The City Council's intent in enacting this ordinance is to decrease the
amount of solid waste and increase waste reduction and recycling practices by the
citizens of and businesses located in the City; and,
WHEREAS, the Aspen City Council desires to ensure that Aspen demonstrates
leadership and excellence in environmental practices including increasing the
community's recycling volumes and decreasing volumes of non-recycled trash; and,
WHEREAS, the Aspen City Council has determined that the existing rules and
regulations governing solid waste are inadequate to protect non-rene,x, able natural
resources, save energy, reduce pollution, and extend the life of the landfill; and;
WHEREAS, these roles and regulations will make it much easier for residents and
businesses to recycle and increase recycling success in Aspen.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCiL OF THE CITY OF
ASPEN, COLORADO:
Section I
That Chapter 12 of the Municipal Code of the City of Aspen, Colorado is hcreby
amended by the addition of a new section 12.06 which section shall read as follows:
12.06.000 Waste Reduction
12.06.010 Definitions.
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For purposes of this section, the following terms shall have the meanings ascribed to
them:
"Audit Card" shall mean a card that waste Haulers give to customers who have included
banned Yard Waste in their garbage or who have failed to properly sort their Recyclable
Materials.
"Commercial Customers" shall mean any premises utilizing collection service where a
commercial, industrial or institutional enterprise is carded on, including, without
limitation, retail establishments, restaurants, hospitals, schools, day care centers, offices,
nursing homes, clubs, churches and public facilities.
"fffauler" means any person in the business of collecting, transporting or disposing of
garbage for another, for a fee, in the City.
"Multi-family Customer" means the occupants, taken together, of a residential building or
set of residential buildings that use a collective, common system for the collection of
garbage generated by the occupants.
"Recyclable Materials" means any materials that are designated by the city manager in
the "Recyclable Materials List" which may include, but are not limited to, newspaper,
office paper, cardboard, glass containers, plastic containers, steel cans, and aluminum
cans,.
"Residential Customer" means every occupant of a residential building or set of
residential buildings who receives periodic garbage collection service, and who does not
use a collective, common system for the collection of garbage generated by the
occupants.
"Yard Waste" shall mean materials generated from the maintenance of the vegetation on .
a property that have been designated by the city manager in the "Banned Yard Waste
List" which may include, but are not limited to, grass clippings, leaves, weeds, holiday
trees, and otherplant materials.
12.06.020 Exemptions
The following persons are exempt from the provisions of this chapter:
(1) Any person or agent thereof who transports.to the landfill only the garbage
that person generates.
(2) Any person who transports only liquid wastes (such as restaurant grease),
discarded or abandoned vehicles or parts thereof, discarded home or industrial
appliances, household hazardous wastes, or hazardous materials as defined in the
rules and regulations adopted by the United States Hazardous Matcq-ials
Transportation Act, 49 U.S.C. Section 5101, et seq.
(3) (A) Any Commercial Customer contracting trash pickup with a Hauler who
transports his or her cardboard recycling to the Rio Grande Recycling Center or
Pitkin County Materials Recovery Facility may apply for an annual hardship
variance to the Environmental Health Depmtment. Such variance shall be granted
upon satisfactory demonstration to the Environmental Health Director that:
2
(i) Said customer is taking his or her recyclable cardboard to the Rio Grande
Recycling Center or Pitkin County Materials Recovery Facility,
(ii) Is not allowing recyclable cardboard to be placed in trash containers, and that
(iii) Complying with the requirements of section 12.06.030 would be unduly
burdensome to the applicant.
12.06.030 Hauler Requirements
(A) No person shall operate as a solid waste Hauler w/th~n the city limits without first
obtaining a business license from the City. In order to receive a city business license, a
solid waste Hauler must comply with the requirements of this chapter.
(B) Except for customers exempt from the provision pursuant to subsection 12.06.020,
Haulers providing trash service !n the City of Aspen shall include in the base rate for
trash pickup service the pickup of Recyctable Materials as designated by the City
Manager in the Recyclable Materials List. It shall be unlawful for Haulers to deduct any
amount from a customer's rate if the recycling services are not used unless the customer
has received a variance from the Environmental Health Department.
(C) The collection of Recyclable Materials for Residential Customers shall be provided
on the same day and upon the same frequency as trash pickup.
(D) Haulers shall provide collection of Recyclable Materials for Multi-family and
Commercial Customers as often as necessary to prevent the overflow of the recycling
containers and to permit the customer to use the recycling containers without causing an
overflow.
(E) Any person licensed to operate as a solid waste Hauler within the City shall charge all
Residential Customers on the basis of volume of trash collected, which shall be meagured
by the volume capacity of the container used by the customer. All charges shall be based
upon units of volume no greater than 32 gallons. The charge for the second and
subsequent units shall be no less than the charge for the first unit of volume. The charge
for each subsequent unit of volume shall be no less than the charge for the first unit of
volume.
(F) In offering or arranging for services, a Hauler shall provide reasonable notice of the
full range of container sizes or levels of services offered by the Hauler, and shalI provide
to each customer that customer's requested container size or level of service.
(G) Each Hauler shall submit an annual report to the city manager of the weight in tons or
cubic yards of garbage, trash, Recyclable Materials (as determined by the City Manager
in the Recyeiable Materials List pursuant to 12.06.040) and Yard Waste materials
collected within the limits of the City. For loads that contain garbage or Recyclable
Materials originating in part from within the limits of the City, and in part from outside
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the limits of the City, the reported quantity may be estimated by the Hauler, and reported
as an estimate. Reports shall be submitted for the year by January 31 of the succeeding
year, using a form or forms provided by the Environmental Health Director. Ail reports
shall be treated as confidential commercial documents under the provisions of the
Colorado Open Records Act.
(H) N~)thing in this section shall be construed as prohibiting any Hauler from providing
separate pricing for special collection of bulky items, Yard Waste, contaminated
recyclables, unscheduled pick up of trash, extra volumes of trash, such as bags, boxes, or
bundles, or more than what was subscribed with a Hauler for trash.
(I) Except for materials that customers have not properly prepared for recycling and so
are grossly contaminated (15 percent or more of trash), Haulers may not dispose of
Recyclable Materials set out by recycling customers by any means other than at a
recycling facility that sorts, packages, and otherwise prepares Recyclable Materials for.
sale. Haulers must notify customers of contaminated recyclables with an Audit Card
provided by the Environmental Health Department.
(J) Upon the in/rial provision of solid waste collection services to new customers, ninety
days prior to any opt out or auto renewal date, and on or before December 31 of the year
of adoption of this ordinance with respect to existing customers, Haulers shall notify such
customers of the provisions of this ordinance by a letter provided by the City of Aspen.
Haulers will also provide within the above reference letter information on the materials
designated for recycling collection pursuant to 12.06.040 and such roles and regulations
as established by the Hauler for the orderly collection of Recyclable Materials as
authorized pursuant to 12.06.050(b). Such notice shall further include for Residential
Customers the notification of the variable rate system employed by the .Hauler, and shall
be in a form reasonably acceptable to the City to ensure that customers kre fully informed
of the availability of recycling and level of service options.
For group accounts, the notices required herein may be sent to the group representative
for said account, provided that such notice shall further notify said representative of its
obligation to notify ali individual customers or users of the service within the group of
the availability of recycling services.
On or before January 31 of each year, the Hauler shall deliver to the City's Environmental
Health Director a true and correct copy of the notification sent to each customer type, i.e.
Residential, Multi-family or Commercial, on or before December 31 of the previous year.
(K) Haulers shall not pick up trash that contains banned Yard Waste materials. Haulers
shall notify customers of the ban with an Audit Card provided by the Environmental
Health Department. The Environmental Health Department, once notified by the
customer, will determine when the customer has removed the contaminating materials
4
and then contact the Hauler to approve the collection of the trash, wh/ch the Hauler may
choose to pick up at the next scheduled pickup or which may incur a charge for an extra
pickup.
t2.06.040
Designation of Recyclable Mater/als and Banned Yard Waste Materials.
(A) The Recyclable Materials that haulers are required to pick up shall be set forth in the
City ofAspen's "Recyclable Materials List," which shall be prepared and amended from .
time to time by the City Manager. The Recyclable Materials List shall be developed after '
consultation with the Pitkin County Landfill Director/Manager, the EnVironmental Health
Director, representatives of the licensed Haulers operating within the City, as well as the
public, and shall be available for review on the City's Environmental Health Department
website.
(B) The Yard Waste material that is required to be separated from trash sh~ll be set forth
in the City of Aspen's "Banned Yard Waste List," which shall be prepared and amended ·
from time to time by the City Manager. The Banned Yard Waste List shall be developed
after consultation with the Pitkin County Landfill Manager, the City of Aspen
Environmental Health Director, licensed Haulers operating within the City, as well as the
public, and shall be available for review on the City's Environmental Health Department
website.
12.06.050 Placement of Recyclable Materials and Yard Waste for Pickup
(A) All recyclables and Yard Waste accumulated on any premises shall be placed in a
container separate from garbage, or in a suitable manner such as cardboard broken down
and placed on a shelf.
(B) Recycling containers for storing and setting out Recyclable Materials may be of any
color or design as long as it does not interfere with industry-accepted requirements for the
preparation of materials for recycling that are necessary to provide for the orderly
collection of Recyclable Materials.
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12.06.060 Educational Materials
(A) The City Environmental Health Depa~hnent shall provide an annual summary of
waste and recycled material totals collected in Aspen, and shall report on other measures
of success and aspects of the ordinance.
(B) The City will provide Audit Cards that the Haulers must use to notify their customers
of contamination of Yard Waste in trash and contamination of trash in recyclables. In
addition, the City will produce an educational flyer, not to exceed one sheet of paper in
length. Haulers shall distribute this educational flyer at least once a year to all their
customers that may be at the same time as materials sent out under section 12.06.030(j).
The City will consult with the Haulers about the educational flyer prior to printing them.
12.06.070 Audits and Violations
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(A) Each Hauler licensed pursuant to this Article shall maintain accurate and complete
records of the services provided to all customers, the charges to such customers and
payments received, the form and recipients of any notice required pursuant to this Article,
and any underlying records, including any books, accounts, contracts for services, written
records of individual level of service requests, invoices, route sheets or other records
necessary to verify the accuracy and completeness of such records. It shall be the duty of
each Hauler to keep and preserve all such documents and records, including any
electronic information, for a period of three (3) years from the end of the calendar year ~f
such records, except for paper records of route sheets, which may be discarded one (1)
year after the end of the calendar year of such route sheets.
(B) If requested, each Hauler shall make its records available for audit by the City
Manager during regular business hours in order for the City to verify Hauler compliance
with the provisions of this chapter. All such information shall be treated as confidential
coinmercial documents under the provisions of the Colorado Open Records Act.
(C) Violation of any provision of this chapter by any person, firm or corporation, whether
as Hauler, owner or occupant, shall be unlawful and subject to the penalty provisions in
section 1.04.080 of this Code. Each violation shall constitute a separate offense.
12.06.080 Sunset Provision
This ordinance shall remain in effect until three years from the date of adoption, at which
time the Aspen City Council shall mend, expand or repeal the ordinance.
Section 2
That a new section 14.08.130 of the Municipal Code of the City of Aspen, Colorado is
hereby enacted to read as follows: :
14.08.130 Solid Waste Collection Business License--Required
In order to obtain a business license, a solid waste Hauler must comply with the
requirements of Chapter 12.06, entitled "Waste Reduction."
Section 3
This ordinance shall not become effective until sixty days. after adoption by the City
Council. It is not the intention of the City Council in the adoption of this ordinance to
interfere with any valid contractual arrangement between Haulers and their Residential,
Multi-family, or Commercial Customers. Accordingly, sub-sections 12.06.030 B, C, D,
and E shall not apply in those instances in which Haulers have contracts with customers,
the provisions of which are inconsistent with said subsections of this Chapter until the
terms of said contracts authorize the customer or Hauler to renew or amend said contract.
Evidence of a contract may be provided upon request to the City Attorney by a written
contract or other evidence satisfactory to the City Attorney.
6
Section 4
This ordinance, when effective, shall not have any effect on existing litigation and shall
not operate as an abatement of any action or proceeding then pending under or by virtue
of the ordinances repealed or amended as herein prohibited, and the same shall be
construed and concluded under such prior ordinances.
.Section 5
If any section, subsection, sentence, clause, p~ase or portion of this ord'mance 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
A public hearing on the ordinance shall be held on the day of ,2005, in the
City Council Chambers, Aspen City Hall, 130 South Galena, Aspen, Colorado.
P41
INTRODUCED, READ, AND ORDERED PUBLISHED as provided by law by the City
Council of the City of Aspen on the day of ,2005.
ATTEST:
Helen Kalin Klanderud, Mayor
Kathryn S. Koch, City Clerk
t achment 1: Key Elements to the Proposed Recycling Ordinance for Aspen - 9/20/05
(1) Including Recycling in the basic rate of trash service: This provision would have waste haulers include recycling
pick-up in their rate for basic service to ail their customers. By having this requirement throughout Aspen for both
residential and commercial customers, neither will feel their sector is carrying more of the burden. Businesses and
residents that divert large volumes ofrecyclable materials can reduce their waste disposal costs by needing fewer trash
pickups.
(2) Volume based pricing: Waste haulers would be required to charge residential customers at least the same unit price
for each 32-gallon can of trash they generate. This way, customers who generate [ess trash pay less, so there is an
incentive to recycle more and reduce the amount of trash. It has bean demonstrated in communities across the country that
volume based pricing encourages trash reduction and recycling. The base volume unit proposed is 32-gallons (a traditional
trash can size). The amount to be charged per container would be determined by the waste haulers.
Without volume based pricing, residents who recycle and reduce their waste generation subsidize costs for customers who
don't recycle. Six months into Boulder's volume based trash ordinance (adopted in November, 2000), 52% of Boulder's
households subscribed to 1-can or less per week trash service, compared with 26% of households before. Th/s change
represented 3,800 households who switched down from 2- or 3-caus of trash service per week down to 1-can per week.
(3) Same day pickup for recyclables and trash: Residential customers will no longer have to remember which week to
put out their recyclables for pickup. Many people have discontinued recycling service with their waste hauler because it
was too difficult to remember which day it was picked up. The City believes this provision will make it easier for people
to recycle.
(4) No Yard waste in regular trash: This provision will help insure that the community's yard waste does not fill up the
County Landfill. One waste hauler estimates that yard waste in Aspen accounts for about 40% of residential trash in
spring, 30% in summer and 50% in the fail. The City recommends the use of several free alternatives, including backyard
composting, mulching mowers, taking yard waste for free to the landfill compost center, and a future residential yard
waste drop-off site.
(5) Required reporting: Staffrecommends that waste haulers provide an annual report on the amount of trash and
recyclables collected within the city's residential, multi-family and commercial sectors. This will help the City in
evaluating Aspen's recycling ordinance as well as the other waste reduction/reuse efforts implemented by the City.
(6) Sunse~t provision: The ordinance requires Council to decide whether to continue the ordinance in three years. It gives
some assurance to the community that the City will provide assistance to businesses in f'mding the best locations and
options for containers and helping those businesses that want to share containers with neighbors.
(7) Contract exemption: Existing contracts that businesses have with haulers are exempt from the recycling
requirements. However, at the earliest opt-out or auto renewal date on the contract, the hauler must include both trash and
recycling in the basic rate of service. Recycling cannot be a separate charge. This causes a natural phasing of the
ordinance in the commercial and multi-family sectors of Aspen, which is advantageous for the haulers as well as the
businesses, since it gives them a chance to decide which hauler to use and whether to share trash or recycling containers
with nearby businesses.
(8) Implementation: The ordinance will not be implemented for 60 days, until November 25, 2005, to give businesses a
chance to implement the changes during the off-season.
(9) Cardboard self hauling exemption: The ordinance provides exemption for commercial customers who self haul their
cardboard. Due to the size of the cardboard container provided by haulers, limited space in some alleys, and cost of
cardboard pickup service, several businesses currently self haul their cardboard to the Rio Grand Recycling Center. This
exemption prevents added costs to those businesses.
(10) City reporting requirements: The ordinance requires the City to annually provide to the community a report on
recycling rates and other data and measurements of success.
Attachment 2 - Cost Analysis for a Recycling Ordinance in Aspen
P43
Costs or savings from this ordinance will vary depending the type and frequency of service, and amount of trash and
recycling each business produces. The multitude of variables involved in trash service precludes a blanket statement for
costs. Haulers will not divulge their rates. Accordingly, the cost analysis performed by staffprovides a range of costs for
the commercial and residential sectors both within Aspen, and in other cities around the country.
No two communities have identical mixes of businesses, similarity to Aspen, and the exact mix of requirements included
in Aspen's ordinance. Most communities with commemial recycling provisions mandate recycling, and many also have
state recycling rate goals they have to meet. Some customers save money and some pay more, depending on how much a
business or resident is able to reduce its garbage volumes. A project in Collier County, F.L studied the costs incurred by
businesses when recycling is mandated. The results showed a savings to businesses of $57/year to a cost of $I,OOO/year.
In other towns, costs varied from savings of $36/year to added costs of $69/year. See details below for information on
each town or state.
Staff contacted a number of businesses and multi-family customers in Aspen that currently pay for recycling services and
found they pay between $240 and $2,706 per year for recycling. However, th/s cost is often offset by reductions in trash
service bills. For example, the business paying $2,706 was able to reduce its trash service enough that the cost savings on
its trash bill were greater than or equal to the recycling costs. The business paying $240/year was able to go from three
times a week pickup, to twice a week pickup of trash. See additional examples below.
Of communities that have volume based pricing and recycling included in the base rate for residential customers, costs
ranged from a savings of $36.00 per year, to an increase of $69.00 per year, or $5.75 extra dollars per month. In studies
done by the states of Iowa and Wisconsin, with residential recycling ordinances, 2/3 experienced no change in price, or
saved money. If Aspen functions like the other communities with similar ordinances, residents who choose to use a 96
gallon container will likely see a slight cost increase, wkile those who can make use of a 32 gallon container, by recycling}
will likely experience a slight cost savings.
Additional Comments:
Haulers do not have to divulge their rotes, and rates will undoubtedly be adjusted as haulers compete for customers.
Ultimately, haulers will need to cover costs, but they also need to stay in business. Taking advantage of tkis ordinance to
bike up rates would allow their competitors to underbid them, and they would lose customers. Another important factor is
that there are no tipping fees associated with recycling. Part of what customers pay for with trash service is the cost to
dispose of the trash at the landfill. Recycling has no such disposal costs. ."
According to one local hauler, costs will uRimately depend on how much garbage the customer generates and how much
he/she recycles. As a rule, he anticipates a drop in price for customers that currently have frequent pick-up (5 times per
week) and do not recycle, and an increase in price for customers that have minimal weekly pick-ups. The thought is that
those who only have trash picked up once a week will not have much leeway in reducing the frequency of trash pick up,
even if he/she can start to divert recycling out of trash and reduce the volume oft. rash generated. But when customers
with frequent trash pick-up start to recycle, the volume of trash will decrease and that individual or business will be able
to reduce the frequency of trash pick-up and corresponding costs.
Recvcllng Prices for Aspen Businesses
General Prices: Smaller businesses tend to generate less and need less frequent pick-up. Businesses with more space can.
have more containers and require fewer weekly pick-ups.
Type of service Cost
Business that require recycling pick-up lrdwk ....................................... Approx. $500/year
Business that require recycling pick-up 2rdwk ........................................ Approx. $1000/year
· Business that require recycling pick-up 6rdwk... .................................... Approx. $3000/year
Type of Business and Service Cost /
Me~l~rn Restaurant (cardboard recycling plus trash) ...............................$3,000/year
Large Dinner Restaurants (Cardboard and 2 co-mingled 6x/wk) ................... $2,706/year
(Willing to pay b/c saved on trash - net zero expense)
Large Athletic Club (Newspaper and co-mingled 2x/month) ........................ $480-$1,200/year
(Cost of employees' time to self haul)
Large Lodge (Co-mingled and newspaper 2x/wk) .................................... $600/year
(6- 95gallon containers)
Large Hotel (Newspaper and office paper) ............................................. $2,400/year
(Includes cost of shredding)
Retail (Cardboard 6x/wk) ................................................................ $2,160/year
Small Multi Family (Cardboard 2x/month) ............................................ $240/year
Recycling Programs in Other Cities
Type of Recycling Cost
COmmemiai
Mandatory Recycling Commercial ..............................................+$57/year to -$1,000/year (per biz)
Mandatory Recycling of cardboard & Office paper ........................... Some save, some pay a little more
Residential
Volume Based Price
(Recycling included in base rate) .. +$3 00 to $69.00/year
-$36,00 to +$60.00/year
Mandatory Recycling
(Recycling included in base rote) .............................. , ......... ~ ....... +$31.20/year
+$40.00 to +4~.00/year
Types of Commercial Recycling Programs
Incentive Programs
Boulder, CO - City will pay the cost of recycling for the first three months if a business starts a new recycling program.
Thousand Oaks, CA- Recycling bins must cost 30% less than trash bins. Businesses have incentive to recycle because
they can lower costs by recycling and haulers have an incentive to offer recycling because their franchise fees are
discounted if they do achieve a 25% recycling rote.
Mandatory Programs
Collier County, FL - Pilot program showed cost to business of recycling ranged from saving a business $400 to $I,000
per year, to costing a business $57 per year. Outcome of pilot project led to adoption of mandatory business recycling
ordinance, businesses can contract with hauler or self-haul.
Mecklenburg County, NC - Business requ'tred to recycle cardboard and office paper. Exemption for businesses that
produce less than 16 cubic yards or less than 500 pounds of cardboard or office paper per week. Can contract with hauler
or self-hank Some businesses have saved money, and some spend more due to recycling.
Sarasota County, FL - Businesses required to recycle. Costs are unknown because businesses work out prices with
private haulers.
2
Cambridge, MA - Businesses requked to recycle. No record of costs because businesses work out costs with private
haulers. P45
Portland, OR - Business required to recycle. Costs are unknown because businesses work out costs w/th haulers. City
has a goal to recycle 50% of waste.
Mandatory Pro~xams with State Requirements
Tredyffrin Township, PA- Businesses requked to recycle and state mandates recycling.
Arlington County, VA- Businesses required to recycle. State of Virginia requires a 25% recycling rote.
State of CT - Businesses required to recycle. Each municipality has slightly different means, but generally costs are
unknown because businesses and private haulers work out costs, and because recycling has been required since 1991.
Types of Residential Recycling Programs
Volume based pricing and recycling included in base rate
Fort Collins, CO - Volume based pricing and recycling included in the base rate. Depending on the type of service, prices
ranged from households saving about $36 per year to spending an extra $60 per year.
Austin, TX - Volume based pricing and recycling included in the base rate. Costs increased between $3 per year and $69
per year depending on the type of service, i.e. the size of trash container, 32, 64 or 96 gallons.
Concord, MA - Volume based pricing and recycling included in base rate. Customers can either contract with the town or
a private hauler. Town contracts charge $126 per year plus $l.50 per 34 gallon barrel orbag of trash, recycling has n0
additional charge. Program has about a 98% participation rate.
Portland, OR - Volume based pricing, recycling included in the base rate, and recycliug is required. The cost to customers
is unknown to the City of Portland Office of Sustainable Development.
Required Recycling
Hemando County, FL - Recycling included in the base rate and is required. Cost increased $31.20 per year
Sarasota County, FL - Recycling included in the base rate and required. Cost increased $40-$45 per year.
Cambridge, MA - Recycl/ng required and cost of trash and recycling is paid out of property taxes.
Arlington County, VA - Recycling is required and achievement ora 25% recycling rate is necessary to meet state
requirements.
Tredyffrin Township, PA - Recycling required and mandated by the state. Costs are worked out between residents and
private haulers.
Other
Montpelier, VT - Recycling is free at drop-of site while trash costs $3 per 30 gallon bag.
3
MEMORANDUM
P47
TO:
RE:
DATE:
Mayor Klanderud and City COuncil
Code Amendment HPC FAR Bonus, 2nd Reading of Ordinance
No.~Series 2005, Public Hearing, Open and Continue to
October lit 2005
September 26, 2005
Staff Comments:
Due to the other significant agenda items scheduled to be reviewed at the
September 26th meeting, Staffwould recommend that the review of this application
be continued to October 11~.
P48
TO:
THRU:
FROM:
RE:
MEMORANDUM
Mayor Kl?d?~dt~[and City Conncil
Joyce All~Uolnmunity Development Deputy Director
James Lindt, Senior Planner ~
Snyder Park Affordable Housing Project PUD Amendment, 2"a
Reading of Ordinance No. 38, Series of 2005, Public Hearing, Open
and Continue to October llth
DATE: September 26, 2005
P49
~QUEST: Tbe Applicant is requesting a P~ amendment to the Snyder Park
~ Affordable Housing PUD to allow for the unfinished basements on the
one-bedroom units'to be finished with a varie~ of room uses,
including bathrooms.
ZONING: ~ (Affordable Housing~)
LAND USE The Applicant is requesting approv~ of a P~ amendment to the
~QUESTS: Snyder Park Affordable Housing PUD pursuant to the procedures
established in Land Use Code Section 26.445.100(B), Amendment of
PUD development order.'
STAFF Staff recommends that CiW Council continue review of this
~COMMENDATION: applicatiou to October llth.
PLANNING AND The Planning and Zoning Commission recommended by a four to ~ero
ZON1NGCOMM1SSION vote that the Ci~ Council approve with conditions, a P~
~COMMENDATION: amendment to allow for the unfinished basemen~ at Snyder Park to
be finished.
STAFF COMMENTS: /
Due to the other significant agenda items scheduled to be reviewed at the September 26tn
meeting, Staff would reconnnend that the review of this application be continued to
October 1 lt~. The Applicants have agreed to a continuation of the review until October
11th.
STAFF RECOMMENDATION.'
Staff recommends that City Council continue review of the Snyder Park PUD
amendment to October llth.
RECOMMENDED MOTION: (ALL MOTIONS ARE MADE IN THE AFFIRMATIVE)
"I move to continue review of the Snyder Park PUD amendment to October 1 Ith."
-1-
P50
TO:
THRU:
FROM:
RE:
DATE:
MEMORANDUM
Mayor Klanderud and City Council
Chris Bendon, Commun/ty Development Director
James Lindt, Senior Planner
Jmxior Hockey ARC Expansion- SPA Amendment and GMQS Exemption
for an Essential Public Facility 2nd Reading of Ordinance No. 39, Series
of 2005, Public Heafine, Open and Continue to October 1 lth
September 26, 2005
P51
APPLICANT: , Aspen Junior HocEey, with consent to apply from the City of
i Aspen.
ADDRESS: Aspen Recreation Center (ARC), 861 Maroon Creek Road.
REQUEST: : The Applicant is requesting a Specially Planned Area (SPA)
Amendment and a GMQS Review for an Essential Public Facility
to construct a 136 square foot office space and a 295 square foot
meeting room within the ARC's ice facility.
EXISTING ZONING: Park With a Specially Planned Area (SPA) Overlay.
LAND USE SPA Amendment and Amendment to existing GMQS Exemption
REQUESTS: for an Essential Public Facility.
STAFF Staff recommends that City Council continue the review of this
RECOMMENDATION: project to October 11m.
PLANNING AND
The Planning and Zoning Commission recommended that City
ZONING COMMISSION
RECOMMENDATION: Conncil approve the proposed requests by a vote of six to zero.
STAFF COMMENTS:
Due to the other significant agenda items scheduled to be reviewed at the September 26th
meeting, Staff would recommend that the review of this application be continued to
October I 1°~. The Applicants have agreed to a contimtation of the review m~til October
1 lth.
P52
STAFF RECOMMENDATION:
Staff recommends that City Council continue review of the Iselin Park SPA
amendment and GMQS review for an essential public facility to October llth.
RECOMMENDED MOTION: (ALL MOTIONS ARE MADa IN THE AFFIRMkT1VE)
"I move to continue review of the Iselin Park SPA amendment GMQS review for an
essential public facility to October 1 Ith."
TO:
FROM:
DATE:
RE:
Mayor and Members of Council
John P. Worcester
September 26, 2005
Ordinance No. L~I , Series of 2005 2 An Ordinance to Vacate a Portion of
Stage Road - Public Hearing and Second Reading
Attached for your consideration and review is an ordinance that, if approved, would vacate a
portion of Stage Road within the Stage Road PUD (BarE(Ranch). The portion of Stage Road
proposed to be vacated is depicted on a~ exhibit map appended to the proposed ordinance.
The pre-armexati(m agreement for the annexation of the Bar/X Ranch calls for this portion of
Stage Road to be vacated following annexation of the Bar/X Ranch into the boundaries of the
City of Aspen. The pm-annexation agreement also requires that "adequate provisions are made to
ensure that other properties served by Stage Road (Caudill and Harvey properties) are not
financially harmed by any new arrangements for access to their properties and that maintenance
of the road will be undertaken without additional cost to the Candill and Harvey properties..."
Counsel for the Bar/X Ranch and the Caudill and Harvey properties have negotiated a mutually
agreeable Road A~cess Agreement. In addition, the ordinance approving the Stage Road PUD
and the PUD/SIA documents to be recorded contain the requisite language to protect the CaudilI
and Harvey properties.
ACTION REQUIRED: A Motion to approve Ordinance No. ~., Series of 2005, on Second
Reading.
CITY MANAGER' S COMMENTS: ~0~ v.a~ ~'/'0'v'~ ~0~
JPW- saved: 9/7/2005-21943:\john\word'wnemos\vacation-stage road.doc
P54
(Series of 2005)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO
VACATE A PORTION OF THE STAGE ROAD RIGHT-OF-WAY ADJOINING THE STAGE
ROAD PLANNED UNIT DEVELOPMENT WITHIN THE CITY OF ASPEN, PITKIN
COUNTY, COLORADO.
WHEREAS, the City of Aspen and the owners of the Bar/X Ranch entered into that
certain Fourth Amended and-Restated Pre-Annexation Agreement dated December 20, 2004,
wherein the parties agreed to vacate a portion of Stage Road following the annexation of the
Bar/X Ranch into the boundaries of the City of Aspen in furtherance of the development plan
described in the pre-annexation agreement; and
WHEREAS, the right-of-ways or portions thereof proposed to be vacated are located
entirely within the corporate limits of the City of Aspen; .and
WHEREAS, the Stage Road Right-of-Way Vacation Map and legal description, appended
· hereto as Exhibit A has been reviewed by the Community Development Department and a
determination made that the exhibit complies in ~1 respects with the City's Public Rights-of-ways
Vacation Policies and the land proposed to be vacated is eligible for vacation pursuant to said
policies; and
WHEREAS, the proposed vacation will not leave any land adjoining the same without a
means of access over an established public right-of-way connecting such lands to an established
public street.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO:
Section 1.
That the portion of the Stage Road Right-of-Way described and depicted on Exhibit A
appended hereto and by this reference incorporated herein, shall be, and the same hereby is
vacated subject to the conditions set forth below.
Section 2.
That ownership and title to the lands so vacated shall vest as provided in and by Section 43-2-
302. C.R.S.
Section 3.
That the City Clerk be and hereby 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 4.
That the City Engineer be and hereby is directed, upon the adoption of this ordinance, to
make all corrections necessary to the Official Map of the City of Aspen.
Section 5 ....
That 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.
That 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
P55
P56
amended as herein provided, and the same shall be construed and concluded under such prior
ordinances.
A public hearing on the ordinance shall be held on the day of
in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
,2005,
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City
Council'ofthe City of Aspen on the __ day of ,2005.
ATTEST:
Helen Kalin Klanderud, Mayor
Kathryn S. Koch, City Clerk
FINALLY adopted, passed and approved this __ day of
ATTEST:
Helen Kalin Klanderud, Mayor
,2005.
JPW- saved: 8/25/2005-531-G:\iohn\word~or~\vacatlon-sta~croad. doc
P57
Stage Road Right-of-Way Vacation Exhibit Map
A STRIP OF LAND SITUATED IN SECTION 2
TOWNSHIP 10 SOUTH, RANGE 85 WEST OF THE 6th P.M.
COUNTY OF PITKIN, STATE OF COLORADO
SHEET 1 OF 2
LE2
LEI~
-LE12
LINE TABLE
LINE LENGTH BEARING
LE1 46.12' N 01°01'58" E
LE2 1009.04' N 88"21'30" E
LE3 295.69' N 89"43'40" E
LE4 331.30' S 89°37'07" E
LES 105.76' S 87°14'42" E
LE6 48.92' N 53"00'41" E
LE7 47.88' N 88'13'15" E
LE8 45.87' S 43°12'15' E
LE9 38.70' B 03"45'10' W
LE10 23.15' S 89"09'40" W
LE 11 30.02' S 89"09'40" W
LE12 8.04' S 74"30'42' W
LE13 618.95~ S 89"13'52' W
LE14 316.02' S 89~16'56' W
LE15 2283.1' S 88'59'33" W
LE16 156.94' S 89"08'18" W
LE17 144.94' S 88"56'55" W
LE18 136.14' S 88"41'56' W
LEI9 189.99' S 89"42'25" W
LE20 5.97' N 87"18'47" W
GR~
SCALE
:omer Sec[ion 2 found 1954 BLM Brass Cap
{ IN FEET
inch = 500
SOPRIS ENGINEERING - LLC
CIVIL CONSULTANTS
§02 MAIN STREET, SUZTE A3
C~U~O~D~U~, cocopro s~z3
(97o) 7o~-o~n
23035 08/23/05 23035plat. DWC
P58
Stage Road Right-of-Way Vacation
A STRIP OF LAND SITUATED IN SECTION 2
TOWNSHIP 10 SOUTH, RANGE 85 WEST OF THE 6th P.M.
COUNTY OF PITKIN, STATE OF COLORADO
SHEET 2 OF 2
Exhibit Map
STAGE ROAD RIGHT-OF-WAY VACATION DESCRIPTION
That Portion of the existing Stage Road Right-Of-Way situated on the Stage Road Planned Unit
DevelopmentJSubdivision as recorded in Plat Book __ at Pages Pitkin County Records; Said
Right-Of-Way being located in Section 2, Township 10 South, Range 95 of the Sixth Principal Meridian and is more
particularly described as follows:
Beginning at a point from which the South 1/4 corner of said Section 2 bears North 41 degrees, 05 minutes, 08
seconds West, 2,174.20 feet (with all beadngs contained herein being relative to a beadng of N 04°41'16" E
between the Wl/4 corner, Section 2, a found 1954 BLM Cap and the NW corner, Section 2 a found Brass Cap in
concrete LS #9184); thence N.01°01'58"E. along said boundary, 46.12 feet; thence leaving said boundary the
following four (4) courses along an existing fence line:
1) N.88°21'30"E., 1,009.04 feet;
2) N.89°43'40"E., 295.69 feet
3) S.89°37'07"E., 331.30 feet
4) S.87°14'42"E., 105.76 feet
thence leaving said fence line N.53°00'41"E., 48.92 feet, to a point on the Boundary of a previous road right-of-way
vacation described in that document recorded as Reception Number 99746 of the Pitkin County records; thence
N.88°13'15"., along said vacation Boundary, 47.88 feet; thence continuing along said vacation Boundary
S.43°12'15"E., 45.87 feet; thence continuing along said vacation boundary S.O3°45'10"W., 38.70 feet; thence leaving
said vacation Boundary S.89°09'40"W., 23.15 feet to a point on the'Northerly boundary of Parcel 2 as shown on the
Plat of Harvey planned Unit Development/Subdivision recorded in Plat Book 72 on Pages 98-100 of the Pitkin County
Records; thence S.89°09'40"W. aIong said Northerly boundary, 30.02 feet; thence leaving said Northerly boundary
S.74°30'42"W., 8.04 feet to an existing fence comer; thence S.89°13'52"W. along an existing fence line, 618.95 feet;
thence leaving said fence line S.89°16'56"W., 316.02 feet to a point on the Southerly boundary of said Stage Road
Planned Unit Development/Subdivision; thence the following six (6) courses along said Southerly boundary:
1 ) S.88°59'33"W., 228.21 feet;
2) S.89°08'18"W., 156.94 feet
3) S.88°56'55"W., 144.94 feet
4) S.88°41'56"W., 136.14 feet
5) S.89°42'25"W., 189.99 feet
6) N.87°18'47"W., 5.97 feet to the POINT OF BEGINNING.
Containing 102,503 square feet or 2.353 acres, more or less.
Pitkin County, Colorado.
SOPRIS ENGINEERING - LLC
CIVIL CONSULTANTS
502 MMN STREET, SUITE A3
CM~BONDALE, COLORADO 81623
(970) 704-0311
23033 08/23/05 23033plot.ows
P59
The CiLy orflsper~
C~t't II~me',"s O~fice
TO:
FROM:
DATE:
RE:
Mayor and Members of Council
John P. Worcester
September 26, 2005
Wagar/Detweiler Subdivision Annexation - Resolution Finding Compliance
with Municipal Annexation Act Following a Public Hearing
This matter is before you for a public hearing to determine compliance with certain provisions of
the Municipal Annexation Act of 1965 as part of the statutory required process for annexing
unincorporated property into the City. Attached for your consideration and review is a draft
resolution to be adopted following the public hearing. If Council determines at the public hearing
that compliance with these provisions exist, then an ordinance to annex will be prepared for
Council's consideration at a later date. As .with all ordinances, a public hearing will be scheduled
as part of second reading of the annexation ordinance. The appropriate time for interested citizens
to offer comments on issues, other than comphance with the Municipal Annexation Act, regarding
the annexation of the parcel to the City would be during the second i6ading of the annexation
ordinance. The public hearing scheduled for the 14th can, therefore, be limited to the sole issue of
compliance with the relevant provisions of the Municipal Annexation Act.
At Council's regular meeting on August 22, 2005, Resolution No. 63, Series of 2005, was adopted.
That resolution found substantial compliance with Section 31-12-107(1), C.R.S. (the technical
requirements for a petition for annexation); established May 24, 1999 as the date for a public
hearing to determine compliance with Sections 31-12-104 and 31-12-105, C.R.S., (described
below); and authorized the institution of zoning procedures for land in the area proposed to be
annexed.
Because 100% of the property owners have consented to the proposed annexations, annexation
elections are not required. However, at the public hearing, Cotmcil must make a determination that
the proposed annexation is in compliance with Sections 31~12-104 and 31-12-105 of the state
annexation statutes. Appended hereto for your information is a copy of these state statutes.
Section 31-12-104, C.R.S., sets forth specific eligibility requirements which Council must find and
determine at the scheduled hearing. These eligibility requirements are incorporated within the
P60 proposed resolution. The facts that support the determination of compliance will be presented by
staff at the hearing.
In addition, Section 31-12-105, C.R.S. imposes a set of Iimitations on every annexation. It is these
limitations that Council must also consider at the public heating scheduled for the 26th. I have also
attached a copy of a proposed resolution which you may adopt as Council's written findings and
determinations following the public hearing. The proposed resolution summarizes the limitations
of Section 31-12-105 in the form of factual statements that will need to be established at the public
heating.
Staff from the Comm~mity Development Department have prepared a memo explaining the land
use implications if the property is annexed into the City boundaries.
City Manager
Community Development Director
City Engineer
· City Clerk
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MEMORANDUM
TO: JOHN WORCESTER~ CITY ATTORNEY
FROM: JOYCE ALLGAIER, DEPUTY DIRECTOR OF COMMUNITY DEVELOPMENT
RE: WAGARfDETWE1LER ANNEXATION AND RELATED LAND USE MATTERS
DATE: SEPTEMBER 20, 2005
A land use application has been filed concurrently with the annexation petition regarding
this property in order to allow f6r a PUD Amendment, Subdivision and Rezoning of land
(upon annexation). What follows is a summary of the proposal that the applicants would
put in place if granted annexation and the land use approvals. I have outlined, previous
approvals from 2004, including, lots sizes, house sizes and FAR and what is cturrently
proposed for these same parameters.
i~ROJECT SUMMARY:
· On April 12, 2003, a fire occurred in the duplex at 517 Park Circle. Instead of re-
building the non-conforming duplex (non-conforming due to its floor area) in its
original configuration, the applicants used the two development rights on the
property from the duplex and subdivided the property into two lots in order to build
two single-family residences.
In 2004, the P&Z recommended in favor of and the Council g}~ted a PUD approval
that would allow each residence to be 3,400 square feet in size which is about a .3:1
floor area ratio. The two lots that the applicant created were 11,237 square feet and
11,428 square feet, which is less than the required 15,000 minimum lot area per
dwelling unit for the R-15, PUD zoning. · '
The owners are now annexing a piece of land from Pitkin County to add to Lot 2,
then a resubdivision will occur which would give some land to Lot 1. This will
bring the lot sizes upto 14,458 square feet for Lot 1 and 14,652 square feet. for Lot
2. These sizes fall short of the required lot size for R-15, but are getting closer.
The owners would like to set the allowable floor area based on the underlying R~I 5
zone district allowing Lot 1 to have 4~462 square feet. (.3:1 FAR) and Lot 2 to have
4,275 square feet (.29:1 FAR)
With the exception of the front yards, setbacks waivers that were allowed in the first
'PUD are no longer being requested because with the greater land mass the
residences can coliform.
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SOLUTION NO.
(Series of 2005)
A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO, FINDING
COMPLIANCE WITH SECTIONS 31-12-104 and 31-12-105, C.R.S., FOLLOWING PUBLIC
HEARING RELATIVE TO THE PETITION FOR ANNEXATION OF TERRITORY TO THE
CITY OF ASPEN, COMMONLY KNOWN AS THE WAGAR]DETWEILER SUBDIVISION.
WHEREAS, on July 20, 2005, the owners of the property proposed to be annexed did
file with the City Clerk of the City of Aspen a Petition for Annexation of territory to the City of
Aspen; and
WHEREAS, on August 22, 2005, the City Council did adopt Resolution No. 63, Series
of 2005, finding substantial compliance with Section 31-12-107(1), C.R.S.; establishing
September 26, 2005, as the date for a public hearing to determine compliance with Sections 31-
12-104 and 31-12-105, C.R.S.; and authorizing publication of said hearing; and
WHEREAS, a public hearing was held on September 26, 2005; and
WHEREAS, the City Council desires to adopt its findings and determinations following
said hearing in the form of a resolution.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO:
Section 1
That having heard and considered the testimony, comments, exhibits and arguments of all
persons appearing at the public hear'rog, the City. Council of the City of Aspen makes the
following findings and determinations in accordance with the Colorado Municipal Annexation
Act, as amended:
1. The City Clerk, in accordance with Resolution No. 63, Series of 2005, did
give public notice pursuant to Section 31-12-108, C.R.S., of the public hearing, by
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causing to be published once a week for four consecutive weeks in The Aspen Times, a
newspaper of general circulation in Pitkin County, the fzrst publication being at least
thirty (30) days prior to the date of the public hearing: In addition, the City Council did
send to the Pitkin County Board of County Commissioners, to the County Attorney of
Pitkin County, and to the Aspen School District, a copy of the aforesaid resolution and
petition.
2. That the property proposed to be annexed consists of unincorporated area
which has more than one sixth boundary contiguity with the City of Aspen.
3. That a conununity of interest exists between the area proposed to be
annexed and the City of Aspen; that said area is urban or will be urbanized in the near
future; and that said area is integrated with or is capable of being integrated with the City
of Aspen. The basis of compliance with the foregoing is the finding by City Council that
the area to be annexed exceeds the one-sixth contiguity requirement and:
a. Less than one-half of the land in the area proposed to be annexed
(including streets) is agricultural, and none of the owners of such
agricultural land, if any, have expressed an intention, under oath, to
devote the land to agricultural use for a period of not Iess than five years;
and,
b. It is physically practicable to extend to the area proposed to be
annexed those urban services which the City of Aspen provides in common
to all of its citizens on the same terms and conditions as such services are
made to such citizens.
4. The property .proposed to be annexed was not divided into separate parts
or parcels from any other tract or parcel of real estate without the written consent of the'
landowners thereof to establish the boundaries of the property described in the annexation
petkion. (One hundred percent of the owners of the proposed area to be annexed have
consented to the annexation.)
5. The owners of the property proposed to be annexed have consented in
writing to the annexation. Accordingly, the limitation set forth at Section 31-12405(b) is
not applicable.
6. There is no other annexation proceeding, other than the one under
consideration herein, which has been commenced either in the City of Aspen or any other
municipality which affects the property proposed to be annexed. Accordingly, the
limitation set forth at Section 31-12-105(c) is not applicable.
7. Annexation of the property proposed to be annexed would not result in the
detachment of any area from any school district and the attachment of the same to another
2
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school district. Accordingly, the limitation set forth at Section 31-12-105(d) is not
applicable.
8. Annexation of the property proposed to be annexed would not have the
effect of extending the boundary of the City of Aspen more than three miles in any
direction. Accordingly, the limitations set forth at Section 31-12-105(e) relating to the
extension of municipal boundaries by more than three miles in any one year is not
applicable.
9. The annexation of the property proposed to be annexed would be
consistent with the "Annexation Element to the Aspen Area COmprehensive Plan".
Accordingly, the requirement set forth at Section 31-12-105(e) relating to the requirement
that a "plan" be adopted for the property proposed to be annexed has been met.
10. In ~stablishing the boundaries of the area to be anneXed, 'no portion of a
platted street or alley is proposed to be annexed or the entire width of the alley or street is
proposed to be annexed. Accordingly, the limitation set forth at Section 31-12-105(1) has
been met.
11. The .City of Aspen does not intend to deny reasonable access to
landowners, owner of an easement, or the owner of a franchise adjoining any street,
alley, or highway, upon annexation. Accordingly, the limitation set forth at Section 31-
12-105(1) has been met.
the
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
__ day of ,2005.
Helen Kalin Klandemd, 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 on the day hereinabove stated.
P65
JPW- saved: 9/19/2005-978-G:\john\word\resos\wagar-ann2.doc
Kathryn S. Koch, City Clerk
P66
THE CITY OF ASPEN
Memorandum
P67
To: Aspen City Council
From: Paul Menter, Director of Finance and Administrative Services
Scott Newman, CFA, Senior Financial Analyst - Debt &.Investment
Management
Date: September' 20, 2005
Att: Bond Ordinance, City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds, Series 2005B
Re: Bond Issue Ordinance, Parks and Open Space Sales Tax Revenue Bonds,
Second Reading, September 26, 2005
S,,mmary: Attached please find the ordinance in final form for Council review on
'September 26, 2005. The ordinance passed on first reading at the September 19, 2005
special meeting of Council. ...-
The follow/rig changes have been incorporated:
1. Provisions regarding the Bond Insurer as required by the Bond Insurance
Commitment throughout the document.
2. Parameters w/thin which Bonds are to l~c priced (e.g., max/mum principal
amount, maximum interest rates as found on page 1 I.
The primazy purpose of the Ordinance is to authorize the issuance by the City of
Aspen, Colorado, of its Parks and Open Space Sales Tax Revenue Bonds, Series
2005B and delegate authority to the City's Finance Director to make a final
determination of certain terms of the Series 2005B bonds. In addition, the
Ordinance authorizes the Mayor, the Finance Director, and other officers of the City
to execute the necessary documents in connection with such Series 2005B bonds.
Finally, in order to take advantage of current market conditions, th/'Ordinance
declares an emergency and provides that the Ordinance will be effective upon
second reading and final passage. Please feel free to contact me if you have any
questions or concerns regarding this information.
September 20, 2005
P68
Background: Ordinance No. 16, Series of 1970 (the "Original Parks and Open
Space Sales Tax Ordinance") authorized a one percent (I .00%) sales, tax (the
"Original Parks and Open Space Sales Tax") on all sales of tangible property and
services in the City and are required by Section 23.32.060(c)(3) of the City's
Municipal Code to be expended for the acquisition, maintenance or improvement of
parks, trails or open space. · ·
In November, 2000, the electors of the City approv, ed an additional 0.5% sales tax
(the "Additional Parks and Open Space Sales Tax") and the issuance of sales tax .
revenue bonds for the purpose of buying, improving and maintaining trail, recreation
and open space.
On August 21,200i, the City issued its Parks and Open Space Sales Tax Revenue
Bonds, Series 2001 (the "Series 2001 Bonds") for the purpose ofprovidir~g funds for
buying, improving and maintaining trail, recreation and open space properties and
ancillary Facilities and the funding of reserves for, and the costs of issuance of, the
Series 2001 Bonds.
On March 24, 2905, the City issued its Sales Tax Revenue Refunding Bonds,,Series
.2005, in the aggregate principal mount of $12,380,000 (the "Series 2005A Bonds"),
for the purposes of advance refunding all of the City's Sales Tax Revenue Bonds,
Series 1999.
The net revegues of the Original and Additional Parks and Open Space Sales Taxes
are pledged on a parity lien basis to the payment of the principal of and interest on
the Series 2001 Bonds and the Series 2005A Bonds; and
The City Council has determined that it is in.the best interests of the City and its
residents to issue the City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds, Series 2005B (the "Series 2005B Bonds") for the purpose of
financing the costs of buying, improving and maintaining trail, recreation and open
space properties and ancillary facilities. The Series 2005B Bonds shall be issued
h~reunder and shall be secured by a pledge of and lien on certain revenues from the
Original and Additional Parks and Open Space Sales Taxes on parity with the lien
thereon of the Series 2001 Bonds and the Series 2005A Bonds.
The City Council desires to delegate the authority to the City Finance Director to
make a £mal determination of the final par amount not to exceed $14,900,000,
interest rates, amount of principal maturing in any year, redemption price or prices,
denominations and price or prices at which the Series 2005B Bonds shall be sold. It
.is estimated that annual debt service for the term of the issuance will not exceed
$2,800,000.
KUTAK ROCK DRAFT OF 09/19/05
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CERTIFIED RECORD
OF
PROCEEDINGS OF TI-IE CITY COUNCIL
OF THE CITY OF ASPEN, COLORADO
RELATING TO AN ORDINANCE
AUTHORIZING THE ISSUANCE OF:
City of Aspen, Colorado
Parks and Open Space Sales Tax Revenue Bonds
Series 2005B
This cover page is not a part of the following ordinance and is included solely for the
convenience of the reader.
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TABLE OF CONTENTS
Page
Section 1.
Section 2.
Sectioh 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
:Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
Section 25.
Section 26.
Section 27.
Section 28,
Section 29.
Section 30.
Section 3 I.
Section 32.
Section 33.
Section 34.
Section 35.
Section 36.
Section 37.
Section 38.
APPENDIX A
Definitions .................................................................................................. : ...... 4
Authorization and Purpose of Series 2005B Bonds ........................................... 10
Series 2005B Bond Details ............................................................................... 10
Form of Series 2005B Bonds .................................... .'. ..................................... 12
Registration, Transfer and Exchange of Series 2005B Bonds ............... ; ............ 12
Replacement of Lost, Destroyed or Stolen Series 2005B Bonds ........................ 12
Execution of Series 2005B Bonds ..................................................................... 12
Redemption of Series 2005B Bonds Prior to Maturity ...................................... 13
Delivery of Series 2005B Bonds Upon Original Issuance ................................. 14
Creation and Reaffirmation of F'unds and Accounts ........................... : .............. 14
Application of Proceeds of Series 2005B Bonds ............................................... 14
Special Obligations; Pledge and Lien for Payment of Bonds .............................15
Conditions to Issuance of Additional Parity Bonds ........................................... 16
Application of Pledged Revenues ..................................................................... 18
Bond Fund ...................................................... } ................................................. 19
Series 2005B Reserve Fund .............................................................................. 19
Rebate Fund ...................................................................................................... 21
Payments to and by Paying Agent ...................... : .............................................. 21
General Administration o f Funds ...................................................................... 21
Additional General Covenants .......................................................................... 22
Covenants Regarding Exclusion of Interest on Series 2005B Bonds from
Gross Income for Federal Income Tax Purposes ............................................... 24
Defeasance ............................................. .. ......................................................... 24
Events of Default .............................................................................................. 25
Remedies for and Duties Upon Events of Default ............................................. 25
Amendment of Ordinance .................................................................. , ......... :..., 26
Appointment and Duties of Paying Agent ......................................................... 27
Authorization of the Bond Insurance Policy ....................... ,...: .......................... 27
Bond Insurance Provisions ................................................... i ........................... 28
Parties Interested Herein ................................................................................... 33
Events Occurring on Days That Are Not Business Days ...................................34
Approval of Documents and Authorization of Officers ..................................... 34
Findings and Determinations ............................................................................ 34
Ratification of Prior Actions ............................................................................. 34
Repeal of Inconsistent Resolutions; Contract with Owners of Series 2005B
Bonds; Resolution Irrepealable ......................................................................... 35
Headings, Table of Contents and Cover Page ................................................... 35
Severability ...................................................................................................... 35
Recordation ...................................................................................................... 35
Declaration of Emergency and Effective Date .................................................. 35
FORM OF SERIES 2005 BOND
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ORDINANCE NO. 42 (SERIES OF 2005)
AN ORDINANCE AUTHORIZING THE ISSUANCE BY TI-IE CITY OF
ASPEN, COLORADO, OF 1TS PARKS AND OPEN SPACE SALES TAX
REVENUE BONDS, SERIES 2005B, IN THE AGGREGATE PRINCIPAL
AMOUNT NOT TO EXCEED $14,900,000, FOR THE PURPOSE OF BUYING,
IMPROVING, AND MAINTAINING TRAIL, RECREATION AND OPEN
SPACE PROPERTIES AND ANCILLARY FACILITIES; PRESCRIBING THE
FORM OF THE SERIES 2005B BONDS; PROVIDING FOR THE PAYMENT
OF THE SERIES 2005B BONDS FROM THE CITY'S ORIGINAL 1.0% OPEN
SPACE SALES TAX AND ITS ADDITIONAL 0.5% OPEN SPACE SALES
TAX; PROVIDING OTHER DETAILS AND APPROVING OTHER
DOCUMENTS IN CONNECTION WITH THE SERIES 2005B BONDS;
DELEGATING THE AUTHORITY TO THE CITY'S FINANCE DIRECTOR
TO MAKE A FINAL DETERMINATION OF CERTAIN TERMS OF THE
SERIES 2005B BONDS; DIRECTING THE CITY'S MAYOR, FINANCE
DIRECTOR, AND OTHER CITY OFFICIALS TO EXECUTE CERTAIN
DOCUMENTS IN CONNECTION WITH SUCH SERIES 2005B BONDS; AND
DECLARING AN EMERGENCY
WHEREAS, the City of Aspen (the "City"), in the .County of Pitkin and State~ of
Colorado, is a legally and regularly created, established, organized and e:~isting municipal
corporation under the provisions of Article XX of the Constitution of the State of Colorado and
the home rule charter of the City (as more particularly defined in Section 1 herein, the ?Charter")
(all capitalized terms used and not otherwise defined in the recitals hereof shall have the meaning
assigned in Section 1 of this Ordinance); and
WHEREAS, under the Charter, the City is possessed of all pow.ers which are necessary,
requisite or proper for the govemment and administration of its local and municipal matters, all
powers which are granted to home rule municipalities by the Colorado Constitution, and all
rights and powers that now or hereafter may be granted to municipalities by the laws of the State
of Colorado; and
WHEREAS, Section 10.5 of the Charter provides in relevant part:
The City shall, in addition, have the authority to issue revenue bonds...
payable in whole or in part from the imposition of a sales or use tax by the State
of Colorado, or any agency thereof.... No revenue bonds shall be issued until
the question of their issuance shall have been approved by a majority of the
electors voting on the question at a regular or special election; ....
WHEREAS, the City, pursuant to Ordinance No. 16, Series of 1970 (the "Original Parks
and Open Space Sales Tax Ordinance"), levies a one percent (1.00%) sales tax (the "Original
Parks and Open Space Sales Tax") on all sales of tangible property and services specified in
Section 23.32.090 of the City's Municipal Code for the payment of food tax refunds, and for the
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acquisition of reid property including open space or construction of capital improvements for
municipal purposes, or the payment of indebtedness incurred for such acquisition or construction
of capitaI improvements for municipal purposes, for the expenditures necessary to protect such
property against loss, damage or destruction; and
WHEREAS, receipts from the Original Parks and Open Space Sales Tax are required by
Section 23.32.060(c)(3) of the City's Municipal Code to be set aside in a separate fund entitled
"Parks and Open Space Fund" and expended by the City Council solely for the acquisition of
parks, trails and open space real property, for the construction of improvements on any real
property, owned or purchased by the City for parks, trails and open space purposes, for the
maintenance of real property owned by the city and used for parks, trails and open space, and for
payment of indebtedness incurred for acquisition or improvement of parks, trails and open space
real property, food tax refunds payable by the City, and for such expenditures as may be
necessary to protect real property or the improvements thereon owned by the City for parks,
trails and open space purposes and for the payment of sales tax revenue bonds issued by the City;
and
WHEREAS, the following question (the "Ballot Question") regarding the imposition of
an additional 0.5% sales tax (as defined herein, the "Additional Parks and Open Space Sales
Tax" and, collectively with the Original Parks and Open Space Sales Tax, the "Parks and Open
Space Sales Tax") and the issuance of sales tax revenue 'bonds for the purpose of buying,
improving and maintaining trail, recreation and open space properties and ancillary facilities was
submitted to the electors of the City at the City's November 7, 2000 election, and was approved
by a majority of those voting on the question:
SHALL CITY OF ASPEN TAXES BE INCREASED UP TO
$2,280,000.00 (FIRST FULL FISCAL YEAR DOLLAR INCREASE, NET OF
ANY CONSTITUTIONALLY REQUIRED TAX CUTS) ANNUALLY BY THE
IMPOSITION OF AN ADDITIONAL 0.5% SALES TAX COIvlMENCING ON
JANUARY 1, 2001, AND TERMINATING ON DECEMBER 3r} 2025, AND
SHALL CITY OF ASPEN DEBT BE INCREASED BY AN AMOUNT NOT TO
EXCEED $38.0 MILLION WITH A MAXIMUM REPAYMENT COST OF
$91,065,000.00 FOR THE PURPOSE OF BUYING, IMPROVING AND
MAINTAINING TRAIL, RECREATION AND OPEN SPACE PROPERTIES
AND ANCILLARY FACILITIES;
SUCH DEBT TO CONSIST OF REVENUE BONDS PAYABLE FROM
CITY SALES TAXES THAT BEAR INTEREST, MATURE, ARE SUBJECT
TO REDEMPTION, WITH OR WITHOUT PREMIUM, AND ARE ISSUED,
DATED, AND SOLD, AT SUCH TIMES AS NEEDED TO FINANCE THE
PURCHASES OR IMPROVEMENTS AS DESCRIBED ABOVE, AT SUCH
PRICES (AT, ABOVE OR BELOW PAR) AND IN SUCH MANNER AND
CONTAIN SUCH TERMS AS THE CITY COUNCIL MAY DETERMINE;
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SHALL ANY EARNINGS (REGARDLESS OF AMOUNT) FROM THE
INVEST~MENT OF THE PROCEEDS OF SUCH TAXES AND SUCH BONDS
CONSTITUTE A VOTER-APPROVED REVENUE CHANGE?
WHEREAS, the City, pursuant to Ordinance No. 7, Series of 2001 (the "Additional Parks
and Open Space Sales Tax Ordinance" and, together with the Original Parks and Open Space
Sales Tax Ordinance, the "Parks and Open Space Tax Ordinances"), has since January 1, 2001
levied the Additional Parks and Open Space Sales Tax and, pursuant to Section 23.32.060(c)(7)
of the City's Municipal Code, deposits the revenues of the Additional Parks and Open Space
Sales Tax in the Parks and Open Space Fund; and
WHEREAS, on August 21, 2001, the City, issued its Parks and Open Space Sales Tax
Revenue Bonds, Series 2001 (the "Series 2001 Bonds") for the purpose of providing funds for
buying, improving and maintaining trail, recreation and open space properties and ancillary
Facilities and the funding of reserves for, and the costs of issuance of, the Series 2001 Bonds;
and
WHEREAS, on March 24, 2005, the City issued its Sales Tax Revenue Refunding
Bonds, Series 2005, in the aggregate principal amount of $t2,380,000 (the "Series 2005A
Bonds"), for the purposes of advance refunding all of the City's Sales Tax Revenue Bonds,
Series 1999; and
wHEREAS, the net revenues of the Parks and Open Space Sales Tax are pledged on a
parity lien basis to the payment of the principal of and interest on the Series 2001 Bonds and the
Series 2005A Bonds; and
WHEREAS, the City Council has determined that it is in the best interests of the City
and its residents to issue the City of Aspen, Colorado, Parks and Open S~6ace Sales Tax Revenue
Bonds, Series 2005B (the "Series 2005B Bonds") for the purpose of financing the costs of
buying, improving and maintaining trail, recreation and open space properties and ancillary
· facilities; and
WHEREAS, the City Council has determined and does hereby determine that the Series
2005B Bonds shall be issued hereunder and shall be secured by a pledge of and lien on certain
revenues from the Parks and Open Space Sales Tax on parity with the lien thereon of the Series
200I Bonds and the Series 2005A Bonds; and
WHEREAS, pursuant to Section 6.8 of the Charter, the City's Director of Finance (the
"Finance Director") shall perform such duties pertaining to the City's department of finance as
required by the City Council; and
WHEREAS, the City Council desires to delegate the authority to the Finance Director to
make a final determination of the par amount, interest rates, amount of principal maturing in any
year, redemption price or prices, denominations and price or prices at which the Series 2005B
Bonds shall be sold; and
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WHEREAS, the City Council also desires to delegate the authority to the Finance
Director to determine whether it is economically beneficial to obtain a financial guaranty
insurance policy insuring the payment of the Series 2005B Bonds and, if so determined, to
identify the Bond Insurer and execute the Commitment; to determine whether a surety bond is to
be obtained to secure payments on the Series 2005B Bonds, and to execute and deliver the Bond
Purchase Agreement and approve certain terms thereof, all in accordance with the provisions of
this Ordinance;
WHEREAS, pursuant to Section 4.il of the Charter, the City is authorized to adopt
emergency ordinances for the preservation of public property, health, peace, or safety; and
WHEREAS, the rates of interest at which the Series 2005B Bonds can be issued are
expected to be lower if the Series 2005B Bonds can be issued in a timely fashion, thus benefiting
the City's inhabitants with lower financing costs; and
WHEREAS, there is a need for issuing {he Series 2005B Bonds in a timely manner in
order to take advantage of existing market conditions and obtain lower financing costs, thus
freeing up amounts which would have otherwise be expended on such financing costs for the
purpose of preserving public property, health, peace and safety; and
WHEREAS, this.ordinance is being adopted to authorize the issuance, sale and delivery
of the Series 2005B Bonds, and to provide for the details of and the security for the Series 2005B
Bonds;
NOW, THEREFORE, BE IT ORDAINED by the City Council of City of Aspen,
Colorado:
Section 1. Definitions. The following terms shall have the following meanings as.used
in this Ordinance:
"Additional ?arkx and Open Space Sales Tax" means the 015% sales tax that is levied in
addition to the Original Parks and Open Space Sales Tax by the City pursuant to the authority
granted by the Ballot Question, the Additional Parks and Open Space Sales Tax Ordinance and
Section 23.32.060(c)(7) of the City's Municipal Code;
"Additional _Parity Bonds" means any bonds or other obligations ~which may or may not
be multiple-fiscal year financial obligations) permitted to be issued pursuant to Section 13 hereof
with a lien that is equal and on a parity with the lien of the Series 2001 Bonds, the Series 2005A
Bonds, and the Series 2005B Bonds on the Pledged Revenues, the Bond Fund and the Revenue
Fund.
"Ballot Question" means the ballot question approved by City voters on November 7,
2000 authorizing the Additional Parks and Open Space Sales Tax.
"Bond Counsel" means (a) as of the date of issuance of the Series 2005B Bonds, Kutak
Rock LLP, and (b) as of any other date, Kutak Rock LLP or such other attorneys selected by the
City with nationally recognized expertise in the issuance of municipal bonds.
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"Bond Fund' means the "City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds Bond Fund" which fund is reaffmmed as such in Section i0(b) hereof.
"Bond Insurance Policy" means the municipal bond insurance policy issued by the Bond
Insurer insuring the payment when due of the principal of and interest on the Series 2005B
Bonds as provided therein.
"Bond Insurer" means Financial Security Assurance Inc., a New York stock insurance
company, or any successor thereto or assignee thereof.
"Bond Purchase AgreemenF' means the Bond Purchase A~eement dated ,
2005 pursuant to which the Original Pumhaser has agreed to pumhase the Series 2005B Bonds at
the price and on the terms set forth therein.
"Bonds" means, collectively, the Series 2001 Bonds, the Series 2005A Bonds, the Series
2005B Bonds and any Additional Parity Bonds.
"Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in the State are authorized or obligated by law 'or executive order to be
closed for business.
"Charter" means the Charter of the City of Aspen, adopted June 16, 1970, as amended.
"City" means the City of Aspen, Colorado, and any successor thereto.
"City Council" means the City Council of the City, and any successor body.
"Code" means th'e Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder and applicable to the Series 2005B Bonds or the use of proceeds
thereof, unless the context clearly requires otherwise.
"Commitmeni" means that certain offer to issue the Bond Insurance Policy issued by the
Bond Insurer.
"Defeasance Securities" means Permitted Investments that are bills, certificates of
indebtedness, notes, bonds or similar securities which are direct non-callable obligations of the
United States of America or which am fully and unconditionally guaranteed as to the timely
payment of principal and interest by the United States of America.
"Event of Default" means any of, the events specified in Section 23 hereof.
"Fitch" means Fitch Investors Service, Inc. and its successors.
"Interest Payment Date" means any date on which a payment of principal of, premium, if
any, or interest on the Series 2005B Bonds is due pursuant to Section 3(c) hereof.
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"Letter of Instructions" means the Letter of Instructions, dated the date of issuance of the
Series 2005B Bonds, delivered by Bond Counsel to the City, as it may be superseded or amended
in accordance with its terms.
"Moody's" means Moody's Investor Service and its successors.
"Ordinance" means this Ordinance, which authorizes the issuance of the Series 2005B
Bonds, including any amendments or supplements hereto.
"Original Parks and Open Space Sales Tax" means the 1.0% Open Space Sales Tax
levied by the City pursuant to the Original Parks and Open Space Sales Tax Ordinance.
"Original Parks and Open Space Sales Tax Ordinance" means the City's Ordinance No.
16, Series of 1970.
"Original Purchaser" means Stifel, Nicolaus & Company, Incorporated Hanifen.Imhoff
Division.
"Outstanding" means, as of any date, all Bonds, except the following:
(a) anY Bond cancelled by the City or the Paying Agent, or otherwise on the
City's behalf, at or before such date;
Co) any Bond held by or on behalf of the City;
(c) any Bond for the payment or the redemption of which moneys or
Defeasance Securities sufficient to meet all of the payment requirements of the prinmpal
of, interest on, and any premium due in connection with the redemption of such Bond to
the date of maturity or any redemption date thereof, shall have theretofore been deposited
in trust for such purpose in accordance with Section 22 hereof; and ..
(d) any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in
substitution for which another bond or other security shall have been executed and
delivered.
"Owner" means the Person or Persons in whose name or names a Series 2005B Bond is
registered on the registration books maintained by the Paying Agent pursuant hereto.
"Parks and Open Space Func?' means the City's Parks and Open Space Fund maintained
by the City pursuant to Section 23.32.060(c)(3) of the City's Municipal Code.
"Parks and Open Space Sales Tax" means, collectively, the Original Parks and Open
Space Sales Tax and the Additional Parks and Open Space Sales Tax.
"Parks and Open Space Sales Tax Ordinances" means, collectively the Original Parks
and Open Space Sales Tax Ordinance and the Additional Parks and Open Space Sales Tax
Ordinance.
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"Paying AgenF' means American National Bank, and its successors in interest or assigns
approved by the City.
"Permitted Investments" means any investment which is permitted for investment of City
Funds by the Charter and ail other applicable laws which are included on the following list:
(a) Cash (insured at all times by the Federal Deposit Insurance Corporation);
(b) Direct obligations of (including obligations issued or held in book entry
form on the books of) the Department of the Treasury of the United States of America;
(c) obligations of any of the fpllowing federal agencies which obligations
represent full faith and credit of the United States of America, including:
Export - Import Bank
Rural Economic Community Development Administration
-- U.S. Maritime Administration
-- Small Business Administration
-- U.S. Department of Housing & Urban Development (PHA's)
-- Federal Housing Administration
-- Federal Financing Bank;
(d) direct obligations of any of the following federal agencies which
obligations are not fully guaranteed 'by the full faith and credi.t, pf the United States of
America: senior debt obligations issued by the Federal National Mortgage Association
(FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC); obligations of the
Resolution Funding Corporation (REFCORP); senior debt obligations of the Federal
Home Loan Bank System; and senior debt obligations of other Government Sponsored
Agenc. ies approved by Ambac;
(e) U.S. dollar denominated deposit accounts, federal funds and banker's
acceptances with domestic commercial banks which have a rating on their short-term
certificates of deposit On the date of purchase of "A 1" or "A 1+" .by S&P and "P 1" by
Moody's and maturing no more than 360 days after the date of purchase, where ratings
on holding companies are not considered as the rating of the bank;
(f) . commercial paper which is rated at the time of purchase in the single
highest classification, "A 1+" by S&P and "P 1" by Moody's, and which matures not
more than 270 days after the date of purchase;
(g) investments in a money market fund rated "AAAm" or "AAAm--G" or
better by S&P;
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(h) pre-refunded municipal obligations defined as follows:
Any bonds or other obligations of any state of the United States of America or of any
agency, instrumentality or local governmental unit of any such state which are not
callable at the option of the obligor prior to maturity or as. to which irrevocable
instructions have been given by the obligor to call on the date specified in the notice; and
(i) which are rated, based on an irrevocable escrow account or fund (the "escrow"), in the
highest rating category of S&P and Moody's or any successors thereto; or (ii)(A) which
are fully secured as to principal and interest and redemption premium, if any, by an
escrow consisting only of cash or obligations described in paragraph (a) above, which
escrow may be applied only to the payment of such principal of and interest and
redemption premium, if any, on such bonds or other obligations on the maturity date or
dates thereof or the specified redemption date or dates pursuant to such irrevocable
instructions, as appropriate; and (B) which escrow is sufficient, as verified by a nationally
recognized independent certified public accountant, to pay principal of and interest and
redemption premium, if any, on the bonds or other obligations described in this paragraph
on the maturity date or dates thereof or on the redemption date or dates specified in the
irrevocable instructions referred to above, as appropriate;
(i) municipal obligations rated-"Aaa/AAA", or general obligations of states
with a rating of at least "A2/A", or higher by both Moody's and S&P; and
(j) investment a~eements and other forms of investments approved in
writing by the Bond Insurer.
"Person" means a corporation, firm, other body corporate, partnership, association or
individual and also includes an executor, administrator, trustee, receiver or other representative
appointed according to law.
"Pledged Revenues" means, for each fiscal year, all of the pro~e'~ds of the Parks and
Open Space Sales Tax after deduction of the reasonable and necessary costs and expenses of
collecting and enforcing the Parks and Open Space Sales .Tax, if any.
"Rebate Fund" means the City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds, Series 2005B, Rebate Fund created in Section 10 hereof
"Reserve Fund" means, as the context requires, any one or more of tile Series 200I
Reserve Fund, the Series 2005A Reserve Fund, the Series 2005B Reserve Fund, and/or any
reserve fund or funds established for Additional Parity Bonds.
"Reserve Fund Contract" has the meaning specified in Section 16(c)(i) hereof.
"Reserve Fund Requirement" means, as of any date on which it is calculated, with respect
to each series of Bonds, the least of (a) 10% of the principal amount of such series of Bonds,
(b) the maximum annual debt service in any calendar year on the Outstanding Bonds of such
series or (c) 125% of the average annual debt service on the Bonds of such series; provided,
however, that the Reserve Fund Requirement may be reduced if, in the opinion of Bond Counsel,
the funding or maintenance o~ it at the level otherwise determined pursuant to this definition will
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adversely affect the exclusion from gross income tax for federal income tax purposes of interest
on any of the Bonds.
"Revenue Fund" means the "City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds Revenue Fund" which fund is reaffirmed as such pursuant to Section 10(b)
hereof.
"Sale Certificate" means the bond sale certificate executed by the Finance Director under
the authority delegated pursuant to this Ordinance, including but not limited to the Sections
hereof entitled "Bond Details," "Redemption of Bonds Prior to Maturity," "Approval of Related
Documents" and "Authorization of Bond Insurance" which set forth, among other things, the
prices at which the Series 2005B Bonds will be sold, the delivery date of the Series 2005B
Bonds, the dated date of the Series 2005B Bonds, the principal and interest payment dates for the
Series 2005B Bonds, interest rates and annual maturing principal for the Series 2005B Bonds, as
well as the dates on which the Series 2005B Bonds may be redeemed and the redemption prices
therefor. The Finance Director also has been delegated the authority to determine if the
repayment of the Series 2005B Bonds shall be secured by the issuance of the Bond Insurance
Policy, whether the Reserve Fund shall be funded with a Reserve Fund Contract issued by the
Bond Insurer and the terms of any agreement with the Bond Insurer.
"S&?" means Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc., and its successors.
"Series 1999 Ordinance" means the City's Ordinance No. 31, Series of 1999, pursuant to
which the City of Aspen, Colorado, Sales Tax Revenue Bonds, Series 1999 were issued (all of
which were subsequently advance refunded with proceeds of the Series 2005A Bonds).
"Series 2001 Bonds" means the City of Aspen, Colorado, Open Space Sales Tax Revenue
Bonds, Series 2001, authorized pursuant to the Series 2001 Ordinance.
"Series 2001 Ordinance" means the City's Ordinance No. 29, Series of 2001, pursuant to
which the Series 2001 Bonds were issued.
"Series 2001 Reserve Fund" means the Reserve Fund established for the Series 2001
Bonds pursuant to Section I 0(a)(ii) of the Series 2001 Ordinance.
"Series 2005A Bonds" means the City of Aspen, Colorado, Sales Tax Revenue Refunding
Bonds, Series 2005A, authorized pursuant to the Series 2005A Ordinance.
"Series 2005.4 Ordinance" means the City's Ordinance No. 19, Series of 2005, pursuant
to which the Series 2005A Bonds were issued.
"Series 2005A Reserve Fund" means the City of Aspen, Colorado, Sales Tax Revenue
Refunding Bonds, Series 2005A, Reserve Fund created in Section 10(a)(ii) of the Series 2005A
Ordinance.
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"Series 2005A Surety Bond" means the Reserve Fund Contract issued by Ambac
Assurance Corporation guaranteeing certain payments from the Series 2005A Reserve Fund with
respect to the Series 2005A Bonds.
"Series 2005B Bonds" means the City of Aspen, Colorado, Parks and Open Space Sales
Tax Revenue Bonds, Series 2005B, authorized pursuant to this Ordinance.
"Series 2005B Reserve Fund" means the City of Aspen, Colorado, Parks and Open Space
Sales Tax Revenue Bonds, Series 2005B, Reserve Fund created in Section 10(a)(ii) hereof.
"Series 2005B Surety Bond" means the Reserve Fund Contract issued by the Bond
Insurer guaranteeing certain payments from the Series 2005B Reserve Fund with respect to the
Series 2005B Bonds.
"State" means the State of Colorado.
Section 2. Authorization and Purpose of Series 2005B Bonds. Pursuant to and in
accordance with the Charter, the City hereby authorizes, and directs that there shall be issued, the
"City of Aspen, Colorado, Parks and Open Space Sales Tax Revenue Bonds, Series 2005B" in
the aggregate principal amount set forth in the Sale Certificate (the "Series 2005B Bonds") for
the purpose of buying, improving, and maintaining trail, recreati'on and open space properties
and ancillary facilities; purchasing the Series 2005B Surety Bond; and paying the costs of
issuance of the Series 2005B Bonds. The City Council hereby delegates to the Finance Director
the authority to determine the aggregate principal amount of the Series 2005B Bonds, provided,
however, that such f'mal determination shall be withih the parameters set forth in Section 3Co)(i)
below.
Section 3. Series 2005B Bond Details.
(a) Registered Form, Denominations, Original Dated lYate and Numbering.
The Series 2005B Bonds shall be issued as fully registered bonds in the denominations
set forth in the Sale Certificate, shall be dated as of the date set forth in the Sale
Certificate, shall be consecutively numbered in the manner determined by the Paying
Agent and shall be registered in the names of the Persons identified in the registration
hooks of the City maintained by the Paying Agent.
(b) Maturity Dates, Principal Amounts and Interest Rates. The Series
2005B Bonds shall mature on November 1 of the years and in the principal amounts, and
shalI bear interest at the rates per annum (calculated based on a 360-day year of twelve
30-day months) set forth in the Sale Certificate. The City Council hereby delegates to the
Finance Director the authority to determine the dated date of the Series 2005B Bonds, the
price or prices at which the Series 2005B Bonds will be sold, the amount of principal of
the Series 2005B Bonds maturing in any particular year, the price or prices at which the
Series 2005B Bonds may be redeemed, and the denominations in which the Series 2005B
Bonds shall be sold; provided, however, that such final determination made by the
Finance Director shall be within the parameters set forth below!
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(i) The aggregate original principal amount of the Series 2005B
Bonds shall not exceed $14,900,000;
(ii) The net effective interest rate of the Series 2005B Bonds shall not
exceed 5.25% per annum;
(iii) The price or prices at which the Series 2005B Bonds are sold shall
be not less than 98% or more than 108%; and
(iv) The redemption price or prices of the Series 2005B Bonds shall not
exceed 101% (stated as a percentage of the principal amount so redeemed).
(c) Accrual and Dates of Payment of lnterest. Interest on the Series 2005B
Bonds shall accrue at the rates set forth in the Sale Certificate from the later of the
original dated date or the latest interest payment date (o/' in the case of defaulted interest,
the latest date) to which interest has been paid in full and shall be payable On May 1 and
November 1 of each year, commencing on the date set forth in the Sale Certificate. The
Finance Director is hereby authorized to determine the first interest payment date for the
Series 2005B Bonds.
(d) Manner and Form of Paytnent. Principal of, premium, if any, and the
final installment of interest on each Series 2005B Bond shall be payable to the Owner
thereof upon presentation and surrender Of such bond at the principal office of the Paying
Agent in the city identified in the de£mifion of Paying Agent in Section 1 hereof. Interest
(other than the final installment of interest) on e. ach Series 2005B Bond shall be payable
by check or draft of the Paying Agent mailed on the interest payment date to the Owner
thereof as of the close of business on the fifteenth day (whether or not such day )s a
Business Day) of the month preceding the month in which the Interest Payment Date
occurs. All payments of the principal of, premium, if any, m/cl. interest on the Series
2005B Bonds shall be made in lawful money of the United States of America.
(e) Book-Entry Registration. Notwithstanding any other provision hereof,
the Series 2005B Bonds shall be delivered only in book-entry form registered in the name
of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, New
York, acting as securities depository of the Series 2005B Bonds and principal of,
premium, if any, and interest on the Series 2005B Bonds shall be paid by wire transfer to
DTC; provided, however, if at any time the Paying Agent determines, and notifies the
City of its determination, that DTC is no longer able to act as, or is no longer
satisfactorily performing its duties as, securities depository for the Series 2005B Bonds,
the Paying Agent may, at its discretion, either (i) designate a substitute securities
depository for DTC and reregister the Series 2005B Bonds as directed by such substitute
securities depository or (ii) terminate the book-entry registration system and reregister the
Series 2005B Bonds in the names of the beneficial owners thereof provided to it by DTC.
Neither the City nor the Paying Agent shall have any liability to DTC, Cede & Co., any
substitute securities depository, any Person in whose name the Series 2005B Bonds are
reregistered at the direction of any substitute securities depository, any beneficial owner
of the Series 2005B Bonds or any other Person for (A) any determination made by the
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Paying Agent pursuant to the proviso at the ~nd of the immediately preceding sentence or
(B) any action taken to implement such determination and the procedures related thereto
that is taken pursuant to any direction of or in reliance on any information provided by
DTC, Cede & Co., any substitute securities depository or any Person in whose name the
Series 2005B Bonds are reregistered.
Section 4. Form of Series 2005B Bonds. The Series 2005B Bonds shall be in
substantially the form set forth in Appendix A hereto, with such changes thereto, not inconsistent
herewith, as may be necessary or desirable and approved by the officials of the City executing
the same (whose manual or facsimile signatures thereon shall constitute conclusive evidence of
such approval). Although attached as an appendix for the convenience of the reader, Appendix
A is an integral part of this Ordinance and is incorporated heroin as if set forth in full in the body
.of this Ordinance.
Section 5. Registration, Transfer and Exchange of Series 2005B Bonds. The Paying
Agent shall maintain registration books in which the ownership, transfer and exchange of Series
2005B Bonds shall be recorded. The Person in whose name any Series 2005B Bond shall be
registered on such registration books shall be deemed to be the absolute owner thereof for ali
purposes, whether or not payment on any Series 2005B Bond shall be overdue, and neither the
City nor the Paying Agent shall be affected by any not/ce or other information to the contrary.
The Series 2005B Bonds may be transferred or exchanged, at the principal office of the Paying
Agent in the city identified in the definition of Paying Agent in Section 1 hereof, for a like
aggregate principal amount of Series 2005B Bonds of other authorized denominations of the
same maturity and interest rate, upon payment by the transferee of a transfer fee, any tax or
governmental charge required to be paid with respect to such transfer or exchange and any cost
of printing bonds in connection therewith. Upon surrender for transfer of any Series 2005B
Bond, duly endorsed for transfer or accompanied by an assignment duly executed by the Owner
or his or her attorney duly authorized in writing, the City shall execute and the Paying Agent
shall authenticate and deliver in the name of the transferee a new Series 200.5B Bond.
Section 6. Replacement of Lost, Destroyed or Stolen Series 2005B Bonds. If any
Series 2005B Bond shall become lost, apparently destroyed, stolen or wrongfully taken, it may
be replaced in the form and tenor of the lost, destroyed, stolen or taken bond and the City shall
execute and the Paying Agent shall authenticate and deliver a replacement Series 2005B Bond
upon the Owner furnishing, to the satisfaction of the Paying Agent: (a) proof of ownership
(which shall be shown by the registration books of the Paying Agent), (b)proof of loss,
destruction or theft, (c) an indemnity to the City and the Paying Agent with respect to the Series
2005B Bond lost, destroyed or taken, and (d) payment of the cost ofpreparlng and executing the
new bond or bonds.
Section 7. Execution of Series 2005B Bonds. The Series 2005B Bonds shall be
executed in the name and on behalf of the City with the manual or facsimile signature of the
Mayor or Mayor Pro Tern of the City, shall bear a manual or facsimile of the seal of the City and
shall be attested by the manual or facsimile signature of the City Clerk or Deputy or Assistant
City Clerk, all of whom are hereby authorized and directed to prepare and execute the Series
2005B Bonds in accordance with the requ!rements hereof. Should any officer whose manual or
facsimile signature appears on the Series 2005B Bonds cease to be such officer before delivery
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of any Series 2005B Bond, such manual or facsimile signature shall nevertheless be valid and
sufficient for ail purposes. When the Series 2005B Bonds have been duly executed, the officers
of the City are authorized to, and shall, deliver the Series 2005B Bonds to the Paying Agent for
authentication. No Series 2005B Bond shall be secured by or entitled to the benefit of this
Ordinance, or shall be valid or obligatory for any purpose, unless the certificate of authentication
of the Paying Agent has been manually executed by an authorized signatory of the Paying Agent.
The executed certificate of authentication of the Paying Agent upon any Series 2005B Bond shall
be conclusive evidence, and the only competent evidence, that such Series 2005B Bond has been
properly authenticated and delivered hereunder.
Section 8. Redemption of Series 2005B Bonds Prior to Maturity.
(a) Optional Redemption. The Series 2005B Bonds shall be subject to
redemption, at the option of the City, in whole or in part, and if in part in such order of
maturities as the City shall determine and by lot within a maturity on such dates as set
forth in the Sale Certificate. The City Council hereby delegates to the Finance Director
the authority to determine the dates on which the Series 2005B Bonds shall be subject to
optional redemption and the redemption price or prices at which such redemption may be
made, provided, however, that such redemption price or prices shall not exceed I 01% of
the principal amount so redeemed.
(b) Mandatory Sinking Fund Redemption. The Series 2005B Bonds shall be
subject to mandatory sinking fund redemption by lot on November 1 of the years and in
the principal amounts specified inthe Sale Certificate, at a redemption price equal to the
principal amount to be redeemed (with no redemption premium), plus accrued interest to
the redemption date. The City Council hereby delegates to the Finance Director the
authority to determine the dates on which the Series 2005B Bonds shall be subject to
mandatory sinking fund redemption.
if the Sale Certificate designates mandatory sinking fund redemption dates for the
Series 2005B Bonds, the City, at its option, to be exemised on or before the forty-fifth
day next preceding each sinking fund redemption date, may (i) purchase and cancel any
Series 2005B Bonds with the same maturity date as the Series 2005B Bonds subject to
such sinking fund redemption and (ii)receive a credit in respect of its sinking fund
redemption obligation for any Series 2005B Bonds with the same maturity date as the
Series 2005B Bonds subject to such sinking fund redemption which prior to such date
have been redeemed (otherwise than through the operation of the sinking fund) and
cancelled and not theretofore applied as a credit against any sinking fund redemption
obligation. Each Series 2005B Bond so purchased and cancelled or previously redeemed
shall be credited at the principal amount thereof to the obligation of the city on such
sinking fund redemption date, and the principal amount of Series 2005B Bonds to be
redeemed by operation of such sinking fund on such date shall be accordingly reduced.
(c) Redemption Procedures. Notice of any redemption of Series 2005B
Bonds shall be given by sending a copy of such notice by first~class, postage prepaid
mail, not less than 30 days prior to the redemption date, to the Owner of each Series
2005B Bond being redeemed. Such notice shall specify the number or numbers of the
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Series 2005B Bonds so to be redeemed (if redemption shall be in part) and the
· redemption date. If any Series 2005B Bond shall have been duly called for redemption
and if, on or before the redemption date, the City shall have set aside funds sufficient to
pay the redemption price of such Series 2005B Bond on the redemption date, then such
Series 2005B Bond shall become due and payable at such redemption date, and from and
after such date interest will cease, to accrue thereon. Failure to deliver any redemption
notice or any defect in any redemption notice shall not affect the validity of the
proceeding for the redemption of Series 2005B Bonds with respect to which such failure
or defect did not occur. Any Series 2005B Bond redeemed prior to its maturity by prior
redemption or otherwise shall not be reissued and shall bo cancelled.
Section 9. Delivery of Series 2005B Bonds Upon Original Issuance. Prior to the
authentication and delivery by the Paying Agent of the Series 2005B Bonds in connection with
their original issuance there shall be filed with the Paying Agent (a) a certified copy of this
O/'dinance and (b) a request and authorization to the Paying Agent on behalf of the City and
signed by the Mayor or Mayor Pro Tem to authenticate the Series 2005B Bonds and to deliver
the Series 2005B Bonds to the Original Purchaser or the Persons designated therein, upon
payment to the City of a sum specified in such request and authorization plus accrued interest
thereon to the date of delivery..Upon the authentication of the Series 2005B Bonds, the Paying
Agent shall deliver the same to the Original Purchaser or its designee as directed in such request
and authorization.
Section 10. Creation and Reaffirmation of Funds and Accounts.
(a) There are hereby created by the City the following funds and accounts:
(i) the Series 2005B Rebate Fund, designated as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds, Series 2005B,
Rebate Fund;" and
(ii) the Series 2005B Reserve Fund, designated as the ',City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds, Series 2005B,
Reserve Fund."
(b) The following funds, originally created pursuant to Section 13 of the
Series 1999 Ordinance and renamed pursuant to Section 10(b) of the Series 2001
· Ordinance, are hereby reaffirmed as follows:
(i) the Bond Fund is hereby reaffirmed as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Bond Fund;" and
(ii) the Revenue Fund is hereby reaffirmed as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Revenue Fund."
Section 11. Application of Proceeds of Series 2005B Bonds. The proceeds received by
the City from the sale of the Series 2005B Bonds shall be applied in the manner set forth in the
Sale Certificate. The City Council hereby authorizes the Finance Director to make such
determinations as to the application of such proceeds in accordance with the provisions of this
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Ordinance. The City Council hereby authorizes the Finance Director to allocate such proceeds to
the purchase of the Series 2005B Surety Bond or to deposit proceeds in the Series 2005B
Reserve Fund, as determined by the Finance Director.
Section 12. Special Obligations; Pledge and Lien for Payment of Bo~ds.
(a) Series 2005B Bonds. The City hereby pledges the Pledged Revenues, the
Bond Fund, the Series 2005B Reserve Fund and the Revenue Fund for the payment of the
principal of, premium, if any, and interest on the Series 2005B Bonds at any time
Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive
such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2005B
Reserve Fund and the Revenue Fund. The lien of the Series 2005B Bonds on the Pledged
Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series
2001 Bonds, the Series 2005A Bonds, and any Additional Parity Bonds.
(b) Series 2001 Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2001 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2001 Bonds at
any time Outstanding, and pants an irrevocable and first lien (but not necessarily an
exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, th6
Series 2001 Reserve Fund and the Revenue Fund. The lien of the Series 2001 Bonds on
the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of
the Series 2005A Bonds, the Series 2005B Bonds, and any Additional Parity Bonds.
(c) Series 2005A Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2005A Reserve Fund and the Revenue Fund for.the
payment of the principal of, premium, if any, and interest on the Series 2005A Bonds at
any time Outstanding, and pants an irrevocable and first lien (but not necessarily an
exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the
Series 2005A Reserve Fund and the Revenue Fund. The lien of the Series 2005A Bonds
on the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien
of the Series 2001 Bonds, the Series 2005B Bonds, and any Additional Parity Bonds.
(d) Additional Parity Bonds. Subject to Section 13 hereof, the City also
hereby pledges the Pledged Revenues, the Bond Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on any Additional Parity Bonds
at any time Outstanding, and grants an irrevocable and first lien (but not necessarily an
exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund and the
Revenue Fund. The lien of any Additional Parity Bonds, if issued, on the Pledged
Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series
2001 Bonds, the Series 2005A Bonds, and the Series 2005B Bonds.
(e) Equally and Ratably Secured. The Bonds shall be equally and ratably
secured by the pledge of and lien on the Pledged Revenues, the Bond Fund and the
Revenue Fund granted by this Section and shall not be entitled to any priority one over
the other in the application of Pledged Revenues or the moneys on deposit at any time in
the Bond Fund and the Revenue Fund.
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(f) Superior Liens Prohibited. The City shall not pledge or create any o~her
lien on the revenues and moneys pledged pursuant to this Section that is superior to the
pledge thereof or lien thereon pursuant hereto.
(g) Subordinate Liens Permitted. Nothing herein shal! prohibit the City from
pledging or creating a lien on the revenues and moneys pledged and the lien created
pursuant to subsections (a), (b) and (~) of this Section that is subordinate to the pledge
thereof or lien thereon pursuant to such subsections, provided that no such subordinate
pledge or lien shall be created unless and until there is delivered to the Paying Agent a
written certification by the Mayor that no Event of Default has occurred and is
continuing.
(h) No Prohibition on Additional Security. Nothing herein shall prohibit the
City from (i) using, pledging or granting a lien on any revenues from the Parks and Open
Space Sales Tax that are not Pledged Revenues or any other moneys for the payment of
the principal of, premium, if any, or interest on the Bonds or (ii) depositing any revenues
from the Parks and Open Space Sales Tax that are not Pledged Revenues or any other
moneys into the Bond Fund or the Revenue Fund (and thereby subjecting the moneys so
deposited to the pledge made and lien granted by this Section).
(i) Bonds are Special, Limited Obligations of the City. The Bonds are
special, limited obligations of the City payable solely from and secured solely by the
Pledged Revenues and the other sources specified in this Ordinance and shall not be
deemed or construed as creating a debt or indebtedness of the City within the meaning Of
any constitutional or statutory limitation.
Section 13. Conditions to Issuance of Additional Parity Bonds. So long as any Bonds
may be Outstanding:
(a)' Limitations Upon Issuance of Additional Parity ~d'nds. Nothing in this
Ordinance shall be construed to prevent the issuance by the City of Additional Parity
Bonds (including refunding obligations) payable in whole or in part from the Pledged
Revenues (or any designated part thereof) and constituting a lien thereon on a parity with,
but not prior or superior to, the lien of the Series 2001 Bonds, the Series 2005A Bonds,
the Series 2005B Bonds, and any previously issued Additional Parity Bonds; provided,
however, that before any such Additional Parity Bonds are authorized or actually issued,
the following conditions shall be satisfied:
(i) The City is then current in all payments required to have been
accumulated in the Bond Fund, the Series 2005A Reserve Fund. the Series 2005B
Reserve Fund, the Series 2001 Reserve Fund and any reserve fund maintained
with respect to any then Outstanding series of Additional Parity Bonds, and there
is not otherwise an Event of De£ault as defined in Section 23 hereof.
(ii) The revenues derived from the entire Pledged Revenues for the
twelve consecutive calendar months immediately preceding the month of issuance
of such Additional Parity Bonds shall have been sufficient to pay an amotmt equal
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to 150% of the combined maximum annual principal and interest requirements (to
and including the final maturity of each then-Outstanding series of Bonds) on the
then-Outstanding Bonds and on the Additional Parity Bonds then proposed to be
issued (including any reserve requirements therefor).
(iii) The ordinance authorizing such Additional Parity Bonds shall
~-equire that a reserve fund for Additional Parity Bonds be created in an amount
equal to the Reserve Fund Requirement for such Additional Parity Bonds. The
City may, however, comply with the Reserve Fund Requirement through a
Reserve Fund Contract that meets the standards established in Section 16 hereof.
(b) Certificate of Revenues. A written certification by a certified public
accountant who is not a regular salaried employee of the City that such Pledged Revenues
are sufficient to pay the amounts required by paragraph (a)(ii) of this Section shall be
conclusively presumed to be accurate in determining the right of the City to authorize,
issue, sell and deliver Additional Parity Bonds.
(c) Subordinate Obligations Permitted. Nothing in this Ordinance shall be
construed to prevent' the issuance by the City of additional obligations (including
refunding obligations) payable from the Pledged Revenues (or any designated part
thereof) and having a lien thereon subordinate or junior to the lien of the Bonds.
(d) Superior Obligations Prohibited. Nothing in this Ordinance shall be
construed to permit the City to issue additional obligations (including refunding
obligations) payable from the Pledged Revenues (or any designated part thereof) having a
lien thereon prior and superior to the lien of the Bonds.
(e) Refunding Obligations. The provisiong of this Section are subject to the
following exception:
(i) Privilege of Issuing Refimding Obligations. If at any time after
any of the Bonds, or any part thereof, shall have been issued and remain
Outstanding, the City shall find it desirable to refund ail or any part of the
Outstanding Bonds, such Bonds, or any part thereof, may be refunded (but only
with the consent of the Owner or Owners thereof, unless such Bonds, at the time
of their required surrender for payment, shall then mature, or shall then be sUbject
to redemption prior to maturity).
(ii) Limitations Upon Issuance of Parity Refimding Obligations. No
refunding obligations payable from the Pledged Revenues (or any designated part
thereof) shall be issued on a parity with the Series 2001 Bonds, the Series 2005A
Bonds, and Series 2005B Bonds, unless:
(A) the lien on such Pledged Revenues of the outstanding
obligations so refunded is on a parity with the lien thereon of the Series
2001 Bonds, the Series 2005A Bonds, and the Series 2005B Bonds; or
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(B) the refunding obligations are issued in compliance with
subsection (a) of this Section.
(iii) ;Partial Refunding of Bonds. Any refunding obligations so issued
to refund any of the Bonds shall enjoy complete equality of lien with any Bonds
which are not refunded.
(iv) Limitations Upon Refundings. Any refunding obligations payable
from the Pledged Revenues may be issued with such details as the City may by
ordinance provide, but without any impairment of any contractual obligations
imposed upon the City by this Ordinance.
Section 14. Application of Pledged Revenues. So .Iong as any of the Bonds shall
remain Outstanding, all Pledged Revenues, as they are received, shall be transferred from the
Parks and Open Space Fund or any other funds or accounts to which they are required to be
deposited by the Section 23-32-060(c)(7) of the City's Municipal Code or otherwvise, and shall
thereupon be deposited into the Revenue Fund, and the Pledged Revenues are hereby
appropriated for such purpose. Moneys on deposit in the Revenue Fund shall be transferred from
the Revenue Fund and applied to the following p.urposes and in the following order of priority:
(a) FIRST, there shall be credited to the Bond Fund an amount necessary,
together with any moneys therein and available therefor, to pay the next due installment
of principal of, premium, if any, and interest on the Bonds;
(b) sECOND, there shall be credited, on a pro rata basis, to the Series 2005A
Reserve Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve Fund and any
reserve fund or funds created with respect to any series of Addkiunal Parity Bonds an
amount, if any, necessary to increase the amount on deposit in each of such funds to the
Reserve Fund Requirement for such fund or to repay the provider of a Reserve Fund
Contra~t for a drawing thereon. No payment need be made into any'such fund so long as
the moneys therein shall equal not less than the Reserve Fund Requirement for such fund
and no draw has been made on any Reserve Fund Contract deposited in such fund. The
Reserve Fund Requirement for each such fund shall be accumulated and maintained in
each such fund as a continuing reserve to be used, except as hereinafter provided, only to
prevent deficiencies in the payment of the principal of, premium, if any, and interest on
the applicable series of the Bonds.
(c) THIRD, there shall be credited to the Parks and Open Space Fund or,
subject to any limitation in the Charter, the Parks and Open Space Sales Tax Ordinances
and the City's Municipal Code, used in any lawful manner by the City, any amounts
remaining after making the deposits required by subsections (a) and (b) of this Section.
(d) Notwithstanding subsections (a) and (b) of this Section, no payment need
be made pursuant to subsection (a) or (b) of this Section into either the Bond Fund, the
Series 2005A Reserve Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve
Fund or any reserve fund created for a series of Additional Parity Bonds if the on deposit
in such funds total a sum at least equal to the entire amount of the Outstanding Bonds as
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to any principal, premium, if any, and interest requirements, to their respective maturities,
or to any redemption date on which the City shall have exercised its option to redeem all
or a portion of the Bonds then Outstanding and thereafter maturing, and bath accrued and
not accrued, in which case moneys in such funds in an amount at least equal to such
principal, premium, if any, and interest requirements shall be used solely to pay such as
the same accrue, and any moneys in excess thereof in such funds may, subject to any
limitations in the Parks and Open Space Sales Tax Ordinances or the City's Municipal
Code, be used in any la~vful manner by the City.
Section 15. Bond Fund. Moneys in the Bond Fufid shall be used solely for the purpose
of paying the principal of, premium, if any, and interest on the Bonds.
Section 16. Series 2005B Reserve Fund.
(a) Use of Money~ in Series 2005B Reserve Fund. If on any date specified
in Section 18 hereof, the City shall have for any reason failed to pay to the Paying Agent
the full amount required to pay the next installment of principal of or interest on the
Series 2005B Bonds, then an amount equal to the amount needed to bring the amount in
the Bond Fund to the full amount so required shall be immediately paid, pro rata, to the
Paying Agent from: (i) the Series 2005B Reserve Fund with respect to the portion of the
deficiency corresponding to the amounts due on the Series 2005B Bonds; (ii) the Series
2005A Reserve Fund with respect to the portion of the deficiency corresponding to the
amounts due on the Series 2005A Bonds; (iii) the Series 2001 Reserve Fund with respect
to the portion of the deficiency corresponding to the amounts due on the Series 2001
Bonds; and (iv) any reserve fund or funds created with respect to any series of Additional
Parity Bonds with respect to the portion of the deficiency corresponding to the amounts
due on such series of Additional Parity Bonds. The money so used shall be replaced in
the Series 2005A Reserve Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve
Fund and any such other reserve fund or funds on a pro rata basis from the first Pledged
Revenues thereafter received not required to be otherwise applied hereunder, but
excluding any payments required for any subordinate obligations. If in any period the
City shall for any reason faiI to pay into the Series 2005A Reserve Fund, the Series
2005B Reserve Fund, the Series 2001 Reserve fund or any such other reserve fund or
funds the full amount above stipulated from the Pledged Revenues, the difference
· between the amount paid and the amount so stipulated shall in a like manner be deposited
therein from the first Pledged Revenues thereafter received not required to be applied
otherwise by this Section, but excluding any payments required for any subordinate
obligations. Moneys in the Series 2005A Reserve Fund, the Series 2005B Reserve Fund,
the Series 2001 Reserve Fund and any such other reserve fund shall be used solely for the
purpose of paying the principal of, premium, if any, and interest on the series of Bonds
with respect to which such fund is maintained.
(b) Use of Moneys in Excess Of Reserve Fund Requirement Any moneys at
any time in excess of the Reserve Fund Requirement in the Series 2005A Reserve Fund,
the Series 2005B Reserve Fund, the Series 2001 Reserve Fund or any reserve fund or
funds maintained with respect to any series of Additional Parity Bonds may be
withdrawn therefrom and, subject to any limitation in the Charter, the Parks and Open
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Space Sales Tax Ordinances and the City's Municipal Code, used in any lawful manner
by the City.
(c) Reserve Fund Contract.
(i) The City may substitute for the cash or permitted Investments in
any Reserve Fund a surety bond issued by an insurance company rated in the
highest rating category by S&P and Moody's (a "Reserve Fund Contract"), so
long as the amount on deposit in any Reserve Fund after such substitution is at
least equal to the Reserve Fund Requirement applicable to such Reserve Fund. In
the event the'City shalI substitute a Reserve Fund Contract for the cash or
Permitted Investments in any Reserve Fund, the amount on deposit in any
Reserve Fund shall be that amount available to be drawn or otherwise paid
pursuant to such surety bond at the time of calculation, lfany Reserve Fund shall
include both cash or Permitted Investments and a Reserve Fund Contract, the cash
and Permitted Investments shall be used before any~ demand is made on any
Reserve Fund Contract. Notwithstanding the foregoing, prior to such substitution,
(A) the City must receive an opinion of nationally recognized municipal bond
counsel to the effect that such substitution and the intended use by the City of the
cash or Permitted Investments to be released from any Reserve Fund will not
adversely affect the exclusion from gross income for federal income tax purposes
of interest on the Bonds to which such Reserve Fund applies and (B) other than
the Series 2005B Surety Bond provided by the Bond Insurer, the prior written
consent of the Bond Insurer shall be a condition precedent to the deposit of any
Reserve Fund Contract or Permitted Investments in lieu of a cash deposit into the
Series 2005B Reserve Fund.
(ii) The Series 2005B Surety Bond is hereby recognized to be a
Reserve Fund Contract described in paragraph (i) of this s.ubsection (c). Upon
issuance thereof by the Bond Insurer, the Series 2005B Surety Bond shall be
deposited in the Series 2005B Reserve Fund and shall be used in the manner
described in paragraph (i) of this subsection (c).
(d) Valuation of Deposits. Cash shall satisfy the Reserve Fund Requirement
for the Series 2005B Reserve Fund by the amount of cash on deposit. Permitted
Investments shall satisfy the Reserve Fund Requirement by the value of such
investments. The value of each Permitted Investment on deposit in the Series 2005A
Reserve Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve Fund and any
reserve fund or funds created with respect to any series of Additional Parity Bonds shall
be (i) its purchase price from the date of purchase until the first date thereafter on which
the Reserve Fund Requirement is calculated pursuant to subsection (e) of this Section and
(ii) following each date on which the Reserve Fund Requirement is calculated pursuant to
subsection (e) of this Section until the next date on which the Reserve Fund Requirement
is so calculated, its fair market value determined as of such calculation date. A Reserve
Fund Contract shall satisfy the Reserve Fund Requirement by the amount payable to the
City pursuant to such contract.
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(e) Calculation of Reserve Fund Requirement and Transfers Resulting
from Calculation. The Reserve Fund Requirement for each of the Series 2005A Reserve
Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve Fund and any reserve
fund or funds created with respect to any series of Additional Parity Bonds shall be
calculated as of (i) the date of issuance of the Series 2005B Bonds, (ii) the date of
issuance of each series of Additional Parity Bonds and (iii)each November 1,
commencing November 1, 2005. If, on any calculation date, the amount on deposit in
any of such funds is less than the Reserve Fund Requirement for such fund, Pledged
Revenues shall be deposited into such fund as provided in Section 14 hereof to the extent
necessary to satisfy the Reserve Fund Requirement in cash or by the purchase of
Permitted Investments or a Reserve Fund Contract.
Section 17. Rebate Fund. The City shall deposit eamings from the investment of
pro.ceeds of the Series 2005B Bonds, earnings from the investment of moneys on deposit in the
Bond Fund, the Series 2005B Reserve Fund and the Revenue Fund or other legally available
moneys in the Rebate Fund in the amounts and at the times provided in the Letter of Instructions.
Earnings from the investment of moneys on deposit in the Rebate Fund shall be retained in the
Rebate Fund. Moneys on deposit in the Rebate Fund shall be used as provided in the Letter of
Instructions.
Section 18. Payments to and by Paying Agent.
(a) Payments to Paying Agent. No later than the Business Day immediately
preceding each Interest Payment Date, the City shall deliver moneys to the Paying Agent
in an amount sufficient to pay the principal of, premium, if any, and interest on the Bonds
on such date from the ~ources and in the priority order set forth below:
First, from moneys on deposit in the Bond Fund; and
Second, if and to the extent the moneys on depc~sit in the Bond Fund are
not sufficient to pay the principal of, premium, if any, or interest due on the
· Bonds on such date, from the Series 2005A Reserve Fund, the Series 2005B
Reserve Fund, the Series 2001 Reserve Fund and any reserve fund maintained
with respect to any series of Additional Parity Bonds, on a pro rata basis, pursuant
to Section 16 hereof.
Or) Payments by Paying Agent. The Paying Agent shall use the moneys
delivered to it pursuant to subsection (a) of this Section to pay the principal of, premium,
if any, and interest on the Bonds when due.
Section 19. General Administration of Funds. The funds and accounts established
pursuant to this Ordinance, with the exception of the Rebate Fund, shall be administered as
follows, subject to the limitations stated in Sections 16 and 21 of this Ordinance:
(a) Investment of Money. Any moneys in any such fund and account may be
invested in Permitted Investments. The obligations in which moneys in each fund or
account are invested shall be deemed at all times to be part of the respective fund or
account, and any appreciation or loss resulting therefrom shall be recorded to such fund
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or account. Interest accruing on the investment of any moneys in the Series 2005B
Reserve Fund shall be deposited as received into the Revenue Fund, and interest accruing
on the investment of any moneys in any other such fund or account shall be ci'edited to
the fund or account from which it is derived. The Finance Director shall present for
redemption or sale in the prevailing market any obligations so purchased as an
investment of moneys in the fund or account whenever it shall be necessary to do so in
order to provide moneys to meet any payment or transfer from said fund or account.
(b) Deposits of Funds. The moneys and investments comprising each of such
funds and accounts shall be deposited in one or more banks or savings and loans
associations, each' of which is a member of the Federal Deposit Insurance Corporation.
Each payment shall be made into and credited to the proper fund or account on the date
specified, but if such date shall be other than a Business Day, such payment shall be
made on the next preceding Business Day. Nothing herein shall prevent the
establishment of one or more such bank accounts, for all of such funds and accounts, or
shall prevent the combination of such funds and accounts with any other bank account or
accounts for other accounts of the City.
Section 20. Additional General Covenants. In addition to the other covenants of the
City contained herein, the City hereby further covenants for the benefit of Owners of the Series
2005B Bonds that:
(a) Payment of Series 2005B Bonds. The City will promptly pay or cause to
be paid the principal of, premium, if any, and interest on the Series.2005B Bonds, at the
place, on the dates and in the manner provided in this Ordinance, according to the tree
intent and meaning of this Ordinance.
(b) No Repeal or Modi. fication of Parks and Open Space Sales Tax
Ordinances or Applicable Sections of City's Municipal Code. The. City shall not repeal
the Parks and Open Space Sales Tax Ordinances or adopt any modification of such
ordinances or any provisions of the City's Municipal Code which would impair the
Pledged Revenues.
(c) Du~y to Impose Open Space Sales Tax. If the Parks and Open Space
Sales Tax Ordinances, the provisions of the City's Municipal Code referred to in
subsection (b) of this Section or any modifying or supplemental instrument thereto not
contravening the limitations of subsection (b) of this Section, or any part of such
ordinances or such portions of the City's Municipal Code, shall ever be held to be invalid
or unenforceable or shaI1 otherwise be terminated, it shall be the duty of the City, to the
extent possible under then existing law, to adopt immediately such ordinances, to seek
such voter approval, if any, as may then be required by law, or to take any other action
necessary to produce at least the same amount of Pledged Revenues as would have
otherwise been produced under the terms of such ordinances and such portions of the
City's Municipal Code.
(d) Impairment of Contract. The. City agrees that any law, ordinance or
resolution of the City in any manner affecting the Pledged Revenues or the Series 2005B
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Bonds, shall not be repealed or otherwise directly or indirectly modified in such a manner
as to impair any Series 2005B Bonds Outstanding, unless in the case of this Ordinance
the required consent of the Owners of the then Outstanding Series 2005B Bonds is
obtained pursuant to Section 25 of this Ordinance.
(e) Records. So long as any of the Series 2005B Bonds remain Outstanding,
proper books of record and account will be kept by the City, separate and apart from all
other records and accounts, showing complete and correct entries of all transactions
relating to the Pledged Revenues. The Owners of any Bonds shall have the right at any
reasonable time to inspect such records and accounts.
(f) Audits. The City further agrees that it will, within 120 days following the
close of each fiscal year, cause an audit of such books and accounts to be made by an
indei>endent certified public accountant, showing the revenues and expenditures of the
Pledged Revenues. The City agrees to furnish forthwith a copy of each such audit to the
Owner of any Bond at his request, and without request to the Original Purchaser. Any
such Owner shall have the right to discuss with the accountant or person making the audit
its contents and to ask for such additional information as he may reasonably require.
(g) Extending Interest Payments. In order to prevent any accumulation of
claims for interest after maturity, the City will not directly or indirectly extend or assent
to the extension of time for the payment of any claim for interest on any of the Series
2005B Bonds and it will not directly or indirectly be a party to or approve any such
arrangement; and in case the time for payment of any interest shall b~ extended, such
installment or installments of interest after such extension or arrangement shall not be
entitled in case of default hereunder to the benefit or security of this Ordinance except
subject to the prior payment in full of the principal of all Series 2005B Bonds then
Outstanding, and of matured interest on such Series 2005B Bonds, the payment of which
has not been extended ....
(h) Performing Duties. The City will faithfully and punctually perform all
duties with respect to the Pledged Revenues required by the Charter and the Constitution
and laws of the State of Colorado, and the ordinances and resolutions of the City,
including but not limited to, the proper segregation of the Pledged Revenues and their
application to the respective funds.
(i) Other Liens. Other than that granted for the Bonds herein, there are
presently no other liens or encumbrances of any nature whatsoever on or against the
Pledged Revenues.
O) City's Existence. The City will maintain its corporate identity and
existence so long as any of the Series 2005 Bonds remain Outstanding, unless another
body corporate and politic by operation of law succeeds to the duties, privileges, powers,
liabilities, disabilities, immunities and rights of the City and is obligated by law to receive
and distribute the Pledged Revenues in place of the City, without affecting to any
substantiaI 'degree the privileges and rights of any Owner of any Outstanding Series
2005B Bond.
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Section 21. Covenants Regarding Exclusion of Interest on Series 2005B Bonds from
Gross Income for Federal Income Tax Purposes. For purposes of ensuring that the interest on
the Series 2005B Bonds is and remains excluded from gross income for federal income tax
purposes, the City hereby covenants that:
(a) Prohibited Actions. The City will not use or permit the use of any
proceeds of the Series 2005B Bonds or any other funds of the City from whatever source
derived, directly or indirectly, to acquire any securities or obligations and shall not take
or permit to be taken any other action or actions, which would cause any Series 2005B
Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code, or would
otherwise cause the interest on any Series 2005B Bond to be includible in gross income
for federal income tax purposes.
(b) Affirmative Actions. The City will at all times do and perform all acts
permitted by law that are necessary in order to assure that interest paid by the City on the
Series 2005B Bonds shall not~ be includible in gross income for federal income tax
purposes under the Code or any other valid provision of law. In particular, but without
limitation, the City represents, warrants and covenants to comply with the following rules
unless it receives an opinion of Bond Counsel stating that such compliance is not
necessary: (i) gross proceeds of the Series 2005B Bonds will not be used in a manner that
will cause the Series 2005B Bonds to be considered "private activity bonds" within the
meaning of the Code; (ii) the Series 2005B Bonds are not and will not become directly or
indirectly '"federally guaranteed"; and (iii)the City will timely file Internal Revenue
Form 8038-G which shall contain the information required to be filed pursuant to
Section 149(e) of the Code.
(c) Letter of Instructions. The City will comply with the Letter of
Instructions, including but not limited by the provisions of the Letter of Instructlons
regarding the application and investment of Series 2005B- Bond proceeds, the
calculations, the deposits, the disbursements, the investments and th~ retention of records
described in the Letter of Instructions; provided that, in the event the original Letter of
Instructions is superseded or amended by a new Letter of Instructions drafted by, and
accompanied by an opinion of, Bond Counsel stating that the use of the new Letter of
Instructions wilI not cause the interest on the Series 2005B Bonds to become includible in
gross income for federal income tax purposes, the City will thereafter comply with the
new Letter of Instructions.
Section 22~ Defeasance. Any Series 2005B Bond shall not be deemed to be Outstanding
hereunder if it shall have been paid and cancelled or if cash or Defeasance Securities shall have
been deposited in trust for the payment thereof (whether upon or prior to the maturity of such
Series 2005B Bond, but if such Series 2005B Bond is to be paid prior to maturity, the City shall
have given the Paying Agent irrevocable directions to give notice of redemption as required by
this Ordinance, or such notice shall have been given in accordance with this Ordinance). In
computing the amount of the deposit described above, the City may include interest to be earned
on the Defeasance Securities. If less than all the Series 2005B Bonds are to be defeased pursuant
to this Section, the City, in its sole discretion, may select which of the Series 2005B Bonds shall
be defeased.
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Notwithstanding anything in this Bond Ordinance to the contrary, in the event that the
principal and/or interest due on the Series 2005B Bonds shall be paid by the Bond Insurer
pursuant to the Bond Insurance Policy, the Series 2005B Bonds shall remain Outstanding for ali
purposes, not be defeased or otherwise satisfied and not be considered paid by the City, and the
assignment and pledge of the Pledged Revenues and all covenants, agreements and other
obligations of the City to the Owners shall continue to exist and shall run to the benefit of the
Bond Insurer, and the Bond Insurer shall be subrogated to the rights of such Owners.
Section 23. Events of Default. If any of ~e following events occurs, it is hereby
declared to constitute an Event of Default:
(a) default in the due and punctual payment of the principal of, premium, if
any, or interest on any Bond whether at maturity thereof, or upon proceedings for
redemption thereof; or
Co) the City is for any reason rendered incapable of fulfilling its obligations
hereunder; or
(c) default in the due and punctual performance of the City's covenants or
conditions, a~eements and provisions as set forth in this Ordinance, other than those
delineated in paragraphs (a) and (b) of this Section, and such default has continued for 30
days after written notice specifying the default and requiring the same to be remedied has
· been given to the City by the Owners of 25% in principal amount of the Series 2005B
Bonds then Outstanding, which cure period shall not be extended for more than 60 days,
cumulatively, without the prior written consent of the Bond Insurer; or
(d) the City shall file a petition for bankruptcy or shall be declared insolvent
by a court of competent jurisdiction.
Section 24. Remedies for and Duties Upon Evanis ofDefaultJ"
(a) Remedies for Events of Default. Upon the happening and continuance of
any of the Events of Default as provided in Section 23 of this Ordinance, then and in
every case, the O~vner or Owners of not less than 25% in principal amount of the Series
2005B Bonds then Outstanding, including but not limited to, a trustee or trustees therefor,
may proceed against the City and its agents, officers and employees, to protect and
enforce the rights of any Owner of Bonds under this Ordinance by mandamus or other
suit, action or special proceedings in equity or at law, in any court of competent
jurisdiction, either for the specific performance of any covenant or agreement contained
herein or in an award of execution of any power herein granted for the enforcement of
any proper legal or equitable remedy as such Owner or Owners may deem most effectual
to protect and enforce the rights aforesaid, or thereby to enjoin any act or thing which
may be unlawful or in violation of any right 6f any Owner, or to require the governing
body to act as if it were the trustee of an express trust, or any combination of such
remedies. All such proceedings at law or in equity.shall be instituted, had and maintained
for the equal benefit of all Owners of the Series 2005B Bonds then Outstanding. The
failure of any such Owner so to proceed shall not relieve the City or any of its officers,
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agents or employees of any liability for failure to perform any duty. Each right or
privilege of any such Owner (or trustee thereof) is in addition and cumulative to any
other right or privilege, and the exercise of any right or privilege by or on behalf of any
Owner shall not be deemed a waiver of any other right or privilege thereof.
(b) Duties Upon Events of Default. Upon the happening of any of the Events
of Default as provided in Section 23 of this Ordinance, the City will do and perform all
proper acts on behalf of and for the Owners of the Series 2005B Bonds to protect and
preserve the security created for the payment of their Series 2005B Bonds and to insure
the payment of the principal of, premium, if any, and interest on Series 2005B Bonds
promptly as the same become due. All proceeds derived from the Pledged Revenues,
during such period of default and so long as any of the Series 2005B Bonds, as to any
principal, premium, if any, and interest are Outstanding and unpaid, shall be paid into the
Bond Fund, and used for the purposes herein provided. In the event the City fails or
refuses to proceed as provided in this Section, the Owner or Owners of not less than 25%
in principal amount of the Series 2005B Bonds then Outstanding, after demand in
writing, may proceed to protect and enforce the righB of the Owners as herein provided.
(c) Bond Insurer Third Party Beneficiary; Right to Control Remedies. To
the extent that this Ordinance confers upon or gives or grants to the Owners any right,
remedy or claim under or by mason of this Ordinance, the Bond Insurer is hereby
explicitly recognized as being a third party beneficiary hereunder and may enforce any
such right, remedy or claim conferred, given or granted he~'eunder. Upon the occurrence
and continuance of an Event of Default, so long as it is not in default of its obligations
under the Bond Insurance Policy, the Bond Insurer shali be entitled to control and direct
the enforcement of all rights and remedies granted to the Owners under this Ordinance
and pursuant to State law.
(d) Acceleration Not a Remedy. Acceleration shall not b.e a remedy upon the
occurrence and continuance of an Event of Default hereunder.
Section 25. Amendment of Ordinance.
(a) Consent of Owners. This Ordinance may be amended or supplemented by
ordinance adopted by the City Council in accordance with law, without receipt by the
City of additional considerations and without the consent of the Owners, to make any
amendment or supplement to this Ordinance which, in the opinion of Bond Counsel, is
not to the material prejudice of the Owners. This Ordinance may be amended or
supplemented by ordinance adopted by the City Council in accordance with law, without
receipt by the City of any additional consideration, but with the written consent of the
Owners of 66-2/3% of the Series 2005B Bonds Outstanding at the time of the adoption of
the amendatory ordinance, excluding any Bonds held for the account of the City;
provided, however, that no such ordinance, without the consent of the Owners of ail
Outstanding Bonds which will be adversely affected, shall have the effect of permitting:
(i) an extension of the maturity of any Bond; or
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(ii) a reduction in the principal amount of any Bond, the rate of interest
thereon, or the premium payable thereon; or
(iii) the creation of a lien upon or pledge of Pledged Revenues ranking
prior to the lien or pledge of Pledged Revenues created by this Ordinance; or
(iv) a reduction of the principal amount of Bonds required for consent
to such amendatory or supplemental ordinance; or
(v) the establishment of priorities as between Bonds issued and
Outstanding under the provisions of this Ordinance; or
(vi) the modification of or otherwise affecting the rights of the Owners
of less than all of any series of Bonds then Outstanding.
Co) Consent of the Bond Insurer in Addition to Consent of Owners. The
Bond. Insurer's consent shall be required in addition to the consent of Owners, when
required, for the following purposes: (i) execution and delivery of any supplemental
Ordinance or any amendment, supplement or change to or modification of the Ordinance;
(ii) removal of the Paying Agent and selection and appointment of a successor; and (iii)
initiation or approval of any action not described in (a) above which requires the consent
of Owners.
Section 26. Appointment and Duties of Paying Agent.
(a) Thc Paying Agent identified in Section 1 hereof is hereby appointed as
paying agent, registrar and authenticating agent for the Series 2005B Bonds unless and
until the City or the Bond Insurer removes it as such and appoints a successor Paying
Agent, in which event such successor shall, subject to subsection (b) of this Section,
automatically succeed to the duties of the Paying Agent herm/fi~ler and its predecessor
shall immediately mm over all its records regarding the Series 2005B Bonds to such
successor. The Paying Agent, by accepting its duties as such, agrees to perform all duties
and to take all actions assigned to it hereunder in accordance with the terms hereof.
(b) Any successor Paying Agent appointed as such pursuant to subsection (a)
of this Section must: (i) be a trust company or bank in good standing located in or
incorporated under the laws of the State; (ii) be duly authorized to exercise trust powers
and subject to examination by federal or State authority; (iii) have a capital and surplus at
the time of such appointment of not less than $75,000,000; and (iv) be acceptable to the
Bond Insurer.
.(c) Notwithstanding any other provision of this Ordinance, no removal,
resignation or termination of the Paying Agent shall take effect until a successor,
acceptable to the Bond Insurer~ shall be appointed.
Section 27. Authorization of the Bond In.surance Policy. Financial Security
Assurance Inc. has submitted a bid to issue the Bond Insurance Policy. In the event that the
Finance Director determines, based in part upon information provided by the Underwriter, that
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the premium bid for issuance of the Bond Insurance Policy is less then the interest cost savings
to be realized by the City as a result of the issuance of the Bond Insurance Policy, the City
Council hereby delegates to the Finance Director the authority to execute the Commitment with
the lowest bidder. The officers of the City are also hereby authorized and directed to take ali
actions necessary to cause the Bond Insurer to issue the Bond Insurance Policy in accordance
with the Commitment, including without limitation, payment of the premium due in connection
there~vith and entering into any attthorizing agreement. The execution of the Commitment by the
Finance Director or appropriate officer of the City is hereby ratified and approved.
Section 28. Bond Insurance Provisions.
(a) Covenant Default Grace Period Limitation. No grace period for a covenant
default hereunder shall exceed 30 days or be extended for more than 60 days, without the prior
written consent of the Bond Insurer. No grace period shall be permitted for payment de£aults.
(b) Bond Insurer Sole Holder. The Bond Insurer shall be deemed to be' the sole
holder of the Series 2005B Bonds for the purpose of exercising any voting right or privilege or
giving any consent or direction or taking any other action that the Owners are entitled to take
pursuant to the provisions of this Ordinance pertaining to (i) defaults and remedies and (ii) the
duties and obligations of the Paying Agent. Remedies granted to the Owners expressly include
mandamus pursuant to Section 24(a) of this Ordinance.
(c) Bond Insurer Third Party Beneficiary. To the extent that this Ordinance confers
upon or gives or grants ~o the Owners any right, remedy or claim under or by reason of this
Ordinance, the Bond Insurer is hereby explicitly recognized as being a third party beneficiary
hereunder and may enforce any such right, remedy or claim conferred, given or granted
hereunder. Upon the occurrence and continuance of an Event of Default, so long as it is not in
default of its obligations under the Bond Insurance Policy, the Bond Insurer shall be entitled to
control and direct the enforcement of all ri~ats and remedies granted to. the Owners under this
Ordinance and pursuant to State law.
(d) Amendments Require Bond Insurer Consent. Any amendment, supplement,
modification to, or waiver of, this Ordinance or any other transaction document including any
underlying security agreement (each a "Related Document"), that requires the consent of the
Owners or adversely affects the rights and interests of the Bond Insurer shall be subject to the
prior written consent of the Bond Insurer.
(e) Use of Unexpended Bond Prqceeds Upon Event of Default. -Unless the Bond
Insurer otherwise directs, upon the occurrence and continuance of an Event of Default or an
event which with notice or lapse of time would constitute an Event of Default, amounts
representing proceeds of the Bonds then on deposit in the City!s Parks and Open Space Fund
shall be applied solely to the'payment of debt service or redemption price of the Series 2005B
Bonds.
(f) Related Documents. Any amendment, supplement, modification to, or waiver of,
this Ordinance or any other transaction document including any underlying security agreement
(each a "Related Document"), that requires the consent of the Owners or adversely affects the
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rights and interests of the Bond Insurer shall be subject to the prior written consent of the Bond
Insurer.
(g) Exercise of Contractual Rights. The rights granted to the Bond Insurer under
this Ordinance or any other Related Document to request, consent to or direct any action are
rights granted to the Bond Insurer in consideration of its issuance of the Bond Insurance Policy.
Any exercise by the Bond Insurer of such rights is merely an exercise of the Bond Insurer's
contraciual rights and shall not be construed or deemed to be taken for the benefit, oron behalf,
of the Owners and such action does not evidence any position of the Bond Insurer, affirmative or
negative, as to whether the consent of the Owners or any other person is required in addition to
the consent of the Bond Insurer.
(h) Defeasance. Only (I) cash, (2) non callable direct Obligations of the United
States of America ("Treasuries"), (3) evidences of ownership of proportionate interests in ~uture
interest and principal payments on Treasuries held by a bank or trust company as custodian,
under which the owner of the investment is the real party in interest and has the right to proceed
directly and individually against the obligor and the underlying Treasuries are not available to
any person claiming through the custodian or to whom the custodian may be obligated, (4)
subject to the prior written consent of the Bond Insurer, pre-refunded municipal obligations rated
"AAA" and "Aaa" by S&P and Moody's, respectively, or (5) subject to the prior written consent
· of the Bond Insurer, securities eligible for "AAA" defeasance unde[ then existing criteria of S &
P or any combination thereof, shall be used to effect defeasance of the Series 2005B Bonds
unless the Bond Insurer otherwise approves.
(i) To accomplish defeasance, the City shall cause to be delivered (i) a
report of an independent firm of nationally recognized certified public
accountants or such other accountant as shall be acceptable to the Bond Insurer
("Accountant") verifying the sufficiency of the escrow established to pay the
Series 2005B Bonds in full on the maturity or redemption date ("Verification"),
(ii) an Escrow Deposit Agreement (which shall be acceptable in form and
substance to the Bond Insurer), (iii) an opinion of nationally recognized bond
counsel to the effect that the Series 2005B Bonds are no longer "Outstanding"
under this Ordinance and (iv) a certificate of discharge of the Paying Agent with
respect to the Series 2005B Bonds; each Verification and defeasance opinion shall
be acceptable in form and substance, and addressed, to the City, Paying Agent and
Bond Insurer. The Bond Insurer shall be provided with final &aris of the above
referenced documentation not less than five business days prior to the funding of
the escrow.
(ii) Bonds shall be deemed "Outstanding" under this Ordinance unless
and until they are in fact paid and retired or the above criteria are met.
(iii) Amounts paid by the Bond Insurer under the Bond Insurance
Policy shall not be deemed paid for purposes of this Ordinance and the Series
2005B Bonds relating to such payments shall remain Outstanding and continue to
be due and owing until paid by the City in accordance with this Ordinance. This
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(i)
Ordinance shall not be discharged unless all amounts due or to become due to the
Bond Insurer have been paid in full or duly provided for.
Claims Upon the Bond Insurance Policy and Payments by and to the Bond
(i) If, on the third Business Day p~ior to the related scheduled interest
payment date o[ principal payment date (each, a "Payn~ent Date") there is not on
deposit with the Paying Agent, aiSer making all transfers and deposits required
under this Ordinance, moneys sufficient to pay the principal of and interest on the
Series 2005B Bonds due on such Payment Date, the Paying Agent shall give
notice to the Bond Insurer and to its designated agent (if any) (the "Bond Insurer's
Fiscal Agent") by telephone or telecopy of the amount of such deficiency by
12:00 noon, New York City time, on such Business Day. If, on .the second
Business Day prior to the related Payment Date, there continues to be a deficiency
in the amount available to pay the principal of and interest on the Series 2005B
Bonds due on such Payment Date, the Paying Agent shall make a claim under the
Bond Insurance Policy and give notice to the Bond Insurer and the Bond Insurer's
Fiscal Agent (if any) by telephone of the amount of such deficiency, and the
allocation of such deficiency between the amount required to pay interest on the
Series 2005B Bonds and the amount required to pay principal of the Series 2005B
Bonds, confirmed in writing to the Bond Insurer and the Bond Insurer's Fiscal
Agent by 12:00 noon, New York City time, on such second Business Day by
filling in the form of Notice of Claim and Certificate delivered with the Bond
insurance Policy.
(ii) The Paying Agent shall designate any portion of pa?ment of
principal on Series 2005B Bonds paid by the Bond Insurer, whether by virtue of
mandatory sinking fund redemption, maturity or other ad.va:ncement of maturity,
on its books as a reduction in the principal amount of Bonds registered to the then
current Owner, whether DTC or its nominee or otherwise, and shall issue a
replacement Series 2005B Bond to the Bond Insurer, registered in the name of
Financial Security Assurance Inc., in a principal amount equal to the amount of
principal so paid (without regard to authorized denominations); provided that the
Paying Agent's failure to so designate any payment or issue any replacement
Series 2005B Bond shall have no effect on the amount of principal or interest
payable by the City on any Series 2005B Bond or the subrogation rights of the
Bond insurer.
(iii) The Paying Agent shall keep a complete and accurate record of all
funds deposited by the Bond Insurer into the Policy Payments Account (defined
below) and the allocation of such funds to payment of interest on and principal of
any Series 2005B Bond. The Bond Insurer shall have the fight to inspect such
records at reasonable times upon reasonable notice to the Paying Agent.
(iv) Upon payment of a claim under the Bond Insurance Policy, the
Paying Agent shall establish a separate special purpose trust account for the
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benefit of the Owners referred to herein as the "Policy Payments Account" and
over which the Paying Agent shalI have exclusive control and sole right of
withdrawal. The Paying Agent shail receive any amount paid under the Bond
Insurance Policy in trust on behalf of the Owners and shall deposit any such
amount in the Policy Payments Account and distribute such amount only for
purposes of making the payments for which a claim was made. Such amounts
shall be disbursed by the Paying Agent to the Owners in the same manner as
principal and interest payments are to be made with respect to the Series 2005B
Bonds under the sections hereof regarding payment of the Series 2005B Bonds. It
shall not be necessary for such payments to be made by checks or wire transfers
separate from the check or wire transfer used to pay debt service with other funds
available to make such payments. Notwithstanding anything herein to the
Contrary, the City agrees to pay to the Bond Insurer (i) a sum equal to the total of
all amounts paid by the Bond Insurer under the Bond Insurance Policy (the "Bond
Insurer Advances"); and (ii) interest on such Bond Insurer Advances from the
date paid by the Bond Insurer until payment thereof in full, payable to the Bond
Insurer at the Late Payment Rate per annum. "Late Payment Rate" means the
lesser of (a) the greater of (i) the per annum rate of interest, publicly announced
from time to time by JPMorgan Chase Bank at its principal office in the City of
New York, as its prime or base lending rate (any change in such'rate of interest to
be effective on the date such change is announced by JPMorgan Chase Bank) plus
3%, and (ii) the then applicable highest rate of interest on the Series 2005B Bonds
and Co) the maximum rate permissible under applicable usury or similar laws
· limiting interest rates. The Late Payment Rate shall be computed on the basis of
the actual number of days elapsed over a year of 360 days.
(v) Funds held in the Policy Payments Account shall not be invested
by the Paying Agent and may not be applied to satisfy any costs, expenses or
liabilities of the Paying Agent. Any funds remaining-in the Policy Payments
Account following a Bond payment date shall promptly be remitted to the Bond
Insurer.
(vi) The Bond Insurer shall, to the extent it makes any payment Of
principal of or interest on the Series 2005B Bonds, become subrogated to the
rights of the recipients of such payments in accordance with the terms of the Bond
Insurance Policy. Each obligation of the City to the Bond Insurer under the
Related Documents shall survive discharge or termination of such Related
Documents.
(vii) The City shall pay or reimburse the Bond Insurer any and all
charges, fees, costs and expenses that the Bond Insurer may reasonably pay or
incur in connection with (i) the administration, enfomement, defense or
preservation of any rights or security in any Related Document; (ii) the pursuit of
any remedies under this Ordinance or any other Related Document or otherwise
afforded by law or equity, (iii) any amendment, waiver or other action with
respect to, or related to, this Ordinance or any other Related Document whether or
not executed or completed, or (iv) any litigation or other dispute in connection
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with this Ordinance or any other Related Document or the transactions
contemplated thereby, other than costs resulting from the failure of the Bond
Insurer to honor its obligations under the Bond Insurance Policy. The Bond
Insurer reserves the right to charge a reasonable fee as a condition to executing
any amendment, waiver or consent proposed in respect .of this Ordinance or any
other Related Document.
(viii) After payment of reasonable expenses of the Paying Agent, the
application of funds' realized upon default shall be applied to the payment of
expenses of the City or rebate only after the payment of past due and current debt
service on the Series 2005B Bonds and amounts required to restore the Series
2005B Reserve Fund to the Reserve Fund Requirement.
(ix) The Bond Insurer shall be entitled to pay principal or interest on
the Series 2005B Bonds that shall become Due for Payment but shall be unpaid
by reason of Nonpayment by the City (as such terms are defined in the Bond
Insurance Policy) and any amounts due on the Series 2005B Bonds as a result of
acceleration of the maturity thereof in accordance with this Ordinance, whether or
not the Bond Insurer has received a Notice of Nonpayment (as such terms are
defined in the Bond Insurance Policy) or a claim upon the Bond Insurance Policy.
CJ) Notice. The notice address of the Bond Insurer is: Financial Security
Assurance Inc., 31 West 52nd Street, New York, New York 10019, Attention: Managing
Director - Surveillance, Re: Policy No. , Telephone: (212) 826-0100;
Telecopier: (212) 339-3556. In each case in which notice or other communication refers
to an Event of Default, then a copy of such notice or other communication shall also be
sent to the attention of the General Counsel and shall be marked to indicate "URGENT
MATERIAL ENCLOSED."
(k) Information to be Provided by Bond Insurer. Th~ gond Insurer shall be
provided with the followlng information by the City or Paying Agent, as the case may be:
(i) Annual audited financial statements within 150 days after the end
of the City's fiscal year (together with a certification of the City that it is not
aware of any default or Event of Default under this Ordinance), and the City's
annual budget within 30 days after the approval thereof together with such other
information, data or reports as the Bond Insurer shall reasonably request from
time to time;
(ii) Notice of any draw upon the Series 2005B Reserve Fund within
two Business Days after knowledge thereof other than (i) withdrawals of amounts
in excess of the Debt Service Reserve Requirement and .(ii) withdrawals in
connection with a refunding of Bonds;
(iii) Notice of any default known to the Paying Agent or City within
five Business Days after knowledge thereof;
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(iv) Prior notice of the advance refunding or redemption of any.of the
Series 2005B Bonds, including the principal amount, maturities and CUSIP
numbers thereof;
(v) Notice of the resignation or removal of the Paying Agent and Bond
Registrar and the appointment of, and acceptance of duties by, any successor
thereto;
(vi) Notice of the commencement of any proceeding by or against the
City or Obligor commenced undei the United States Bankruptcy Code or any
other applicable bankruptcy, insolvency, receivership, rehabilitation or similar'
law (an "Insolvency Proceeding");
(vii) Notice of the making of any claim in 6onnection with any
Insolvency Proceeding seeking the avoidance as a preferential transfer of any
payment of principal of, or interest on, the Series 2005B Bonds;
(viii) A full original transcript of all proceedings' relating to the
execution of any amendment, supplement, or waiver to the Related Documents;
and
(ix) All reports, notices and correspondence to be delivered to Owners
under the terms of the Related Documents.
(1) .Notwithstanding satisfaction of the other conditions to the issuance of Additional
Bonds set forth in this Ordinance, no such issuance may occur (1) if an Event o£ Default (or any
event which, once all notice or grace periods have passed, would constitute an Event of Default)
exists unless such default shall be cured upon such issuance and (2) unless the Series 2005B
Reserve Fund is fully funded at the Debt Service Reserve requirement (including the proposed
issue) upon the issuance of such Additional Bonds, in either case unlesS'otherwise permitted by
the Bond Insurer.
(m) In determining whether any amendment, consent or other action to be taken, or
any failure to take action, under this Ordinance would adversely affect the security for the Series
2005B Bonds or the rights of the Owners, the Paying Agent shall consider the effect of any such
amendment, consent, action or inaction as if there were no Bond Insurance Policy.
(n) No contract shall b~ entered into or any action taken by which the rights of the
Bond Insurer or security for or sources of payment of the Series 2005B Bonds may be impaired
or prejudiced in any material respect except upon obtaining the prior written consent of the Bond
Insurer.
Section 29. Parties Interested Herein. Nothing in th(s Ordinance expressed or implied
is intended or shall be construed to confer upon, or to give or grant to, any person or entity, other
than the City, the Paying Agent, the Bond Insurer and the Owners of the Series 2005B Bonds,
any right, remedy or claim under or by reason of this Ordinance or any covenant, condition or
stipulation hereof, and all covenants, stipulations, promises and agreements in this Ordinance
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contained by and on behalf of the City shall be for the sole and exclusive benefit 0fthe City, the
Paying Agent, the Bond Insurer and the Owners of the Series 2005B Bonds.
Section 30. Events Occurring on Days That Are Not Business Days. Except as
otherwise specifically provided herein with respect to a particular payment, event or action, if
any payment to be made hereunder or any event or action to ocqur hereunder which, but for this
Section, is to be made or is to occur on a day that is not a Business Day shall instead be made or
occur on the next succeeding day that is a Business Day.
Section 31. Approval of Documents and Authorization of Officers. The City Council
hereby ratifies and approves the distribution and use of the Preliminary Official Statement
relating to the Series 2005B Bonds prepared in connection with the offering of the Series 2005B
Bonds; authorizes and directs the City staff to prepare a final Official Statement for use in
connection with the sale of the Series 2005B Bonds in substantially the form thereof presented to'
or made available to the City Council, with such changes therein, if any, not inconsistent
herewith, as are approved by the Finance Director or the City Attorney of the City; and
authorizes and approves the Bond Purchase Agreement in substantially the form presented to or
made available to the City Council, with such changes therein, not inconsistent herewith, as are
approved by the Finance Director or the City Attorney of the City. The Mayor or Mayor Pro
Tem is hereby authorized and directed to execute the final Official Statement. For a period of
sixty days following the adoption of this Ordinance, the Finance Director is hereby authorized
and directed to execute the Bond Purchase Agreement with the terms therein as are authorized by
this Ordinance and which, once executed, shall constitute conclusive evidence of approval of the
City. The Mayor or Mayor Pro Tem, the City Clerk and all other officers of the City are hereby
authorized and directed to execute the financial guaranty agreement with respect the Series
2005B Surety Bond betWeen the City and the Bond Insurer; an undertaking to facilitate
compliance with Securities and Exchange Commission Rule 15c2-I 2 (17 C.F.R. §240.15c2-12);
an agreement with the Paying Agent concerning the duties and obligations of the Paying Agent
with respect to the Series 2005B Bonds; the Escrow Agreement; a "Tax Co.mpliance Certificate"
or similar certificate describing the City's expectations regarding the use and investment of
proceeds of the Series 2005B Bonds and other moneys and the use of the projects on which the
amounts specified in Section 1 l(d) hereof are expended; an Internal Revenue Service Form
8038-G with respect to the Series 2005B Bonds; and all other documents and certificates
necessary or desirable to effectuate the 'issuance of the Series 2005B Bonds, the investment of
proceeds of the Series 2005B Bonds and the Pledged Revenues, the administration of the Series
2005B Bonds, and the other transactions contemplated hereby.
Section 32. Findings and Determinations. The City Council hereby finds, determines
and declares that (a) it is in the best interest of the City and its residents that the Series 2005B
Bonds be authorized, sold, issued and delivered at the time, in the manner and for the purposes
proyided herein and (b) all actions required by the Charter and any other applicable law to be
taken bythe City for the issuance of the Series 2005B Bonds and the application of any of the
provisions hereof have been taken by the City.
Section 33. Ratification of Prior Actions. All actions heretofore taken not inconsistent
with the provisions of this Ordinance or the Charter by the City Council, the Finance Director, or
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by the officers and employees of the City directed toward the issuance of the Series 2005B
Bonds for the purposes herein set forth are hereby ratified, approved and confirmed.
Section 34. Repeal of Inconsistent Resolutions; Contract with Owners of Series
2005B Bonds; Resolution Irrepealable. All ordinances and resolutions, or parts thereof, that
are in conflict with this Ordinance are hereby repealed. After the Series 2005B Bonds have been
issued, this Ordinance shall be and remain a contract between the City and the Owners of the
Series 2005B Bonds and shall be and remain irrepealable until all amounts due with respect to
the Series 2005B Bonds shall be fully paid, satisfied and discharged and all other obligations of
the City with respect to the Series 2005B Bonds shall have been satisfied in the manner provided
herein.
Section 35. Headings, Table of Contents and Cover Page. The headings to .the
various sections and subsections to this Ordinance, and the cover page and table of contents that
appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are
not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance.
Section 36. Severability. It is hereby expressly declared that all provisions hereof and
their application are intended to be and are severable. In order to implement such intent, if any
provision hereof or the application thereof is determined by a court or administrative body to be
invalid or unenforceable, in whole or in part, such determination shall not affect, impair or
invalidate any other provision hereof or the application of the provision in question to any other
situation; and if any provision hereof or the application thereof is determined by a court or
administrative body to be valid or enforceable only if its application is limited, its application
shall be limited as required to most fully implement its purpose.
Section 37. Recordation. A tree copy of this Ordinance, as adopted by the City Council
of the City, shall be numbered and recorded, and its adoption and publication shall be
authenticated by the siomaatures of the Mayor and the City Clerk and by a certification of
publication.
Section 38. Declaration of Emergency and Effective Date. Due to fluctuations in
municipal bond prices and interest rates and due to currently favorable interest rates and due to
the need to preserve public property, health, peace and safety, it is hereby declared that, in the
opinion of the City Council, an emergency exists, and therefore this Ordinance shall be in full
force and effect upon its passage.
[remainder of this page intentionally left blank]
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iNTRODUCED, READ AND PASSED ON FIRST READiNG AS AN EMERGENCY
MEASURE by the City Council of the City of Aspen at its meeting on September 19, 2005, as
provided by the City's Charter an~t applicable law.
[SEAL]
Attest:
By
Mayor
By
City Clerk
READ, PASSED ON SECOND READiNG, FINALLY ADOPTED AND APPROVED
AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED WITHiN 10 DAYS OF
SUCH FiNAL PASSAGE by the City Council of the City of Aspen ar its special meeting on
September 26, 2005, as provided by the City's Charter and applicable law.
[SEAL]
Attest:
By
Mayor
By
City Clerk
[signature page to Bond Ordinance]
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APPENDIX A
FORM OF SERIES 2005 BOND
No. R-
UNITED STATES OF AMERICA
CITY OF ASPEN, COLORADO
PARKS AND OPEN SPACE SALES TAX REVENUE BOND
SERIES 2005
Interest Rate:
Maturity Date:
% November 1,
Original Dated Date: CUSIP: '
REGISTERED OWNER:
**CEDE & CO.**
Tax Identification Number: 13-2555119
PRINCIPAL SUM:
** DOLLARS**
The City of Aspen, Colorado (the "City"), a legally and regularly created, established,
organized and existing municipal corporation under the provisions of Article XX of the
Constitution of the State of Colorado (the "State") and the home rule charter of the City (the
"Charter") and political subdivision of the State, for value received, hereby promises to pay to
the order of the registered owner named above or registered assigns, solely from the special
funds as hereinafter set forth, on the maturity date stated above, the pri. n..cipal sum stated above,
in lawful money of the United States of America, with interest thereon from the original dated
date stated above, at the interest rate per annum stated above, payable on May I and November 1
of each year, commencing November 1, 2005, the principal of and premium, if any, and the final
installment of interest on this bond being payable to the registered owner hereof upon
presentation and surrender of this bond at the principal office of American National Bank, as
Paying Agent (the "Paying Agent"), in Denver, Colorado, and the interest hereon (other than the
final installment of interest hereon) to be paid by check or draft of the Paying Agen~ mailed on
the interest payment date to the registered owner hereof as of the close of business on the
fifteenth day of the month (whether or not such day is a Business Day) preceding the month in
which the interest payment date occurs, except that so long as Cede & Co. is the registered
owner of this bond, the principal of, premium, if any, and interest on this bond shall be paid by
wire transfer to Cede & Co.
This bond is one of an issue of bonds of the City of Aspen, Colorado Parks and Open
Space Sales Tax Revenue Bonds, Series 2005B, issued in the principal amount of
$ (the "Series 2005B Bonds"). The Series 2005B Bonds are being issued by
the City for the purpose of buying, improving, and maintaining trail, recreation and open space
properties and ancillary facilities; funding a reserve fund surety bond for, and paying the costs of
Kutak Rock -. Firm Library4835-2340-8896.1
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issuance of, the Series 2005B Bonds, pursuant to and in full conformity With the State
Constitution, the Charter and an ordinance (the "Ordinance") duly adopted by the City prior to
the issuance hereof.
[Redemption provisions to be inserted]
The Paying Agent shall maintain registration books in whicl~ the ownership, transfer and
exchange of Series 2005B Bonds shall be recorded. The person in whose name this bond shall
be registered on such registration books shall be deemed to be the absolute owner hereof for all
purposes, whether or not payment on this bond shall be overdue, and neither the City nor the
Paying Agent shall be affected by any notice or other information to the contrary. This bond
may be transferred or exchanged, at the principal office of the Paying Agent in Dem'er,
Colorado, for a like aggregate principal amount of Series 2005B Bonds of other authorized
denominations ($5,000 or any integral multiple thereof) of the same maturity and interest rate,
upon payment by the transferee of a transfer fee, any tax or governmental charge required to be
paid with respect to such transfer or exchange and any cost of printing bonds in ·connection
therewith.
The Series 2005B Bonds are special, limited obligations of the City payable solely from
and secured solely by the sources provided in the Ordinance and shall not constitute a debt of the
City within the meaning of any constitutional or s,tatutory limitation. Pursuant to the Ordinance
the City has pledged for the payment of the principal of, premium, if any, and interest on the
Series 2005B Bonds, and granted a llen for such purpose on the Pledged Revenues, constituting,
for each fiscal year, ail of the proceeds of the Parks and Open Space Sales Tax (as defined in the
Ordinance) after deduction of the reasonable and necessary costs and expenses of collecting and
enforcing the Parks and Open Space Sales Tax, if any, the Bond Fund, the Series 2005B Reserve
Fund and the Revenue Fund (all as defined in the Ordinance). The Series 2005B Bonds are
issued on a parity with the City's Parks and Open Space Sales Tax Revenue Bonds, Series 2001
(the "Series 2001 Bonds") and the City's Sales Tax Revenue Refunding .Bonds, Series 2005A
(the "Series 2005A Bonds"). The City is further authorized by the Ordinan6e to pledge and grant
a lien, on a parity with the llen for the payment of the principal of, premium, if any, and interest
on the Series 2005A Bonds, the Series 2005B Bonds and the Series 2001 Bonds, on the Pledged
Revenues, the Bond Fund and the Revenue for the payment of the principal of, preminm, if any,
and interest on additional bonds or obligations (which may or may not be multiple-fiscal year
obligations), upon satisfaction of certain conditions set forth in the Ordinance.
This bond, including the interest hereon, is payable solely from and secured solely by the
special funds provided in the Ordinance and shall not constitute a debt of the City within the
meaning of any constitutional or statutory debt limitation or provision.
THE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE
REGISTERED OWNER OF THIS BOND AND THE CITY. THIS BOND IS ONLY
EVIDENCE OF SUCH CONTRACT AND, AS SUCH, IS SUBJECT IN ALL RESPECTS TO
THE TERMS OF THE ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT
STATEMENT IN THIS BOND.
Kutak Rock - Firm Library4835-2340-8896.1 A-2
P109
The City agrees with the owner of this bond and with each and every person who may
become the owner hereof, that k will keep and perform all the covenants and a~eements
contained in the Ordinance.
The Ordinance may be amended or supplemented from time-to-time with or without the
consent of the registered owners of the Series 2005B Bonds as provided in the Ordinance.
The Ordinance grants certain rights to the Bond Insurer (as defined in the Ordinance),
including, but not limited to, the right to be deemed to be the Owner of the Series 2005B Bonds
for ali purposes other than, except as otherwise provided in the Ordinance, the receipt of
payments of principal of, premium, if any, and interest on the Series 2005B Bonds, and the right
to exercise all rights of the registered owner of the Series 2005B Bonds, other than, except as
otherwise provided in the Ordinance, the right to receive payments of principal, premium, if any,
and interest on the Series 2005B Bonds. These rights of the Bond Insurer include, but are not
limited to, (a) the right to control remedies following an Event of Default pursuant to the
Ordinance; (b) the right to remove or consent to the removal of the Paying Agent or object to the
appointment of a successor Paying Agent pursuant to the Ordinance; (c) the right to consent to an
amendment to the Ordinance pursuant thereto; (d) any right to vote as registered owner of the
Series 2005B Bdnds in any reorganization, liquidation or similar proceeding relating to the City
or with respect to any plan of reorganization or liquidation relating to the City; and (e) any other
right to consent, exercise rights or control proceedings by or on behalf of the registered owners
of the Series 2005B Bonds. [To be revised upon identification of Bond Insurer]
It is hereby certified that all conditions, acts and things required by the State Constitution,
the Charter, and the ordinances and resolutions of the City, to exist, to happen and to be
performed, precedent to and in the issuance of this bond, exist, have happened and have been
performed, and that the Series 2005B Bonds do not exceed any limitations prescribed by the
State Constitution, the Charter or the ordinances of the City.
This bond shall not be entitled to any benefit under the Ordinance, or become valid or
obligatory for any purpose, until the Paying Agent shall have signed the certificate of
authentication hereon.
[remainder of this page intentionally left blank] -
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Pl10
1N WITNESS WHEREOF, the City has caused this bond to be executed with the manual
or facsimile signature of its Mayor and attested by the manual or facsimile signature of the City
Clerk, and has caused the seal of the City to be impressed or imprinted hereon, all as of the date
set forth above.
[SEAL]
CITY OF ASPEN, COLORADO
Attest:
By
Mayor
By
City Clerk
Kutak Ro~k - Firm Libra~/4835-234048896.1
Plll
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2005B Bonds described in the within-mentioned Ordinance.
AMERiCAN NATIONAL BANK, as Paying
Agent
Date of Authentication:
By ·
Finance Director
*.4'
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Pl12
STATEMENT OF INSURANCE
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please print or typewrite name and address of Transferee)
(Tax Identification or Social Security.No.)
the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints __
attorney to transfer the within bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within bond in every particular, without
alteration or enlargement orany change whatever.
Signature(s) must be guaranteed by a
national bank or trust company or by
a brokerage firm having a
membership in one of the major
stock exchanges.
TRANSFER FEE MAY BE REQUIRED
Kutak Rock - Firm Library..4835-2340-8896.1
A-6
Pl13
PREPAYMENT PANEL
The following installments of principal (or portion thereof) of this Bond have been
prepaid in accordance with the terms of the Indenture.
Date of Principal Signature of Authorized
Prepayment Representative of the Depositor~
Kutak Rock - Firm Libravf-4835-2340-8896. I A-7
Pl14
TO:
THRU:
FROM:
RE:
DATE:
~ h % Pl15
MEMORANDUM
Mayor Klanderud and Aspen City Council ~/~/1[ ~/O
Chris BendOn, Community Development Director
James Lindt, Senior Plarmer,~[_~_
THE LODGE AT ASPEI~ MOUNTAIN (REviSED PROPOSAL), CONCEPTUAL
PUD & CONCEPTUAL TIMESItARE; RESOLUTION NO. 69, SERIES OF
2005- CONTINUED PUBLIC HEARING
September 26, 2005
Picture of the existing
Mine Dmnp
Apartments, which are
proposed to be
demolished to make
way for the proposed
Lodge at Aspen
Mountain (taken from
South Aspen Street).
An existh~g single-
family residence
further down the hill
off Of Garmisch Street
is also proposed to be
razed and will be the
location for the
fractional residence
· portion of the project.
REQUEST SUMMARY: Approval of a Conceptual PUD and Conceptual Timeshare plan and
consideration of other land use approvals to demolish the existing Mine
Dump Apartments and one single-family residence in order to redevelop the
two properties with a 107 unit, 185,400 square foot, multi-story structure to
consist of 85 hotel lodge rooms, 22 fractional units, 4 free market
condominium units, 12 affordable housing units, commercial and ancillary
space and 156 parking spaces in two sub-grade parking garages.
APPLICANT: Aspen Land Fund II, LLC
I~EGALDESCRIPTION: Block 6 of the Eames Addition and Lots 7-20, Block 11 of the Eames
Addition (and a small triangular shaped area described by metes and bounds)
STAFF Staff recommends that City Council consider public comments and provide
RECOMMENDATION: Council comments.
Pl16
REVIEW BACKGROUND:
At the public hearing on September 12th, City Council considered a detailed
presentation of the proposal from the Applicants and entertained Staff discussion
about the review issues identified during the Planning and Zoning Commission's
review of the project. Additionally, Council members had an opportunity to ask
questions of both Staff and the Applicants related to the proposal and identified
additional information that is needed to complete the review. City Council also
indicated that a Council site visit would be beneficial in moving forward with the
review. Staff has scheduled a site visit for Council on September 26th at noon.
ADDITIONAL REQUESTED INFORMATION:
As mentioned above, City Council had an opportunity to request additional information
that is needed to move forward with the review. Councilwoman Richards asked for
several items of additional information from both the Applicants and Staff. From the
Applicants, Councilwoman Richards requested information as to what standard of energy
efficiency tI4e project ;vould be built to. Councilwoman Richards also asked for a parking
plan identifying ~vhere the partcing spaces for the affordable housing units would be
located within the parking garage for the development. The Applicants ,are working on
having some information on the energy efficiency of the project that they can present at ·
the public hearing. As far as the parldng plan is concerned, the Applicants have provided
an e-mall that is attached as Exhibit "A" identifying that the parking for the affordable
housing units will be the closest parking spaces to the affordable housing units in the
parking northermnost parking garage.
It was also requested of Staffthat a vicinity map be provided showing the parcels of land
in the immediate area, inventorying the existing buildings, and providing some example
bnild~out scenarios for these parcels if they were built out based on the current land use
code allowances for the Lodge District and if they were built out base, d on the floor area
ratio being proposed for the Lodge at Aspen Mountain. In response to this request, Staff
has attached several maps and a table as Exhibit "B" that shows the scenarios described
above. A map that shows the setbacks per the underlying zoning for the properties in the
vicinity is also attached as part of Exhibit "B'.
Staff has also attached (attached as Exhibit "C") a spreadsheet and several tables that
detail the short-term acconunodati0n pillow count numbers within the City of Aspen over
the past decade. As you may remember, the original versions of the spreadsheet attached
was included in the draft 2005 Lodging Inventory Evaluation that was previously
provided to City Council. The tables that accompany the spreadsheet include an
inventory of lodge rooms that Staff identified as not being included in the inventory
spreadsheet and a table that identifies lodging development that is in the "pipeline"
(under construction, approved- not built, and in review process).
The one information request that Staff has been unable to fulfill due to the considerable
current planning caseload that Staff has had to deal with this year is the request to
deten-nine how many of the fmc market condominiums in the lodge district are actually
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being rented on a short-term basis and filling the role of lodge rooms that were lost.
Given the brief amount of time betwveen hearings, Staff has been unable to provide the
i~fformation about number of owners short-terming residential units but will continue to
work towards getting Council this information prior to the comp.!etion of the review on
this project.
SEPTEMBER 26TH HEARING:
At the September 26th hearing, Staff will provide a brief sm-tartary of what transpired at
the September 12th meeting and will introduce the additional information being provided
in this packet. Subsequently, Staff would then suggest that City Council allow for the
Applicants to provide some additional discussion if they would like, prior to starting the
public comment portion of the public hearing. After completing the public comment
section, Staff feels that it would be appropriate to move into Council member comments
pursuant to the standard public hearing procedures.
Staff would anticipate that City Council may want to revisit some of the specific
discussion issues and do a detailed review of the proposed resolution after providing
Council member comments on the development proposal.' Staff would further anticipate
that public comments and Council member comments are going to take a substantial
mount of time. That being the case, as is consistent with Staffs approach to break up
the review of this significant development proposal into several meetings if necessary,
Staff would suggest that City Council continue the public heating to October 11th after
completing Council comments if there are still discussion issues that City Council would
like to revisit.
CONFUSION ABOUT PROJECT DESCRIPTION:
Staff provided a description of the project in the staff memorandum for the last meeting
of both the initial proposal that was reviewed by the Planning and -Zoning Commission
and the revised proposal that is currently being reviewed by City Council. By including
descriptions of both the original development proposal and the project that is 'currently
being reviewed by Council, Staff was trying to demonstrate the changes that have
occurred throughout the Planning and Zoning Commission's review of the development
proposal. However, including the descriptions of both the original proposal and the
current proposal being reviewed by Council seemed to create some confusion at the last
hearing. In an effort to clear np the co~ffusion, Staff would like to provide a clear
description of the development proposal that is currently being reviewed by Council in
the following paragraphs.
PROJECT DESCRIPTION:
The proposal being reviewed by City Council consists of eighty-five (85) hotel rooms (71
of ~vhich are standard hotel rooms, 14 of which are one-bedroom suites), twenty-two (22)
fractional units (proposed as all three-bedroom suites), four (4) free market condominium
units, twelve (12) affordable housing units, commercial and ancillary space and 156
parking spaces in two sub-grade parking garages. The dimensional requirements
proposed are included in the table below along with the L/TR Zone District dimensional
Pl17
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Pl18
/
/
requirements that were in place when the Applicants submitted the original application
and the Lodge Zone District dimensional requirements that are ctu'rently in place
(dimensional requirements that are proposed to be varied from the underlying zone L/TR
zone district requirements that were in place when the Applicants applied are shaded):
Dimensional
Requirement
Min. Lot Size
Parcel 1 ..........
Parcel 2 ..........
Min. Lot Area per
Dwelling Unit
Lodging....: ....
Multi-Family
Units ............
Min. Lot Width
Parcel 1 .........
Parcel 2 .........
Lodge Zone
District
.Requirement
6,000 Sq. Ft.
6,000 Sq. Ft.
No Req.
'3,000/Dwelling
Unit
30 feet
30 feet
L/TR Zone
District
Requirement
6,000 Sq. Ft.
6,000 Sq. Ft.
N/A
1 Bedroom
1,000 Sq. Ft.
60 feet
60 feet
Proposed
Development
42,549 Sq. Ft.
61,969 Sq. Ft.
N/A
per 25,000
BR's)
130 feet
180 feet
(for 25
Dimensional
Requirement
Lodge Zone
District
Requirement'
L/TR Zone
District
Requirement
Min. Side Yard Setback
Parcel 1 (E. Side)...
5 feet
5 feet
6 feet
25%
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Pl19
Dimensional
Lodge Zone District L/TR Zone District
uirement uirement
Proposed
Minimum Off-Street
Parking
Lodge Units .......
Fractional Units...
Free Market Units.
Commercial ........
AH Units ...........
Ski Company ......
88.5 Total Spaces
.5 spaces/BR
.5 spaces/key
1 space/unit
1 space/1000 SF
1 space/unit
88.5 Total Spaces
.5 sp~ces/BR
.5 spaces/key
1 space/unit
1 space/1000 SF
1 space/unit
156 Total Spaces
60 spaces
15 spaces
8 spaces
30 spaces
13 spaces
30 spaces
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P 120
TIMESHARE USE PLAN:
Sale of multiple interests in the 22 fractional units is proposed and each purchaser of: a
fractional interest in the timeshare lodge will own an undivided 1/gm interest in a specific
unit, wkich will result in 176 timeshare owners, or estates (22 units x 8 estates/unit=176
estates). None of the rooms are proposed to have lock-off capability. The proposed use
plan will guarantee each timeshare estate owner use of a unit for a maximum of four
weeks a year - two weeks in the winter and two weeks in the summer, with winter being
defined as November 1 - April 30 and summer being May I to October 31. The
maximum number of days a unit can be reserved per season by owners is 112 days and, as
each season contains approximately 182 days, a minimum of 70 days in each season will
remain and will constitute the float time. The float time will be made available to the
public for nightly rental and to the ovmers, subject to certain limitations, such as them
reserving a unit at least 30 days in advance, only being able to reserve in increments up to
7 days, and for no more than 30 consecutive calendar days. These limitations on owners
should permit a reasonable arnotmt of available time for the public to use the traits.
A full complement of amenities will be contained within the facility, including an outdoor
pool, spa and fitness center, a business center, ski concierge area, a logo shop, children's
recreation area, outdoor/apres ski dining terrace, and a bar and restaurant. The spa,
restaurant, and bar will also be available to the public. In addition, the lodge will contain
a fully staffed, on-site front desk to provide guest registration and reservation services for
the lodge's hotel guests and the f,-actional owners, guests, and will include late check in
and other off hour owner and guest .needs.
OFF-SITE IMPROVEMENTS:
Several off-site improvements of note are included in the proposal. In addition to
widening Juan Street to city standards and dedicating, additional, right-of-way to
accommodate it and 'installing curb, gutter, sidewalks, planting strip and street trees, the
Applicants have also proposed to make some significant improvements to the base of this
side of the ski area (in cooperation with the Aspen Skiing Company). The Applicants
propose funding the replacement of the existing Lift lA with a high speed double lift that
would extend ktrther up the ski motmtain ;o permit access to the "Dump" sld runs (Note:
the bottom terminus of the lift was to remain in the same general location and was not to
extend further down the hill past the Skiers Chalet, etc.). The Applicants are also
working with the Aspen Skiing Company to also replace the existing patrol shack and
ticket sales booth (which ;vas proposed to be considered as part of ihe Final PUD
applicatioff).
DEVELOPMENT REVIEW COMMITTEE (DRC) REFERRAL COMMENTS:
The DRC meeting on this application was held on October 29, 2003. The comments
from that meeting were included in the September i2m Council packet.' The majority of
the requirements requested by the members of DRC are technical considerations that
should aud will be included as conditions of final PUD review. A question was raised at
September 12th hearing by the Mayor about whether the referral cormnents are out of date
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P121
since the DRC meeting was held in 2003. Ih response to this concern, Staff wanted to
make it clear that the same City referral agencies that attended the 2003 DRC meeting on
the original development proposal were provided with the revised application in January
of 2005 and asked if their referral conm~ents ,are still valid on the revised design. Any
changes to the referral comments were included in the referral comments that were
attached in the Council packet for the September 12th meeting.
STAFF RECOMMENDATION:
As was discussed at the September 12th meeting, this is a difficult recommendation
for Staff to make in that the proposed building is large and does exceed the
underlying zone district's dimensional requirements, but would provide a great deal
of needed lodging in an appropriate location. Staff feels that the lodging use is the
appropriate use for the site since it is located in the Lodge Zone District and at the
base of Aspen Mountain. Staff further believes that the proposal has the ability to
provide some significant community.benefits.
Staff believes that the proposed building is definitely a large structure, but Staff
feels that the Applicant has worked diligently with neighbors of the property to
reduce the impacts of the building upon the neighbors and that the design changes
that have been made throughout this conceptual PUD review have improved the
project significantly. Staff is also of the opinion that the proposed uses and
associated amenities represent greater net benefit to the community than the "back-
up plan" (the townhome project).
PLANNING AND ZONING COMMISSION. RECOMMENDATION:
After spending more than ten (10) public heatings on the proposal, the Planning and
Zoning Commission approved a resolution by a four to one (4-1) vote, recommending
that City Council approve the conceptual PUD and timeshare requests with the conditions
contained in the attached resolution. The Commission felt that the lodge use is the most
appropriate use for the subject properties and cited that providing over 80 new lodge
rooms and'a new high,speed lift at the base of Lift lA are significant community benefits
that would help foster Aspen's vitality. The Commission also indicated that the
expressed support from the majority of the most-impacted neighboring homeowner's
associations was a factor in the reversal of their original vote of denial on the original
project.
LETTERS FROM PUBLIC:
During the Planning and Zoning Commission's review of the application, Staff received a
considerable arno;mt of letters from the public that were entered into the Planning and
Zoning Commission's record. Staff did not include the letters in tiffs packet because
many of them discussed iterations of the design that are no longer on the table for
consideration by City Cotmcil. However, if members, of Council wo;dd like to read the
letters that were submitted for the various Planning and Zoning Commission meetings,
please contact Staff' and we will provide you with copies. Since the conclusion of the
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P122
Plmming and Zoning Commission's revie~v, the Planning Staff has not received any
letters.
CITY MANAGER'S COMMENTS:
RECOMMENDED MOTION: (ALL MOTIONS ARE MADE IN THE AFFIRMATIVE)
"I move to approve Resolution No. 69, Series of 2005, approving the Lodge at Aspen
Conceptual PUD and Conceptual Timeshare with the conditions contained therein."
ALTERNATIVE MOTION:
"I move to continue review of the Lodge at Aspen Conceptual PUD and Conceptual
Timeshare to October 11,2005.
ATTACHMENTS:
Exhibit A: Applicant's E-mail about Affordable Housing Parking
Exhibit B: Map Inventorying Surrounding Parcels
Exhibit C: Lodging Inventory Spreadsheets
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RESOLUTION NO. 69
(SERIES OF 2005)
A RESOLUTION OF THE ASPEN CITY COUNCIL APPROVING A
CONCEPTUAL PLANNED UNIT DEVELOPMENT AND A CONCEPTUAL
TIMESHARE FOR THE LODGE AT ASPEN MOUNTAIN, LEGALLY
DESCRIBED AS BLOCK 6 EAMES ADDITION AND LOTS 7-20, BLOCK 11 OF
THE EAMES ADDITION AND A SMALL METES AND BOUNDS TRIANGULAR
SHAPED AREA, CITY OF ASPEN, PITKIN COUNTY, COLORADO.
Parcel ID:
2 735-131-23-001 (Mine Dump Apartments)
2735-132-13-001 (Parcel with the Single-Family Residence)
WHEREAS, the Community Development Department received an
application from the Aspen Land Fund II, LLC, represented by Sunny Vann of Vaun
Associates for a Conceptual Planned Unit Development and Conceptual Timeshare; and,
WHEREAS, the original application submitted (dated October 1, 2003) proposed
a 204,500 square foot, 121-mxit, mixed use, hotel/fractional ownership project consisting
of 76 hotel rooms, 29 fractional units, 4 condominium units, 12 affordable housing units,
· commercial and ancillary space and a total of 156 spaces in two, sub-grade parking
garages; and,
WHEREAS, the Community Development Department received referral
comments from the Aspen Consolidated Sanitation District, City Engineering, Building
. Department, Fire, Streets, Housing, Environmental Health, Parks and Water Departments
as a result of the Development Review Committee meeting; and,
' WHEREAS, said referral agencies and the Aspen Community Development
Department reuiewed the proposed Conceptual PUD as~d Conceptual Timeshare and
recommended approval with conditions; and,
WHEREAS, during a regular meeting on March 2, 2004, the Planning and
Zoning Commission recommended that City Council deny, by a three to one (3-1) vote,
the Conceptual PUD and Conceptual Timeshare request for the Lodge at Aspen
Mountain; mhd,
WHEREAS, the Applicant submitted an amended application on December 22,
2004, for reconsideration by the Planning and Zoning Commission; and,
WHEREAS, pursuant to Section 26.445 of the Land Use Code, Conceptual PUD
approval may be granted by the City Cotmcil at a duly noticed public hearing after
considering recormnendations by the Planning and Zoning Commission, the Commtmity
Development Director, and relevant referral agencies; and,
P123
P124
WItEREAS, pursuant to Section 26.590 of the Land Use Code, Conceptual
Timeshare approval may be granted by the City Council at a duly noticed public hearing
after considering recommendations by the Planning and Zoning Commission, the
Conununity Development Director, and relevant referral agencies; and,
WHEREAS, the City of Aspen / Pitkin County Housing Authority forwarded a
unanimous recorrm~endation of approval to City Council to approve the proposed
affordable housing mitigation and replacement units for the project at their meeting held
· on November 19,2003; and,
WHEREAS, Conceptual PUD and Conceptual Timeshare review by the Planning
and Zoning Commission requires a public hearing and this application was reviewed at a
pnblic hearing ~vhere the recommendations of the Community Development Director and
comments from the public were heard; and,
WHEREAS, during a regular meeting on February 15, 2005, the Planning and
Zoning Conu-nission opened a duly noticed public hearing to consider the amended
project and continued the public hearing to Febrmqry 22, 2005; and,
WHEREAS, during a regular meeting on February 22, 2005, the Planning and
Zoning Commission opened a duly noticed public hearing to consider the amended
project and continued the public hearing to March 29, 2005, where the commission
discussed the proposal and continued the hearing to April 5, 2005; and,
WHEREAS, during a regular meeting on April 5, 2005, the Planning and Zoning
Commission opened a duly noticed public hearing to consider the amended project and
continued the pnblic hearing to April 12, 2005; and,
WHEREAS, during a special meeting on April 12, 2005, Sthe Planning and
Zoning Commission opened a duly noticed public hearing to consider the Sonth Aspen
Street Winter Maintenance Plan and continued the public hearing on the Lodge at Aspen
Conceptual PUD and Timeshare to May 10, 2005; and,
WHEREAS, during a special meeting on May 10, 2005, the Planning and Zoning
Commission opened a duly noticed public hearing to consider the amended project and
continued the public hearing on the Lodge at Aspen Conceptual PUD and Timeshare to
Jm~e 14, 2005; and,
WHEREAS, during a special meeting on June 14, 2005, the Planning and Zoning
Commission opened a duly noticed public heating to consider the amended project and
continued the public hearing on the Lodge at Aspen Conceptual PUD and Timeshare to
June 21, 2005; and,
WHEREAS, during a regular meeting on June 21,2005, the Planning and Zoning
Commission opened a duly noticed public hearing to consider the amended project and
continued the public heating on the Lodge at Aspen Conceptual PUD and Timeshare to
July 5, 2005; and,
WHEREAS, during a regular meeting on July 5, 2005, the Planning and Zoning
Commission approved Resolution No. 9, Series of 2005, by a four toone (4-1) vote,
recommending that City Cotmcil approve the amended Conceptual PUD and Conceptual
Timeshare application, with the findings and conditions listed therein; and,
WHEREAS, Conceptual PUD and Conceptual Timeshare approval shall only
grant the ability for the Applicant to submit a Final PUD and Timeshare Application and
the proposed development is further subject to Final PUD review, Timeshare,
Subdivision, Growth Management Quota System, Special Review, Condominiumization,
8040 Greenline approval pursuant to the Municipal Code; and,
WHEREAS, during a duly noticed public hearing on August 22, 2005, the Aspen
City Council continued review of the Lodge at Aspen Conceptual PUD to September 12,
2005; and,
WHEREAS, during a continued public hearing on September 12, 2005, the
Aspen City Council continued review of the Lodge at Aspen Conceptual PUD to
September 26, 2005; and,
WHEREAS, during a duly noticed public hearing on September 26, 2005, the
Aspen City Council approved Resolution No. 69, Series of 2005, by a __ to __ (_-
_) vote, approving the Conceptual PUD and Conceptual Timeshare application to
construct 85 lodge traits, 22 fractional lodge units, 4 free market residential units, and I2
affordable housing units, witli the findings and conditions listed herein; and,
WHEREAS, the Aspen City Council has reviewed and considered the development
proposal under the applicable provisions of the Manicipal Code as identified herein; and,
WHEREAS, the Aspen City Council finds that the development proposal meets or
exceeds ail 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 Aspen City CmmciI fmds that this resolution furthers and is
necessary fbr the promotion of public health, safety, and welfare.
P125
NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN CITY
COUNCIL AS FOLLOWS:
Section 1
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code,
City Council hereby approves the Lodge at Aspen Conceptual PUD and Conceptual
P126
Timeshare requests to construct a 185,400 square foot, I07-unit, mixed use,
hotel/fractional ownership project consisting of 85 hotel rooms, 22 fractional units, 4
condominium units, 12 affordable housing units, commercial and ancillary space and a
total of 156 parking spaces in two sub-grade parking garages, subject to the conditions
established herein.
Section 2: Final PUD Application
The Final PUD application shall be generally consistent with the conceptual proposal and
shall include the follo~ving:
1. An application for Final PUD, Final Timeshare, Subdivision, Rezoning, Special
Review for Parldng, Growth Management Quota System, 8040 Greenline Review,
Subdivision, Thneshare, Condominiumization. A pm-application cgnference with a
member of the Community Development Department is required prior to submitting
an application.
2. Delineation of ail dimensional provisions to become requirements of the PUD.
3. A proposed subdivision plat, PUD plans, subdivision/PUD Agreement and other
snbmittal requirements specified in Section 26.445.060(B).
A construction plan describing timing of construction components, areas of
dist~utbance, contractor parking, and a physical Plan for maintaining adequate
access, including emergency access, to land uses remaining active during
construction. The construction plan shall indicate that all construction hanling
shall occur on South Aspen Street.
A detailed phasing plan that describes overall timing of specific project phases,
including the off-site improvements and describing construction affects on the
neighboring properties.
A detailed street design plan that includes provisions for street signage, pavement
markings and pedestrian facilities. South Aspen Street adjacent to the Lodge at
Aspen Mountain shall be increased in width so that the back of curb is located on the
property line adjacent to South Aspen Street. Juan and Garmisch Streets adjacent to
the Lodge at Aspen Mountain shall be increased in width to twenty-six (26) feet.
Proposed public sidewalk easements shall be included in the final PUD plans along
Garmisch and Juan Streets where public sidewalks are proposed to be constructed in
conjunction with the development proposal.
8. A complete storm water management plan that includes a drainage plan and report
performed bY a licensed Engineer within the state of Colorado.
Section 3: Juan Street Air Space Rights
As part of the fmal PUD application the Applicant shall submit a document outlining the
terms of the use of the public air space over the Juan Street right-of-way for the private
P127
bridge} Said document will be reviewed as part of the final PUD application with the intent
that it would serve as an ageement between the Applicant and the City for the use of the
right-of-way:
Section 4: Dean Avenue Improvements
The final PUD application shall contain a detailed landscape and improvements plan for
the Dean Avenue Right-of-way abutting the Lodge at Aspen Mountain property that is
consistent with the Dean Street pedestrian improvements plan that Staff has initiated.
Section 5: Fire Access and Mitigation
The bridge over Juan Street shalt be at least sixteen and a half feet above Juan Street to
aflow for fire trucks to pass beneath it. The Applicant shall also submit a plan for
fighting fires within the project's parking garages at the time of building permit.
Section 6: Outdoor Lighting and Street Lights
The Applicant shall provide a detailed exterior lighting plan at time of final PUD application
submittal. The exterior lighting plan shall include street lighting fixtures proposed in the
adjacent right-of-ways as is required pursuant to Land Use Code Section
26.580.020(B)(1)(w), Street lights.
Section 7: Air Quality
The Applicant shall submit a PM-10 mitigation plan as part of the final PUD submission
that includes air quality mitigation measures recommended by the City of Aspen
Environmental Health Department.
Section 8: South Aspen Street
The Applicant shall provide the City with annual funding for an additional seasonal
employee in ti~e Streets Department during the winter and spring months to do increased
snow plowing, snow hauling on South Aspen Street throughout the c~fistmction process and
as long as the hotel is in operation. The Applicant shall provide a detailed plan outlining a
funding amotmt estimate, timing of payment, method of payment for the additional Streets
Department Staffperson as part of the final PUD application. In the event that City Council
deems it appropriate to snowmelt South Aspen Street in relation to development of other
properties accessed from South Aspen Street, the Applicant shall join any future
improvements district formed to improve South Aspen Street and shall study the possibility
of reserving space on the property suitable to house the mechmfical equipment needed to
snovvmelt the street between Conceptual approval and Final PUD submittal.
Section 9: Employee Mitigation Plan
The Applicant shall submit a detailed employee housing mitigation plan as part of their
Growth Managemeut application that shall be applied for prior to or in conjunction with the
Final PUD application.
Section 10: Construction Management Plan
A Construction Management Plan shall be submitted with the final PUD application and
shall meet the requirements of the City of Aspen Building Department. The construction
P128
management plan shall include at a ntinimum, a construction parking pian, a construction
staging and phasing plan, haul routes, and an agreement to participate with other
developments in the area under construction for staging and construction worker
transportation pta*poses. As part of the construction management plan, the Applicants
shall agree to requiring all dnmp tracks harding to and from the site to cover their loads
and meet Pitldn County Emission requirements.
The Construction Management Plan shall also include a fugitive dust control plan to be
reviewed by the City Enviromnental Health Department that includes watering of
disturbed areas including hanI routes, 'perimeter silt fencing, as-needed cleaning of
adjacent right-of-ways, and a representation that the City has t,he ability to request
additional measures to prevent a nuisance during construction.
The Applicant shall also provide phone contact information for on-site project
management to address construction impacts to: The City of Aspen, the Timberidge
Condominiums, the Shadow Mountain Condominiums, the Lift One Condominiums, and
the Juan Street Affordable Housing Residences. Street closures concurrent with
significant public events on Aspen Mountain sh~l be avoided to the greatest extent
possible.
Section 11:
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 fi. dly set forth herein, unless amended by an authorized entity.
Section 12:
This resolution shall not effect any existing litigation and shall not opSrate 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 13:
If any section, snbsection, 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 remahfing portions thereof.
FINALLY, ADOPTED, PASSED, AND APPROVED on September 12, 2005, at a public
hearing before Cky Council.
P129
APPROVED AS TO FORM:
City Attorney
ATTEST: ·
Helen Kalin Klanderud, Mayor
Kathryn S.'Koch, City Clerk
P130
James Lindt
From: Klm Wei! [kweil@billposs.com]
Sent: Monday, September 19, 2005 3:11 PM
To: James L[ndt
Cc: John Sarpa
Subject: South Aspen
James, regarding the dedication of parking spaces for the AH units, the owners have no real issue with assigning
these spaces. They are willing to commit to assign the 13 spaces closest to the AH units to these units. Klm.
Klm Well, RA Principal
Bill Poss and Assodates Architecture and Planning, P.C.
P O S S ARCHITECTURE + PLANNING
605 EAST MAIN STREET ASPEN CO 81611
(t) 970/925-4755 (f) 9701920-2950 (e) kweil@biltposs.com
9/19/2005
P132
Allowable Build-Out Scenarios
Property Approx. Lot Zone District Approx. FAR is built-
Size Allowable out to 1.98:1 as
FAR based on Lodge at
Underlying Aspen
Lodge Zoning Proposes
Timber Ridge 12,000 SF Lodge District 3:1 for Lodging 23,760 SF
(36,000 SF)
Lift One 27,000 SF Lodge District 2.5:1 for 53,460 SF
Condos Lodging
(67,500 SF)
Southpoint 15,000 SF Lodge District 3:1 for Lodging 29,700 SF
Condos (45,000 SF)
Willoughby 40,000 SF Park Zone To be 79,200 SF
Park . District established
through a PUD
Skier's Chalet 17,000 SF Lodge District 3:1 for Lodging 33,660 SF
(51,000 SF)
Holland House 8,000 SF Lodge District 3:1 for Lodging 15,840 SF
(24,000 SF)
Shadow 35,700 SF Lodge District 2.5:1 for 70,686 SF
Motmtain Lodging
Condos (89,250 SF)
Chart House 12,000 SF Lodge District 2.49:1 23,760 SF
Lodge
Lift lA Ticket 24,700 SF Conservation No FAR set for. 48,906 SF
Parcel Zone District Ski Lift and
Accessory
Facilities
/
P134
Property Name
Aspen Alps
Aspen Square
Brand Building
North of Nell
Prospector
The Gent
Aspen Chateau & Dolomite
Aspen Silverglow
Lift One/Aztec/Chateau Blanc
Shadow Mountain Lodge
Accent Properties
AIlen, Sharkey et all '
Aspen Classic Properties
Aspen Lodging Company
Aspen Re~ort Accom.
CRW/Resod Quest
Oickerson & Whitaker
Fdas Properties / ACM
Interwest Realty
McCartney Property Mgr.
Rocky Mtn Residential
Spalding Properties
Tinnes Properties
West Hymen Property Mgr.
Aspen Club Lodge/Sky Hotel
Aspen Meadows
Hotel Jerome
Hotel Lenado
Residence Suites
Sardy House
SI. Regis / Ritz Carlton
The Little Nell Hotel
Aspen Mountain Lodge (B&B)
Beamont Inn (Crestahaus)
Boomerang Lodge
Hearthstone House
Hotel Aspen
Hotel Durant
Independence Square
Inn ~t Aspen
Innsbruck Inn
L'Auberge
Limelite Lodge / Powder
Molly Gibson Lodge
Mountain Chalet
Snowflake inn
T-Lazy-7 Ranch
S'TAY ASPEN SNOWIVlASS Revised 811812004
AspEN PROPERTIES
P:l[ow Count Reconciliation
1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003
Cateqory -1992 -1993 -1994 -1995 -1996 -1997 -1998 -1999 -2000 -2001 2002 2003 2004
Oeluxe Condo Property ~0~!~;2~:'~P~[~q.~ 200 200 200 200 200 200 200 200
Deluxe Condo Property 278 324 324 332 324 332 460 424 468 468 370 370 350
Deluxe Condo Property 15 15 15 15 15 15 15 15 18 18 18 lg 16
Deluxe Condo Property ~0;i~(~ 205 150 140 178 171 176 176 176
Deluxe Condo Property 604 604 604 601 599 601 622 498 514 514 520 520 520
1414 1460 1460 1465 1455 1465 1559 1389 1492 1485 1375 1375 1355
Moderate Condo Property 75 75 75 75 75
Moderate Condo Property 143 143 143 143 143
Moderate Condo Property 209 209 209 209 209
Moderate Condo Property 32 32 32 32 32
459 459 459 459 459
209 174 168 202 195 191 191 184
32 56 56 57 57 61 61 54
291 230 224 259 252 252 252 236
Property Mgt. Company
Property Mgt. Company
Property Mgt. Company
Property Mgr. Company
Property Mgr. Company
Property Mgr. Company
Property Mgr. Company
Property Mgt. Company
property Mgr. Company
Property Mgr. Company
Property Mgr. Company
Property Mgt. Company
491 491 422 491 432 491 436 389 396 396 643 643 482
840 840 840 840 684 840 842 834 694 654 796 657 588
361 373 373 431 431 431 488 505 535 704 706 706 626'
2687 2827 2694 2827 2598 2877 2444 2364 2496 2286 2507 2368 2014
Deluxe Lodge / Hotel 214 214 214 214 214 214 242 244 260 260 260 260 260
Deluxe Lodge / Hotel ~4~i~4~(?~4~,~ 240 240 240 240 240 240 232 232 232 232
Deluxe Lodge / Hotel 208 208 208 208 208 208 206 206 204 206 207 207 207
Deluxe Lodge / Hotel 38 38 38 38 38 38 38 38 38 38 38 38 38
Deluxe Lodge / Hotel 18 22 22 20 22 22 22
Deluxe Lodge / Hotel 46 46 46 46 46 46 45 53 53 53 46 46 30
Deluxe Lodge / Hotel 857 857 857 650 630 690 624 574 574 38(3
Deluxe Lodge / Hotel 220 253 254 220 254 220 226 246 262 262 262 262 282
968 999
1514 1823 1857 1823 1665,~ 1679 1769 1695 1641 1641 1431
Moderate Lodge / Hotel 114 114 114 114 114 114 118 118 118 118 118 118 137
Moderate Lodge / Hotel 58 58 58 77 77 77 112 108 108
Moderate Lodge / Hotel 98 98 98 101 101 101 103 102 98 106 102 102 94
Moderate Lodge / Hotel 32 32 32 32 32 32 ~,~ 36 36 34 34 34 34
Moderate Lodge I Hotel 118 118 118 118 118 118 138 140 140 140 164 164 154
Moderate Lodge/Hotel ~;~~]~ 56 56 55 56 56 51 51 51
Moderate Lodge / Hotel 56 56 56 56 56 56 62 54 56 61 61 61 60
Moderate Lodge / Hotel 365 365 365 ~65 365 365 280 336 336 336 336 336 336
Moderate Lodge / Hotel 75 75 75 75 75 75 71 75 75 75 84 84 91
Moderate Lodge / Hotel ~~~1~ 17 20 32 38 38 47 47 32
Moderate Lodge / Hotel 182 192 182 182 182 182 183 201 221 221 201 201 201
Moderate Lodge / Hotel 125 125 125 125 125 125 125 130 126 126 143 143 '[43
Moderate Lodge / Hotel 139 136 136 136 139 139 142 177 164 164 164 188 167
Moderate Lodge / Hotel 110 110 110 110 110 110 110 91 107 107 110 110 111
Moderate Lodge ! Hotel ~~~E~4~ 56 56 56 56 ~
1594 1591 1596 1618 1621 1621 1608 1711 1735 1638 1671 1639 1611
Aspen Manor Economy Lodge 55 55 55 55 55 55
Bell Mountain Lodge Economy Lodge 51 48 48 48 48 48 54
Buckhorn Lodge Economy Lodge 25 25 25 25 25 25
Chalet List Economy Lodge 20 20 20 20 20 20
Christiania Economy Lodge 50 50 50 51 '51 51
Christmas inn Economy Lodge 50 51 51 51 51 51
Copper Horse ~U~S~ ~s~? Econ,omy,Lodge ,,., :~!]j],~:~,~,, ,~ 5~;,,~ ~.53 '
Deep Powder Economy Lodge
20 26 28 28 28 28 28
51 0 0
55 55 55 51 55 0 0
50 50 ~
Fireside Lodge
Grand Aspen Hotel
Hea[herbed Lodge
Holland House
Inverness Lodge
Little Red Ski House
Maroon Creek Lodge
Midnight 8 & B
Mountain House B & B
Economy Lodge
Economy Lodge
Economy Lodge
Economy Lodge
Economy Lodge
Economy Lodge
Economy Lodge
Economy Lodge
Economy Lodge
52 52 52 52 ~ 52
189 427 427 427 427 427 312 295
47 47 42 47 47 47 45
49 55 55 49 49 49
34 34 34 34 34 34 34
56 56 56 56 56 56 76 74 68
42
52 32 38
68 76 76 74
Skiers Chalet Economy Lodge
Snow Queen Lodge Economy Lodge
St, Moritz Lodge Economy Lodge
Tyrolean Ledge Economy Ledge
UIIr Lodge Economy Lodge
43 43 43 43 43 43 54 54 54 54 52 36 36
~.,~~?~,:~ ; ,,, ,~0 18 18 18 22 22
108 106 106 106 106 106 88 87 87 87 121 121 130
Total# Pillows: 8875 9337 9678 9959 9400 9487 8583 8102 8185 7750 7967 7709 7096
r~'~SS~th~se; b~ ~ ;2~7~276~'~83'~'~;t~8'~?~32~ 200 , 200 ~ 15~ ~ ~
Total# Pillows available toACRT: 6603 7065 6910 8t29 7983 8594 8113 7770 7985 7560 7813 7667 7096
Total # Properties in Aspen: 71 72 73 70 65 64 58 51 51 49 48 47 47
Legend:
Properties either shut-down, or newly created:
Properties either consolidated or absorbed:
Properties not respresented by ACRT:
#'s which appea¢ uncertain, or former lodges
where the closing date is unkown or estimated.
P136
Existine Lodee Rooms Not included in SAS Numbers
Property # of bedrooms Type of Lodging Year Added to
Inventory
Highlands Ritz 73 Timeslmre Lodge 2000
Carlton
CluSstiania Phase I 16 Condominiumized Early 2004
Lodge
Annabelle hm 33 Traditional Lodge 2005
(Former Christmas
Inn)
Total 122
P137
Lod~oe Rooms Recently Lost from Inventory'ONot Yet Removed from
SAS Numbers)
Property # of bedrooms Type of Lodging Year Lost
Holland House 42 Traditional Lodge 2005
Skier's Chalet 3 6 Traditional Lodge 2005
Total 78
Adiusted SAS Totals
SAS Total Existing Lodge Lodge Pillows in Total
(Spreadsheet) Pillows Not SA.S
Included in SAS* No Longer
Assume 2 Operating
Pillows per
bedroom
7,096 Pillows 244 Pillows 78 Pillows 7,262 Pillows
Pipeline Total
7,262 Pillows (Adjusted SAS Total) + 594 Pillows (Pillows
7,856 Pillows
in Pipeline) =
P138
James Lindt
./
Page 1 of 2
From: Helen Klanderud
Sent: Monday, September 19, 2005 2:34 PM
To: James Lindt
Subject: FW: Lodge at Aspen Mountain
James,
For the public record.
Helen
From: Don Gilbert [mailto:gilbert437@mindspring.com]
Sent: Monday, September 19, 2005 12:22 PM
To: Helen Klanderud
Subject: Lodge at Aspen Mountain
Dear Ms. Klanderud,
As the Council begins deliberating the proposed construction of the Lodge at Aspen Mountaih on South Aspen
Street, I would like to register my unalterable opposition to this massive building.
It's been said that "when you lose scale, you lose identity." There are many arguments against building a gigantic
hotel on South Aspen Street, but I think that quote goes right to the issue.
Our family, now expanded to children and grandchildren, has been skiing in Aspen exclusively for 30 years. We
· live in Connecticut but own a.unit in Shadow Mountain and are painfully aware that there are many ski resorts
easier to get to if all we want is good snow. However, we return to Aspen year after year because we enjoy so
much the unique character of the town, its spirit and its openness,
All of us have seen considerable change in Aspen over recent years, much of it for the better. However, the
emergence of a ring of large hotels girding Aspen Mountain will change the town's character profoundly, and not
for the better. Now comes the LAM project which promises to be a blight on the landscape that will endure long
after any of us will be around to complain. The hotel will do more than any structure that has come before it to
change the character of the town. If Aspen continues on this path, I think it will be only a matter of time before
people begin to wonder, "if it's going to look like Vail, why not just save the trouble and go to Vail?"
The developer's statement reported in the September 13th Aspen Times that he has appeased the concerns of
Shadow Mountain owners needs to be challenged. The membership is well divided; there are some who are
enticed by the blandishments offered by the developer (e.g., free indoor parking and use of facilities); some
owners are ambivalent, and a few actively favor the hotel. However, there are many owners at Shadow Mountain
· who most emphatically do not want this hotel with its outsized height and mass.
For the sake of those who every day will have to look at this monstrosity, I hope you will give it a speedy rejection.
Sincerely,
Donald C. Gilbert
Gilbert Taney Fadie, Inc.
437 Madison Avenue
New York, NY 10022
tel. 212-838-1016
9/19/2005
P139
~arks and Recreatlo
iii
To: Mayor and Council
Thru: Ed Sadler, Assistant City Manager ~/
From: Scott Chis~,~fa~ks Planner, Steve Bossart, Asset Project Manager
Date: 9/19/05
Re: Project Update, Implementation of Dwell Master Plan
CC: Steve Barwick, City Manager
dohn Worcester, City Attorney
SUMMARY:
A Construction Contract for the Dwell Master Plan Implementation is not yet ready for Council review. As
a result, the contract approval for this work scope has been pulled from the September 26th agenda. A
construction bid package for four (4) primary Dwell Master Plan physical elements (Guest Services
Pavilion, Community Fire Hearth, Seasonal Event Kiosk and prototype bike rack) was issued for bidding on
August 30th, immediately following the completion of the detailed construction drawings. The fifth
element, a collection of three (3) prototype curved benches, has been contracted for already and is Currently
in the process of being fabricated. The contract price for th~ benches is within the budget submitted as part
of August 23~ Council work session memo. '"
The bid package indicated that all improvements were to be in place by November 21st, 2005. Out of seven
(7) bid packages that were sent out to specialized fabricators and general contractors, only one (1) viable bid
was received back. The only bid price submi/ted for the Guest Services Pavilion, Community Fire Hearth,
Seasonal Events Kiosk and protoiype bike rack'significantly exceeds the established budget. Staff is
currently in the process' of working with the general contractor ~vho submitted the bid to determine any real
cost savings options. If staff cannot obtain reasonable options from the bidding general contractor, then
additional bids will be actively solicited from the general contractors who expressed initial interest but did
not submit a bid as a result of their own time constraints. A number of factors have contributed to both the
low response level to the Invitation tO Bid and the subsequent high bid price:
· Every general contractor that staff contacted was already very busy until nearly the end of 2005. At
least three (3) felt that they could not even spend some time within the bidding period to review the
drawings and prepare a bid.
· Corm~mdity supply and the associated costs are very unstable right now and lead times for
commodity acquisition are lengthy. Steel costs remain high currently and Pm~land cement (used to
make concrete) is available to contractors on a very limited, rationed basis. These commodities are
ail necessary for the construction/fabrication of the proposed elements.
P140
· Every general contractor and fabricator that staff spoke with has indicated that a relaxation of the
proposed schedule would enable a more thorough pricing effort and probable lower construction cost
if the components could be fabricated during the winter and installed in early spring 2006.
· Even though staff has bundled the proposed components as a single construction package, the
overall project size is relatively small in comparison t9 a vast majority of construction projects
currently underway, meaning that this City project is not an overly attractive job because it is small.
One of the primary components of all of the elements (steel fabrication) did come within the range
identified in the budget but was eclipsed by high costs in nearly every other aspect of construction. In order
to achieve a cost effective construction/fabrication/installation of the proposed Dwei1 Master Plan physical
improvements, it is extremely likely that the original schedule to complete ail elements will have to be
extended until early 2006. Staff will submit a contract for construction and revised schedule as soon as
possible. ,
CITY MANAGER COMMENTS:
2