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HomeMy WebLinkAboutagenda.council.regular.20080623~`: ~~~~ - PARRS ~ RECREAiIUN DRAFT ASPEN RECREATION CENTER ARC ADVISORY COMMITTEE Meeting Minutes 5/6/08 1 ~T .r In Attendance: Boazd Members: Debbie Waze, Sue Smedstad, Gordon Gerson, Barbra Owen, Scott Writer, Laura Kornasiewicz and Rick Newton. Staff Member(s): Tim Anderson, Jonathan Godes, Erin Hutchings, Shelley Sanzo, Jojo Smith Guests: Toni Kronberg, Willey, Carol Sams, Michelle Hocknell I. Call to Order -Scott called the meeting to order. Conunittee Comments: Rick was asking what the baz was for to the entrance into the ARC. Tim explained that it was put in by request from our handicap patrons for ease of access during the winter months. Staff Comments: None Guest Comments: Toni Kronberg mentioned that she was concerned with the safety of the children at the bus stop across the street and she has noticed several times that cars go over the white line. Tim said that the Engineering Department has requested that a crosswalk be put in but that has been denied. Laura asked the county for flashing lights and has not heazd back. II. Approval of Past Minutes: Approved r III. Agenda Items: 1. Ice User Group Meetings: Ice Schedule discussed, morning ice still available By moving the Men's League from a start time of 7:ISpm to 7:45pm will allow for 1 more hour of prime time ice at the Ice Gazden. No committee members aze against this move. N~ Willey will take any morning practices. Jojo feels that she has fielded all the ice users' wants. :~ , i ----~~ I Michelle Hocknell is trying to start a new Figure Skating Club on Monday's after public skate for 45 minutes of structured skate time and that she would like to switch her Monday morning ice time to Thursday mornings. Jojo said that for this to take place we would loose one of our learn to skate hours and she would need more input from Michelle on the number of participants. A summary of requests was taken for each user group: Willey U-19 High level Tier 1 and 2 would prefer early mornings on Tuesday, Wednesday, and Thursday at the ARC. Late evenings will not work. Cazo] will possibly need ice time for a couple of games on Saturdays and would rather have a start time of 4pm instead of 6pm. Rick mentioned that they were going to need more ice time with the growth of their program Thursday and Friday mornings at the Lewis and Thursday at the Ice Garden. Rick asked if the public skate times could be switched at the Lewis as most games start at noon. He wants to know what the participant numbers aze for the learn to skate program. Tim said 5-20 kids and mentioned that we need a regulaz time for public skate for our guests. [ce user groups were. assured that their times would not change and this would need to be discussed with the Men's League since we would like to change their time. Rick was under the impression that there would be another meeting in Tune as he doesn't know the specific time that AJHC wants. Tim said that we will bring the schedule back with revisions for the next ARC Advisory Board Committee. 2. Outdoor Pools: Design Development Meeting still working out the detail at the deep end of the lap lanes, a water feature will be put in. John Latch and Tim are meeting with council on May 20`s. A retaining wall is needed and will be covered with foe rock. The first layer of pool and hot tubs are to be in place by the fall. There is a possible issue of an underground stream. Staging for the site work will have to j be worked out; the estimated start of construction is September 1, 2008. There will be an 1 alternate route for the kids coming from school. The public will be notified two weeks prior to the constmction start. Toni Kronberg went to council and claims that they aze not awaze of the construction document being drawn up. She said that she has a letter itu;u il:c nsNcu v aiicy Sici Ciuu Statuig til8i iiicy waiii n 3 iYicicr diving ward. .ciCvti 3 ^as chap •a~•as a recommendatior, and that the pouf is roi big enou=i, io accotrunvdatc that. Tuni said lira[ she i~as a goal to do 'nigh aitande training and that ha-ring the lap lane go through the kiddy pool is a joke. Barbra said she was going to call Mayor Mick Ireland ~ and ask for a timer to be put on Toni Kronberg's list of questiors. Sue mentioned that she is not happy. that council is still leading her on and not letting her know that the decision on the pool is finalized. Sue said that John Worster sent out a memo about what we have to do with guest comments and that we are not required [heiet the public speak. Gordon recommended taking guest comments of the agenda. All were in favor. Rick was concerned with construction during the Fall Face Off and asked that there be a player drop off at the back of the ARC and that we enforce the ARC only pazking rule. He wanted to know why we can't pazk on the streets during special events. Tim told him to talk with the police department and that the ARC was not getting involved in this discussion. Scott motioned that we could put a gate up and chazge for parking and that if patrons buy a day pass they could park for free. 3. Financial Reports: Tim; numbers speak for themselves we aze slightly ahead of last yeaz. 4. Ice Garden Remodel: At 5:30pm May 21~` at the AIG there will be an initial design meeting for user groups (1-2 representative for each group). We are trying to combine the replacement of South wall, replacement of the boards and locker room remodel during the same time. ARC Advisory Boazd wants to expand the issue of the remodel to include the upstairs. Rick mentioned that we should keep the boards and use them outside at the ARC. Tim mentioned that there was another rink already interested in purchasing them. The budget for the remodel and replacement of the South wall $400K and that new boards would be $90K. The questions then came up of why change [he boazds if there aze no issues with them. IV. Updates: Crust was seized by [he IRS. Afire sale will be held on May 20`" if they don't pay their taxes. Tim had called Graham and hasn't heazd back. Bunz is still running and they are thinking of a contingency plan in case Bunz closes. Cost Benefit Analysis: Tim and Shelley aze meeting with the Finance Director and Ross to discuss a model. V. Action Item(s): Policy for Displaying information at the ARC: Tim mentioned that the prior committee did not want bulletin boazds and that [hey wanted an electronic Kiosk. Scott said that we need a master plan for the J/ ARC and the advisory Boazd strongly requests that it be put into the 2009 budget. All were in favor of hanging a display board outside of the Youth Center. toj Tne ARC Advisory- Committee s);all establish.regulla* meetings and special meetings may be called by the Chair of the ARC Advisory Committce on at least twenty four (24) hours notice to all members; provided, however, that spaces] meetings may be held on shorter notice if all members of the ARC Advisory Committee are present or have waived notice thereof (c) All regular mcetings of the ARC Advisory Committee shall be publicly noticed by posting a notice in a prominent location within the ARC at least 5 days prior to the date of the meeting. Special meetings shall be noticed as soon as is practicable. (d) The City's professional staff shall fie notified of all regulaz and special meetings. Notice to the City's professional staff shall be accomplished by providing written notice to the City's ITirector of Recreational Services. ft (e) ; All special and regalaz meetings of the ARC Advisory Committee shall be open to ~~ the public except duly authorized executive sessions called in accordance with the State of Colorado Open Meetings Law (Sections 24-6-401, et seg.) Citizens sball be given a reasonable opportunity to be heard during a portion of all public meetings. (f) To assist the ARC Advisory Committee and the City's professional staff to establish operational policies, and other matters consistent with this resolution, the following decision making process shall be followed: (i) The City's professional staff shall prepaze operating policies and procedures for all activities offered at the ARC and Aspen Ice Cmrden. Said policies and procedures shall include, but not necessarily be limited to, personnel policies and procedures, operational policies and procedures, fee schedules, and event scheduling. Before any such operating policies and procedures aze implemented or amended, the City's professional staff shall foiward the same to the ARC Advisory Committce for its review and approval. (ii) In the event that the ARC Advisory Committee does not approve a particular policy' or procedure, in whole or in part, it shall meet with the City's professional staff in an effort to reach.consensus on the particulaz policy or procedure not approved by the ARC Advisory Committee. (iii). In the event that the ARC Advisory Committee and the City's professional staff are not able to reach agreement on a particular policy or procedure, the dispute shall be forwarded to the. City Council for resolution at the earliest opportunity. Both the ARC Advisory Committee and the City's staff shall have an opportunity to address the matter in ftortt of City Comtcil. City Council's decision in such disputes shall be firiai. i ,~ (g) The City shall provide a mceting space for all duly noticed mcetings of the ARC Advisory Committee, and shall provide all reasonably related adminishative CITY COUNCIL AGENDA June 23, 2008 5:00 P.M. Call to Order II. Roll Call III. Scheduled Public Appearances IV. Citizens Comments $ Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Deletions and Additions c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters maybe adopted together by a single motion) a) Resolution #60, 2008 -Real Estate Broker Contract b) Pitkin County referral -Land use code text amendment c) Resolution #61, 2008- Contract -Active Network Inc. -Web Registration d) Resolution #62, 2008 -Contract -Climate Mitigation Services -Greenhouse Gas Inventory e) Taping Work Sessions VII. First Reading of Ordinances a) Ordinance #18, 2008 -Noise Ordinance VIII. Public Hearings a) Ordinance #1, 2008 - 434 E. Cooper Subdivision -Bidwell building -Continue to July 14th IX. Action Items a) Community Picnic and 4~h of July fire works X. Information Items a) Screening Historic Preservation Documentary XI. Adjournment Next Regular Meeting July 14, 2008 COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. via MEMORANDUM TO: FROM: THRU: DATE OF MEMO: MEETING DATE: RE: Mayor and City Council Steve Barwick June 16, 2008 June 23, 2008 Real Estate Broker Services Contract Approval REQUEST OF COUNCIL: Award a contract for real estate broker services to Greg Hunter of Morris & Fyrwald. DISCUSSION: The one-yeaz broker agreement with Greg Hunter expired on Apri125, 2008. At the direction of the city manager, the purchasing office issued a Request for Proposals on Apri121, 2008 in The Aspen Times. The Aspen Municipal Code Title 4 Procurement: Request for Sealed Proposal procedures require that ads must be published for two consecutive weeks and cannot close sooner than seven days after the last publication. The ad ran on April 2151 28`n and May 5`n and sealed proposals were accepted unti12:00pm, May 12, 2008. Purchasing received seventeen (17) sealed proposals for broker services and one late proposal that could not be accepted per our Procurement Code. The initial evaluation team, consisting of Randy Ready, Bentley Henderson, and Rebecca Hodgson, scored each proposal based on years of experience in Aspen, experience in commercial and residential properties, experience as a buyer and seller agent, experience presenting to an audience, and commission percentage rates. The top three scoring candidates were recommended to the city manager for further review. Steve Barwick, Mick Ireland, and Dwayne Romero interviewed the top scoring candidates Brent Waldron, Ed Foran, and Greg Hunter. After the interviews were completed, they concluded that Ed Foran and Greg Hunter were equally qualified to provide the city with broker services. The decision to recommend Greg Hunter over Ed Foran was based on the lowest commission rate offered. FINANCIALBUDGET IMPACTS: The real estate broker would be compensated as part of any real estate transactions that the City undertakes. Greg Hunter's proposed rates were 2% on transactions up to $5 million, 1.5% on transactions ranging between $5 million and $10 million, and 1 % on transactions $10 million or higher. Page 1 of 2 RECOMMENDED ACTION: The evaluation team recommends Council approve Greg Hunter for real estate broker services for one year with two (2) one-yeaz renewal options. Page RESOLUTION # ~ ~ (Series of 2008) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND MORRIS & FYRWALD REAL ESTATE SETTING FORTH THE TERMS AND CONDITIONS REGARDING REAL ESTATE BROKER SERVICES AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Morris & Fyrwald Real Estate, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Morris & Fyrwald Real Estate regarding real estate broker services a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held June 23, 2008. Kathryn S. Koch, City Clerk Morris &Fyrwald Real Estate 415 East Hyman Avenue Aspen, CO 81611 Phone:970-925-6060, Fax:970-925-3138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ]5 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 The printed portions of [his form, except differentiated additions, have been approved by [he Colorado Real Estate Commission. (BC 60-04-OS) THIS IS A BINDING CONTRACT. THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. Compensation charged by real estate brokerage firms is not set by law. Such charges are established by each real estate brokerage firm. DIFFERENT BROKERAGE RELATIONSHIPS ARE AVAILABLE WHICH INCLUDE BUYER AGENCY, SELLER AGENCY ORTRANSACTION-BROKERAGE. EXCLUSIVE RIGHT-TO-BUY CONTRACT (ALL TYPES OF PROPERTIES) ® BUYER AGENCY ~ TRANSACTION-BROKERAGE Date: •T^^= ~~, Anna 1. AGREEMENT. Buyer and Brokerage Firm enter into [his exclusive, irrevocable contract as of the date set forth above. 2. BROKER AND BROKERAGE FIRM. ® a. Multiple-Person Firm. If this box is checked, the individual designated by Brokerage Firm [o serve as the broker of Buyer and to perform the services for Buyer required by this contract is called Broker. If more than one individual is so designated, then references in [his contract [o Broker shall include all persons so designated, including substitute or additional brokers. The brokerage relationship exists only with Broker and does not extend to the employing broker, Brokerage Firm or to any other brokers employed or engaged by Brokerage Firm who are not so designated. ~ b. One-Person Firm. If this box is checked, Broker is a real estate brokerage firm with only one licensed natural person. References in this contract to Broker or Brokerage Firm mean both the licensed natural person and brokerage firm, who serve as the broker of Buyer and perform the services for Buyer required by this contract. 3. DEFINEDTERMS. a. Buyer: City of Aspen and any other person or entity on whose behalf the named party acts, directly or indirectly, to Purchase the Property. b. Brokerage Firm: c. Broker: d. Property. Property means real estate that substantially meets [he following requirements or similar real estate acceptable [o Buyer: Suitable employee housing locations as is determined by the City. 47 48 e. Purchase. Purchase means [he acquisition of any interest in the Property or the creation of the right to acquire 49 any interest in the Property (including a contract or lease). It also includes an agreement to acquire any ownership 50 interest in an entity [hat owns the Property. 51 PREPARED BY: Greg Hunter, Broker No. BC60-04-OS EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission ReaIFA$T(~ Software, ©2008, Version 6.16. Software Registered to: Craig Morris, Morris &Fyrwald Real Estate Buyer(s) 06/16/08 13:07:16 Page 1 of 6 52 f. Term. The Term of this contract shall begin on -~^~ ~s, Anna ,and shall continue through the 53 earlier of (1) completion of the Purchase of [he Property or (2) ,,.^_ ~s ~nn~ .Broker shall continue to 54 assist in [he completion of any transaction for which compensation is payable [o Brokerage Firm under § 8 of this 55 contract. 56 57 g. Applicability of Terms. A check or similaz mark in a box means that such provision is applicable. The 58 abbreviation "N/A" means no[ applicable. The abbreviation "MEC" (mutual execution of this contract) means the latest 59 date upon which the parties have signed this contract. 60 61 4. BROKERAGE SERVICES AND DUTIES. Brokerage Firm, acting through Broker, shall provide brokerage 62 services to Buyer. Broker, acting as either a Transaction-Broker or a Buyer's Agent, shall perform the following 63 Uniform Duties when working with Buyer: 64 65 a. Broker shall exercise reasonable skill and cart for Buyer, includingbu[ not limited [o [he following: 66 (1) Performing the terms of any written or oral agreement with Buyer; 67 (2) Presenting all offers [o and from Buyer in a timely manner regardless of whether Buyer is already a party 68 to a contract to Purchase the Property; 69 (3) Disclosing to Buyer adverse material facts actually known by Broker; 70 (4) Advising Buyer regarding the transaction and [o obtain expert advice as to material matters about which 71 Broker knows but the specifics of which are beyond [he expertise of Broker; 72 (5) Accounting in a timely manner for all money and property received; and 73 (6) Keeping Buyer fully informed regarding the transaction. 74 75 b. Broker shall not disclose the following information without the informed consent of Buyer: 76 (1) Tha[ Buyer is willing to pay more than the purchase price offered for [he Property; 77 (2) Wha[ Buyer's motivating factors are; 78 (3) That Buyer will agree to financing terms other than those offered; 79 (4) Any material information about Buyer unless disclosure is required by law or failure [o disclose such 80 information would constitute fraud or dishonest dealing; or 81 (5) Any facts or suspicions regarding ctircumstances that could psychologically impact or stigmatize [he 82 Property. 83 84 c. Buyer consents [o Broker's disclosure of Buyer's confidential information [o [he supervising broker or designee 85 for the purpose of proper supervision, provided such supervising broker or designee shall not further disclose such 86 information without consent of Buyer, or use such information to the detriment of Buyer. 87 88 d. Broker may show properties in which [he Buyer is interested to other prospective buyers without breaching any 89 duty or obligation [o such Buyer. Broker shall no[ be prohibited from showing competing buyers the same property and 90 from assisting competing buyers in attempting to purchase a particulaz property. 91 92 e. Broker shall no[ be obligated to seek other properties while Buyer is already a party [o a contract [o purchase 93 property. 94 95 f. Broker has no duty [o conduct an independent inspection of the Property for [he benefit of Buyer and has no 96 duty [o independently verify the accuracy or completeness of statements made by a seller or independent inspectors. 97 Broker has no duty to conduct an independent investigation of Buyer's financial condition or to verify the accuracy or 98 completeness of any statement made by Buyer. 99 100 g. Broker shall disclose to any prospective seller all adverse material facts actually known by Broker, including but 101 no[ limited to adverse material facts concerning Buyer's financial ability [o perform the terms of [he transaction and 102 whether Buyer intends to occupy the Property as a principal residence. 103 104 h. Buyer shall not be liable for the acts of Broker unless such acts are approved, directed or ratified by [he Buyer. 105 106 5. ADDITIONAL DUTIES OF BUYER'S AGENT. If the Buyer Agency box a[ the top of page 1 is checked, 107 Broker is a limited agent of Buyer, with the following additional duties: 108 109 a. Promoting the interests of Buyer with the utmost good faith, loyalty and fidelity. 110 PREPARED BV: Greg Hunter, Broker No. BC60-04-06 EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission ReaIFA$TO Software, ©2008, Version 6.16. Software Registered to: Craig Morris, Morris & Fyrwald Real Estate 06/16/06 13:07:16 Page 2 of 6 Buyer(s) 111 b. Seeking a price and terms that are acceptable to Buyer. 112 113 c. Counseling Buyer as to any material benefits or risks of a transaction [ha[ are actually known by Broker. 114 115 6. BROKERAGE RELATIONSHIP. 116 117 a. If the Buyer Agency box at the top of page 1 is checked, Broker shall represent Buyer as a Buyer's Agent. If the 118 Transaction-Brokerage box at [he [op of page 1 is checked, Broker shall ac[ as a Transaction-Broker. 119 120 b. In-Company Transaction -Different Brokers. When the seller and Buyer in a transaction are working with 121 different brokers, those brokers continue to conduct themselves consistent with [he brokerage relationships [hey have 122 established. Buyer acknowledges [ha[ Brokerage Firm is allowed [o offer and pay compensation to brokers within 123 Brokerage Firm working with a seller. 124 125 c. In-Company Transaction -One Broker. If the seller and Buyer are both working with the same broker, 126 Broker shall function as: 127 128 (1) BUYER'S AGENT. if the Buyer Agency box at the top of page 1 is checked, the parties ogee the 129 following applies: 130 131 Check One Box Only 132 133 ^ (a) Buyer Agency. If this box is checked, Broker shall represent Buyer as Buyer's Agent and shall treat 134 the seller as a customer. A customer is a party [o a transaction with whom Broker has no brokerage relationship. Broker 135 shall disclose to such customer Broker's relationship with Buyer. 136 137 ^ (b) Buyer Agency Unless Brokerage Relationship with Both. If [his box is checked, Broker shall 138 represent Buyer as Buyer's Agent and shall treat [he seller as a customer, unless Broker currently has or enters into an 139 agency or Transaction-Brokerage relationship with the seller, in which case Broker shall act as aTransaction-Broker, 140 performing [he duties described in § 4 and facilitating purchase transactions without being an advocate or agent for 141 either party. 142 143 (2) TRANSACTION-BROKER. If the Transaction-Brokerage box at the top of page 1 is checked, or in 144 the even[ neither box is checked, Broker shall work with Buyer as a Transaction-Broker. If the seller and Buyer are 145 working with the same broker, Broker shall continue to function as a Transaction-Broker. 146 147 7. BUYER'S OBLIGATIONS TO BROKER. Buyer ogees [o conduct all negotiations for [he Property only through 148 Broker, and [o refer to Broker all communications received in any form from real estate brokers, prospective sellers, 149 or any other source during the Term of this contract. Buyer represents that Buyer ^ Is ®Is Not currently a party to 150 any agreement with any other broker [o represent of assist Buyer in [he location or purchase of property. 151 152 S. COMPENSATION TO BROKERAGE FIRM. In consideration of the services to he performed by Broker, 153 Brokerage Firm shall be paid as set forth in this section, with no discount or allowance for any efforts made by Buyer 154 or any other person. Brokerage Firm shall be entitled to receive additional compensation, bonuses, and incentives paid 155 by listing brokerage firm or seller. Broker shall inform Buyer of [he fee to be paid to Brokerage Firm and, if there is a 156 written agreement, Broker shall supply a copy [o Buyer, upon written request of Buyer. 157 158 a. Check Compensation Arrangement: 159 160 ^ (1) Success Fee. Brokerage Firm shall be paid as follows: 161 162 (a) Amount. A fee equal to ~__ ~ ~ ~ %o of [he purchase price, but not less than $ ~/_ , 163 except as provided in subsection 8a(1)(b). 164 165 (b) Adjusted Amount. ^ See Section 17. Additional Provisions or 166 ^ Other. 167 n/= 168 169 (c) Earned. The Success Fee is earned by the Brokerage Firm upon the Purchase of the Property and is PREPARED BY: Greg Hunter, Broker No. BC60-04-05 EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission ReaIFA$T® Software, 02008, Version 6.16. Software Registered to: Craig Morris, Morris & Fyrwaltl Real Estate 06/16/08 13:07:16 Page 3 of 6 Buyer(s) 170 payable upon closing of the transaction. If any transaction faIls ro close as a result of the seller's default, with no fault on 171 the par[ of Buyer, [he Success Fee shall be waived. If any transaction fails to close as a result of Buyer's default, in 172 whole or in part, [he Success Fee shall no[ be waived; such fee shall be payable upon Buyer's default, but in any even[ 173 not later than the date that the closing of the transaction was to have occurred. 174 175 (d) Holdover. This fee shall apply to Property contracted for during the Term of this contract or any 176 extensions and shall also apply to Property contracted for within ~ ~~ calendardays afterthis contractexpires or is 177 terminated (Holdover Period) if the Property is one on which Broker negotiated and if Broker submitted its address or 178 other description in writing to Buyer during the Term. However, if a commission is earned by another real estate 179 brokerage firm acting pursuant [o an exclusive agreement with Buyer entered into during [he Holdover Period, Buyer 180 shall owe no commission to Broker under subsection 8a(1). 181 182 ~\(~2~)\)FEat~ty\`Fel6~`f3,ty~k~h~n~l~y~rb`kL3~g~e\f~,1?n\$~y~,~~\\\\\\\\\~\~~~,)telyi~~dr\t1htL~s~ist~b~`I~rbka>\~at~slt~eat\ 183 \tb\t`hYs\~arlt~~dt~b~~tb\a\rhhk~r~ttik#kk'at~~e~\dA$~~~~~~~~~~~\\\\\\\\~\~^chi~s\Rdt?~r'1}\ode\sYtaY~6A~~tl~tb\~Ydckc\e~'u~ 184 \lit`rk3~b~ddk~c'e1~PdY\~t1~kiJoY~ivb~htlkbrh~A`E`i?vh~\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ 185 \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ 186 ~\(~)\lt~e`t3ln~er\lyiel\$tly~e~r`6`hhN~ay\@~~~•fi?v~r1'nlbktkbftt?~M'e0[e\r~t~i?,A>\i~~`dt~$hY'~~~~~~~~~~\\\\\\\\\\\ 187 \i1t~'ml24bh~6~dla\r~bkt`sl~tlr~i~\dlkhls\ddriti~3c`t~~'nis\ahldddP~`~h1aYf`\Q~AtahY~dt\\6A\kt~e~tit~l~i\~~~k1s`t\b~tk`r\`tabs\ 188 ~{?ayhbt~e\tb\~#d12e1~~~k1~t~ht~BAt\tY,1s\~~ct?o`n1 189 190 ~ (4) Other Compensation. 191 none. 192 193 b. Check Who Will Pay Compensation: 194 19s \Q\~~>\~6t~\vc~H~r~.~\>§a~~~l,~i`~.al9r;~~t~a~ta~ay\t~t~\$>v~~t~\~t~~~fa~~~b~r~l~~~>jaae\n,\~r~6~at~iaa~~ 196 197 ® (2) Listing Brokerage Firm or Seller May Pay. Buyer IS Obligated to Pay. Broker is authorized and instructed 198 to request payment of [he Brokerage Firm's fee from the listing brokerage firm or seller. Buyer shall be obligated [o pay 199 any portion of Brokerage Firm's fee as described above in subsection 8a which is no[ paid by the listing brokerage firm 200 or seller. 201 zo2 \Q\~~\~.ti~t~a~~D~~a~~~lr~~t\ar~san~~~~~\ray~~ry~~ti~~o~~~ny~~t~ataray~\n>b~~~~~a~r~l\>~\a>jim~a 203 \~~}kkAADb3i`tAA\$tb`k~kiRge\'>~Tr1>~''s\fek\Trbla~`tAbYts`tt1,~\6?~dk\ek~~e\`ftktn\bk`6~X1~i~~B~yAt\~k~fl\t~at~bL>~C3b`]tg`al~dt~d~~ily\ 204 \DibYc~k~ge\httkk3`f~. 205 206 9. LIMITATION ON THIRD-PARTY COMPENSATION. Neither Broker nor Brokerage Firm, except as se[ forth 207 in §8, shall accept compensation from any other person or entity in connection with [he Property without the written 208 consent of Buyer. Additionally, neither Broker nor Brokerage Firm shall be permitted [o assess and receive mark-ups 209 or other compensation for services performed by any third patty or affiliated business entity unless Buyer signs a 210 separate written consent for such services. 211 212 10. COST OF SERVICES OR PRODUCTS OBTAINED FROM OUTSIDE SOURCES. Broker will not obtain or 213 order products or services from outside sources unless Buyer has agreed [o pay for them promptly when due (examples: 214 surveys, radon tests, soil tests, title reports, engineering studies, property inspections). Neither Broker nor Brokerage 215 Firm shall be obligated [o advance funds for Buyer. Buyer shall reimburse Brokerage Firm for payments made by 216 Brokerage Firm for such products or services authorized by Buyer. 217 218 11. SHOWING PROPERTIES. Buyer acknowledges that Broker has explained the possible methods used by listing 219 brokers and sellers to show properties, and [he limitations (if any) on Buyer and Broker being able to access properties 220 due to such methods. Broker's limitations on accessing properties are as follows: *+^ ~ +m~ r~r; ^.,s , 221 Broker, through Brokerage Firm, has access to the following multiple listing services and property information services: 222 Aspen bII.S, or any other source that Broker can find to locate suitable property. 223 224 12. DISCLOSURE OF BUYER'S IDENTITY. Broker ~ Does ®Dces Not have Buyer's permission [o disclose 225 Buyer's identity to third parties without prior written consent of Buyer. PREPARED BY: Greg Hunter, Broker No. BC60-04-05 EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission ReaIFA$TOO Software, ©2008, Version 6.16. Software Registered to: Craig Morris, Morris & Fyrwald Real Estate Buyer(s) 06/16/06 13:07:16 Page 4 of 6 226 227 13. NONDISCRIMINATION. The parties agee not to discriminate unlawfully against any prospective seller 228 because of the race, creed, color, sex, marital status, national origin, familial status, physical or mental handicap, 229 religion or ancestry of such person. 230 231 14. RECOMMENDATION OF LEGALAND TAX COUNSEL. By signing this document, Buyer acknowledges 232 that Broker has advised that this document has important legal consequences and has recommended consultation with 233 legal and tax or other counsel before signing this contract. 234 235 15. MEDIATION. If a dispute arises relating to this contract, prior to or after closing, and is not resolved, the 236 paz[ies shall firs[ proceed in good faith [o submit [he matter to mediation. Mediation is a process in which [he parties 237 meet with an impartial person who helps [o resolve the dispute informally and confidentially. Mediators cannot impose 238 binding decisions. The parties [o the dispute must agree before any settlement is binding. The parties will jointly 239 appoint an acceptable mediator and will share equally in the cos[ of such mediation. The mediation, unless otherwise 240 agreed, shall terminate in the even[ the entire dispute is not resolved within 30 calendar days of the date written notice 241 requesting mediation is sent by one party [o [he other a[ [he party's last known address. 242 243 16. ATTORNEY FEES. In the event of any arbitration or litigation relating to this contract, the arbitrator or court shall 244 award to the prevailing party all reasonable costs and expenses, including attorney and legal fees. 245 246 17. ADDITIONAL PROVISIONS. (The following additional provisions have no[ been approved by [he Colorado 247 Real Estate Commission.) 24$ 1) RE Section S (1)(a) SUCCESS FEE: Broker's commission shall be calculated on the following sliding scale: For property up to a sales price of $5,000,000, Broker's commission shall be 2.08 of the gross sales price; Fox property between $5,000,000-$10,000,000, Broker's commission shall be 1.50$ of the gross sales price; Fox property over $10,000,000, Broker's commission shall be 1.0~ of the gross sales price. Hroker agrees that any commiasion amount offered by the Seller or the Listing Broker that exceeds the above guidelines shall be credited to the City, on the Closing Statement. 2) Broker and the City of Aspen shall have the option to renew this agreement for two additional 1-year terms upon the expiration of the Listing Period by mutual written agreement by both parties. Broker shall initiate the discussion for the renewal of this agreement within 60 days of this contract's expiration date. 249 250 18. ATTACHMENTS. The following are a paz[ of [his contract: 251 Buyer Addendum.. 252 253 19. NOTICE, DELIVERY AND CHOICE OF LAW. 254 a. Physical Delivery. Except for the notice requesting mediation described in § 15, and except as provided in 255 § 196 below, any notice to the other party to this contract must be in writing and is effective upon receipt. 256 257 b. Electronic Delivery. As an alternative to physical delivery, any signed document and written notice may be 258 delivered in electronic form by the following indicated methods only: 259 ®Facsimile ^ E-Mail ^ None. Documents with original signatures shall be provided upon request of any party. 260 261 c. Choice of Law. This contract and all disputes arising hereunder shall be governed by and construed in 262 accordance with the laws of the State of Colorado that would he applicable to Colorado residents who sign a contract in 263 this state for property located in Colorado. 264 265 20. MODIFICATION OF THIS CONTRACT. No subsequent modification of any of [he terms of [his contract shall 266 be valid, binding upon the parties, or enforceable unless made in writing and signed by.[he parties. 267 268 21. COUNTERPARTS. If more than one person is named as a Buyer herein, [his contract may be executed by each 269 Buyer, separately, and when so executed, such copies taken together with one executed by Broker on behalf of PREPARED BY: Greg Hunter, Broker No. BC60-04-05 EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission ReaIFA$T® Software, ©2008, Version 6.16. Software Registered to: Craig Morris, Morris & Fyrwald Real Estate Buyer(s) 06/16/0813:07:16 Page 5 of 6 270 Brokerage Firm shall be deemed to be a full and complete contract between the parties. 271 272 22. ENTIRE AGREEMENT. This agreement constitutes [he entire contract between [he parties and any prior 273 agreements, whether oral or written, have been merged and integrated into [his contract. 274 275 23. COPY OF CONTRACT. Buyer acknowledges receipt of a copy of this contract signed by Broker, including all 276 attachments. 277 278 24. MEGAN'S LAW. If [he presence of a registered sex offender is a matter of concern to Buyet, Buyer understands 279 that Buyer must contact local law enforcement officials regazding obtaining such information. 280 281 Brokerage Firm authorizes Broker to execute this contract on behalf of Brokerage Firm. 282 283 City of Aspen BUYER DATE By: Steve Barwick, City Manager 284 Email Address: r_re..ar_~egU..n«e~o~~ e~+-; va .. 285 286 Morris S Fyrwald Real Estate 415 East Hyman Avenue Aspen, CO 81611 Phone: 970-925-6060, A Fax 9 0-925-3138 By: Signature 287 Email Address: Greg Hunter PREPARED BY: Greg Hunter, Broker No. BC60-04-OS EXCLUSIVE RIGHT-TO-BUV CONTRACT (All Types of Properties). Coloratlo Real Estate Commission ReaIFA$T® Software, ©2006, Version 6.16. Software Registeretl to: Craig Morris, Morris & Fyrwaltl Real Estate O6/i6/O6 13:07:16 Da[c Page 6 of 6 Morris &Fyrwald Real Estate 415 East Hyman Avenue Aspen, CO 81611 Phone:970-925-6060, Fax:970-925-3138 BUYER ADDENDUM TO EXCLUSIVE RIGHT-TO-BUY CONTRACT OR BROKERAGE DISCLOSURE TO BUYER/TENANT This "Addendum" is hereby made a part of either the Exclusive Right-to-Buy Contract or Brokerage Disclosure to Buyer/I'enan[ form. In the even[ of a conflict between this Addendum and the indicated CREC approved form, this Addendum shall prevail. 1. BUYER DUE DILIGENCE. Neither Broker nor Brokerage Firm has a duly to conduct an independent inspection of the Property, the Inclusions, the Seller's Property Disclosure form, the Listing Brokerage Firm's Well Checklist or the Title Documents for [he benefit of [he Buyer. Neither Broker nor Brokerage Firm has a duty W independently verify the accuracy or completeness of statements made by seller, seller's broker, independent inspectors, or other tMrd parties, regarding: the actual lot size, location and square footage of improvements, building, zoning and allowed use regulations, well (flow rate, capacity, depth, recovery rate, suitability for Buyer's needs, exempt status such as household, domestic, etc., water quahty, potability, location on property, etc.), septic (useful life of the system, capacity and sui[abihty for size of house, pumping needs, location on property, eta), leach field (adequacy, locafion on property, permla[ion, etc.), environmental (such as presence on the property of mold, radon gas, asbestos, petroleum products, methamphetamineond/or byproducts from the production of methamphe[amine or other hazardous substances or materials) or soils matters, radian[ heating systems (e. g. Entran D), electromagnetic fields (proximity to power lines), tcmlites or other infestations, exterior insulation and finish systems (e.g. artificial stucco), polyburylene plumbing materials, roofing materials (e.g. Woodruf shingles), proximity [o a flood plain or hazardous waste site, the availability and quality of schools, the impact of air [mffic, the dues, fees, taxes or similar charges that are or may be assessed or levied by any applicable association or taxing authority, crime statistics (such as "Megan's Iaw" which provides that information concerning the location of known sex offenders be available from local law enforcement), and other similar matters. 2. USE OF PROFESSIONALS. Buyer should seek the advice of professionals, such as (but not limited to): attorneys, accountants, mortgage lenders, exchange accommodators, appraisers, surveyors, contractors, engineers, septic inspectors, well testers, water engineers, property inspectors, and environmental hazard and radon gas experts. Broker and Brokerage Firm recommend [ha[ Buyer obtain a written inspection report covering the Property and Inclusions, and an improvement location certificate or survey to determine lo[ size, locafion of improvements, and any encroachments. Buyer should verify all information using experts of Buyer's own choosing. Most professions require state licensing or registration and Buyer should work with licensed or registered professionals when applicable. 3. MLS. Broker and Brokemge Firm shall only be obligated to search for Property in Multiple Listing Services ("MLS") of which Brokerage Firm is a member. 4. PROPERTY REPAIRS/IMPROVEMENTS. Buyer should obtain written cost quotations (bids) for all work Buyer intends to have done to the Property [o be fully aware of the costs of such work. Neither Broker nor Brokerage Firm is responsible for any recommendations as [o professionals. Each professional should be able to provide Buyer with a list of pas[ customers to assist Buyer in making Buyer's own decision and selection. Buyer is advised that ag work done on the Property as par[ of any contract should be done by licensed contractors when possible and inspected by [he appropriate governmental authority. 5. HOMEOWNER'S WARRANTY. Pre-owned homewarantyprogramsexistwhichmaybepurchascdandmaycover[herepairorreplacemen[ of some Inclusions. Neither Broker nor Brokerage Fmm is liable for the financial integrity of such companies. Buyer is encouraged to evaluate the terms of coverage and financial strength of any company offering [o issue such a wartanty. 6. POSSESSION. LEASE AND INSURANCE. If the Possession Date and Time are other than Closing Date, Buyer should considerobtaining casualty and liability insurance and a lease for the period between Possession Date and Time, and the Closing Date. 7. BROKER PURCHASES. Broker or other agents of Brokerage Firm may, for their own account, purchase property that is available for sale, including property that may or may not have been shown to Buyer. 8. LOAN CONDITIONS. The loan contingency in [he torten[ CREC approved Contract to Buy and Sell Real Estate (§ 5.2), conditions the Contract only upon Buyer being satisfied with the availability, terms, conditions and cost of any new loan to be used by Buyer to pay all or part of the Purchase Price - not on obtaining a written loan commitment and not on Buyer's new loan actually closing and/or funding. If, for example, Buyer obtains a loan commitment or decides it is satisfied without a written commitment, but the lender in either event does not fund [he loan, Buyer maybe in default. 9. LOAN FRAUD. Buyer shall not engage in any conduct that could constitute loan fraud (including, but no[ limited to, material misstatements regarding Buyer's employment status, receipt of money or other value from seller without the knowledge of Buyer's lender, or the use of an incorrect Social Security number), and Buyer shall notify Broker if Buyer teams [ha[ any other party to a transaction may be engaging in such conduct. ff Broker or Brokerage Firm becomes aware that Buyer has been a part of a loan fraud, before the transaction has closed, the fraud shall be considered a breach of Buyer's duties ro Broker and Brokerage Firm, and Broker and Brokerage Firm may immediately terminate [heir relationship with Buyer, so that neither Broker nor Brokerage Firm shall have any continuing duty to Buyer, and notify appropriate authorities. This addendum has not been approved by the Colorado Real Es[a[e Commission ("GREG"). II was prepared and ©2(I08 by Frascona, Joiner, Goodman and Greenstein, P.C. (303-494-3000) legal counsel, for the exclusive use of Moms &Fyrwald Real Estate. Addendum to Exclusive Right to Buy Contract (BC60-0405)/ Brokerage Disclosure [o Buyer/Tenant (BD 24-10-06). PREPARED BY: Greg Hunter, Broker All rights reserved. ReaIFA$T® SoMvare, 02008, Version 6.16. Software Registered to: Craig Morris, Morris & Fyrwaltl Real Estate Buyer(s) 06/16/06 13:07:33 Page 1 of 2 10. SELLER CONCESSIONS. Buyer acknowledges that if a contract for Buyer's purchase of the Property contains a credit or credits to be given by the Seller or other incentives or provisions for the return of value to the Buyer, Buyer's lender may treat some or all of any such credit, incentive or return of value as a price concession, and to the extent so treated, Buyer's lender may disallow the credit, incentive or return of value, or may reduce the amount of the available loan [o reflect the effecfive price for the Property (after deducting for such credit, incentive or return of value). Such a reduction in the loan amount would require Buyer to pay more of the purchase price from Buyer's own funds at closing. Buyer also acknowledges that any and all Seller concessions must be shown on [he settlement statements a[ closing. 11. PROPERTY USED AS METHAMPHETAMINE LABORATORY. The current CREC approved Contract to Buy and Sell Real Estate (§ 11) indicates that a buyer of residential real property has [he right [o test the property [o determine whether it has been used as a me[hamphe[amine laboratory, and the right, if the test resuhs indicate that the property has been used as a methamphetamine laboratory but has not been remediated to meet certain standards estabhshed by rules of [he State Board of Health, to terminate the contract (as well as the obligation with such [es[ results to promptly gve written notice t4 [he seller of the test results). Ban illegal drug laboratory is deemed to have been discovered under the applicable statute regarding such methamphelamine laboratories, a buyer may still purchase the property, but in that event, among other things, the buyer assumes certain obligations with respect to the illegal dmg laboratory, [he buyer must notify the Department of Public Health and Environment of such purchase on the date of closing, and the buyer must complete required remediation of the property within 90 days after closing. Buyer should obtain the advice of appropriate professionals, including a certified industrial hygienist or industrial hygienist and an attorney, regarding such matters. 12. BREACH OR NONPERFORMANCE BYBUYER-SUCCESS FEE DUE. In the even[ of any breach or nonperformance of Buyer's obligations under [his Exclusive Right-to-Buy Contract, then, notwithstanding any provision of this Contract to the contrary, Buyer shall be obligated to pay the Success Fee to Brokerage Firm. The amount of the Success Fee has been agreed upon by Buyer and Brokerage Firm as a reasonable estimate of Brokerage Firm's actual damages in the event of a breach or nonperformance of Buyer's obligations hereunder. The actual amount of damages upon the occurrence of such a breach or nonperformance by Buyer is extremely difficult to determine. I[ is agreed that the recovery of such Success Fee shall be LIQUIDATED DAMAGES and, except for recovery of fees, expenses or sums paid or incurred by Brokerage Firm and owed by Buyer under §10 or §16 or some other specific provision of this Contract, shall be Brokerage Firm's SOLE AND ONLY REMEDY for Buyer's failure [o perform the obligations of this Contract. Brokerage Firm: Morris & Fyrwald Real Estate 915 East Hyman Avenue Aspen, CO 81611 Phone: 970-925-6060, Fax: 970-925-313 By: (o U Signature Greg Hunter Date City of Aspen BUYER DATE By: Steve Barwick, City Manager This addendum has not been approved by the Colorado Real Estate Commission ("CREC"). It was prepared and ©2008 by Frascona, Joiner, Goodman and Greenstein, P.C. (303-494-3000) legal counsel, for the exclusive use of Moms & Fyrwald Real Es[a[e. Atltlentlum to Exclusive Right to Buy Contract (BC60-04-06)I Brokerage Disclosure to Buyer/Tenant (BD 2410-06). PREPARED BV: Greg Hunter, Broker All rights reserved. ReaIFA$TO Software, ©2008, Version 6.16. Software Registered to: Craig Morris, Morris & Fyrwaltl Real Estate 06/16/08 13:07:33 Page 2 of 2 Vlb MEMORANDUM TO: Mayor Ireland and City Council FROM: Jennifer Phelan, Community Development Deputy Di~r~e~ct~o~r THRU: Chris Bendon, Community Development Director (i'"/YY! DATE OF MEMO: June 12, 2008 MEETING DATE: June 23, 2008 RE: Pitkin County Referral -Proposed Text Amendment to the Pitkin County Land Use Code Regarding Affordable Housing -Consent Agenda SUMMMARY: Staff has received a referral from the County Community Development Department with regazd to a proposed text amendment to their land use code. Currently, a person can only request an AH/PUD zone district designation within Pitkin County if the property is located within an urban growth boundary (UGB). The text amendment would allow affordable housing for the Roaring Fork Mobile Home Park and/or Pan and Fork Mobile Home Pazk to be located outside an UGB, if 100% replacement housing is provided for either of these existing developments. Both mobile home parks are located in the Basalt azea. This referral is on the code amendment itself. Staff is not requesting that City Council opine on the mobile home pazk application. Both Basalt and Aspen have UGBs. Although this proposed Pitkin County code amendment does not affect where affordable housing associated with development in Aspen is located (the city's code requires it to be located within the city's municipal boundazies or within the UGB if approved by council), the code amendment could allow affordable housing to be developed just outside Aspen's UGB. Text within the Aspen Area Community Plan (AACP) notes that development should be contained so that sprawl is minimized. The AACP also notes housing should occur within the UGB and makes sense when one considers utility and transit issues. Staff recommends that referral comments be sent to the county recommending denial of the text amendment as it is in conflict with the purpose of having UGBs or that this provision is limited to within a certain distance of the Basalt UGB. In the alternative, Pitkin County may want to consider amending the UGB to accommodate the proposed location of this urban development. BACKGROUND: As outlined by Mike Kraemer, Pitkin County Planner, David Fiore is the owner of the Roaring Fork Mobile Home Pazk (hereafter "RFMHP") and has the option to purchase the "Downey" pazcel next to Basalt High School (also known as the "Sopris Chase" pazcel) which lies within Pitkin County. The Applicant has expressed a desire to redevelop the RFMHP with a mixed use development. It has been documented that the RFMHP and the Pan and Fork Mobile Home Pazk (hereafter "PFMHP") both lay within the 100 yeaz floodplain of the Frying Pan River. There has been considerable valley-wide discussion regazding relocating these residences outside the floodplain. With the redevelopment of the RFMHP lies an obligation to relocate 100% of its residents into an affordable housing option. The Applicant has identified the Downey pazcel as a relocation site for the residents of the RFMHP and/or the Pan and Fork Mobile Home Pazk. However, the 2007 Town of Basalt Master Plan adopted a UGB that did not encompass the Downey pazcel. As stated in the application, the Town of Basalt Planning and Zoning Commission adopted a Master Plan that included a provision allowing the Town Council to modify the UGB "where the change would result in the provision of 100% replacement housing for relocation of the Roaring Fork Mobile Home Pazk and/or the Pan and Fork Mobile Home Pazk". However there is an asterisk next to the provision that states, "The Town Council elected not to include this provision allowing changes to the UGB in its adoption of the 2007 Master Plan". As a result, the only option to amend the UGB is through the Master Plan process. The Applicant has submitted the code amendment request as an alternative to an amendment to the Basalt UGB to include the Downey pazcel. STAFF RECOMMENDATION: In reviewing the proposal, Staff believes that the code amendment is not in compliance with the AACP and although the intent of the amendment is with regard to development in the Basalt azea, the code amendment allows replacement housing for the mobile home parks to be located anywhere within Pitkin County. This could result in development being located adjacent to Aspen's UGB. Staff recommends submitting referral comments to Pitkin County recommending denial of the text amendment. Based upon City Council direction, Staff will provide referral comments to Pitkin County. CITY MANAGER COMMENTS: ATTACHMENTS: Exhibit A -Proposed Text Amendment Exhibit A FULL SUMMARY OF REQUEST: The Applicant has proposed the following code amendment. The additional language proposed is underlined: 3-SO-80 AH/PUD (AFFORDABLE HOUSING PUD) (8) Intent The AH/PUD (Affordable Housing Planned Unit Development) zone district is intended to provide for (i) the use of land for the production of Category affordable housing and resident occupied units by permanent residents of the County, or (ii) the preservation of existing housing stock that has been historically affordable to and occupied by permanent residents of the County for continued occupancy by qualifred residents of Pitkin County, when the proposed development cannot comply with the requirements of the AH zone district. In some cases, the zone district also permits a limited component of free market units/lots to offset the cost of developing affordable housing. Recreational and institutional uses customarily found in proximity to residential areas, and commercial uses that are accessory to the housing development, are also included as special review uses. (b) Locational Criteria The AH/PUD zone district may only be applied within an urban growth boundary except where 100% replacement housing for the relocation of the Roaring Fork Mobile Home Park and/or the Pan and Fork Mobile Home Park can occur and shall be located consistent with the recommendations of the Pitkin County Comprehensive Plan and the availability of essential services, particularly mass transit. Lands in this zone district should be located near pedestrian and bicycle trails. Vlc MEMORANDUM TO: FROM: THRU: DATE OF MEMO: MEETING DATE: RE: MAYOR & CITY COUNCIL TIM ANDERSON, RECREATION DIRECTOR JEFF WOODS, MANAGER OF PARKS & RECREATION JUNE 12, 2008 JUNE 23, 2008 IMPLEMENTATION OF WEB-BASED PROGRAM REGISTRATION Request of Council: Staff is requesting the approval of the attached contract with The Active Network for the purpose of going live with aWeb-based program registration partner. The contract is in the amount of $30,000 which will provide a business process review; which staff feels is important to becoming as efficient as possible in how the systems operate, the integration of our financial systems such that the system will download information to the City's Eden financial system; training; and even a gatekeeper system or a system in which the patrons who utilize cardio rooms in the ARC for example will no longer need to obtain keys at the front desk, they may simply swipe their FLJN pass at the cardio door, enter and be counted. This new system will be user friendly for our patrons, making their experience more enjoyable, and allow all users to register and renew programs and passes from home rather that getting into the car and driving to the ARC or the Red Brick Recreation Centers. The Active Network, familiar to many as a common site to register for l OK races and triathlons, was founded in 1998 as a web portal to connect regional grassroots sports with recreational athletes. Since then, the company has expanded into marketing and non- sports community site development and administration. Background: The Parks and Recreation department has had a web site specific to parks & recreation information for almost 10 years now. It's time to take the next step in providing easy access for patrons to purchase services, programs, and passes through the Internet. The Roaring Fork Valley is very computer literate and we are long over due for providing program registration and pass renewal through an electronic system to our patrons. Users will be able to create secure online accounts on the network, and monitor them from any Internet-enabled computer 24 hours a day. Parents will be able to view youth program details, schedules, and availability and register for them online. All account holders will also be able to see every transaction they've ever made with the department, including every Rec Center visit. Discussion: This system creates ease of registration and pass renewal for the patron, ease of check in at the ARC, and should reduce our labor needs at front desk operations at both the ARC and the Red Brick Recreation Center due to more patrons using the electronic systems. By using the electronic systems we hope to reduce the number of auto trips to Recreation facilities for program registration. Many of our programs are taking registration during shoulder seasons when patrons are out of town and unable to get to the Recreation facilities so the internet will allow them to register with ease from remote locations. The system can also enable golfers to purchase and renew their passes from home and remote locations so they may take advantage of early bird specials on pass prices, or just save a last minute trip in the car to beat deadlines. Currently the City of Aspen IT department is not yet capable of hosting our Web-based registration internally on the City's network. Active will act as the Parks & Recreation Department's Applications Solution Provider or ASP and host our server off site which is necessary for protection of the City's firewall. FinanciaUBudget Impacts: While staff is not certain as to the financial impacts to the operational budget of recreation facilities due to the implementation of Active, staff does hope that the cost will have a return on investment of 5 years or less. That is to say we feel the Aspen Community will utilize this Web-based tool extensively thus reducing the number of part time hours needed at front desk operations, reducing operational cost, and a realization of payback from this investment. The cost for implementation of this program will be achieved through savings of other projects in the Pazks & Recreation Department. Recreation is provided AMP funding for operational improvements in the amount of $37,000, and $30,000 of this fund would be directed to the purchase and implementation of this project. There will be a convenience charge per transaction by Active to the patron when booking programs over the Internet. This means the customer has the choice of either booking programs on line, or registering in person at the Parks & Recreation facility. The convenience charge on all Internet transactions would add 2.99% to the total program cost charged to patrons plus a $2.00 cost for the credit card transaction. Patrons always have the convenience of registering from home, but if they chose to do so, patrons my still come to our recreation facilities and register directly with no convenience fee. Environmental Impacts: As staff has mentioned previously in this memo. We hope that the Active Web-based program registration will reduce the number of trips to Recreation facilities, thus reducing carbon emissions and contributing to a reduction of traffic on our streets. Recommended Action: Staff is recommending the approval of this contract with Active as there are now only two companies providing web-based program registration for recreation departments, and only Active will host our off site server and act as our ASP (Application Solutions Provider). Alternatives: The alternative would be to remain with Vermont systems and upgrade the current program registration system to meet the components we are receiving by partnering with Active. This would be at a cost of about $20,000 for the additional services we aze seeking for customer satisfaction. Vermont Systems is not able to act as our ASP which means the services of the City's IT department would be needed at the cost of additional labor and a Web application hosting infrastructure, which they are incapable of providing at this time. Proposed Motion: I, Council member's name, move to approve the contract between the City of Aspen and The Active Network, for the purpose of providing ease of a Web- basedprogram registration to our community. City Manager Attachments: Attachment "A": Contract and scope of work with The Active Network Attachment "B" Rate schedule and services provided by active per this contract. Attachment "C" News Article from Summit County regarding similaz efforts of the Town of Breckenridge RESOLUTION NO.~ Series of 2008 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR WEB BASED PROGRAM REGISTRATION FOR THE PARKS AND RECREATION DEPARTMENT, BETWEEN THE CITY OF ASPEN AND THE ACTIVE NETWORK INC, 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 web based program registration for the Aspen Parks and Recreation Deparhnent, between the City of Aspen and The Active Network, Inc., 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 web based program registration, between the City of Aspen and The Active Network, Inc., 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 , 2008. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. Kathryn S. Koch, City Clerk G: \taraUtESOS\Ac[i veNetwork.doc AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and The Active Network, Inc. , ("Professional"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Scone of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit "A" attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and Gaze and the orderly progress of the Work in a timely manner. The parties anticipate that. all work pursuant to this agreement shall be completed no later than December 31, 2008. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional on a not to exceed basis for all work performed. The rates for work performed by Professional shall not exceed those rates set forth in Exhibit "B" appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed $30,0000.00 . Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assi agn bility. Both parties recognize that this contract is one for personal services and cannot be transfened, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which maybe due to any sub-contractor. 5. Termination. The Professional or the City may terminate this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the PS1-971.doc Page 1 termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional maybe determined. 6. Covenant Aeainst Contingent Fees. The Professional warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for the Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work aze under the sole control of Professional. None of the benefits provided by City-to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or aze in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the PS1-971.doc Page 2 defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims- made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FNE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FNE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FNE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -each employee. Evidence of qualified self-insured status maybe substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MII,LION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,OOQ00- 0.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the PS1-971.doc Page 3 requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carved by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, condi- tions, and minimum limits aze in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certifi- cate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIItSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Departrnent and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. PS1-971.doc Page 4 City shall provide Professional reasonable notice of any changes in its membership or participation in CII2SA. I1. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or mailed by certified mail return receipt requested, to: City: Tim Anderson Professional: The Active Network, Inc. Recreation Director 101 Telesis Court, City of Aspen Suite 300 130 South Galena Street San Diego, California 92121 Aspen, Colorado 81611 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin; ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbeazance or indulgence by the City in any regazd whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwith- standing anything to the contrary contained herein, this agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. Illegal Aliens -CRS 8-17.5-101 & 24-76.5-101. a. Puroose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added PS1-971.doc Page 5 new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. b. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that aze merely incidental to the required performance. c. By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not employ illegal aliens. d. Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new PS1-971.doc Page 6 employees who aze not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with anew employee who is an illegal alien, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. PS1-971.doc Page 7 (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law,(2) shall comply with the provisions of CRS 24-76.5-101 et seg., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 17. General Terms. (a) It is agreed that neither this agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties aclmowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This agreement shall be governed by the laws of the State of Colorado as from time to time in effect. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date hereinafter written. [SIGNATURES ON FOLLOWING PAGE] PS1-971.doc Page 8 06/12/2008 15:31 ATTESTED EY: 4137 sy: Title: WITNESSED BY: Date: ARC PAGE 10/25 CTTY OP ASPEN, COLORADO: PROFESSIONAL: DlgitallyzgnM by Flea Bametsan DN: m=Flee Bammm~, a=The Actlve Nelvroh, NC,ou=Dyaniza[ions, (, ~naA~dRR'~ ~ame~aa~~a~I.e~eNyo~ ~, ~-DS Date:3BUB.B6.,J ,o:zB:BB ar~~ Alex Barnetson By: Title: Sr. VP Date: June 13, 2008 P51-971.doc Page 9 06/12/2008 15:31 4137 ARC PM~~~ uA° PAGE 11!25 ' ~~/V~IYETWOBK PRODUCT AND Slr$VIC&S AGREEA'1ENT CtrsTOMF.R INFOItMATtON ORGANIZATION NAME: CONTACtNAME: FiMA1L: 1saRI:CTIVE HATE: City of Aspen Parks and Raxeation Nick Nicholson nickn ci.as n.co.u;; June 30, 2008 A-DRB53: 130 South dalena Street Aspen , CO 81611-1902 TELEPRONE: 970-429-1727 FAX: OVERVIEW OP AGREEMENT This document (the "Agreement") convicts of this covet page, the attached Pricing Form attached to the end of this Agreement, the General Terms, and the following Schedules (check all applicable Schedules): 7C Schedule A: Hosted 5ofttvare Schedule B: Licensed Software; Support and Maintenance Scl)9dv1c C: Third Party Products in consideration o[the mutual promises and covenants contained in this Agreement, Customer and TAN hereby agree to he bound by this Agreement. By signing below, Customer acknowledges and confirms that it has read the General Terms and all attached Schedules and understands that each forms au integral part of this Agreement. Cl1STOMER TIIEACTIVENETWOR,K, INC.("TAN'7 Signature: Signature: a~.~a~,~o1>~,a,~ "' Name: Nom: Alex Barnetson Tide: Sr. VP Title: The Active Network, Inc., IO1R2 Telesis Court, Ste. 300, San Diego, California 92121 Telephone:(800)661-1196, Fax:(G04)432-9708 9oftwam LlaenMna, $prvieee anP 4d Parry Producb A9t. (~• Man 26, 4009) GENERAL TERMS GENERAL TERMS: TERMS APPLICABLE TO ALL PRODUCTS AND SERVICES 1. INTERPRETATION 1.1 Definitions. For the purposes of interpreting this Agreement, the following terms will have the following meanings: (a) "Agreement" means this Products and Services Agreement, inclusive of all Schedules. (b) "Concurrent Use" means use at the same moment in time to access a given server computer (of any kind) owned or controlled by Customer. (c) "Customer" means the legal entity other than TAN entering this Agreement. (d) "Database Server" means the single server computer upon which the Enterprise Database is resident. (k) "Maintenance" means the provision of error investigation and repair services as set out in section 22.1 and the provision of new Versions and Releases in respect of the Licensed Softwaze all as more particularly set out in the Support and Maintenance Handbook. (I) "Module" means a single module element of Licensed Software listed in the Pricing Form. (m) "Online Services" means services, such as Intemet registration, that aze enabled by Hosted Softwaze and available to the public via the Intemet. (n) "Other Services" means Services other than Pre-Agreed Services acquired by Customer under this Agreement. (o) "Payment Server" means a single server computer used by Customer to process electronic payments from its clients, having a minimum configuration as set out in hardwaze specifications previously described to Customer as applicable to the Licensed Software to be installed and used upon it. (e) "Enterprise Database" means the MSDE, MS SQL Server, or Oracle database files containing customer data and that aze accessed by the Licensed Softwaze. (f) "Hosted Software" means computer code and programs, in executable code form only, including related data files, rules, parameters and documentation, which have been created or licensed by TAN and are identified in the Pricing Form as licensed (or sublicensed) to Customer by TAN in connection with this Agreement, and which reside on TAN's servers and are accessible by Customer's staff or Users via the Internet. (g) "Internet Client" means a remote device capable ofusing the Intemet to access selected Licensed Software on the Intemet Server or the Enterprise Database on the Database Server via the Internet Server. (h) "Internet Server" means a single server computerusedby Customer which enables access to the Licensed Software by individuals using an Intranet or the Internet, having a minimum configuration as set out in hardwaze specifications previously described to Customer as applicable to the Licensed Software to be installed and used upon it. (i) "IVR Server" means a single server computer used by Customer for voice-recognition and telephone-based, rather than computer-based, access to the Enterprise Database by Customer's clients, having a minirnum configuration as set out in hardwaze specifications previously described to Customer as applicable to the Licensed Software to be installed and used upon it. (j) "Licensed Software"means computer codeandprograrns, in executable code form only, including related data files, rules, parameters and documentation, which have been created or licensed by TAN and aze identified in the Pricing Form as licensed (or sublicensed) to Customer by TAN in connection with this Agreement, and/or which aze in the future provided to Customer by TAN under any circumstances unless provided under a separate licensing agreement. (p) "Pre-Agreed Services" means Services which are expressly listed in the Pricing Form as being acquired hereunder by Customer. (q) "Pricing Form" means the itemized pricing form attached to the Agreement listing the products and services provided by TAN to the Customer under this Agreement (r) "Products" means all Licensed Softwaze, Hosted Softwaze, Third Parry products, and other products (including documentation) provided to Customer by or on behalf of TAN. (s) "Professional Services" means any and all types of services which TAN provides, to Customer and/or to other customers of TAN, in the course of TAN's business, including but not limited to services relating to the installation, implementation, optimization, administration, training and troubleshooting of computers, computer software including the Licensed Software, computer networks, databases, intemet- related equipment and applications, but expressly excludes Support and Maintenance. (t) "Related Third Party Documentation" means any end specifications, manuals, insimctions, and other materials, and any copies of any of the foregoing, in any medium, related to the Third Party Products and supplied by TAN to Customer with the Third Party Products. (u) "Release" means any release, update, patch, set of revisions, or bug/pemranent fix or temporary bypass solution released by TAN to its customers generally during the term of this Agreement, which provides enhancements and/or error corrections to the then-current Version or Release, and where a new Version has been released and no new Release has been released since the release ofthat Version, that Version will also constitute a Release for the purpose of determining whether Support or Maintenance is available with respect to that Version. New Releases will be denoted by an increase to the version number to the right of the decimal point such as from Release 1.1 to Release 1.2. Software Licensing, Services and 3d Party Products Agt. (v. Mar. 11, 2008) GENERAL TERMS (v) "Services" means all Professional Services, Support and Maintenance, Online Services, and other services provided to Customer by or on behalf of TAN. (w) "Services Table" means the table ofPre-Agreed services, together with associated costs, shown in the Pricing Form. (x) "Software" means the Licensed Software and the Hosted Software as deemed elsewhere in this section. (y) "Support" means the ongoing telephone, email, web- based and dial-in support and problem resolution to assist Customer in the use of the Licensed Software, the Hosted Software, and other services and products of TAN as set out in the Support and Maintenance Handbook. (gg) "Version" means a version of the Licensed Softwaze providing a particulaz functionality, while a new Version of the Licensed Softwaze will provide new/additional functionality and/or improvements to a previous Version. New Versions will be denoted by a change to the version number to the left of the decimal point such as from Version 1.0 to Version 2.0. (hh) "Workstation" means a computer attached [o a local or wide-area network (including an Intranet), which accesses the Licensed Software or Enterprise Database. 1.2 Headings. The headings contained in this Agreement are inserted for convenience and do not form a part of this Agreement and are no[ intended to interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof. (z) "Support and Maintenance Handbook" means the documents published by TAN setting out the applicable service levels, processes, restrictions, and other particulars of Support and Maintenance provided in respect of the Software and other Services and Products of TAN, as amended from time to time upon notice to Customer. (aa) "Support Start Date" means, for implementations performed by Active, the first day of implementation of the Licensed Softwaze or 90 days following the delivery of the Licensed Software, whichever occurs first, and upon delivery of the Licensed Software for implementations being performed by the customer or a 3rd party vendor. (bb) "System Utilities" includes the following: Accounting Processes, Central Login, Log File, Copy Database, Edit Database, Maintain Database, MSDE Tool, Oracle Semp Urility, Query Tool, System Maintenance, Upgrade Database and View Components. (cc) "TAN" means The Active Network as referenced on the first page of this Agreement. (dd) "Third Party Products" means those hazdwaze, fumwaze and/or software products, provided to TAN by third parties, listed in the Pricing Form, together with all user manuals and other documents accompanying the delivery of the Third Party Products, provided that the Third Party Products shall not include software developed by TAN. (ee) "Third Party Products Support" means assistance to isolate the source ofproblems and/or to troubleshoot difficulties resulting from sources other than TAN products or services, such as general network support (for example network access, printing, backup & restoration); PC hardwaze trouble shooting; PC setup, configuration and optimization; network operating system configuration and functionality; basic Microsoft Corporation "Windows" functionality (for example, using File Manager or Explorer), modem configuration & setup; data corruption due to lack of disk space; and loss of supervisor or other password, all as further set out in the Support and Maintenance Handbook. (ff) "User" means a person who accesses and uses any of the Products in any manner whatsoever. 2. CHARGES AND PAYMENTS 2.1 Taxes and Other Charges. Customer willpay all shipping & handling costs and, unless exempted by law, all applicable sales, use, withholding and excise taxes, and any other assessments against Customer in the nature of taxes, duties or charges however designated on the Services and Products or their license or use, on or resulting from this Agreement, exclusive of taxes based on the net income of TAN. Sales and any other applicable taxes, duties, or any other charges in the nature of taxes and dutes aze not included unless specifically identified as line items in the Pricing Form. 2.2 Currency. Unless otherwise indicated in the Pricing Form, all prices are in the currency of the country in which the Customer is located. 2.3 Delivery. Delivery for the Products supplied by TAN under this Agreement will be deemed to have occurred F.O.B. origin. 2.4 Invoices/Payment.TRN will provide invoices to Customer for all amounts owing by Customer hereunder. Such invoices aze to be provided as indicated in the attached Schedules or Pricing Form, and subsequently due within 30 days from the date of invoice. 3. CUSTOMERINFORMATION;CONFH)ENTL4LITY 3.1 Customer Information. In order to assist TAN in the successful provision or services and products to Customer, Customer shall provide to TAN all information relating to Customer's organization, technology platforms, systems configurations, and business processes and otherwise relating to Customer as is reasonably requested by TAN from time to time. 3.2 Confidential Information. (a) In the performance of or otherwise in connection with this Agreement, one party ("Disclosing Party") may disclose to the other party ("Receiving Party")certain Co~dential Information of the Disclosing Party. Confidential Information" means any information of either party, which is not generally known to the public, whether of a technical, business or other nature (including, but not necessarily limited to: trade secrets, know how, computer program source codes, and information relating to the customers, business plans, promotional and marketing Software Licensing, Services and 3d Party Protlucts Agt. (v. Mar. 28, 2008) GENERAL TERMS activities, finances and other business affairs of such party); provided that the same is conspicuously marked or otherwise identified as confidential or proprietary information prior to, upon or promptly afrer receipt by the other party; and provided further that the any software or softwaze application server source code provided by TAN or its licensors shall be deemed to constitute Confidential Information without further designation by TAN. The Receiving Party will treat such Confidential Information as confidential and proprietary of the Disclosing Party and will use such Confidential Information solely for the purposes for which it is provided by the Disclosing Party and will not disclose such Confidenfial Infom~ationto any third party (other than a third party under contract whereby that third party has agreed in writing to keep the Confidential Information confidential). (b) Exclusions. The obligations under this paragraph will not apply to any: (i) use or disclosure of any information pursuant to the exercise of the Receiving Party's rights under this Agreement; (ii) information that is now or later becomes publicly available through no fault of the Receiving party; (iii) information that is obtained by the Receiving Party from a third party authorized to make such disclosure (other than in coanection with this Agreement) without any obligation of secrecy or confidentiality; (iv) information that is independently developed by the Receiving Party (e.g., without reference to any Confidential Information); (v) any disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Receiving Party will use reasonable efforts to give advance notice to and cooperate with the Disclosing Party in connection with any such disclosure; and (vi) any disclosure with the consent of the Disclosing Party. 4. WARRANTY 4.1 Limited Warranty of Software. TAN warrants that when utilized by Customer in a manner authorized hereunder, the Software will conform to the functional specifications set out in the user documentation accompanying the Softwaze for ninety (90) days from delivery of the Software ("Warranty Period"). Delivery shall be deemed to have occurred upon TAN's email transmission of an FTP link to Customer permitting download of the Software from TAN's designated online site, or where delivered in the form of physical media, F.O.B. origin. TAN's sole obligation and liability hereunder with respect to any failure to so perform will be to use reasonable efforts to remedy any non-conformity which is reported to TAN in writing by Customer within that Warranty Period. In the event TAN is unable to remedy such non-conformity within a reasonable time using reasonable efforts, a) in respect to the Licensed Software TAN may refund to Customer the license fee pertaining to the Licensed Software, subject to Customer's return ofthe Licensed Software, and this Agreement will be automatically terminated, or b) in respect to Hosted Softwaze TAN may refund to Customer the fees paid by the Customer to TAN for Services provided to implement the Hosted Software, and this Agreement will be automatically terminated. All warranty service will be performed at service locations designated by TAN. This Limited Warranty is void if failure of the Software has resulted from accident, abuse or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. 5. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY 5.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES. THE EXPRESS WARRANTIES SET OUT IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, AND THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND WHATSOEVER APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW (IN CONTRACT OR TORT OR OTHERWISE) OR CUSTOM, INCLUDING, BUT NOT LINIITED TO THOSE REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE, DURABILITY, CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, OR QUALITY. WITHOUT LIMITING THE ABOVE, TAN DOES NOT WARRANT THAT ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE OPERATION OF PRODUCTS PROVIDED HEREUNDER WILL BE FREE FROM INTERRUPTION OR ERRORS. 5.2 RESTRICTIONS ON WARRANTY. TAN HAS NO OBLIGATION TO REPAIR OR REPLACE PRODUCTS DAMAGED BY ACCIDENT OR OTHER EXTERNAL CAUSE OR THROUGH THE FAULT OR NEGLIGENCE OF ANY PARTY OTHER THAN TAN. 5.3 NO INDH2ECT DAMAGES. WITHOUT LIMITING THE GENERALITY OF SECTIONS 5.1 AND 5.4, IN NO EVENT WILL TAN BE LIABLE TO CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR LOSSES (IN CONTRACT OR TORT OR OTHERWISE), INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST SAVINGS, LOST DATA, LOSS OF USE OF INFORMATION OR SERVICES, OR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES. 5.4 LIMITS ON LIABILITY. IF, FOR ANY REASON, TAN BECOMES LL4BLE TO CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY OTHER DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR TORT OR OTHERWISE), THEN: (a) THE AGGREGATE LIABILITY OF TAN TO CUSTOMER AND ALL OTHER PARTIES IN CONNECTION WITH THE PRODUCTS AND THE SERVICES WILL BE LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT PAID TO TAN HEREUNDER, DURING THE TWO YEARS PRECEDING THE LAST INCIDENT GIVING RISE TO THE LIABILITY: AND (b) IN ANY CASE CUSTOMER MAY NOT BRING OR INITIATE ANY ACTION OR PROCEEDING AGAINST TAN ARISING OUT OF THIS AGREEMENT OR RELATING TO Software Licensing, Services and 3d Party Products Agt. (v. Mar. 28, 2008) GENERAL TERMS ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER MORE THAN TWO YEARS AFTER THE RELEVANT CAUSE OF ACTION HAS ARISEN. 5.5 SEPARATE ENFORCEABILITY. SECTIONS 5.1 THROUGH 5.4 ARE TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE INDIVIDUALLY ENFORCEABLE. 6. RESTRICTIONS 6.1 U.S. GOVERNMENT RESTRICTED RIGHTS. The Products are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subpazagraph (c) (1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subpazagraphs (c) (1) and (2) of the Commercial Computer Softwaze -Restricted Rights at 48 CFR 52.227-19, as applicable. The Manufacturer is The Active Network, Inc., Suite 300,10182 Telesis Court, San Diego, California, United States, 92121. 6.2 Export Restrictions. The Products may include encryption software or other encryption technologies that may be controlled for import, export, or purposes under the laws and regulations of the countries and/or territories m which the Products aze used ("Applicable Law"). Customer may not export, re-export, or assist or facilitate in any manner the export or re-export of, any portion ofthe Products, as determined by Applicable Law under which the Customer operates: (i) to any country on Canada's Area Control List; (ii) to any country subject to UN Security Council embazgo or action; (iii) contrary to Canada's Export Control List Item 5505; (iv) to countries subject to U.S. economic sanctions and embargoes; and (v) to persons or entities prohibited from receiving U.S. exports or U.S.-origin items. Customer hereby represents and covenants that: (i) to the best of Customer's knowledge Customer is eligible to receive the Products under Applicable Law; (ii) Customer will import, export, or re-export the Products to, or use the Products in, any country or territory only in accordance with Applicable Law; and (iii) Customer will ensure that Customer's Users use the Products in accordance with the foregoing restrictions. 6.3 Third Party Software and Open Source Components. The Software may contain open source components or other third party softwaze of which the use, modification, and distribution is governed by license terms (including limitations of liability) set out in the applicable documentation (paper or electronic) or read me files. 7. TERMINATION 7.1 Termination. This Agreement will terminate: (a) at the option of either party if the other party materially defaults in the performance or observance of any of its obligations hereunder and fails to remedy the default within 30 days after receiving written notice thereof; and (b) without limiting (a), at the option of TAN if Customer breaches section 2 of this Agreement, provided that the right of termination will be in addition to all other rights and remedies available to the parties for breach or default by the other. 7.2 Suspension of Obligations. If either party should materially default in the perfornance or observance of any of its obligations hereunder, then, in addition to all other rights and remedies available to the non-defaulting party, the non- defaulting party may suspend performance and observance of any or all its obligations under this Agreement, without liability, until the other party's default is remedied, provided however that this section will not pemut Customer to suspend its obligation to make any payments due for Products or Services that aze unrelated to any default alleged against TAN. 7.3 Return of Materials. In the event of temunation of this Agreement for any reason whatsoever, Customer will immediately (i) return to TAN all physical copies of Products delivered by TAN to Customer or otherwise in Customer's possession or control, or (ii) if expressly permitted by TAN, destroy all physical copies of the Products not returned to TAN and delete all electronic copies of the Products from its systems and certify in writing to TAN that such actions have all been completed. 8. AUDIT AND MONITORING RIGHTS 8.1 TAN may, upon a minimum of 24 hours written notice to Customer, attend upon Customer's premises and verify that the Products are being used only as pemutted hereby. Such inspections may occur a maximum of twice per calendar year, and will be performed only during Customer's regular business hours and conducted in a manner as to minimize, to the extent reasonable, interference with Customer's business. Further, TAN may, using automatic means which do not interfere with the use of the Products by Customer or Users other than as described in this provision, monitor at any time usage of the Products by Customer and or its Users including through monitoring of the number of copies of any particular Module(s) in Concurrent Use. 9. INTELLECTUAL PROPERTY RIGHTS 9.1 Warranty of Title. TAN warrants that it has all rights necessary to make the grant of license herein.by having all right, title, and interest in and to the Products (other than Thud Party Products) or as licensee ofall such rights fromthe ownerthereof. 9.2 Intellectual Property. TAN and its licensors shall retain all right, title, and interest in and to the Produce and the results of the Services and to all softwaze, trademazks, service marks, logos, and trade names and other worldwide proprietary rights related thereto ("Intellectual Property"). Customer shall use the Intellectual Property only as provided by TAN, and shall not alter the Intellectual Property in any way, or act or permit action in any way that would impair TAN's or ie licensors' rights in its Intellectual Property. Customer acknowledges that its use of the Intellectual Property shall not create in Customer or any other person any right, title, or interest in or to such Intellectual Property. Any goodwill accming fromthe use of the Intellectual Property shall inure solely to the benefit of TAN or its licensors, as applicable. 4 Software Licensing, Services and 3d Party Protlucts Agt. (v. Mar. 28, 2008) GENERAL TERMS 9.3 Restrictions. Customer will not anytime whether before or after the termination of this Agreement: (a) reverse engineer, disassemble, or decompile any Products or prepare derivative works thereof; (b) copy, transfer, display, or use the Products except as expressly authorized in this Agreement or in the applicable documentation; (c) disclose, famish, or make accessible to anyone any confidential information received from TAN or make any use thereof other than as expressly permitted under this Agreement, which confidential information is deemed to include the source and executable code of the Software and all related documentation; (d) contest or do or aid others in contesting or doing anything which impairs the validity of any proprietary or intellectual property rights, title, or interest of TAN in and to any Products; or (e) obliterate, alter, or remove any proprietary or intellectual property notices from the Products in physical or electtonic forms. 10. INDEMNIFICATION (a) Indemnified Claims. Each Party ("Indemnifying Party") shall fully indemnify, defend and hold harmless the other Party ("Indemnified Party"), and its respective pazents, subsidiaries and affiliates and all of the foregoing entities' officers, directors, employees, agents, contractors and licensees, and their successors and assigns, from and against any and all thud party claims, actions, suits, legal proceedings, demands, liabilities, damages, losses, judgments, settlements, costs and expenses, including, without limitation, reasonable attorney's fees, arising out of or in connection with any alleged or actual that: is based upon the Indemnifying Party's breach of a representation, warranty or obligation hereunder; (ii) arises out of the Indemnifying Party's gross negligence or wilful misconduct; (iii) is based upon the Indemnifying Party's violation of any applicable federal, state or local law or regulation; or (iv) is based upon any claim of infringement of any US or Canadian copyright, patent, ttade secret or other intellectual property rights or similar rights of any third party arising out of any authorized use of any sofwaze or products licensed and/or delivered under this Agreement. In the event that a claim of infringement is established with regard to the Licensed Softwaze, Hosted Software or Third Party Products licensed or delivered by TAN under this Agreement, or in TAN's opinion might be held to infringe as set forth above, TAN shall, at its own expense and option, procure for Customer the right to exercise the rights and licenses granted to Customer under this Agreement or modify the Licensed Softwaze, Hosted Software or Third Party Products such that each affected is no longer infringing. If neither of such alternatives is, in TAN's opinion, commercially reasonable, the infringing software or product shall be returned to TAN and TAN's sole liability, in addition to its obligation to reimburse awazded damages, costs and expenses set forth above, shall be to refund the amounts paid to TAN by Customer for such software or product. Notwithstanding the above, and subject to the procedure set forth in section 10(b) below, TAN shall have no liability for any claim of infringement related to any software or product supplied by TAN under this Agreement that arises from: Customer's unauthorized use of such software or.produc[, Customer's use of such software or product in combination with any items not supplied by TAN, or any modification by Customer or a third party of any softwaze or product supplied by TAN. (b) Indemnification Claims Procedure. The Indemnified Party shall promptly notify the Indemnifying Party m writing of any Indemnified Claim, specifying the nature of the action and the total monetary or relief sought therein. The Indemnified Party shall cooperate with the Indemnifying Party at the Indemnifying Party's expense in all reasonable respects in connection with the defense of any such Indemnified Claim or Additional Indemnified Claim. The Indemnifying Party may upon written notice to the Indemnified Party undertake to control and conduct all proceedings or negotiations in connection therewith, assume and control the defense of such Indemnified Claims or Additional Indemnified Claims, and if it so undertakes, it shall also undertake all other required steps or proceedings to settle or defend any such Indemnified Claim or Additional Indemnified Claim, including the employment of counsel which shall be reasonably satisfactory to the Indemnified Party, and payment of all reasonably incurred expenses. Notwithstanding the foregoing, the Indemnified Party has the right to employ separnte counsel to provide input to the defense, at the Indemnified Party's own cost. The Indemnifying Party shall reimburse the Indemnified Party upon demand for any payments made or loss suffered by it at any time after the date of tender, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of Indemnified Claims. The Indemnifying Party shall not settle any Indemnified Claim or Additional Indemnified Claim under this section on the Indemnified Party's behalf without fast obtaining the Indemnified Party's written permission, which permission shall not be unreasonably withheld, and the Indemnifying Party shall indemnify and hold the Indemnified Party harmless from and against any costs, damages and fees reasonably incurred by the Indemnified Party, including fees of attorneys and other professionals, that are attributable to such Indemnified Claims. The Indemnifying Party shall not be responsible for any indemnificafion obligations arising hereunder pursuant to the terms and conditions of any settlement of an Indemnified Claim by the Indemnified Party unless such settlement was approved by the Indemnifying Party, which approval shall not be unreasonably withheld. li. GENERAL 11.1 Entire Agreement. This Agreement, including all attachments and referenced schedules, constitutes the complete and exclusive statement of the agreement between TAN and Customer with respect to the subject matter hereof. It supersedes 5 Software Licensing, Servi<es antl 3tl Party Protlucts Agk. (v. Mar. 28, 2008) GENERAL TERMS and replaces all oral or written ItFPs, proposals, prior agreements, and other prior communications between the parties concerning the subject matter of this Agreement. This Agreement may not be modified or altered except by written insmtment duly executed by both parties, except that TAN may fill future purchase or other orders for further goods or services available under this Agreement and, if TAN does so, the provisions of this Agreement will contain the only commercial terms applicable to such transaction despite such purchase or other order stating otherwise. Any Addendum attached hereto shall form an integral part of this Agreement and, in the event of any inconsistency between these General Terms and any Addendum, the provisions of the Addendum shall prevail. 11.2 Force Majeure. Dates or times by which either party is required to perform under this Agreement, excepting the payment of any fees or charges due hereunder, will be postponed automatically to the extent that any party is prevented from meeting them by causes beyond its reasonable control, provided such party promptly notifies the other thereof and makes reasonable efforts to perform. 11.3 Notices. All notices and requests in connection with this Agreement will be given to the respective parties in writing and will be deemed given as of the first business day of the notified party following the day the notice is faxed or sent via overnight courier, providing a hard copy acknowledgment of such successful faxed notice transmission or evidence of such couriering, as applicable, is retained. Notice may also be deposited in the mails, postage pre-paid, certified or registered, return receipt requested, and addressed to the parties as indicated on the face of this Agreement or such other address of which the party gives notice in accordance herewith, and receipt of any such notice will be deemed to be effective as of the third business day following such deposit. 11.4 Governing Law. This Agreement and performance hereunder will be governed by the laws of the jurisdiction in which the Customer is located as indicated on the face of this Agreement, except that (i) in the case of Louisiana, the laws of California will apply, and (ii) in [he case of Quebec, the laws of Ontario will apply. 11.5 Attorney Fees. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorneys' fees. Sections 1.1, 5, 7.3, 9.2, 9.3, 11, 11, 29.1, and 29.2 of this Agreement, along with all unpaid payment obligations, will survive termination and expiration of this Agreement. 11.8 No Authority to Bind. Neither party shall incur any obligations for or in the name of the other party, or have the authority to bind or obligate the other party. Neither party shall make, issue or authorize any statements (whether or oral or written) in contravention of the foregoing. 11.9 Counterparts. This Agreement may be executed in sepazate counterparts and delivered by facsimile or such other electronic means as are available to the Parties. Such counterparts taken together shall constitute one and the same original document. 11.10 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such provisions shall remain in full force and effect. 11.11 Cooperative Procurement. Upon consent by Active, this Agreement maybe used for permitted cooperative procurement by any public or municipal body, entity, agency or institution. If so authorized, and in order to forego a related entity RFP or similar competitive bidding process, the Ageement may be extended to such other entities indicated above for the procurement of similar products and/or services provided to Customer herein and at fees in accordance with the Agreement unless separately negotiated between such other entities and Active. Further related entities participating in a cooperative procurement process shall place their own orders directly with Active and will fully and independently administer their use of [he Agreement to include such contractual as those entities and Active deem appropriate without duect administration from the original Customer. SCHEDULE A: TERMS APPLICABLE ONLY TO HOSTED SOFTWARE 12. HOSTED SOFTWARE 12.1 TAN will provide Customer with access to hosted versions of the products identified in the Pricing Form and associated Online Services, and TAN hereby grants to Customer a limited, non-exclusive, non-transferable license to use the Hosted Software in accordance with the applicable documentation. 11.6 Non-Assignability. Neither party may assign its rights or obligations arising out of this Agreement without the other party's prior written consent, except that TAN may assign this Agreement in connection with any sale or security interest involving all or substantially all of its assets or any other transaction in which more than fifty percent of its voting securities are transferred. 11.7 Term and Survival. The term of this Agreement shall commence on the Effective Date set out on the coverpage hereof and shall continue as set forth in Sections 18.1 or 25.1, as applicable, or until terminated in accordance with Section 7. 13. SUPPORT FOR HOSTED SOFTWARE 13.1 TAN will, during all periods in respect of which Customer has subscribed for Hosted Software, provide Support to Customer (and, where applicable, directly to users of Customer's own services and products who access the Hosted Software) in accordance with applicable sections of the Support and Maintenance Handbook. 6 Software Licensing, Services antl 3d Party Products Agt. (v. Mar. 28, 2008) GENERAL TERMS 14. LICENSE AND BRANDING 14.1 TAN hereby grants to Customer a limited, non-exclusive, non-transferable license to display, reproduce, distribute, and transmit in digital form TAN's name and logo in connection with promotion of the Online Services only in the manner approved of by TAN during the term of this Agreement. Customer hereby grants to TAN a limited non-transferable license to use, display, reproduce, distribute, adapt and transmit in digital or printed form information provided by Customer relating to its organization, including its name, trademarks, service marks and logo, in connection with the implementation and promotion of the Online Services; provided, however, that such use shall be as necessary to TAN's perfom~ance under this Agreement. Customer will make reasonable efforts to encourage adoption of the Online Services, including displaying TAN's name and logo or "Powered by Active" logo, in the form supplied by TAN from time to time and in a manner approved by TAN, acting reasonably, in any medium used by Customer to promote its programs or services to prospective participants. 15. INFORMATION SECURITY AND PRIVACY FOR HOSTED SOFTWARE 15.1 TAN will collect information, including names, addresses, gender, phone numbers, email addresses, birth dates, financial information (for payment purposes) and other such information from individuals using the Online Services as is reasonably required to provide the Services. TAN will store such information on a secure remote server using reasonable safeguards in accordance with TAN's published online privacy policies and in compliance with all applicable laws, codes of practice, and other legal obligations associated with the collection, use, and disclosure of personal information. Customer may access this information by downloading it from TAN's servers using a Customer assigned private password and "login" identifier. Upon request TAN will make such information available to Customer via a-mail, fax or airmail. Customer will be responsible for protecting the privacy and security of any information that Customer rehieves from TAN's servers and shall prevent any unauthorized or illegal use or dissemination of such information and shall be solely responsible for ensuring compliance with any applicable data and privacy protection laws, codes of practice, and other legal obligations associated with the collection, use, and disclosure of personal information by Customer, including such disclosure to TAN as is necessary for TAN to provide the Services and Products to Customer. Customer and/or its clients shall exclusively own the personal data collected by TAN in connection with the Hosted Software; provided, however, TAN is granted aroyalty-free, perpetual, non-exclusive right and license to use, reproduce, distribute and adapt the collected data as is necessary for TAN to perform its obligations under this Agreement, including for purposes of communicating with Customer or Customer's clients as necessary, fulfilling requests for products and services requested from Customer or Customer's clients, providing customized content and advertising provided in connection with the Hosted Softwaze, conducting internal TAN research intended to improve the products and services provided by TAN and its affiliates, and to provide anonymous and aggregated reporting of non-individual data for internal and external clients of Customer or TAN. Any use of such data will conform with applicable laws related to personal privacy and best practises around permissive marketing, such as use of "opt-in" and/or "opt-out" notifications and rights. 16. FEES FOR HOSTED SOFTWARE 16.1 Transaction fees. (a) Customer shall pay to TAN the Hosted Softwaze service fees ("Service Charges").set out in the Pricing Form (b) In cases where TAN's banking or financial partners or similar service providers impose changes in processing costs payable by TAN, TAN reserves the right to modify Service Charges. TAN shall notify Customer at least ninety (90) days in advance of any such changes. Customer agrees to such changes unless Customer provides TAN with written objection to such charges within thirty (30) days from the date such change is implemented. In the event Customer notifies TAN of its objection to the changes as noted above, Customer's sole remedy shall be to immediately terminate the Agreement as applied to the Hosted Software, subject to payment of any fees due prior to such notice of teanination. (c) TAN will be responsible for collecting all payments processed through the Online Services and all Service Charges assessed by TAN. All payments aze Customer's exclusive property and will be sent to Customer twice a month while Service Charges shall be retained by TAN. (d) If Customer enters transactions at fee amounts less than those actually charged to Customer's Users, thus reducing or avoiding applicable Service Charges, such action shall constitute a material breach of this Agreement. (e) TAN shall not be responsible for processing or making any refunds. All refunds for payments processed will be assessed a $.10 fee charged by TAN to Customer. TAN may set off against user fees collected by TAN to the amount of any credit card charge backs and associated fees applicable to user transactions and to reimburse itself for any overdue fees owed to TAN by Customer. To the extent that such funds aze not available for set off, Customer shall promptly reimburse TAN for any deficiency. 16.2 Subscription fees. Customer shall pay to TAN the Hosted Software subscription fees ("Subscription Fees") set out in the Pricing Form and for the term of this Agreement established in Section 18 below. Customer will be invoiced for their first yeaz Subscription Fees upon the first live operational use of the Hosted Softwaze ("Go- Live Date"), with subsequent annual Subscription Fees being invoiced upon each anniversary of Go-Live Date. Payment will be made Net 30 days from invoice date. 17. EXCLUSIVITY FOR HOSTED SOFTWARE TAN will, during all periods for which Customer has subscribed for Hosted Software, be the sole and exclusive provider to Software Licensing, Services antl 3tl Party Protlucts Agt. (v. Mar. 28, 2008) GENERAL TERMS Customer of the Hosted Softwaze and Online Services, or any products or services substantially similar thereto, for the part of Customer's organization utilizing the Hosted Software and Online Services. 18. TERM FOR HOSTED SOFTWARE 18.1 Unless otherwise provided in the Pricing Form, TAN shall provide to Customer, and Customer shall purchase from TAN, the Hosted Software commencing on the Effective Date of this Agreement, and remaining in full force for a period of three (3) years from [he Go-Live Dale of the Hosted Softwaze (the "Initial Term"), with automatic renewals for three (3) year terms (each a "Renewal Term") thereafter until either party gives written notice to temunate the Hosted Softwaze no less than twelve (12) months prior to the end of the Initial Term or Renewal Term, as applicable. SCHEDULE B: TERMS APPLICABLE ONLY TO LICENSED SOFTWARE AND ASSOCIATED SUPPORT AND MAINTENANCE SERVICES 19. ACCESS TO SYSTEM AND OTHER CUSTOMER OBLIGATIONS 19.1 Access. Customer will provide, at no cost to TAN (a) subject to the security requirements of Customer, 24 hour access to Customer's system via either analways-available telephone circuit or an always available intemet connection to enable TAN or its designated representative to perform any of the obligations placed upon TAN by this Agreement; and (b) subject to the security requirements of Customer, remote dial up/intemet access methods approved by TAN to allow TAN to remotely diagnose and correct errors in the Licensed Softwae and provide other Services. 19.2 Customer Obligations. Without limiting any of Customer's other obligations under this Agreement, Customer will: (a) use its best efforts to upgrade to any new Release or Version of the Licensed Software as soon as possible after becoming aware of its availability; (b) ensure that at all times at least one current staff person of Customer has been fully trained on the Licensed Software; and (c) designate by written notice a single site and single person as the point of contact for telephone or other contact, which site and/or person Customer may change upon 14 days prior notice to TAN. (a) Workstation-Based Modules. In respect of each Workstation-based Core Module and each Workstation-based Add-on Module, Customer may install and use each Module on Workstations to access the Enterprise Database on the Database Server, provided that the number of copies of any particular Module in use does not exceed the number of licenses granted to Customer therefore as set out in the Pricing Form. (b) Server-based Add-on Modules. Customer may install and use each Server-based Module on as many Workstations as is desired by Customer, and Customer may use and permit use of such Modules by its clients, all without limit to the number of Users or transactions which simultaneously use any such Module, provided however that: (i) in respect of each TeleReg & Voice Server Module, Customer may install one copy of each Module on one IVR Server, provided that the number of copies of any particular Module in use does not exceed the number of licenses granted to Customer therefore asset out in the Pricing Form, and all such Modules together maybe in Concurrent Use not to exceed the number of licenses granted to Customer for TeleReg Lines Modules as set out in the Pricing Form; and (ii) in respect of each Payment Server Module, such Modules may be in Concurrent Use not to exceed the number of licenses granted to Customer for Point of Sale Modules as set out in the Pricing Form. (c) Server-based On-line (Internet) Modules. In respect of each Server-based On-line (Internet) Module, Customer may: (i) install one copy of each Module on one Intemet Server, provided that the number of copies of the Module in use does not exceed the number of licenses granted to Customer therefore as set out in the Pricing Form; and (ii) subject to 20(d), pemut Users to access and use such Modules to access the Database Server via Intemet Clients connecting via a licensed Internet Server, and all such Modules together may be in Concurrent Use not to exceed the number of licenses granted to Customer for Online Client Access Modules as set out in the Pricing Form multiplied by twenty-five (25). (d) Cumulative Workstation-based Modules. In respect of each Cumulative Workstation-based Module, Customer may: (i) install one copy of each Module on a single Workstation for each license granted to Customer therefore as set out in the Pricing Form; and 20. GRANT OF LICENSES AND LIMITATIONS THEREON 20.1 TAN hereby grants to Customer anon-exclusive and non-transferable right and license, subject to this Agreement, to install and/or use the Licensed Software, in the manner contemplated in the applicable user documentation, as follows: (ii) permit Users using such licensed Workstation(s) to use such Module(s) provided, for greater certainty, that the Modules may be in Concurrent Use not to exceed the number of licenses granted to Customer therefore as set out in the Pricing Form. 8 Software Licensing, Services and 3d Party Protlucts Agt. (v. Mar. 28, 2008) GENERAL TERMS (e) Customer hereby acknowledges that the mechanism utilized by the Licensed Software to control the number of Users or Online Client Access which can simultaneously access and use Server-based On-line (Internet) Modules is based upon the number of Users who have at any time logged into Customer's computer network using their passwords, such that any User so logged into such network in a maaner that would enable the User to access and use such Modules will reduce by one the number ofUsers able to simultaneously access those Modules, regazdless of whether or not such User is in fact accessing or using any such Module. Customer hereby waives any claim, and releases TAN from any such claim and from any losses or damages Customer suffers in relation thereto, in connection with the inability of Users to simultaneously access such Modules where such inability is the result of inactive logged-in Users absorbing available login access. 20.2 Additional Copies. Customer will not make any copies of the Licensed Software except as necessary for the installation permitted hereby and except for: (a) copies of each Module licensed hereunder for training and testing purposes, and (b) one copy of each Module licensed hereunder for backup purposes, provided that all electronic copies made include screen displays of TAN'S proprietary or intellecmal property notices as recorded on the original copy provided by TAN and Customer affixes a label to each disk, reel, or other housing for the medium on which each physical copy is recorded setting out the same proprietary and intellectual property notices as appeaz on the unit of Licensed Software from which the copy is made in the same manner as those notices appear on that original copy. 21. LICENSED SOFTWARE FEES (b) Services which are required to remedy problems that stem from changes to or defects in system configuration upon which the Licensed Software was initially installed; (c) Services which are required to remedy problems which do not stem from any defect in Licensed softwaze; (d) Services which are required to remedy problems caused by lack of training of Customer's personnel or improper treatment or use of the Licensed Sofrware; (e) Full report customization service; (f) Any and all hardware support, maintenance or troubleshooting issues, except as described in section 28.1 regardless of the source of such hardwaze. 2a•. FEES FOR SUPPORT AND MAINTENANCE 24.1 Support and Maintenance services begin on the Support Start Date. The cost for Support and Maintenance services is payable annually in advance and is due in its entirety thirty (30) days from date ofTAN's delivered invoice. Customer may elect to specify a preferred alternate Support Renewal Date by so notifying TAN in writing. If an alternate preferred Support Renewal Date is specified, the cost of Support and Maintenance will be prorated from the anniversary of the Support Start Date to the specified Support Renewal Date. Thereafter, the Support and Maintenance fee is payable in advance on every annual anniversary of the Support Start Date or, if there is a Support Renewal Date, every anniversary of the Support Renewal Date (the applicable anniversarybeing the "Support Renewal Date"). TAN will provide invoices to Customer for all such amounts, such invoices due on the later of (a) the Support Start Date or applicable Support Renewal Date, as applicable, and (b) 30 days from the date of the invoice. 21.1 In respect of each Module, Customer shall pay to TAN all applicable Licensed Software fees listed in the Pricing Form upon delivery (as defined in Section 2.3) of the Licensed Software. 22. MAINTENANCE SERVICES 22.1 TAN will develop new Releases and new Versions of Licensed Software in accordance with the procedures and other particulars set out in the Support and Maintenance Handbook. 22.2 Provided that Customer continues to subscribe for Support and Maintenance in respect of a particular Licensed Software Product, TAN will provide to Customer, either in physical form by mail or courier or in electronic form via the Internet, new Releases and Versions (and appropriate documentation) for such Licensed softwaze Products as such Releases or Versions (and documentation) become available. 23. EXCLUDED SUPPLIES AND SERVICES (a) Without limitation, the following supplies and services are excluded from Support and Maintenance: 24.2 For the fast year of this Agreement commencing with the Effective Date, Support and Maintenance pricing shall be equal to twenty-five percent (25%) of the gross softwaze license fees. Support and Maintenance pricing for all successive years shall be equal to twenty-five percent (25%) of the gross Sofrware license pricing charged by TAN for equivalent softwaze as ofthe date of each such renewal year, provided, however, that any increase in TAN'S annual Support and Maintenance pricing for any renewal yeaz shall not exceed ten percent (10%) of the renewal fees chazged in the prior year. Any additional software licensed to Customer by TAN will increase the total gross software license fees upon which Maintenance and Support pricing is based. TAN will provide invoices to Customer for renewal fees up to 60 days prior to expiration of each term. 24.3 The Support and Maintenance fees identified in the Pricing Form aze applicable only upon the date of entry into this Agreement, and are subject to change thereafter in accordance with this Agreement's terms. 24.4 In consideration of the Support and Maintenance provided hereunder, Customer agrees to pay TAN the fees described in the Pricing Form, as modified explicitly pursuant to tMs Agreement. In the event Customer requires Support and Maintenance for 9 Software Licensing, Services and 3d Party Products Agt. (v. Mar. 28, 2008) GENERAL TERMS additional Licensed Software, Customer agrees to pay TAN the additional Support and Maintenance fees applicable based upon the fees then in effect, prorated from the date of agreement to acquire such services to the Support Renewal Date. 24.5 Unless the Pricing Form indicates otherwise, the fees charged hereunder are applicable to Support and Maintenance of Licensed Sofwaze used with respect to only a single database of Customer data. If Customer, after entering this Agreement, places in service one or more additional databases to be used in relation to the Licensed Software, then for each such additional database, an additiona125% of all gross Licensed Software fees due, exclusive of such extra database fees, will be payable hereunder for Support and Maintenance. Customer will notify TAN as soon as reasonably possible of the installation or use of any such additional database(s). 24.6 TAN may terminate and suspend performance of all Support and Maintenance if Customer fails to pay any past due TAN invoice within 30 days of written notice of such failure, in the event of any other material breach by Customer which remains uncured 30 days after notice thereof or if any of the Licensed Softwaze ceases to be subject of a valid Software License Agreement. 24.7 If at any time after Customer has initially licensed any of the Licensed Software from TAN, Customer's fight to receive Support and Maintenance, or comparable services, from TAN under this Agreement or a comparable agreement has lapsed for any reason whatsoever, voluntarily or otherwise, and Customer wishes to receive Support and Maintenance from TAN, Customer will pay to TAN, prior to re-instatement of Support and Maintenance services: (a) a reinstatement fee equal to the greater of 50°/a of the current annual support fee or the sum of the unpaid support fees that would have been payable hereunder had this Agreement been in force during the time in which Support and Maintenance rights had so lapsed to the date of reinstatement, and (b) at least one additional year of Support and Maintenance from the date of reinstatement. 25. TERM FOR SUPPORT AND MAINTENANCE 25.1 Term. TAN shall provide to Customer, and Customer shall purchase from TAN, Support and Maintenance for a period commencing on the Support Start Date and, subject to termination as provided herein, continuing until the following Support Renewal Date or anniversary of the Support Start Date, with automatic renewals for one (1) year terms thereafter until either party gives written notice to terminate Support and the Maintenance no less than ninety (90) days prior to the end of the then-current tem>, provided however that the fees payable in respect of the Services and the Products maybe revised by TAN in accordance with this Agreement. SCHEDULE C: TERMS APPLICABLE ONLY TO THIRD PARTY PRODUCTS AND SERVICES 26. PURCHASE AND SALE; DELIVERY 26.1 Purchase Commitment and Price. TAN hereby agrees to sell to Customer, and Customer hereby agrees to purchase from TAN, the Third Party Products listed in the Pricing Form in the volumes and at the prices described therein. 26.2 Delivery. TAN will ship all or any part of the Third Party Products to Customer as soon as reasonably practicable (or, if the below-described purchase order documentation does not seek immediate shipping, at the time TAN considers reasonable in order to meet the desued delivery date described) after receipt by TAN of a purchase order from Customer specifying the particular Third Party Products sought, the number of such Third Party Products sought, the price payable therefore, and the desired date and location of delivery thereof. Any such purchase order must, at a minimum, reference quantity, description and price. 26.3 Changes by Customer to Delivery Schedule. Following delivery by Customer of any purchase order documentation described in section 26.2, no changes by Customer to the shipment schedule described therein will be permitted unless TAN is notified thereof in writing at least ninety (90) days in advance of the delivery date sought in such purchase order documentation. 26.4 Acceptance of Purchase Orders. Purchase orders delivered by Customer to TAN in respect of Third Parry Products are not binding upon TAN until accepted by TAN in writing. In any case, despite any indication to the contrary contained in any such purchase order documentation, no terms or conditions on purchase order documentation issued by Customer, other than the information required by TAN as set forth expressly in this Agreement, will be binding upon TAN, nor will any such terms or conditions modify or supplement this Ageement hr any way, notwithstanding the fact that TAN may accept or otherwise approve such purchase orders. TAN reserves the right to refuse any such purchase order for any reason not contrary to this Agreement, including without limitation pricing differences as described in section 27.2. 26.5 Additional Third Party Products. Customer may purchase Third Party Products in addition to those listed in the Pricing Form by issuing additional purchase order documentation as described herein, provided that the supply (or non-supply) of such additional Third Party Products will be subject to this Agreement as though such additional Third Party Products had been included in the Pricing Form on the date of execution of Pricing Form subject to the following: (a) the price for such additional Third Party Products is subject to agreement between the parties each in their own absolute discretion, and 10 Software Licensing, Services and 3d Party Products Agt. (v. Mar. 28, 2008) GENERAL TERMS (b) TAN shall have the right to discontinue delivery of such additional Third Party Products upon at least ninety (90) days written notice to Customer without any liability to Customer whatsoever for such discontinuance. 27. CHARGES AND PAYMENTS 27.1 Prices. The pricing applicable to Third Party Products is as set out in the Pricing Form in the form finally agreed to by the Parties. 27.2 Pricing Variability. Customer acknowledges that: (a) the prices described in Pricing Form are applicable for six (6) months after the date of execution hereof, and such prices are based upon Customer taking delivery of the full number of any particular Third Party Product listed in Pricing Form in a single shipment (b) and Customer hereby agrees that after the expiry of such initial six-month period or, in case of Customer seeking, in a particular shipment, delivery of less than all of the Third Party Products of a particular type listed Pricing Form, the actual prices may be higher. Prior to shipment of any Third Party Products that would be subject to pricing that differs from that described in [he Pricing Form, TAN will notify Customer of any such different pricing and Customer will accept such different pricing, as mutually agreed between Customer and TAN, in writing. rights. Customer will maintain in confidence and not use or disclose any and all confidential business or technical information connected with any Third Party Product except as specifically permitted by a party having legal control of such rights, and Customer will defend or settle any claim made or any suit or proceeding brought against TAN insofaz as such claim, suit, or proceeding is based on an allegation that any Third Party Product provided to Customer hereunder has been installed, used, or otherwise treated by Customer or any client or customer of Customer in violation of the proprietary rights of any third party or on an allegation that Customer or any client or customer of Customer has disclosed or used any confidential business or technical information connected with any Third Party Product, provided that TAN will notify Customer in writing promptly after the claim, suit, or proceeding is known to TAN and will give Customer such information and assistance as is reasonable in the circumstances. Customer will have sole authority to defend or settle any such claim at Customer's expense. Customer will indemnify and hold TAN harmless from and against any and all such claims and will pay all damages and costs finally agreed to be paid in settlement of such claim, suit or proceeding. 29.2 Third Party Products which are Software. Customer acknowledges that the possession, installation and use of all Third Party Products which aze software shall be governed by the terms of the software license(s) of the persons other than TAN who possess the rights to control such possession, installation and use. 2S. SUPPORT FOR THIRD PARTY PRODUCTS 28.1 For the purpose of isolating support issues and responsibility in respect of Third Party Products and their interaction with any Products, TAN will provide initial first-tier support, to a maximum of fifteen (15) minutes per support inquiry, for Third Party Products, as further specified in the Support and Maintenance Handbook. 29. PROPRIETARY RIGHTS 29.1 Third Party Proprietary Rights and Indemnity by Customer: Customer acknowledges that any Third Party Products supplied by TAN hereunder aze supplied by TAN as a reseller thereof and that the Third Party Products are subject to the intellectual property rights of the various third party developers and/or manufacturers thereof, as applicable, including without limitation copyright, trade secret, trademark, and patent 30. WARRANTY 30.1 Warranty. TAN warrants to Customer that TAN has the right to deliver the Third Party Products subject to any documentation accompanying such Third Party Products at the time of delivery and/or any licensing mechanisms, physical, electronic or otherwise, included in any Third Party Products that are software. 30.2 Warranties Provided by Third Party Suppliers. Third Party Products are warranted by the manufacturers thereof in accordance with the warranty statements accompanying delivery of the Third Party Products, and Customer agrees that Customer will rely solely on such Third Party Product warranties and Customer shall make no claim against TAN on account of any warranty, express or implied, which may apply to any Third Party Product. 11 Software Licensing, Services and 3d Party Protlucts Agt. (v. Mar. 26, 2008) f~kl~ht~ "3'. ~t%9f~'t1V~ETVYORK Pricing Form Nk:k Nicholson Aspen Parks end Recreation Department Ship To: 130 South Galena Street Aspen, 00 8161 7 -7 902 Purohase Order: Phone: Email: SoRware Activity Registration facility Reservation Daycare Membership Point of Sale League Scheduling Public Access Total Software Total Annual Maintenance Cost: Quoted by: Date: Quote Expiration: Quote Number: Reference Id: Bill To: 130 South Galena Street Aspen, CO 8 7 811-7 902 970429-1727 Fax: nickn@a.aspen.co.us Sara Wise 06/03/2008 09/01/2008 162246-72136 1661/162246 No. Of License Cost Total Maint. Fee Service Hrs. Licenses License Cost 1 $0 $0 $ 0.00 16 1 $0 $0 $ 0.00 16 i $0 $0 $ 0.00 8 1 $0 $0 $ 0.00 8 1 $0 $0 $ 0.00 8 1 $0 $0 $ 0.00 8 1 $0 $0 $ 0.00 12 _._. _._ _. _. .$0.00 $ 0.00 Services Financial Integration On-Site Training Services Business Process Review Onsite Services Gate Kicker Installation Onsite Services Pre-Project Planning & Documentation Advanced Implementation th Training Services - 10 Staff Members Basic Implementation @ Training Services - 10 Staff Members (2 sessions ~ 16 hours each) Gatekicker Installation (2 Locations) Business Process Review (3 days with team / 1 day documentation) Qty. Unit Price Extended Price 8 $175 $ 1,400.00 10 $800 $ 5,000.00 3 $500 $ 1,500.00 3 $500 $ 1,500.00 8 $125 $ 1,000.00 72 $100 $ 7,200.00 3z $100 $ 3,200.00 16 $175 $ 2,800.00 32 $200 $ 6,400.00 Total Services $ 30,000.00 Contract Based Revenue Qty. Unit Price Monthly Total Contract Total Annual Transaction Minimum 1 $18,000 $ 18,000.00 $ 18,000.00 Point of Sale Annual Subscription 1 $100 $ SD0.00 $ 1,200.00 (12 months) Total Contract Based Revenue 3rd Party HW/SW IDTech Weatherized Barcode/Mag Combo Reader, Serial Gatekicker Serial to IP Converter Total 3rd Party HW/SW $ 18,100.00 $ 19,200.00 Qty. Unit Price Extended Price $203 $ 406.00 $100 $ 200.00 $175 $ 350.00 $ 956.00 Quote Summary Total Software Cost $ 0.00 Total Maintenance Cost $ 0.00 Total Services Cost $ 30,000.00 Total 3rd Party Hardware/Software Cost $ 956.00 Total Contract Based Revenue $ 19,200.00 Grand Total: $ 30,956.00 Please Note Sales taxes, where applicable, are not included and prices are in the currency of the country of installation (subject to change without notice). • Hardware, operating system, 3rd party software and site preparation are not included unless otherwise noted. • On-site services are exclusive of airtare. • On-site services billed in minimum 8 hour daily increments. • Hardware is covered by Standard Manufacturer's warranty. Equipment that is defective upon arcival will be replaced. RMA process will apply for items after support has indicated there are no alternatives. • Hardware must be ver'fiied within 7 days of receipt. Hardware returned that is not defective will be assessed a re-stocking fee. Hardware that is not confirmed within 7 days, will not be accepted by The Active Network. • Transaction Fees: Transactions entered directly by participants through the Webstte will be assessed fhe customary service fee charged by Alive to online registrants ('Service Charge'), as described below. Transactions entered by a member of the f~gency on behalf of a participant will be assessed a Service Charge equal to $2.00 for all Cash and Check transactions and an additional 2.99%for credit card transactions. Each online registrant will pay the event registration fee charged by Agency plus a Service Charge equal to 2.99%+ 82,00 with a minimum Service Charge of $3.00. We may change the Service Charge at any time and you agree to such change unless you provide us with written objection to such change wtthin 30 days from the date such change is first implemented. We will be responsible for collecting all registration fees charged by you and all Service Charges assessed by us. All registration fees, except Service Charges, are your exclusive property. Any registration fees collected by us will be sent to you twice a month and Service Charges shall be retained by us. You shall guarantee and pay to Active a minimum aggregate Service Charge, whether through offline or online transactions, of $18,000 per calendar year (the °Minimum Yearly Service Charge°). You shall pay to Active the difference between such Minimum Yearly Service Charge and the actual Service Charges collected by us during the year, which will be billed at the end of each year beginning from the date set forth on the Agreement. Active shall not be responsible for processing or making any refunds. All credit card refunds processed will be assessed a $.10 fee charged by Active to you. Alive may reimburse itself for any credit card charge backs and associated fees out of registration fees collected by it. In the event such funds are not available, you agree to reimburse Active for any charge backs or refunds. For existing astamers, this quote may be executed by purchase order, however the most recent enforceable Agreement will contain the only commerdal terms applicable to such trensactlon desptte such purchase or other order stating otherwise. -____... Irnoice me Purchase Order Number: Credit Card Number: Melhod of Payment ~ Visa r MasterCard F~cpiretion Date: I hereby Agree to pay the above quote with the stated method. Signature: Date: Name: Title: Summit Daily News for Breckenridge, Keystone, Copper and Frisco Colorado -News Page 1 of 4 f~ac~.rru~. qr l~ 1~. ~ i1~~ SUMMIT DAILY News Election 2008 Sports Contests Classifieds Service Directory Real Estate A&E Business Columnists Opinion Community Summit Up Events Calendar Letters to the Editor Autos Photo Galleries Special Sections SERVICES Submit News Archives Business Directory Today's Ads News Feeds Email Newsletters Road Conditions Mountain Cams AROUND SUMMIT Best Of High Altitude Baking Shopping Spas Bars & Nightclubs Performing Arts Live Music Arts & Culture RECREATION Ski & Snowboard SUNNY 47° Brouyttt w you ~Y ~,,daDAlt~~r„«, Search: ~ Classifieds ~ Place an Ad Breckenridge Rec to go online Users of the Breckenridge Recreation Department will be able to use a nev computer network to access activities By HARRIET HAMILTON summit daily news Summit County, CO Colorado May 18, 2008 ~r.Comments Print ~ Email BRECKENRIDGE -Registering for programs and keeping track of activities will soon become much simpler for users of the Breckenridge Recreation Department, when the Town's three recreation facilities launch an online service to manage user accounts. Administered by the San Diego-based Active Network, the new Breckenridge system should be up and running by the end of May, said Town recreation department marketing coordinator Helen Cospolich. Once in place, it will allow users to register online for classes and activities, view all their recreation transactions, make online payments, and print receipts. "It's meant to make everybody's life a lot easier," Cospolich said. Users will be able to create secure online accounts on the network, and monitor them from an' enabled computer 24 hours a day. Parents will be able to view youth program details, schedule availability and register for them online All account holders will also be able to see every transaction they've ever made with the depa including every Rec Center visit, Cospolich added. In addition to remote access, the system will eventually provide members with self check-in a Center, thereby minimizing waits and improving overall flow. The Active Network, familiar to many as a common site to register for l OK races and triathloi founded in 1998 as a web portal to connect regional grassroots sports with recreational athlete Get News Feeds ~ Q MY `Yw Summit Daily News for Breckenridge, Keystone, Copper and Frisco Colorado -News Golf Hunting & Fishing Mountain Biking Hiking Rafting & Paddling And More.,. TRAVEL INFO Lodging Lodging Rentals Weather Road Conditions MOUNTAIN LMNG Real Estate Wedding Ideas Community Petscene NEWSPAPERS Aspen Times Aspen Times Weekly Citizen Telegram Grand ]unction Free Press Eagle Valley Enterprise La Tribuna Leadville Chronicle Post Independent Sky Hi Daily News Snowmass Sun Vail Daily The Vail Trail Valley Journal Page 2 of 4 then, the company has expanded into marketing and non-sports community site development administration. According to its website, Active.com now represents more than 100,000 events and more thar community organizations. With greater than 12 million registered users, it has been listed by ] one of the fastest growing privately held companies in the nation. For more information about Breckenridge's roll-out of the new system, call (970) 453-1734, c www.townofbreckenridQe.com. Harriet Hamilton can be reached at (970) GG8-4651, or at hhamilton(a)summitdaily.com. Latest Comments Post Your Comment Discussion LATEST COMMENTS Please login to post comments! Email: Password: Remember Me: Login Comments (0) RELATED ARTICLES June 1, 2008 - Breckenridge encourages solar panels for historic district http://www.summitdaily.com/article/20080518/NEWS/702533531 6/13/2008 '~ I d MEMORANDUM TO: Mayor and City Council FROM: Kim Peterson, Global Warming Project Manager THRU: Phil Overeynder, Public Works Director THRU: Steve Barwick, City Manager DATE OF MEMO: June 4, 2008 MEETING DATE: June 23, 2008 RE: Contract Award to Climate Mitigation Services for 2007 Greenhouse Gas Inventory REQUEST OF COUNCIL: In 2004, the City of Aspen did a baseline greenhouse gas inventory to account for community wide emissions. It is now time to update that inventory with 2007 data to determine trends in emissions and necessazy actions and policies to address those emissions. This memo is to request the approval of $47,950 to hire Climate Mitigation Services to perform the inventory update and to train Canazy staff to update the inventory in future years. PREVIOUS COUNCIL ACTION: In 2006 Council adopted the Canary Action Plan to reduce Aspen's contribution to global warming. The Action Plan calls for the City to update the emissions inventory every two years starting with 2007 data. BACKGROUND: Community wide greenhouse gas emissions totaled 840,875 tons of C02 equivalent for 2004. By adopting the Canazy Action Plan, Council set emissions reductions goals of 30% by 2020 and 80% by 2050 from these baseline amounts. It is important to update our emissions numbers so that we can measure how we are doing in relation to our goals. This information will give staff, Council and the community vital information so that we can make mid-course policy corrections to bring emissions in line with our stated goals. DISCUSSION: One key component of the 2007 GHG Inventory will be a "Quick Tracker" which will analyze trends in building, air travel and vehicle travel to set the context for Aspen's emissions trends. The rationale for hiring Climate Mitigation Services to complete this inventory stems from the fact that this firm completed the baseline inventory and thus has the methodology and tracking Page 1 of 2 tools already set up to more efficiently complete the 2007 Inventory. Climate Mitigation Services will also train Canary staff in the methodology and process for updating the inventory so that starting in 2009 this function can be performed in house. Since Climate Mitigation Services is locally based, this process will be more efficient and cost effective. Additionally, data will be gathered through this process that will be useful in other policy and program decisions for the future (e.g. Baselining residential emissions). FINANCIAL/BUDGET IMPACTS: The completion of the 2007 Greenhouse Gas Inventory is estimated to cost a maximum of $47,950. The full proposal from Climate Mitigation Services, which details project expenditures, is attached. This study will be 50 percent funded from existing Global Warming operating budget authority, with the balance funded out of water operating professional services budget. ENVIRONMENTAL IMPACTS: Slowing greenhouse gas emissions is the entire crux of the Canary Initiative. We need to measure whether these emissions are increasing or decreasing and the trends in different sectors in order to effectively act for their reduction. RECOMMENDED ACTION: Staff recommends: That Council approve the contract award to Climate Mitigation Services in the amount of $47,950 for the completion of the 2007 Greenhouse Gas Inventory Update. ALTERNATIVES: A longer interval between emission inventories rather than three (3) years, as proposed, is an option. However, verification of emission reductions is required to represent to the public that emission reductions represented by "Canary Tags" are realized. PROPOSED MOTION: I move to approve Resolution # concerning the Greenhouse Gas Inventory contract with Climate Mitigation Services. CITY MANAGER Page 2 of 2 RESOLUTION # ~ ~ (Series of 2008) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND CLIMATE MITIGATION SERVICES SETTING FORTH THE TERMS AND CONDITIONS REGARDING EMISSION INVENTORY UPDATE AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Climate Mitigation Services, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Climate Mitigation Services regarding Emission Inventory Update a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held June 23, 2008. Kathryn S. Koch, City Clerk AGREEMENT FOR PROEF.SSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, bchx°ccu the CITY OF ASPEN, Colorado, ("City") and CLIMATE MITIGATLON SERVICES, ("Professional"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit "A" attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence work imm~ediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill anti care and the ordarly progress of the Work in a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed no later than December I, 2008. Upon request of the Ciry, Professional shall submit, for the Ciry's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project procaads, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, cxccpffor reasonable cause, be exceeded by the Professional. 3. PavmenY. ]n consideration of the work performed, City shall pay Professional on a time and expense basis for aII work performed. The hourly rates for work performed by Professional shall not cxccul those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed $47,950.00. Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they arc considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assignability. Both panties recognize that this contract is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not he obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. 5. Termination. The Professional or the City may tern7inate Chis Agreement, without specifying the reason Therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the terminarion. No fats shall be earned after the effective date of the PSI-971.doc Page I termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithsrandiug the abovo. Professional shall not be relieved of any liability to the Ciry for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such Bute as the exact amount of damages due the City from the Professional may be determined. 6. Covenant Against Contingent Fccs. The Professional warrants that s/he has not employed or retained any company or person, other than a bona fide employcc working for the Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, otherthan a bona fide employee, any Fee, comm~ission, percentage, brokerage fee, gifts or any other consideration contingent upon or resttlYing from the award or making of this contract. 7. Independent Contractor Status It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the Ciry. No agent, employee, or servant of Professional shall bc, or shall be deemed to be, the employcc, agent or servant of the City. City is interested only in the results obtained under this contact. The manner and means of conducting the work are under the sole wntrol of Professional None of the bcnetits provided by City to its employees including, but not limited to, workers compensation insurance and unemployment insurance, are available from City ro the employccs, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional utd/or Professional's employccs engaged in the performance of the services agreed to herein. 8. Indenmification. Professional agrees to indemnify and hold harntlcss the City, its ofFccrs, employees, insurers, and self-insurance pool, from and against all Liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other toss of any kind whatsoever, which arise out of or arc iu arty manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. 'Ihe Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, rn at the option of the City, agrees to pay the City or reimburse the City for the defense costs incuncd by the Ciry in connection with, any such liability, clahns, or demands. If it is determined by PS1-971.doc Page 2 the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the Ciry, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Pro{essional'slnsurance. (a Professional expense, a policy or policies of insttranec su ~ icienT to in and other obligations assumed by the Profcssio al pursuai be in addition to any other insurance require aent5 ' Professional shall not be relieved of any liability, cl 'm pursuant to Section 8 about by reason of its failure t rro~ its failure to procure or maintain insurance in sutfi ent . (b) Professional shall procure and aint Professional to procure and maintain; the mt 1 coverages shall be procured and maintained with coverages shall be continuously maintained to c obligations assumed by the Professional pursuant to policy, the necessary retroactive dates and cxtend~ such continuous coverage. (i) N'or•kers' Conrpensa~ applicable laws for any employee engaged i f Emplopcrs' Liability insurance with minimum lit 0500,000.00) for each accident. FIVE HUNDRE - policy limit, and FIVE HUNDRED THOU employee. Evidence of qualified self-insured Compensation requirements of this paragraph. (ii) Conunerciitl General iaGi~ lhtrits of ONE MILLION DOLLARS 0 01 DOLLARS 01,000,000.00) aggregate. Th operations. The policy shall include coverag (including completed operations), personal employee acts), blanket contractual, rode operations. The policy shall contain a severs uance vith minimmm combined single )0) • ch occurrence and ONE MILLION s all be applicable to all premises and ily injury, broad form property damage (including coverage for contrachral and contractors, products, and completed ~gterests provision. (iii) Comineherrsive 9ulomobile Liahilafr insurance with minimum combined single limits, for bodily injury and property damage of not less Yhan ONE MILLION DOLLARS ($7.000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,00- 0.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles assigned to or used inperformance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services Co the City under this wntract. >_re s to procure and maintain, at its own r against all liability, claims, demands, to Section 8 above. Such insurance shall osed by this contract or by law. The demands, or other obligations assurued re or maintain insurance, or by reason of ants, duration, or types. and all cause any subcontractor of the i ranee coverages listed below. Such nd insurance acceptable to the City. All all Liability, claims, demands, and other i 8 above. In the case of any claims-made artin periods shall be procured to maintain isuranee to cover obligations imposed by pcrfot ante of work ender this contract, and of FI E HUNDRED THOUSAND DOLLARS CH SAND DOLLARS ($500,000.00) disease DOLLARS ($500,000.00) disease -each may be substituted for the Workers' PSI-971.doc Pagc 3 (iv) Professrona! Liabilih~ insm'anc w~ the minimum units of ONE MILLION DOLLARS ($1,000,000) each claim and E MILLION DOLLARS ($],OOQ000) aggregate. (c) The policy or policies required ab ve shall be endor• d to include the City and the City's officers and employees as additional insureds. . eery policy r quired above shall be primary insur- ance, and any insurance carried by the City, its ~ leers o employees, or carried by or provided through any insurance pool of the City, shalt bee es and not conhibutory insurance to that provided by Professional. No additional insured endor mcnt to the policy required above shall contain any exclusion for bodily injury or property da .age rising from completed operations. '1 he Professional shall be solely responsible for any deduc ble loss • under any policy required above. (d) The certificate of insurance p vided insttrancc agent as evidence that politics pr vidi limits arc in full force and effect, and sh I commencement of the contract. No other font identify this contract and shall provide that the canceled, terminated or materially changed u been given to the City. by the Ciry tall be completed by the ProfessionaPs ~g the re ued coverages, conditions, and minimum be red wed and approecd by the City prior to of crrificate shall be used. The certificate shall c 'crages afforded under the policies shall not be at ast thitry (30) days prior written notice has (e) Failure on the pa of the Professional to procure or m' ntain politics providing the required coverages; conditions, d minimum limits shall constitut a material breach of contract upon which City may immediate) terminate this contract, or at i discretion City uray procure or renew any such policy or any exten d reporting period thereto d may pay any and aII premiums in coimection therewith, and all manic so paid by City shall b repaid by Professional to City upon demand, or City may offset the cost of th premiums against ouies due to Professional from Ciry. (f) City reserves the right to requ ~t and recd a certified copy of any policy and any endorsement thereto. (g) The panics hereto understand and ag ~ that City is relying on, and does not waive or intend to waive by any provision of this' contrac , e monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or an oth rights, immunities, and protections provided by the Colorado Governmental Immmiity A~, Sectio 24-]0-101 et seq., C.R.S., as from time to time amended, or otherwise available to City. its officers, r its employees. 10. Citv's [asurancc. The Colorado hrtergovernmentaL Risk Sha Property/Casualty Pool. Copies of t Finance Depamncnt and arc availa e City makes no representations w ts'c City shall provide Professional r anon in CIRSA. pfz'rties hereto unders • nd that the City is a member of the g Agency (C[RSA) a d as such participates in the CIRSA CIRSA policies and ma ual are kept at Che City of Aspen to Professional for inspect a during normal business hours. ever with respect to spccifi coverages offered by CIRSA. able notice of any changes in i s membership or participation PSI-97 Ldoc Page A t I. Completeness of Aareetnent. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered to the respective persons and;or addresses listed below or mailed by certified mail return receipt requested, to: City: City Manager City of Aspen li0 South Galena Street Aspen, Colorado 81611 Professional: Rick Hccdc Climate Mitigation Services 1626 Gateway Road Snowmass, CO 81654-9214 li. Non-Discrimination. No discrimination because of race, color, creed, sex, marital stahis, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's mm~icipal code, Section ]3-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the Ciry of any term, covenvrt, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other teem. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any tarm, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said teem, covenant or condition, the City shall be entitled to invoke airy remedy availably to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This agreement shall be binding upon all parties hereto and their respective heirs, yxccutors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this agreement shall not be binding upon [he City uriless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. Illegal Aliens -CRS 8-t7.5-101 & 24-76.5-101. a. Purpose. During the ?006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the Gity of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly YS1-971.doc Page 5 contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. b. Definitions. The following terms arc defined in the new law and by this reference are incorporated herein and in any contraeT for services entered into with the City of Aspen. '"Basic Pilot Program" means the basic pilot employment verification program created in Fublic Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services° cleans this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not invoh~ing the delivery of a specific end product other than reports that are merely hrcidental to the rcyuircd performance. c. By signing this document. Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of aLl employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees arc not employ illegal aliens. d. Professional hereby confirms that: (i) Professional shall not knowingly ernploy a' contraeT new employees without confirming the cmploymcnr eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to cou6ntr to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for cmploymcnr in the United States under the Public Contract fur Scwices. (iii) Profcssiouat has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not ernploy any new employees who are not eligible for employment in the United States; and if Professional has not been accepted hrto the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such PSI-971.duc Page ~ application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: (1) Notify such subcontractor andthe City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor' dons not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not Terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 5-17.5-102 (5), C.R.S. (vii) If Profcssiaral violates any provision of the Public Conu'act for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. if the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. (ix) [f Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (l) is a citizen of the United States or othetu~ise lawftilly present in the United States pursuant to federal law,(2) shall comply with the provisions of CRS 24-?6.5- ] Ol et seq., and (3) shall PS 1-97 Ldoc Page 7 produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 17. General Ternis. (a) It is agreed that neither this agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, termhtated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of airy other provision. (c) The parties acknowledge and understand that there arc uo conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This agrcentcnt shall be governed by the Taws of the State of Colorado as from tune to time in effect. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in tluee copies each of which shall be deemed an original on the date hereinafter written. (SIGNAT'URES ON FOLLOWING PAGE ATTESTED E3Y: CITY OF ASPEN, COLOI2AD0: PS 1-971.doc t3v: Page 3 Title: Date: PROFESSIONAL: W'ITNESSEDF31': CI.INi3-'CE h~T~~n-'1e~ VCS Title: Q~C Datc: 1 ~o ~ w~_ 20°~S PS1-97Ldoc Pagc9 EXHIBIT "A" to Professional Services Agreement Scope of Work The intent is to repeat the methodology of the 2004 inventory so as to comprise a meanh~gtul basis of comparison between the relevant emissions years and thus be a measure of progress in reducing emissions. Since most of the Canary Action Plan policies and initiatives have not yet been implemented -except for significant progress made the City in its buildings and vehicle fleet emissions and the recent announcement of availability of Canary Tags --- CMS anticipates that most emissions sources included in the 2004 inventory will show increased emission levels. CMS proposes, as the first phase of the emissions update, to craate a QuickTracker: an "early warning system" of potential emissions growth in Aspen. For this purpose, CMS and Aspen Global Warming Manager Kim Peterson will investigate a salient set of major indicators of emissions growth - such as new residential and commercial buildings' type and net heated floor area, traffic counts (AADT at Castle Creek Bridge), construction activity (e.g., trucking), Sardy Field aircraft operations, and tourism numbers -that can be used between periodic full inventories to gauge expansion in major emissions segments of Aspen. Objectives: "Che primary objective will be an update of the.3s~en Greenhouse Gas Emissions 2004 and, as such, will comprise a comparative progress report on Aspen's emissions since 2004. ~ CMS will compare and analyze the quantitative changes since the 2004 inventory, inchidurg analyses of sub-sector emissions such as commuting, air travel. natural gas, and electricity sources. An important component of this project is the collaboration with Aspen Global Warming Manager Kim Peterson or other Canary Initiative staff, for the purpose of carefully reviewing the inventory's methodology as well as developing the requisite knowledge by City staff on how to update the cnvssions inventory in future years. Work standard: The work performed for the City of Aspcu will meet tho state-of--the-art in community emissions inventories. The report and the supporting spreadsheets will document the methods, forumlas, assumptions, caveats, and data sources. Carbon coefficients appropriate to local conditions (such as The "Local Billing Pressure" for EnergySource's sales of natural gas) will be used, and the carbon intensities of both City Electric and Holy Cross Eucrgy will be updated. The rcpat will contain images of significant cmis'sions sources throughout the City, including major buildings, facilities, and egttipmcnt (both fixed utd mobile). While technical in nature, it will be written to facilitate public understanding of the nature and scale of the City's emissions. 1 Heede, (2006), for the City of Aspen Climate Mitigation Services, Snowmass, PSt-971.duc 3 Canary Initiative, by 94 pp. Page 10 Ln the course of updating the 2004 emissions inventory to 2007, Peterson and Heede will review and possibly revise some factors, coefficients, or methodologies. If this reveals computational or methodological errors in the 2004 inventory, then the 200a inventory will be revised. Deliverables: Each phase of The project has one principal work product: Phase Onc: a Quick'Iracker workshcct; Phase 7"wo: a comprehensive set of inventory worksheets, and Phase Three: a sunuuary report on all relevant sources and quantities of greenhouse gas emissions for the year 2007. "11te sport's contents are as follows: Summary and Overview Boundary definition (describing the geographic and conceptual boundaries, scope, gases included, etc.) a.Buildings & Facilities Electricity Namra(Gas Propane b.Transportation About town (gasoline and diesel) Commuting (gasoline and diesel) Commercial vehicles: freight, delivery, trucking, construction vehicles, etc. City and County vehicles: police cruisers, snowplows, etc. Local bus system: in-City buses, Rt~S~A Valley rouges School buses c.Air travel Commercial air [ravel operating out of Aspects Sardy Field and other regional airports Ganeail air travel on private or business aircra$ d.OTher fuel consumption Off-road vehicles (eg., baekhocs, loaders, construction equipmeo[) Other (snowmobiles, mowers, County & CDOT snowplows in and around Aspen) e. Methane and nitrous oxide emissions Wastewater Treahnent Facility (clceniciry and natural gas; methane deemed non-material in ?004 inventory) City's share of Pitkio County ]..andtill (methane) ~9cthanc emissions at Holy Cross's procurement of coal-fired electricity (included in carbon-c~uivalent emissions per kW'h of electricity delivered to Aspen customers) N.O from fertilizer application (City Parks, area golf courses, and other greenspaces) i.Project phases 1 propose to split this project into three phases Phase One: The QuickTracker. design, element selcetion, data gathering, interviews and site visits, analysis, worksheets and calculations, peer review, and completion; Phase Two: Inventory design, initial site visits, data gatherhrg calculations, data entry, carbon intensity & emissions factors, workshcct development, calculation "commissioning;" Phase'Three: report writing, AGWA review, and editing layout, and report completion. ii.Dates and hours PSt-97 Ldoc Page Ll Work will commence in January or February 3008. Project elements and astimated hours (by both Rick Heede of CMS and Kim Peterson of the City of Aspen) arc anticipated as follows: Phase One: Quick'I'racker: design, clement selection, data gathering, analysis: 40 - 80 hrs Phase Two (data aathcrine and calculations Site visits, meetings with energy providers & data keepers: 16 - 32 hrs Data gathering: 80 - 12(1 hrs Calculations data entry spreadsheet develonment 40 - 80 hrs Total of Phase Two: 136 - 233 hrs Phase'Fhree (summary and renortl' Documentation: 16 hrs Analysis: 24 - 48 hrs Report drafting: 34 - 48 hrs Pecrreview process: 16 hrs Report completion: 40 - 80 hrs Miscellaneous (editin desi n & layout priuting~~ 24 - 40 hrs "total of Phase Three: 144 - 248 hrs Total project, Phases 1-3: 330 - 560 hrs Submission of the draft report for review by Aspen Global Warming Manager Kim Peterson, City Electric Department Director Phil Overeyndar, and others (e.g., Steve E3arwick, AG WA members) will be scheduled once the work convnences. PS1-971.doc ~ Page 12 EYH1B1'C "B" to Professional Services Agreement Rate Schedule Phase Oue: 20 - 40 hrs by CMS Phase Two: 68 - 11G hrs by CMS Phase Three: 72 - 124 hrs by CMS Other costs: Graphic Assistant (25 hrs (k? $36,'hr) _ Printing of final report (City will print) Travel (assume 500 miles (itv$0.~0) - Miscellaneous b'z Contin¢encp Not to Exceed Total Costs $3,200 - $6,400 $10,880 - $18,560 $7 1,520 - $19,840 $900 nc $250 $2,000 $47,9.50.00 __ VSI-971.doc Page 13 vie. MEMORANDUM TO: Mayor and City Council FROM: Randy Ready, Asst. City Manager CC: Steve Barwick, City Manager DATE: June 16, 2008 RE: Taping of Work Sessions SUMMARY AND REQUEST OF COUNCIL: This memorandum is on your Consent Calendar to follow up on the recent work session discussions about taping and broadcasting City Council work sessions on CGTV Channel 11. Approval of the Consent Calendar will direct staff to work with Grassroots to tape and broadcast the remaining work sessions in 2008. There is sufficient funding in the 2008 City Council department budget to cover the $2250 cost for the remainder of the year. Staff will return this fall with a proposed supplemental budget amount for 2009 for Council consideration. BACKGROUND AND DISCUSSION: City Council discussed the taping of work sessions most recently on June 10 and June 16. The current contract with Grassroots allows for the taping and broadcasting of 24 regular meetings and 24 additional meetings or events in Council Chambers each year. Council's direction to tape and broadcast every council work session will increase the annual number of tapings from 48 to about 96-an increase of 48 meetings. Regular meetings are typically broadcast live and then re-broadcast several times on CGTV Channel 11. Work sessions on Monday nights conflict with the regular meetings of the Snowmass Village Town Council, so they would be taped for broadcast at a later time. Tuesday night work sessions would generally be able to be broadcast live and then shown on later dates as well. The current funding arrangement and partnership for CGTV Channel 1 I is a three-way split among the City, Pitkin County and the Town of Snowmass Village. At least for the remainder of this year, staff recommends that we leave the one-third funding partnership in place and continue to occupy about one-third of the time of CGTV, with the work sessions being broadcast in lieu of multiple re- broadcasts of the regular council meetings. Council may wish to revisit the broadcast schedule as the new webcasting system comes online later this summer. FINANCIAL IMPLICATIONS: Grassroots has offered a reduced rate of $150 per taping for the remaining work sessions in 2008. There are about 37 work sessions remaining in the year. 22 of those tapings will be covered under the current contract, leaving 15 work sessions at $150 each to be funded. There are sufficient funds in the 2008 City Council department budget to cover the necessary $2,250. Staff will return during the 2009 budget process with the proposed budget to tape and broadcast the full Page 1 of 2 complement of about 48 work sessions that are not covered under the current contract with Grassroots. PROPOSED MOTION: Approval of the June 23 Consent Calendar will direct staff to work with Grassroots to tape and broadcast the remaining work sessions in 2008. Page 2 of 2 ~^^'' 1' ~~ Q t~~~ ~' x' ~ 'r r "~s. ~. r :,t . Y `Y 1 ~ A V? ~7, a .~5r;~ y a~ m~ " !r ~`'• ~ 9 ~. 7'TC ~M~" ~ 'i yl r: ~ ~ ... ~: *qp44 ~~~:P~ ~<, ~:1 ~ a x ~x ~ . v ~ w'.. ~ i~4 ~~r x* r ~,~«ec *' `fit ~ } a ~~ :~ ,F ~. ~ 'tee ~?~~ .,a„ I° .Ty' h Y .~ a~ i ~ . e ~~~ t~ `o~ ~~. ^7 r" k _ :~' t S~ t • ~. F a 8 r it ;~,` 4 •r if F d .Yid ,~= I p'y ~ . ~ r !' S A~ ~~r,-• l4yu -'~ I j r } ^ vu a. MEMORANDUM TO: Mayor and City Council FROM: Ashley Cantrell, Environmental Health Department THRU: Lee Cassin, Environmental Health Director DATE OF MEMO: June 16, 2008 MEETING DATE: June 23, 2008 RE: Ordinance to replace deleted sections of the noise ordinance REQUEST OF COUNCIL: Staff requests that City Council pass this ordinance on first reading to replace sections of the noise ordinance that were accidentally deleted. BACKGROUND: The City has had a noise ordinance since 1981 and it always contained provisions that allowed concerts and other events to apply for a variance to exceed noise levels in special situations with certain restrictions. These sections were inadvertently deleted when the parts of the ordinance dealing with construction noise were moved to the Engineering Department's Construction Mitigation Plans (CMP). DISCUSSION: Last yeaz the City decided to regulate construction noise through the use of the Construction Mitigation Plans (CMP) instead of through the noise ordinance to avoid having related regulations in two different sections of the code. The construction noise wording was moved to the CMP and removed from the noise ordinance. At this time the section governing special event and sporting event noise was accidentally deleted. This deletion was a clerical error as this wording was never intended to be erased. The deleted section allowed for certain events to exceed the Zone District noise levels, such as the Farmer's Mazket, special events, and sporting events. This ordinance replaces the original language exactly as it was before the deletion. FINANCIALBUDGET IMPACTS: None ENVIRONMENTAL IMPACTS: With the existing wording, special events cannot exceed noise levels at any time of day, and there is no opportunity to request a variance to exceed regulations during specified times of day. By replacing the wording in the noise ordinance, the city retains the right to grant a variance to special events wishing to exceed noise levels, which could cause louder noise and negative envirorunental impacts on the surrounding areas. Page 1 of 2 However, the noise ordinance requires that events take consideration of neighbors and requires cooperation with the police if a noise complaint occurs. RECOMMENDED ACTION: We recommend Council approve this addition to correct an unintentional clerical error. ALTERNATIVES: Council could leave the ordinance as is, in which case no one could get a vaziance for sporting events or special events to exceed noise levels. Council could ask staff to review the issue and make other changes. PROPOSED MOTION: I move to adopt Ordinance No. ~ Series of 2008 replacing sections of the noise ordinance that were inadvertently deleted. CITY MANAGER COMMENTS: Page 2 of 2 Ordinance NO.~~ (Series 2008) AN ORDINANCE AMENDING CHAPTER 18.04, NOISE ABATEMENT, OF THE MUNICIPAL CODE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO WHEREAS, the special event regulations in the noise ordinance were inadvertently removed; and WHEREAS, the need still exists for regulation and variance options for sporting events, Farmer's Mazkets, concerts, and other special events, and those provisions of the noise ordinance had been in place since 1981; and WHEREAS, noise is a significant source of physiological stress and affects the health an well-being of residents and visitors; and WHEREAS, the Aspen City Council wishes to balance the need for peaceful enjoyment of Aspen's environment with participation in the many musical, sporting, and other events; and WHEREAS, The City Council of the City of Aspen has determined that replacement of the deleted sections of the noise ordinance benefits the health and welfare of the residents and visitors to the City of Aspen; and NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That section 18.04.050 of the Municipal Code of the City of Aspen, Colorado is hereby repealed and re-enacted to read as follows: Sec. 18.04.050. Allowed noises based on time of day and other restrictions (A) Any and all activity incidental to the erection, demolition, altering, assembling, installing or equipping of buildings, structures, roads or other appurtenances thereto, including land clearing, grading, excavating, filling, landscaping, use of power equipment and the delivery, leading or unloading of materials and equipment shall comply with Chapter 8.56. (Ord. No. 24, 2003, §l; Ord. No. 11-2003, §1; Ord. No. 33, 2007, §2) (B) The following noises aze allowed to exceed the Zone District noise levels during specified times of day unless deemed a disturbance of the peace by an enforcement officer. (1) Sound emanating from outdoor athletic events between 7:00 a.m. and 9:00 p.m. (2) Special Events or other events to which the public is invited with the following conditions (a) The maximum decibel level at the perimeter of the event does not exceed 100 decibels; and (b) Amplified noise shall be created only between the hours of 9:00 a.m. and 9:00 p.m.; and (c) Neighbors within two hundred fifty (250) feet of the site of the proposed sound source are notified. Such notification must be in writing and be done seven (7) days prior to the starting time of the event; and (d) The arrangement of loud speakers or the sound instruments must be such that it minimizes the disturbance to others resulting from the position or orientation of the speakers or from atmospherically or geographically caused dispersal of sound beyond the property lines; and (e) All reasonable measures aze taken to baffle or reduce noise impacts on the neighbors; and (f) Event organizers agree to cooperate with the Police Department in addressing noise complaints from neighbors, which may include the termination of the event. (g) Organizers of special events governed by the City of Aspen Special Event code (14.20.030(f)) may request a variance from noise restrictions to the City of Aspen Special Event Committee. (1) The vaziance request shall include reasons why the variance should be granted, how the public good will outweigh impacts on neighbors and other factors supporting the request. (2) If approved, the variance shall contain all conditions upon which said variance has been granted, including, but not limited to, the effective date(s), time(s) of day, location, sound pressure level, or equipment limitation. The Special Event Committee may prescribe any reasonable conditions or requirements deemed necessary to minimize adverse effects upon the community or the surrounding neighborhood. (3) Decisions on variances by the Special Event Committee may be appealed to the city council. An appeal shall be made by filing with the city clerk a signed statement that the appellant desires to appeal to the city council, along with a copy of the application and the written denial or the permit objected to. Each appeal shall be filed within two (2) days, exclusive of Saturdays, Sundays and legal holidays, of the decision appealed from. The right to appeal to city council shall be contingent upon city council's regular meeting schedule. (3) Private events to which the public is not invited and that are located at a park, business or nonprofit facility with the following conditions: (a) Private events must comply with the requirements of parts (c) thru (f) of section (3 ) governing public events; and (b) Amplified noise shall be created only between the hours of 9:00 a.m. and 8:00 p.m.; and (c) The maximum decibel level at the perimeter of the event does not exceed 80 decibels; and (d) Maximum of two per week at any property; and (e) If complaints are received from neighbors about noise from a private event, the event organizer must meet with the Environmental Health Departrnent and implement additional control measures for future events to prevent disturbance of neighbors. (f) An administrative fee as set in the City Fee Ordinance is required for review of the additional control measures. (4) Farmers' Markets. Sound from the Farmers' Market during times and dates specified in its current vending agreement with the City of Aspen. Section 2 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. INTRODUCED, READ, AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the day of , 2008. Mick Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk V1112~. MEMORANDUM TO: Mayor Ireland and Aspen City Council ~~j~~~ FROM: Chris Bendon, Community Development Director (J" ~ ~' ~ RE: Ordinance No. 1, Series of 2008. Public Hearing 434 East Cooper Avenue Subdivision -Bidwell Building DATE: June 23, 2008 SUMMARY: During the June 9, 2008, City Council meeting City Council adopted a motion to reconsider the denial of Ordinance No. 1, Series of 2008, Subdivision of the Bidwell Building located at 434 East Cooper Avenue and continued the public hearing to tonight's meeting. Staff has had some preliminary discussions with the applicant about the range of changes that may be made to the proposal. These discussions are ongoing. Depending upon the scope of the changes that will be proposed, staff may request that the application be re-reviewed by the Historic Preservation Commission and/or the Planning and Zoning Commission. Staff does not have a proposal at this time. ea~f~r+u~ Staff is requesting this item be iablcd to the July 14, 2008, City Council agenda at which time staff and the applicant will be able to provide an update of the changes and the recommended process for re-reviewing the application. CITY MANAGER COMMENTS: RECOMMENDED MOTION: "I move to table discussion and continue the public hearing on Ordinance No. 1, Series of 2008, Subdivision of the Bidwell Building to July 14, 2008." IXa MEMORANDUM To: FROM: THRU: DATE OF MEMO: MEETING DATE: RE: Mayor and City Council Nancy Lesley, Director of Special Events and Marketing Jeff Woods, Manager, Parks and Recreation June 19, 2008 June 23, 2008 Community Picnic aad Fourth of July Fireworks REQUEST OF COUNCIL: Staff is requesting additional funds for the Community Picnic and the Fourth of July Fireworks. Both of these events will be held at the Aspen Golf Course to benefit the community. Staff just learned that the fireworks will most likely be banned from the traditional location of Aspen Mountain due to fire hazard. Staff recommends the Community Picnic be expanded with many more family activities. PREVIOUS COUNCIL ACTION: In 2007 Council gave staff additional funds in the amount of $24,000 to create a safe, fun environment to hold the fireworks. Council also has a fund of $12,000 for the Community Picnic. BACKGROUND: In 2007 due to the lack of precipitation on Aspen Mountain, it was recommended by ACRA to move the fireworks to the Aspen Golf Course as it is watered daily. The Aspen Golf Course is the only alternative to the mountain as its size, location and daily irrigation. For the last decade the City has held the Community Picnic at Paepcke Pazk in downtown Aspen. This yeaz, staff is recommending the picnic be held at the Aspen Golf Course on Sunday, September 14`h. The golf course will be closed to golfing all day to allow the picnic to be more of a family event. Staff is creating games and events for kids and big kids alike. DISCUSSION: Staff has been in contact with the Fire Mazshal, who strongly recommended that the City start preparing a plan to use the golf course for the 4`h of July fireworks due to the lack of precipitation and a high fire danger on Aspen Mountain. Our plan is similar to last year; with modifications that we feel will make it a better event with a smaller budget. Staff feels that the fireworks at the golf course were a tremendous success. The traffic congestion that the fireworks usually bring didn't happen due to the location of the golf course. Page I of 3 Many people rode their bikes, walked or rode the bus. RFTA was able to staff up with extra busses and everyone was able to get to the golf course. Staff received many compliments from citizens and guests alike that felt it was a wonderful alternative to Aspen Mountain. The viewing of the fireworks was spectacular as there was no obstruction, and people felt as though they were right under them. The Golf Course will be closed for St. Andrew's Day, staff recommends the Community Picnic be held at the Aspen Golf Course and merge the. two events. Staff has created a plan for games and events ranging from Bounce House, Miniature Golf, Frisbee, Football and a Community Photo. This brings the picnic back to a more community event. Staff feels they have an opportunity to reinvigorate this event by moving it to a location that allows more activities. Staff also feels that moving to a Sunday gives more local families the opportunity to attend. It will still retain the environmental friendly aspect that it has taken on over the last couple of years. This location also gives the City an opportunity to showcase programs that highlight our environmental philosophy and mission. FINANCIALBUDGET IMPACTS: The Fourth of July Fireworks currently doesn't have a budget. This is an ACRA driven event that the City will incur expenses to facilitate. The City will partner with ARCA as they will pay for the fireworks. Unfortunately ACRA doesn't have any more funds. Staff requests approximately $15,000 to help with security, equipment, overtime and RFTA. The community picnic has a budget of $12,000 currently. The previous budgets have been used exclusively for food. The new budget we are proposing is $23,000. Due to increased food costs, materials, games and additional equipment, the picnic cost has increased by $11,000. ENVIRONMENTAL IMPACTS: The events are examples of being environmentally friendly. They are both zero waste events. The Fourth of July participants "pack out what they pack in". Both events have a transportation plan in place that closes down the golf course parking lot, to encourage mass transit use. Both events are highlighting our public transportation and trail system. RECOMMENDED ACTION: Staff recommends additional funds for both events, if that is not an option; staff recommends the fireworks get priority as it is less than two weeks away. Staff needs direction on Monday regarding the 4`h of July or staff will be unable to pull together resources for the fireworks. ALTERNATIVES: Council can decide if they want to do either or both, one or none of the proposals. Or Council can modify either proposal. Page 2 of 3 PROPOSED MOTION: I move to approve fending for the Fourth of July Fireworks and the Community Picnic. CITY MANAGER ATTACHMENTS: Page 3 of 3